text:
    ARBITRATION — AWARD—APPEAL.
    [Stark (5th) Circuit Court,
    February Term, 1902.]
    Douglass, C. J., Voorhees and Donahue, JJ.
    Daniel F. Mock v. Newton K. Bowman.
    1. AGREEMENT TO ARBITRATE, WHEN STATUTORY.
    Where parties to an action agree in writing to submit their controversies to the arbitrament of persons mutually agreed upon by them, and such submission is to be made a rule of court with mutual bonds conditioned for the faithful performance of the award, and the arbitrators are named therein, and it is further provided that the agreement of a majority of the arbitrators to the award shall be sufficient, such submission is a statutory arbitration under title 1, division 7, chapter 2, revised statutes of Ohio.
    2. The Award may be Excepted to — Set Aside, When and How.
    The award may be set aside only as provided by Sec. 5611 Rev. Stat. first, if legal defects appear in the award or other proceedings; second, if it be made to appear on oath at the term of the court at which the award and arbitration bonds are filed, that the award was obtained by fraud, corruption or other undue means, or that the arbitrators misbehaved.
    8. Same — No Appear Provided For.
    Sections 5601 to 5613 Rev. Stat., providing for statutory arbitration, do not provide for an appeal in cases where exceptions to the award are filed and overruled.
    4. Same — No Appear to Circuit Court Under Sec. 5226 Rev. Stat.
    Where an award of arbitrators is filed in the court of common pleas, and exceptions thereto are overruled, and the judgment entered upon the award, under Sec. 5611 Rev. Stat., the action is not appealable to the circuit court,’ under Sec. 5226 Rev. Stat.
    Appeal from the court of common pleas of Stark county.
    Atiee Pomerene, for motion.
    Sterling & Brancher, for defendant, cited:
    Equity suits and suits not triable to a jury are appealable. See Sec. 5226 Rev. Stat.
    This case being an ancillary proceeding, and having been referred by the court, and by agreement of the parties, is equivalent to a reference under Sec. 5210 Rev. Stat.; and an equity case, tried before a referee or master, is in all cases appealable. Lawson v. Bissell, 7 Ohio St. 129 ; Foler v. State, 16 Ohio St. 583 ; Bell v. Crawford, 25 Ohio St. 402, 409; Cincinnati v. Cameron, 33 Ohio St. 336, 356.
    Parties cannot by agreement take away the jurisdiction of the courts. Bradstreet v. Pross, 9 Re. 154 (11 Bull. 117,120); Baltimore & O. Ry. Co. v. Stankard, 56 Ohio St. 224, 232 [46 N. E. Rep. 577; 60 Am. St. Rep. 754]; Myers v. Jenkins, 63 Ohio St. 101, 120 [57 N. E. Rep. 1089]; King v. King, 29 So. Rep. 205 [104 La. 420]; Wilson v. Colwell, 3 Watts 212; 10 Gen. Dig. 872, 373; McCahan v. Reamey, 33 Pa. St. (9 Casey) 535; Wynn v. Bellas, 34 Pa. St. (10 Casey) 160; Shaw v. Hatch, 6 N. H. 162; 62 Me. 239, Skeels v. Chickering, 48 Mass. (7 Mete.) 316 ; Ward v. Bank, 48 Mass, (7 Mete.) 486 ; Harris v. Refining Co., 41 Cal. 394; Bingham v. Guthrie, 19 Pa. St. (7 Harr.) 418; Mussina v. Hertzog, 5 Binn. 387; Wrightman v. Pettis, 29 Pa. St. 283; McCracken v. Clarke, 31 Pa. St. (7 Casey) 498; 2 Enc. Law. (2.ed.) 613.
   VOORHEES, J.

This suit was originally commenced in the court of common pleas for the purpose of settling a partnership, or for the dissolution of an existing partnership, and for the settlement of the matters in dispute between the parties. Issues were joined by proper pleadings in the common pleas court. After issues were joined the parties, by agreement in writing, agreed to submit their questions in dispute to three persons named in the articles of agreement for their determination. The terms of the agreement were in substance as follows :

That there was this suit pending in the common pleas court of this Stark county, for the purpose of winding up the affairs of the late firm of N. K. Bowman & Co.; that the parties to adjust their differences entered into the agreement to arbitrate; that the arbitration was to embrace all questions and matters of difference, except as therein modified, which differences were to be submitted by the parties to the arbitration, determination and award of three persons named therein as arbitrators, who were to hear and determine the same at North Lawrence-Stark county, Ohio, beginning January 22, 1901, at nine o’clock A. M., with the right to adjourn, and to make their award in writing on or before March 22, 1901; and when so made, said award was to be final, binding, and conclusive upon the parties and shall be made a rule of the court of common pleas of Stark county, Ohio.

Said arbitrators were to make a complete inventory and appraisement of all property, real and personal, belonging to the firm, whether in the name of the firm, or the individual names of the parties. They were to make a schedule of all liabilities of the firm, hear and determine all matters in dispute, accounts and dealings between the parties, and between said N. K. Bowman & Co., and either of the parties thereto, and state the account between them. They were to deduct from the assets all the liabilities, and determine the interest in the balance of the assets belonging to each of the parties.

It was further stipulated that the defendant Bowman should take, and he obligated himself to take, the real estate belonging to the firm, located at North Lawrence, and all merchandise and machinery belonging to the firm; also all book accounts, credits and bills receivable belonging to the firm at the value placed upon the same by the arbitrators. The arbitrators were to determine which of the parties should take the real estate belonging to the firm located in the city of Massillon, and the party taking the same under the award was to take it at the value placed thereon by the arbitrators. The said Bowman should pay any and all liabilities of the firm above referred to within six months from the date of (the agreement, and he agreed to save Mock harmless from any liability thereon. If it should develop that there were any liabilities other than those contained in the schedule above provided for, then the same should be paid by Bowman, provided they are admitted by both parties to be bona fide indebtedness of the parties. If the parties could not so agree, and the matters are litigated, then said Bowman should pay the amount determined by said litigation, and said Mock agreed to reimburse Bowman for one-fourth of said liabilities together with one-fourth of the legitimate expenses incident to the litigation and adjustment of said liabilities. If it should develop that there are debts contracted for and incurred for the sole benefit of either of the parties and not for the benefit of the firm, the party so contracting and incurring the same should be charged with the amount thereof. If in the making of the award provided for it should be found there was any balance due from either party to the other, it was agreed that the one so found to be indebted to the other, should pay to such other said amount, or secure the payment thereof to the satisfaction of the parties to whom the same should be due, within thirty days from the date of said award.

It was further agreed that said. Mock, upon the making of said award, should execute and deliver to Bowman a quitclaim deed for the North Eawrence real estate; that whichever party shall be required will execute and deliver a quitclaim deed for the Massillon property to the party awarded the same.

It was agreed that the wives of the respective parties should join their husbands in the execution of any deed necessary to carry out the provisions of the contract; that the parties should execute to the other a bond, with sureties to be approved by John Eschliman, J. P., in the sum of $2,000, conditioned upon the faithful compliance with and performance of the agreement, and of carrying out and abiding by the award that shall be made by the arbitrators ; and conditioned further upon the payment of any loss or expense attended upon the failure of either party to abide the terms of the award or agreement; that the arbitrators should determine the question as to how the costs and expenses of the proceeding shall be paid; that should the arbitrators be unable to agree unanimously upon any matters provided to be submitted to them, then the opinion of any two of them should prevail; that the articles of agreement should be in force and binding from the signing of the same, and the execution and delivery of the bonds therein provided for, and at said date said agreement shall be made a rule of the court of common pleas as therein set forth.

These are substantially the terms of the agreement entered int© between these parties.

In pursuance of the agreement the cause proceeded to a hearing before the designated arbitrators, as therein provided for, and a result was reached by them and filed, as contemplated, in the court of common pleas.

After the award was so returned, exceptions were filed thereto by-defendant Bowman.

The exceptions, among other grounds, contained the statutory grounds under Sec. 5611 Rev. Stat.:

That the award appears on its face to be erroneous.

That the award was obtained by fraud.

The exceptions were heard in the common pleas court, and overruled, and judgment was entered upon the award in said court.

To the finding of the court, in overruling the exceptions, and entering judgment, the defendant appealed to the circuit court. A motion is made to dismiss the appeal on the ground that the case is not appeal-able, and, therefore, this court has no jurisdiction over the subject matter or the parties. This is the only question before us for determination.

The suit being one for the settlement of partnership matters, or, in other words, an equitable action, neither party was entitled to trial by jury.

The differences and disputes between the parties were made up by pleadings in the court of common pleas; and at that stage of the proceedings the parties entered into an agreement to arbitrate,- the substance of which has been given.

The first question that is presented is, whether the agreement to arbitrate is one under the statute providing for arbitration, title 1, division 7, chapter 2, revised statutes of Ohio, and being Secs. 5601 to 5613 inclusive, or it is merely a common law arbitration.

It is to be observed that the agreement contemplates and fixes the time and place of trial, the. arbitrators are named, the result that they, or a majority of them, arrive at is to be made a rule of court, and the time for the commencement and the ending of the investigation are fixed by the agreement or contract; that the parties shall give to each other a bond for the faithful carrying out of the award that might be rendered in the cause.

With these terms, conditions and provisions in the contract, is the arbitration one under the statute, or is it an arbitration at common law ?

There is one further element or feature that should be noticed reflecting on the question as to its being a statutory arbitration or otherwise.

Section 1 of the statute providing for arbitration, Sec. 5601 Rev. Stat., provides that “all persons who have any controversy, except when the possession or title of real estate may come in question, may submit such controversy to the arbitrament or umpirage of any person or persons, to be mutually agreed upon by the parties, and they may make such submission a rule of any court of record in the state.” .

If the possession or title to real estate is in controversy between the parties, these questions cannot be submitted to arbitration, being excepted in the statute.

Is the possession or the title to real estate in controversy between these parties ? It is agreed between them that the North Lawrence property is to be taken by defendant Bowman. No question about its possession or title is involved. There is real estate also in the city of Massillon, but there is no dispute or controversy about the possession or title of this property; who is to take it is to be determined by the arbitrators. The submission, therefore, is not one involving the possession or title of real estate, and not in violation of Sec. 5601 Rev. Stat.

It is contended by counsel for defendant Bowman, that as the parties had joined issue by pleadings in the court of common pleas this fact affects the question as to their right to arbitrate or submit their controversies to arbitration. If disputes exist between parties it can make no difference whether their differences are made up by pleadings, or whether there are no pleadings, so far as their right to submit their differences to arbitration is concerned. If they give bond as contemp!ated by the statute, by naming the arbitrators therein, such difference may be submitted to arbitration.

Our conclusion is that the fact issues were made up by pleadings in the common pleas court furnishes no objection or reason why the parties could not legally submit their disputes to arbitration under the statute.

The statute is broad in its provisions. All persons who have any controversy, except as to the possession or title to real estate, may submit to arbitration, and agree that it should be made a rule of court in any court of record in the state.

We hold, therefore, that because this is an equitable action and the issues were joined by pleadings, these facts do not destroy or take away the right to arbitrate under the statute. And although real estate is a part of the assets of the contending parties, yet, as neither the possession or title to the real estate is in dispute, arbitration may be had.

The bonds executed by the "respective parties under the agreement contain the name of the arbitrators and are in conformity to the provi. sions of Sec. 5602 Rev. Stat. The agreement further provided that a majority of the arbitrators in fixing the award should be sufficient. This could not be the case if the arbitration were a common law arbitration; but under the statute, Sec. 5607 Rev. Stat., a majority is sufficient.

Our conclusion is that the arbitration or submission under the agreement in this case substantially complies with the statute, and, therefore, is a statutory arbitration. The statute of arbitration is a remedial statute, and being of that nature it is to be liberally construed. Springfield v. Walker, 42 Ohio St. 543.

The submission being one under the statute, and the award having been returned to the common pleas court, how if at all, can the award be attacked ?

Section 5611 Rev Stat. provides that the award may be attacked: 1. When it appears on its face to be erroneous. 2. When it was obtained by fraud.

Exceptions were taken to the award by defendant on these, as well as other grounds. The exceptions were all overruled and judgment was entered on the award. From this judgment the defendant appeals to the circuit court.

Does an appeal lie in such a case ? This is the important question for our determination. Where an award of arbitrators is filed in the court of common pleas, exceptions thereto overruled, and judgment upon the award, under Secs. 5608, 5612 Rev. Stat., the case is not appealable to the district court under Sec. 5226 Rev. Stat.” Moore v. Boyer, 42 Ohio St. 312. We think this case is decisive of the questions we have here.

Arbitrators are constituted by the parties, under a statutory submission, chancellors, judges and jurors, having jurisdiction of the law and facts. Ormsby v. Bakewell, 7 Ohio (pt. 1), 98, 99, 113; Moore v. Boyer, supra.

Where jurisdiction is conferred by statute, as in this case, in matters submitted to arbitration, and no method is prescribed for bringing a case before an appellate court, the court is powerless to prescribe any method by rules and regulations either in matters of appeal or matters of error

It has been held by many authorities that conferring jurisdiction upon an appellate court, without prescribing any mode of bringing the action into the court, is in effect denying the jurisdiction or the court. State v. Hanousek, 10 Circ. Dec. 516 (19 R. 303) ; Springfield v. Walker, 42 Ohio St. 543.

The statute regulating trials by arbitration makes no provision for bringing a case into the circuit court by appeal, but does prescribe a remedy and the only one by attacking the award : That it is erroneous, or was obtained by fraud, collusion or misbehavior of the arbitrators ; but if these grounds are overruled by the court to which the award is returned, the only way to review the holdings of the court, if at all, would be by proceedings in error. Whether error will lie in such case is not before' us, and we do not decide that question.

We hold that the case is not appealable, and the motion to dismiss the appeal is sustained.

Motion sustained.


source: Caselaw Access Project

author: COOK, J.

license: Public Domain

text:
    INSURANCE.
    [Harrison (7th) Circuit Court,
    May Term, 1902.]
    Burrows, Laubie and Cook, JJ.
    Connecticut Fire Insurance Co. v. J. Lyle Clark, Receiver of Clark Bro.
    1. Iron Safe Clause in Policy of Insurance.
    Under the “ iron safe clause” of a policy of insurance issued upon a stock oí merchandise in a country store, which provides “ that the insured shall keep a set of books showing a complete record of the business transacted, including all purchases and sales both for cash and credit during the life of the policy; ” if the books kept by the insured would fairly show a man of ordinary intelligence all purchases and sales both for cash and credit, such books satisfy the provision of the policy.
    2. Special Verdict Cures Error in Charge.
    A judgment will not be reversed on account of an erroneous charge to the jury, where it appears from the special verdict that such charge was not prejudicial.
    Heard on Error.
    Mooney and McCoy, for plaintiff in error.
    Hollingsworth and Cunningham, for defendant in error.
   COOK, J.

Defendant in error recovered a judgment in the court of common pleas against plaintiff in error upon a policy of insurance for loss sustained upon a stock of merchandise caused by fire. The principal controversy below, and also in this court, is upon the provision of the policy known as the “ iron safe clause; ” the provision being as follows :

“ The insured in this policy hereby covenants and agrees to take an inventory of the stock covered by the policy at least once every twelve months during the life of this policy and unless such inventory has been taken within one year prior to the date of the issuing of this policy, one shall be taken in detáil within thirty days thereafter; and the insured further covenants and agrees to keep a set of books showing a complete record of the business transacted, including all purchases and sales both for cash and credit during the life of the policy; keeping them securely locked in a fire proof safe at night and at times when the store mentioned in this policy is not actually open for business, or in some secure place not exposed to fire which would destroy the building, where the business is carried on; and that in case of loss the insured is to produce said books and inventory, and in the event of failure of the insured to produce the same the policy shall be null and void.”

It is claimed that the books kept were not such as were required by this provision of the policy. Counsel insist that there must be a strict compliance with the conditions: “ That the books must show a complete record of the business transacted,” and that the insurance company is entitled to a literal interpretation of the words of the policy.

Policies of insurance should be construed as other written contracts. Reasonable interpretation is all that is required. In Turley v. Fire Ins. Co., 25 Wend. 374, 377, Nelson, C. J., in referring to a condition of a policy of insurance requiring the insured, if damage by fire was sustained, to procure a certificate under the hand and seal of the magistrate or notary public most contiguous to the place of the fire, setting forth certain facts in regard to the fire and the insured, said :

“ This clause of the contract of insurance is to receive a reasonable interpretation; its intent and substance as derived from the language used should be regarded. There is no more reason for claiming a strict literal compliance with its terms than in ordinary contracts. Full legal effect should always be given to it, fpr the purpose of guarding the company against fraud or imposition. Beyond this, we would be sacrificing substance to form — following words rather than ideas.”

In the case of the Liverpool & L. & G. Ins. Co. v. Kearney, 180 U. S. 136 [21 Sup. Ct. Rep. 326], Justice Harlan, in delivering the opinion of the court, says:

“ Turning now to the words of the policies in suit, what is the better and more reasonable interpretation of those provisions so far as they relate to the issues in this case ?
“ The covenant and agreement ‘to keep a set of books showing a complete record of business transacted, including all purchases and sales, both for cash and credit, together with, the last inventory of said business,’ should not be construed to mean such books as would be kept by an expert bookkeeper or accountant in a large business house in a great city. That provision is satisfied if the books kept were such as would fairly show a man of ordinary intelligence all purchases and sales both for cash and credit.”

The policy issued to Clark Brothers, as far as the personal property was concerned, was upon a stock of merchandise in a country store situated in a small village. The books kept, it is true, were not very methodical. There was, however, the inventory book, showing the inventory taken within a year; and a book showing all sales, both for cash and upon credit. Some goods were exchanged for produce, but the amount of such exchange and its effect upon the stock purchased could be ascertained with reasonable certainty from the sales book. There was an invoice book. True, the invoices were not all copied in the book, some original invoices being pasted in the book without copying. A large number were not pasted in the book at the time of the fire, but were placed in afterwards, they being kept in the safe. There was no claim that there was any fraud or that any, invoices were placed in the book for goods not actually purchased since the inventory made in January previously.

We, therefore, are of opinion that the books kept were such as would fairly show to a man of ordinary intelligence the business transacted ; the stock on hand in January and the purchases and sales, both for cash and credit subsequently made.

The other question made is upon the charge of the court. The court submitted the question to the jury as to whether or not the books kept by Clark Brothers were in accordance with the iron safe clause of the policy, and properly so submitted the question. It was a question of fact to be determined by the jury, under proper instructions of the court as to what would be a compliance with this provision.

The averment of the petition was that plaintiff had duly kept and performed all the conditions of the policy, except as to furnishing proofs of loss, and that that condition had been waived by the insurance company.

In the charge the court, inadvertently, no doubt, stated to the jury that it was necessary for the plaintiff to satisfy the jury by a preponderance of the evidence that they had kept the necessary books and also furnished the necessary proofs of loss, unless they should find the company had waived the same. There being no allegation in the pleadings that the company had waived the keeping of the necessary books under the iron safe clause, and no proof of any waiver, that part of the charge was clearly erroneous and would be fatal to the judgment, provided it was prejudicial.

Special interrogatories were submitted to the jury at the request of defendant below, one of the interrogatories being as follows:

“ Were the requirements of the iron safe clause in the policy complied with ? w

The jury answered:

“They were.”

The question was direct, specific and certain; not were the provisions complied with or waived, but were the necessary books kept and preservedand the answer was:

“ They were.”

The error of the court in the charge could, therefore, have no effect upon the jury, and plaintiff in error was in no manner prejudiced.

In the case of Chase v. Brundage, 58 Ohio St. 517 [51 N. E. Rep. 31], the court held:

“ It is the province of the jury and not of the court, to determine whether there was such agreement, which must be done from all the evidence; but error in the failure to submit that question to the jury by the general charge of the court or refusal to charge, is cured, where it is submitted at the request of a party by interrogatories calling ior a special finding of the fact, and is determined by such special finding returned by the jury, consistent with the general verdict.”

On page 526, Williams, J., says:

“ The special findings are consistent with the general verdict, and cured the error in the general charge of the court, and in its refusal of the instruction requested. They find the essential facts which fix the legal rights of the parties, and cover the questions that the plaintiff desired to have submitted to the jury by the instructions which were refused.”

Applying the same principle to this case the error was not prejudicial. The judgment will be affirmed.


author: VOORHEES and DONAHUE, JJ.

text:
    SECRET SOCIETIES.
    [Richland (5th) Circuit Court,
    1902.]
    Voorhees and Donahue, JJ.
    John H. Coss v. Mansfield Lodge No. 56, B. & P. O. E., and Geo. W. Herring, Treas.
    1. Equity will not Interfere with Lawful Management of Corporations and Societies.'
    A court of equity will not interfere with the management of a corporation or society, unless the managing officers or stockholders are acting in excess of their corporate power or there is fraud or collusion on the part of the managing officers or of a majority of the stockholders.

      2. Defective Petition foe Injunction Against Seceet Society.
    An injunction will not lie against a lodge and its treasurer to enjoin the allowance and payment of a bill unless the petition affirmatively states that the plaintiff has exhausted all the remedies provided by the constitution and bylaws of such society, and an averment that, “plaintiff has done all he could on the floor of said lodge in a parliamentary way to prevent the allowance and payment of said bill, is not sufficient.
    At Chambers. Hearing on motion for temporary injunction.
    This is an action brought by John H. Coss against Mansfield Lodge No. 56, of the Benevolent and Protective Order of Elks, a corporation, and Geo. W. Herring, its treasurer, to enjoin the lodge from the payment of the expenses of George A. Clugston as representative delegate to the grand lodge, upon the ground that he was illegally elected. The petition, after alleging the incorporation and object of the order and the membership of plaintiff, says : “That said lodge is a subordinate lodge, and as such is a constituent part of the grand lodge of the Benevolent and Protective Order of Elks of America, which grand lodge is the source of said subordinate lodge’s authority, and the highest and most authoritative body of the organization, which grand body is composed principally of representative delegates elected by subordinate lodges authorized to be elected by virtue of the laws of the said grand lodge, which elections take place in each subordinate lodge at its last regular session in March of each year; that at the election of said Mansfield lodge on March 25,1902, said George A. Clugston was declared elected wrongfully by a majority of said lodge, and thereupon objections and exceptions were taken to such wrongful proceedings touching his eligibility on the floor of said lodge in open lodge in due parliamentary form.
    “ The cause was duly appealed to the district deputy grand exalted ruler having jurisdiction in the premises, for his review and opinion on the case, by which said Clugston was declared ineligible to be elected to said office of representative at the time of said election, and the same declared null and void. Said case was then appealed to the grand exalted ruler, and referred to the proper grand lodge committee of the grand lodge for review, and to report findings to that body. Said grand exalted ruler nor said committee have not as yet made their respective reports either reversing or confirming said decision so handed down by the district deputy grand exalted ruler, and the cause is still pending undisposed of, and cannot be finally disposed of until the meeting of the grand lodge in July 24, 1908.
    “ The by-laws of said Mansfield lodge No. 56 provide for the payment of the ‘ actual expenses ’ to be paid to its representative delegate grand lodge, and said Clugston, as pretended representative delegate, has presented his bill for alleged ‘ actual expenses ’ as alleged representative in the sum of $130.65, and said lodge is about to allow and pay same as such to him, before said cause has been finally adjudicated, and before it is determined whether or not he is the representative, and while said cause is still pending undecided, of all of which said lodge and defendants have had notice.
    “ Plaintiff has done all he could do on the floor of said lodge in a parliamentary way to prevent the allowance and payment of said order and the payment of said bill.
    “ Unless the said lodge and said treasurer, defendants, are restrained from so doing, said alleged expenses in said sum will be paid to said Clugston wrongfully and illegally, and said lodge will suffer great and irreparable injury, damage and loss thereby, he being insolvent as to having sufficient tangible property not exempt from execution unincumbered, subject to reimbursing said lodge were he declared in said final decision of said pending case to be not the representative as aforesaid.
    “ Wherefore, plaintiff prays that said defendants and each of them be restrained and enjoined from paying over said money, until after the decision aforesaid, and if he be declared to be not the representative, that the order be made perpetual, and for such other relief as may be proper and just.”
    Kerr & La Dow, for plaintiff.
    W. F. Voegele, and Cummings, McBride & Wolfe, for defendant, cited.
    Upon the question when injunction will be granted to corporate stockholders to prevent some corporate act. Section 5572 Rev. Stat.; Clark Corp. 890, 393, 395 ; Dudley v. High School, 72 Ky". (9 Bush) 576.
    Necessary parties defendant. 10 Enc. PI. & Pr. 912; Hoppock v. Chambers, 56 N. W. Rep. 86 [96 Mich. 509],
    Allegation that defendant in injunction is proceeding without authority of law and that the acts complained of are being performed unlawfully are insufficient. That an act is wrongful or unlawful is usually a conclusion of law. The facts logically showing that an act or acts are unlawful should be stated. 10 Enc. PI. & Pr. 928; Sim v. Hurst, 44 Ind. 579.
    In a suit for injunction the bill must allege, and it must appear affirmatively from the facts set forth, that injury will be sustained by the plaintiff in consequence of the acts apprehended, and the injury must be a substantial one and not merely a technical wrong entitling the plaintiff to nominal damages only. 10 Enc. PI. & Pr. 950; People v. Canal Board, 55 N. Y. 390.
    There is no averment in the petition that the lodge is insolvent, but there is an averment that the supposed recipient of the money has no visible property exempt from execution. That is not a sufficient averment. 10 Rnc. PI. & Pr. 960; Connery v. Swift, 9 Nev. 39.
    Power of expulsion, etc., in benevolent society. Hershiser v. Williams, 11 Re. 76 (24 Bull. 314); Hershiser v. Williams, 3 Circ Dec. 389 -(6 R. 147); Kent v. Beneficial Assn., 9 Re. 522 (14 Bull. 237); State v. Knights of Golden Rule, 9 Re. 1 (10 Bull. 2).
   VOORHEES and DONAHUE, JJ.

The motion for temporary injunction is overruled. The petition does not affirmatively state that plaintiff has exhausted all remedy open to him in the order, and the averment that “plaintiff has done all he could do on the floor of said lodge in a parliamentary way to prevent the allowance and payment of said bill,” is not sufficient for this purpose. If a court of equity has a right to interfere at all, clearly it cannot do so until the plaintiff has exhausted all the remedy provided by the by-laws and constitution of such society, and in the absence of such averment the petition does not show any necessity for the interference of the court; neither will a court of equity interfere with the management of a corporation or of a society, unless the managing officers or •stockholders are acting in excess of their corporate power, unless the petition avers collusion or fraud on the part of the managing agent or of a majority of the stockholders. This petition contains no such averment, and in the absence of such averment the court will not interfere •to restrain the discretion of the managing agent or stockholders in the absence of fraud or collusion, no matter how clearly it may appear that they are mistaken as to the best course to pursue.

In this case the act of payment is clearly not ultra vires, as the petition says that the by-laws provide for the payment of such expenses. The question as to who is entitled to receive such expenses is merely one of •j udgment and discretion, and so long as such judgment and discretion is exercised in good faith, and, so far as this petition is concerned, such is the case, a court will not interfere by injunction to direct what such society shall or shall not do.

These considerations dispose of the matter. We have not gone further into the consideration of the right of plaintiff to bring this action, or whether or not he should have brought it in his own name on behalf of the lodge, or on behalf of all others similarly situated.


author: HAYNES, J.

text:
    BUILDING AND LOAN ASSOCIATIONS.
    [Lucas (6th) Circuit Court,
    1902.]
    Haynes, Parker and Hull, TJ.
    Haskel A. Spies et al. v. Southern Ohio Loan & Trust Co.
    1. Imposition by Building and Loan Association op Certain Fines, Dues and Premium not Usury.
    Premiums of 16J cents per mouth on each $100 share, and fines of ten cents per month during default of dues of fifty cents per month on each such share, imposed by a building and loan association upon a borrowing member in addition to six per cent, interest upon his loan, are not in the nature of usury or unreasonable in amount.
    2. Section 3836-3 Rev. Stat., Constitutional.
    Section 3836-3 Rev. Stat., in exempting building and loan associations from the operation of the usury laws, is not in violation of Secs. 1 and 2, Art. 1 iof the constitution. Mykrantz v. Globe Building & Loan Association, 10 Circ. Dec. 250 (19 R. 51), overruled.
    Heard on Error.
    Herbert Orr, for plaintiff in error, cited:
    Where the subscription to stock is merely a colorable compliance with the statute, the whole transaction is usurious. Falls v. Savings, L. & Bldg. Co., 13 So. Rep. 25, 29 [97 Ala. 417; 24 L. R. A. 174; 38 Am. St. Rep. 194]; Fidelity Sav. Assn. v. Shea, 55 Pac. Rep. 1022. (Idaho); Mutual Ben. L. & Bldg. Co. v. Lynch, 63 N.. Y. Supp. 835 [30 Misc. 499],
    • The amount imposed by way of fines must be reasonable. Hagerman v. Building & Sav. Assn., 25 Ohio St. 187, 201.
    Fines cannot be imposed for failure to pay interest. Forest City U. L. & B. Assn. v. Gallagher, 25 Ohio St. 208.
    Ten cents a month as a fine is unreasonable. Vierling v. Savings, L. & Bldg. Assn., 53 N. E. Rep. 979 [179 111. 524].
    Non-competitive bidding. State v. Building' & Sav. Assn., 29 Ohio St. 92, passed before statute amended is contrary to the legitimate scheme of building and loan associations. Western L. & Sav. Co. v. Houston, 65 Pac. Rep. 611 [38 Ore. 377]; Mechanics & W. M. Mut. Sav. Bk. & Bldg. Assn. v. Wilcox, 24 Conn. 147; Sokoloski v. Building & L. Assn., 26 So; Rep. 361 [77 Miss. 155], '
    Such transactions - are to be distinguished from those of legitimate associations, and are usurious. Western L. & Sav. Co. v. Houston, 65 Pac. Rep. 611 [38 Ore. 377]; Mechanics & W. M. Mut. Sav. Bank & Bldg. Assn, v, Wilcox, 24 Conn. 147; Sokoloski v. Building & L. Assn., 26 So. Rep. 361 [77 Miss. 155]; Endlich Bldg. Assns., Sec. 390.

      Such statutes as are now under consideration afe usurious. Mykrantz v. Building & L. Assn., 10 Circ. Dec. 250 (19 R. 51); Gordon v. Building & A. F. Assn., 75 Ky. (12 Bush) 110; Simpson v. Building & R. Assn., 41 S. W. Rep. 570, 574 [42 S. W. Rep. 834; 101 Ky. 496]; Association v. Uhler, 48 Md. 455 ; Rowland v. Building & R. Assn., 22 S. E. Rep. 8 [116 N. C. 877]; James v. James, 55 S. W. Rep. 193 [21 Ky. Raw 1401]; Meroney v. Building & R. Assn., 21 S. E. Rep. 924, 933 [116 N. C. 882]; Mechanics’ & W. M. Mut. Sav. Bk. & Bldg. Assn. v. Wilcox, 24 Conn. 147 ; Sokoloski v. Building & R. Assn., 26 So. Rep. 361 [77 Miss. 155]; Western R. & Sav. Co. v. Houston, 65 Pac. Rep. 611 [38 Ore. 377].
    Where the transaction is usurious, all payments, whether made as premiums, dues, fines, or assessments, must be credited on the principal. Western R. & Sav. Co. v. Houston, 65 Pac. Rep. 611 [38 Ore. 377]; Hale v. Stenger, 63 Pac. Rep. 554 [22 Wash. 699]; Hale v. Barker, 62 Pac. Rep. 168 [129 Cal. 419]; Stevens v. Savings & R. Assn., 51 Pac. Rep. 986 (Idaho); Fidelity Sav. Assn. v. Shea, 55 Pac. Rep. 1022 (Idaho) ; Gray v. Building & R. Assn., 37 S. E. Rep. 533 [48 W. Va. 1G4]; Sokoloski v. Building & R. Assn., 26 So. Rep. 361 [77 Miss. 155]; White v. Williams, 45 Atl. Rep. 1001 [90 Md. 719]; Johnson v. Bush, 65 S. W. Rep. 158 (Ky.); Pacific Bldg. Co. v. Hill, 67 Pac. Rep. 103 (Ore.); Hollowell v. Building & R. Assn., 26 S. E. Rep. 781 [120 N. C. 286]; Meroney v. Building & R. Assn., 21 S. E. Rep. 924 [116 N. C. 882]; Miller v. Insurance Co., 24 S. E. Rep. 484 [118 N. C. 612] ; National Bldg. & R. Assn, v. Glover, 58 S. W. Rep. 418 [22 Ky. Raw 535]; Strauss v. Building & R. Assn., 23 S. E. Rep. 450 [117 N. C. 308 ; 30 R. R. A. 693; 53 Am. St. Rep. 585].
    Orville S. Brumback, for defendant in error, cited :
    Upon the constitutionality of the building and loan statutes of Ohio (Section 3836 Rev. Stat. et seq.; 88 O. R. 469), and especially of that portion of Sec. 3 of the act which confers power upon building and loan associations as follows : “ To assess and collect from members and depositors such dues, fines, interest and premium on loans made, or, other assessments, as may be provided for in the constitution and bylaws. Such dues, fines, premiums or other assessments shall not be deemed usury, although in excess of the legal rate of interest.” Mykrantz v. Building & R. Assn., 10 Circ. Dec. 250 (19 R. 51); Insurance Co. v. Carpenter, 40 Ohio St. 260; Ra Dow v. Bank, 51 Ohio St. 234 [37 N. E. Rep. 11]; McRaughlin v. Building, R. & S. Assn., 62 Ind. 264; Security S. & R. Assn. v. Albert, 54 N. E. Rep. 753 [153 Ind. 198]; Juniata B. & R. Assn. v. Mixwell, 84 Pa. St. 313 ; 4 Ency. Raw., 1067; Montgomery Bldg. Assn. v. Robison, 69 Ala. 413; West Winstead Sav. Bk. & Bldg. Assn. v. Ford, 27 Conn. 282 [71 Am. Dec. 66]; West Winstead Sav. Bk. & Bldg. Assn. v. Rice, 27 Com. 293; Concordia S. & A. Assn. v. Read, 93 N. Y. 474 ; Sweeney v. Building & R. Assn., 26 S. W. Rep. 290; Blakely v. Building & R. Assn.. 26 S. W. Rep. 292 4 Ency. Raw 1073; Security Roan Co. v. Rake, 69 Ala. 456; Vermont R. & T\ Co. v. Whithed, 49 N. W. Rep. 318 [2 N. Dak. 82]; Holmes v. Smythe, 100 111. 413; Freeman v. Building, H. & S. Assn., 28 N. E. Rep. 611 [114 111. 182]; Winget v. Building & H. Assn., 21 N. E. Rep. 12 [128 111. 67]; People’s S. & R. Assn. v. Roberts, 5 Dec. 489 (5 N. P. 86); Bedford v. Building & R. Assn., 181 U. S. 227 [21 Sup. Ct. Rep. 597]; Manship v. Building & R. Assn., 110 Fed. Rep. 845; Bates v. Savings & R. Assn., 42 Ohio St. 655; Ra Dow v. Bank, 51 Ohio St. 234 [37 N. E. Rep. 11]; Insurance Co. v. Carpenter, 40 Ohio St. 260; Clarksville B. & R. Assn, v. Stephens, 26 N. J. Eq. 351; Interstate B. & R. Assn. v. Brown, 29 So. Rep. 656 [128 Ala. 462]; Hagerman v. Building & Sav. A^sn., 25 Ohio St. 186; Risk v. Building & Sav. Assn., 31 Ohio St. 517, 519; Pfister v. Association, 19 W. Va. 676; McGannon v. Building Assn., 19 W. Va. 726; Parker v. Butcher, 3 R. R. Eq. 762; 16 R. J. Ch. 552; Middleborough, In re, 54 R. J. Ch. Div. 592; Voisey, Ex parte, 52 R. J. Ch. Div. 121; Ricks v. Building & R. Assn., 18 So. Rep. 359 (Miss.).
    The Southern Ohio Roan & Trust Company, a building and loan association organized under the laws of the state of Ohio, brought suit against Haskel A. Spies et al., to foreclose its mortgage executed by said Spies and wife to said company on or about February 7, 1900. The said mortgage was given to secure a contract obligation of said Spies, by the terms of which he agreed to repay to the company the sum of $1,000, advanced to him on his stock for that amount in the company, and also to secure the payment of interest, premium, fines and other charges, which might be levied and assessed against Spies by the company. Default was alleged by the plaintiff in the payment of the premiums, interest and fines, by reason of which plaintiff prayed for judgment against Spies in the sum of $1,000 principal Indebtedness, $17.71 interest and premium, and $3 fines; and plaintiff'further alleged that there would become due and payable from and after July 13, 1900, fifty cents per month as dues on each $100 share of stock, also interest at the rate of six per cent, per annum, premiums at the rate of 16§ cents per month on each share¡ and fines at the rate of ten cents per month on each share, so long as defendant was in default for payments.
    Counsel for Spies claimed in defense that the fines were unreasonable, and set up the unconstitutionality of the Ohio statute (Sec. 3836-3 Rev. Stat.) under which building and loan companies assume to collect premiums without competitive bidding on the amount of premiums to be paid by the borrowing members.
    Judge Pugsley, of the Tucas county common pleas court, sustained the constitutionality of the statute and entered judgment for the full amount claimed.
   HAYNES, J.

In this case suit was brought to foreclose a mortgage upon a loan made by the defendant company, which is an incorporated building and loan association, of the city of Cincinnati. A judgment was taken for the full amount prayed. The case is brought up on error raising questions as to whether certain payments made by way of premiums and fines charged by the company are in the nature of usury; and whether the law of Ohio regulating these companies is unconstitutional. The case of Mykrantz v. Building and Loan Assn., 10 Circ. Dec. 250 (19 R. 51), has been cited by plaintiff in error. We have not time to discuss this case at length, but we have investigated this matter fully and carefully under the decisions of the Supreme Court, and are satisfied that the decisions of the Supreme Court are in favor of the companies. We have heretofore sustained cases in which the building and loan association law has been held constitutional; and now sustain these charges in this case as being reasonable under a constitutional law.

The judgment of the court of common pleas will be affirmed.


author: SWING, P. J.

text:
    STREETS — GRADE.
    [Hamilton (1st) Circuit Court,
    December 21, 1901.]
    Smith, Swing and Giffen, JJ.
    Elizabeth Ross v. Cincinnati.
    L Runa as to Inprovbments and Change of Grade.
    When the grade of a street is established either by ordinance or by improvement or nser for a long time, the abutting owner has the right to make improvements on bis property in accordance with the grade so established, but where no grade has been established in either of the methods stated, be is not entitled to damages for injuries to his property by reason of change of grade after the property is improved, unless the municipality establishes an unreasonable grade.
    2. Reasonable Grade — Dedication Carries Right of Lateral Support.
    Where land is dedicated by the owner for a street, the dedication carries with it the right to improve the street to a reasonable grade; and where the street is so improved the property owner has no right to recover damages for lateral support when a cut is made, such right having been granted by the dedication.
    Heard on Error.

      Frederick Hertenstein, for plaintiff in error.
    Charles J. Hunt and Frank H. Hunkel, for defendant in error, cited:
    If the nature and extent of the improvements and uses of the street or alley have not been so indicated or defined by the city or village, abutting proprietors must, at their own peril, improve their lots with reference to such future uses or changes in the streets as may be made and adopted by the city or village while acting within the scope of its mur cipal authority. Crawford v. Delaware, 7 Ohio St. 459, 460; Cincinnati v. Penny, 21 Ohio St. 499 [8 Am. Rep. 73],
    In the question of the right of recovery for a change of grade. Akron v. Chamberlain Co., 34 Ohio St. 328 [32 Am. Rep. 362] ; Neubert v. Toledo, 6 Circ. Dec. 66 (9 R. 462); McGee v. Avondale, 1 Dec. 379 (31 Bull. 163); Dima v. McBride, 34 Ohio St. 338, 346 ; Smith v. Commissioners, 50 Ohio St. 628, 633 [35 N. E. Rep. 769; 40 Am.St. Rep. 699]; Columbus v. Bidlingmeier, 3 Circ. Dec. 698 (7 R. 136, 138); Redfield Railways, p. 152; Tenney v. Cincinnati, 24 O. C. C. 000; Cincinnati & S. G. A. Ry. Co. v. Cumminsville, 14 Ohio St. 547; Randolph Eminent Domain, 414; Hatch v. Railway Co., 18 Ohio St. 92; Van Ripper v. Essex Public Road, 38 N. J. D. 23; Chambers v. South Chester, 21 Atl. Rep. 409 [140 Pa. St. 510, 522]; Pittsburgh, etc. R. R. Co. v. McCloskey, 1 Atl. Rep. 555 [110 Pa. St. 436]; Ely v. Rochester, 26 Barb. 133; Portland v. ELamm, 10 Ore., 383.
   SWING, P. J.

(Orally.)

The case of Ross against the city of Cincinnati is a case in this court on error to the judgment of the court of common pleas. The city of Cincinnati brought an action in the court of common pleas for the purpose of ascertaining the amount of damages which property owners might have by reason of the improvement of an avenue in the western portion of Cincinnati, called Ross avenue.

In that proceeding the plaintiff here, Elizabeth R. Ross, filed her claim for damages by reason of this improvement. The facts are as follows : In 1853 this avenue was dedicated to the city by the plaintiff.. Also, in 1883 she rededicated it at the time she subdivided her property, I believe, into lots.

In 1879 the city of Cincinnati passed an ordinance fixing the grade of this street, and this improvement is to be made in accordance with that established grade. No improvement of the avenue had ever been made by anyone; neither the city nor the people owning property abutting upon this avenue had improved it, but it was used as a means of ingress and egress by the people living along it, and the public also used it as far as their necessities required for the purpose of going to and from the premises abutting on it, ,

Now it is claimed by Mrs. Ross that she is entitled to damages, and she subdivides the loss into three heads, owing to the different location of the property as it abutted upon the avenue.

Near the house abutting on a portion of the avenue, and in front of the house, the improvement contemplated a cut of some four or five feet in front of her premises; west of the house was another tract of land about two hundred feet, I believe, in extent, where it required a fill of some four or five feet, and the improvement as contemplated by the city would place upon her property the burden of maintaining this fill, or a portion of it; therefore the city would require an easement for the support of that earth to make the proper width. Still further west, some two or three hundred feet, the improvement requires a cutting of the ground to the extent of three feet at one end and twelve feet at the other.

The jury found in answer to special interrogatories the damage to the property where the fill was required, two hundred dollars; and they further found that if Mrs. Ross was entitled to any damage by reason of the cut on the western portion of her land that she would-be entitled to recover four hundred dollars — that would be the amount of the damage ; and I believe a similar amount for the cut in front of her house where the improvement was made.

The city admits its liability for two hundred dollars for the portion of the property where the fill was made.

The jury found that the grade as established by the city was a reasonable grade.

What are the rights of the parties? The court found that Mr. Ross was entitled to two hundred dollars, but found against her as to the other claims.

It sems to us the law is very well settled in Ohio by a great many decisions in our Supreme Court, and also b.y other courts of the state, especially this court, and that it is to this effect: That wherever there has been a grade established, either by ordinance or by improvement or user for a long time, that the property owner has a right to make improvements in accordance with the grade as established either by ordinance or by user; but if there has been no established grade, either by ordinance or by user, the property owner is not entitled to any damages unless the grade which the city establishes is an unreasonable grade.

There was no grade established at this place by user or by ordinance except the ordinance of 1879, and these improvements were made in accordance with that grade.

No work had ever been done upon this property, no grade had ever been established, and it could not be said that any improvements made under these conditions would be saved from the general provision t hat a party making improvements builds with reference to a reason;ible grade. So we do not see upon what theory the plaintiff may recover for the improvements that she made on the property when the grade as now fixed is found to be a reasonable grade, and no exception was taken, or no question is made as to that. She was bound to make her improvement with reference to a reasonable grade, which the city subsequently established.

It is claimed that while that may be true, as to the improvements that she made, still Mrs. Ross is entitled to damages by reason of cutting her unimproved property at the western portion where the cut would be from three to twelve feet; that she is entited to lateral support.

We think that the doctrine of lateral support has no application to the facts in this case. Mrs. Ross dedicated this property for a street. She dedicated with that everything that was necessary to make a street in accordance with the reasonable grade that might be established by the city. The dedication would amount to very little if she simply dedicated the surface of the ground, and if the city would be powerless after that dedication to go on and make a street in accordance with a reasonable grade, she would still retain them tn her certain rights to that street. That is entirely inconsistent, we think, with her dedication. It would be the same if the city had appropriated the property for a street. As we held in the case of Tenney v. Cincinnati, 24 O. C. C. 000, whatever damages the party is entitled to at the time of the appropriation by reason of the cut or taking away of lateral support must be determined in that action; and if that can be determined in the action and should be determined at the time the appropriation is made, the dedication by the party would certainly be as full as the appropriation, and if she gave it she could not turn around afterward and sue the city to recover back that which she had already given. And we have found, as I say, that she by her dedication gave so much of that property as was necessary to make a reasonable grade. If the city had gone beyond a reasonable grade, then under the laws of our states she would have her action for that additional right of property that she had not parted with, because under our laws she is only supposed to grant the right to a street of a reasonable grade.

The judgment of the court will therefore be affirmed.


author: DAY, J. PRICE, J.,

text:
    DECEASED INSOLVENT DEBTORS.
    [Seneca (3d) Circuit Court,
    December Term, 1899.]
    Price, Day and Norris, JJ.

      Charles Lauer et al. v. Mary B. Smith, Admx.
    L The Remedial Provisions of Sec. 5464 Rev. Stat. are Available To all Creditors.
    The remedial provisions of Sec. 5464 Rev. Statu, permitting judgment creditor8 to proceed against equitable assets, are available for every judgment crédito* entitled to an execution against property, and apply to proceedings in aid of execution against estates of deceased persons, as well as to actions in favor of, and against, the living. Therefore, judgment having been rendered against an administrator, the eighteen months allowed by Sec. 6105 Rev. Stat., before which execution may not issue against an administrator, or the farther time allowed by court for the collection of assets, having expired, mnd there being no property in the hands of the administrator subject to levy an execution sufficient to satisfy the judgment, a proceeding in aid of execution to subject money in the hands of debtors of such estate is properly brought.
    i. Judgment Dismissing Proceeding in Aid of Execution not a Bar, When.
    A judgment, dismissing a proceeding in aid of execution to subject money in the hands of defendants due the estate of a deceased debtor, brought before the expiration of the eighteen months allowed by Sec. 6105 Rev. Stat., because prematurely brought but not Heard upon the merits, is not an adjudication of the rights of the parties concluding the bringing of another proceeding in aid of execution upon the same cause of action and between the same parties after the expiration of the eighteen months’ limitation, the probate court not having granted further time for the collection of assets.
    8. Only One Suit Upon Same Subject Matter Between Same Parties.
    A party is not permitted to have more than one lawsuit concerning the same subject, between the same parties, in the same court, and at the same time. Bringing more than one suit, as above, is vexatious and improper, for which the party so offending may be required to dismiss the vexatious suits, pay the costs made in bringing them, and, perhaps, subject him to an action for damages, but the fact of the bringing and dismissal of such suit will not amount to a complete defense to a good faith action.
    Dore & Dore, for plaintiffs.
    Willis Bacon and Geo. E. Seney, for defendants.

      Affirmed by Supreme Court, without report, 65 Ohio St. 563.

   DAY, J.

The plaintiffs action is in virtue of the provision* of Sec. 5464 Rev. Stat., in aid of execution, and for the purpose of reaching certain assets said to be in the possession and control of the defendant, George E. Seney, and applicable to the payment of the claim of plaintiffs.

The petition alleges, that the defendant, Mary B. Smith, was appointed administratrix de bonis non, with the will annexed, of Fredolin Smith, deceased, on February 6, 1896; that the eighteen months allowed by law for the collection of the assets of the estate have expired, and no further time has been allowed by the probate court for that purpose; that plaintiffs, on June 22, 1896, by the consideration of the court of common pleas of Seneca county, recovered a judgment against Mary B. Smith as such administratrix, in the sum of $694.20 and costs, which judgment is in full force; that the said administratrix has no personal or real property sufficient to satisfy such judgment subject to levy on execution; that defendants, George F. Seney and Willis Bacon, have money in their possession belonging to the said administratrix.

The prayer is that defendants Seney and Bacon be required to answer and disclose the amount of money in their hands belonging, to the administratrix, and that they be required to pay the same, or a sufficient amount to satisfy the judgments of plaintiff, over to the' clerk of this court, to be applied in satisfaction of said judgment and costs.

The defendant Smith, administratrix, answers and denies all the allegations of the petition, first, and as second and third défenses, pleads a former adjudication of the same matter between the same parties, which adjudication is still in full force. And third, that an action between the same parties comménced August 7,1897, for the same relief and based on the same facts, is pending in the court of common pleas of Seneca county, Ohio, and undetermined.

Defendants Bacon and Seney both answer and say the same thing as the administratrix, that the matter has been adjudicated, and the pend-ency of another action concerning the same matter.

All of which is denied by a reply.

The matter has been heard upon the evidence and admissions of fact submitted by both sides. The admissions are that all the averments of the petition are true, and that defendant, George F. Seney, has in.his possession money belonging to the administratrix more than sufficient to satisfy the judgment and costs. The evidence shows that on January 7, 1897, the plaintiffs commenced an action against the defendants named herein by filing a petition containing all the averments of the petition in this case, except the statements that eighteen months allowed by law to the administratrix in which to collect and settle the estate had elapsed and that further time was not allowed by the probate court for that purpose.

A demurrer to the petition was sustained by the common pleas court, and plaintiffs, not desiring to amend or further plead, the petition was dismissed at the costs of plaintiffs. The circuit court, on error, affirmed the judgment of the common pleas, and remanded the case to the common pleas for execution and for cost. That judgment is still in full force. This judgment and affirmance is claimed as adjudicating the rights of the parties and concluding them in the case now before the court.

That case was not tried on the merits, but was a dismissal of the case solely on the ground that it was prematurely commenced ; that the plaintiffs, at that time, had not a right of action against the administratrix, for the reason that the eighteen months allowed by law, and such further time as might be allowed by the probate court, had not elapsed, and there existed the bar of the statute against an action or execution in favor of the plaintiffs until such time as,the law provided had elapsed. The judgment, therefore, was in no sense an adjudication of the rights of the parties in the matter, but only of the import and to the effect that plaintiffs were not at that time permitted to proceed against the administratrix. We find that the defense claimed of foriper adjudication is not sustained.

The evidence also clearly shows that on August 7,1896, the plaintiffs commenced an action for the same identical cause as the action we have tried and are now considering; that summons was served on defendants, and defendants made answer substantially as in this case, that on November 8, 1897, being the first day of the November term, 1897, of the court of common pleas of this county, the case was dismissed without prejudice to another action at the costs of plaintiffs.

The action now under consideration was commenced August 17, 1897, only ten days after the action that was dismissed November 8, 1897. For á period of eighty-three days plaintiffs had two actions pending in the same court, for the same thing, and between the same parties. Under the law a party is not permitted to have and enjoy the luxury of more than one lawsuit concerning the same subject, between the same parties, in the same court, and at the same time. All in excess of one suit would be regarded as vexatious and improper, and upon -the attention of the court being directed to the fact by answer or demurrer would subject the offending party to discipline, requiring him to dismiss the vaxatious suits and be made to pay the costs made in bringing them, and, perhaps, subject him to an action in behalf of the injured party for damages. This, I apprehend, would be the only penalty for commencing too many suits, and the fact would not amount to a complete defense to an action, commenced and pending in good faith for the adjudication and settlement of the rights of parties in a transaction.

The third answer, of another case pending, therefore, would not be a defense to the claim of plaintiffs asserted in their petition, especially in view of the unquestioned fact that when the case was tried both in the common pleas and here there was not another action pending at all, but had been before that time voluntarily dismissed without prejudice, at the costs of the plaintiff. Plaintiffs had, perhaps, again begun their action prematurely and before the full running of the eighteen months, and again suffered the humiliation of having to dismiss the case and pay the costs, but that fact is no defense to their claim, asserted in this case, which was begun after the expiration of the eighteen months allowed by law to the administratrix. We find the alleged third defense is not sustained.

The first defense, as I have said, was a denial of the allegations of the petition, and, on the hearing, the denial was withdrawn and the truth of the averments of the petition was conceded.

So, the defenses having all failed, the only question remaining is one of law, and is, are the provisions for proceeding in aid of execution by action of Sec. 5464 Rev. Stat., available to the plaintiffs as against an administratrix of the estate of a deceased person ? Section 6105 Rev. Stat. provides that an execution against an administrator or executor may issue when the eighteen months allowed by law or the further time allowed by the court for the collection of the assets of the estate have expired. This provision gives the plaintiffs a right to have an execution-issued against the administratrix, Mrs. Smith, in this case. Section-6107 Rev. Stat. provides: “All executions against executors and administrators for debts due from the deceased, shall, except in the cases otherwise provided for herein, run against the goods and estate of the deceased in their hands,” etc. The cases otherwise provided for do not include the case of plaintiffs herein. So it is clear that the execution plaintiffs are entitled to, under Sec. 6105 Rev. Stat., runs against the estate of the deceased in the hands of the administratrix, Mary B. Smith.

In view of these provisions, and of the requirements to liberally interpret and construe all remedial provisions of the code, we think it not a strained or unwarranted construction to hold that the remedial provisions of Sec. 5464 Rev. Stat. are available for every judgment creditor entitled to an execution against property of the judgment debtor, authorizing a proceeding in aid of execution by action to subject any equitable estate or money of the debtor in the hands of an administratrix to the payment of the judgment.

Section 5464 Rev. Stat. provides: “ When a judgment debtor has-not personal or real property subject to levy' on execution sufficient <to> satisfy the judgment, any equitable interest * - * * in real estate * * * or any interest * * in any banking * * * company, or in any money contract, claim, or chose in action, due or to become due, * * * or any money,- goods, or effects, * * * in the possession of any person, shall be subject to the payment of the judgment^ by action.”

It does not require liberal or any construction to find that this money held by George E. Seney is part of the estate of the deceased,^ •Fredolin Smith, and is, in law, in the hands of his administratrix, Mary B. Smith. That is a conceded fact, and under Sec. 6107 Rev. Stat. the plaintiff’s execution, with the aid of Sec. 5464 Rev. Stat., runs against the estate of the deceased in the hands of his administratrix, Mary B. Smith, and subjects it to the payment of the judgment of plaintiff. Such is the conclusion of the majority of the court. In this conclusion Judge Price does not concur.

We do not think the evidence offered as to the insolvency of the estate of Fredolin Smith, deceased, and as to the probable per cent, the estate will pay, under the pleadings of the case, is admissible. Such evidence would be competent if an issue of that kind was tendered by the defendants, but we think not otherwise.'

The objection to this evidence is sustained, and exceptions may be noted. The finding is for plaintiff, and George E. Seney, defendant, is ordered to pay over of the money in his hands belonging to the administratrix a sum sufficient to satisfy the plaintiff’s judgment, interest and cost. Costs are taxed to the administratrix. Judgment accordingly and cause remanded for execution.

NORRIS, J., concurs.

PRICE, J.,

dissenting:

I differ from my associates only upon one proposition. I agree with them that the former adjudication is no bar, for the reason the first petition omitted averments, the assignment of which makes the second petition good. As to the pendency of another action at the time this ¡ast case was commenced, which appears from the evidence was dismissed before the second case came to trial, the second case has been sustained by two decisions ; one in Harris v. Trimble, 13 Re. 444 (1 C. S. C. 108, 110), and a case Porter v. Kingsbury, 77 N. Y. 164.

My only ground of dissent is that Sec. 5464 Rev. Stat. is intended to confer action in favor of and against living persons; especially living persons, but when a man dies his estate passes into the hands of persons íepresenting him, and all rights must be worked out against the administrator through the provisions of the special procedure provided for the settlement of the estates of deceased persons, and Sec. 5464 Rev. Stat. ought not to apply in this case.


author: LAUBIE, J.

text:
    FIRE INSURANCE — AGENCY.
    [Ashtabula (7th) Circuit Court,
    April Term, 1902.]
    Burrows, Bauble and Cook, JJ.
    Scottish Union & National Insurance Co. v. G. P. Brown.
    Effect of Consent of insurance Agent to Transfer of Property Insured.
    An agent of an insurance company, having authority to issue policies, is a general agent, and as such, has authority to enter the written consent of the company qpon its policy to the sale and transfer of property from one owner to another, which consent will operate as to all the terms and conditions of the sale, whether it is a sale for cash or part cash, with security by way of chattel mortgage and the property insured for the balance. Failure of the agent to inquire as to the terms of the sale cannot invalidate the transfer of the policy to the purchaser.
    Will G. Guenther and Theo. Hall & Son, for plaintiff in error, cited:
    Consent by insurer to a sale and assignment of the policy, does not carry with it consent to an encumbrance which is a part of the transaction of sale, and of which it has no knowledge. German-American Bank v. Insurance Co., 8 Mo. App. 401, 407, 408; First National Bank v. Insurance Co., 60 N. W. Rep. 345, 346 [58 Minn. 492]; 24 Ins. E. J. 561; Titus v. Insurance Co., 81 N. Y. 410,417,418; Brown v. Insurance Co., 58 Pac. Rep. 276 [9 Kan. App. 526]; Aetna Ins. Co. v. Holcomb, 34 S. W. Rep. 915 [89 Tex. 404]; Insurance Co. of N. A. v. Wicker, 54 S. W. Rep. 300 [Tex. Civ. App.); Olney v. Insurance Co., 50 N. W. Rep. 100 [88 Mich. 94; 13 R. R. A. 684; 26 Am. St. Rep. 281]; Harding v. Insurance Co., 71 N. W. Rep. 755 [10 S. Dak. 64]; 26 Ins. L. J. 901; Shaffer v. Insurance Co., 46 N. B. Rep. 557 [17 Ind.'App. 204]; Milwaukee M. Ins. Co. v. Niewedde, 39 N. E. Rep. 757 [12 Ind. App, 145]; First Nat. Bank v. Insurance Co., 60 N. W. Rep. 345, 346 [58 Minn. 492]; 24 Ins. L. J. 561; Gray v. Assurance Co., 31 N. Y. Supp. 237 [63 N. Y. St. 555; 82 Hun 380]; Home Fire Ins. Co. v. Johansen, 80 N. W. Rep. 1047 [59 Neb. 349]; Indiana Ins. Co. v. Pringle, 52 N. E. Rep. 821 [21 Ind. App. 559]; Dwelling House Ins. Co. v. Shaner, 52 111. App. 326; Thomlcins v. Insurance Co., 49 N. Y. Supp. 184 [22 App. Div. 380]; Home Ins. Co. v. Rindsey, 26 Ohio St. 348; Webster v. Insurance Co., 53 Ohio St. 558 [42 N. E. Rep. 546; 30.R. R. A. 719; 53 Am. St. Rep. 658]; Hickey v. Insurance Co., 11 Circ. Dec. 135 (20 R. 385); Guenther Ohio Ins. R., Secs. 77,409, 417.
    A local fire insurance agent cannot verbally waive the conditions ot a standard policy, which contains a stipulation requiring any such waiver to be in writing. Insurance Co. v. Reslie, 47 Ohio St. 409, 413 [24 N. E. Rep. 1072]; 1 Joyce on Ins., Secs. 433, 434, 435; Messelback v. Norman, 26 N. E; Rep. 34 [122 N. Y. 578]; Murphy v. Insurance Co., 27 So. Rep. 143 [52 La. Ann. 775]; 29 Insurance L. J. 210; Quinlan v. Insurance Co., 31 N. E. Rep. 31 [133 N. Y. 356]; Baumgartel v. Insurance Co., 32 N. E. Rep. 990 [136 1ST. Y. 547]; Carey v. Insurance Co., 54 N. W. Rep. 18 [84 Wis. 80; 20 L- R. A. 267]; Porter v. Insurance Co., 35 N. E. Rep. 678 [160 Mass. 183]; Moore v. Insurance Co., 36 N. E. Rep. 191 [141 N. Y. 219]; Walsh v. Insurance Co., 73 N. Y. 5; Ermentraut v. Insurance Co., 65 N. W. Rep. 635 [63 Minn. 305; 30 L. R. A. 346; 56 Am. St. Rep. 481]; Tomkins v. Insurance Co., 49 N. Y. Supp. 184 [22 App. Div. 380]; 16 Enc. Law (2 ed.) 751; Union Cent. Life Ins. Co. v. Buxer, 62 Ohio St. 385 [57 N. E. Rep. 66]; West v. Insurance Co., 27 Ohio St. 1; Hickey v. Insurance Co., 11 Circ. Dec. 135 (20 R. 385, 391); Travelers’ Ins. Co. v. M3rers, 62 Ohio St. 529, 540, 541 [57 N. E. Rep. 458]; Union Mut. Life Ins. Co. v. McMillen, 24 Ohio St. 67, 80; Home Ins. Co. v. Lindsey, 26 Ohio St. 348, 355, 356; Union Cen. Life Ins. Co. v. Hook, 62 Ohio St. 256, 264, 265 [56 N. E. Rep. 906]; Eureka Fire & Mar. Ins. Co. v. Baldwin, 62 Ohio St. 368, 384 [57 N. E. Rep. 57]; Guenther Ohio Ins. L.. Secs. 204, 291, 305; Aetna Ins. Co. v. Reed, 33 Ohio St. 283; Guenther Ohio Ins. L-, Sec. 33; Woodside Brewing Co. v. Insurance Co., 42 N. Y. Supp. 620 [11 App. Div. 68]; Carey v. Insurance Co., 54 N. W. Rep. 18 [84 Wis. 80; 20 L. R. A. 267; 36 Am. St. Rep. 907]; Insurance Co. v. France, 51 Ohio St. 604.
    Plaintiff’s petition does not state, nor does his evidence establish, facts sufficient to invoke the doctrine of estoppel in pais. 11 Am. & Eng. Enc. Law (2 ed.) 434; Baker v. Insurance Co., 43 N. Y. 284; Messelback v. Norman, 26 N. E. Rep. 34 [122 N. Y. 578,579]; Walsh v. Insurance Co., 73 N. Y. 5 ; O’Brien v. Insurance Co., 31 N. E. Rep. 265 [134 N. Y. 28]; Quinlan v. Insurance Co., 31 N. E. Rep. 31 [133 N. Y. 356; 28 Am. St. Rep. 645]; Moore v. Insurance Co., 36 N. E. Rep. 191 [141 N. Y. 219]; Woodside Brewing Co. v. Insurance Co., 42 N. Y. Supp. 620 [11 App. Div. 68]; Baumgartel v. Insurance Co., 32 N. E. Rep. 990 [136 N. Y. 547, 548]; Carey v. Insurance Co., 54 N. W. Rep. 18 [84 Wis. 80; 20 L. R. A. 267; 36 Am. St. Rep. 907]; Tomkins v. Insurance Co., 49 N. Y. Supp. 184 [22 App. Div. 380]; Insurance Co. v. France, 51 Ohio St. 604; Union Cent. L. Ins. Co. v. Hook, 62 Ohio St. 256, 265 [56 N. E Rep. 906].
    Error of the trial court in stating the issues. Bain v. Wilson, 10 Ohio St. 14, 18; White v. Thomas, 12 Ohio St. 312 [80 Am. Dec. 347]; Lytle v. Boyer, 33 Ohio St. 506; Washington Mut. Ins. Co. v. Insurance Go., 5 Ohio St. 450, 451; Aetna Ins. Co. v. Reed, 33 Ohio St. 283; Steel T. Kurtz, 28 Ohio St. 191,192; Lowe v. Lehman, 15 Ohio St. 179; Varner v. Varner, 9 Circ. Dec. 273 (16 R. 386); Little Miami Ry. Co. v. Wet-more, 19 Ohio St. 110; Baker v. Pendergast, 32 Ohio St. 494,495 [30 Am. Rep. 620].
    Error of the trial court in the admission and rejection of evidence. Insurance Co. v. France, 51 Ohio St. 604; Union Cent. E- Ins. Co. v. Hook, 62 Ohio St. 256, 265 [56 N. E. Rep. 906]; Woodside Brewing Co. v. Insurance Co., 42 N. Y. Supp. 620 [11 App. Div. 68]; Carey v. Insurance Co., 54 N. W. Rep. 18 [84 Wis. 80; 20 L. R. A. 267; 36 Am. St. Rep. 907]; Messelback v. Norman, 26 N. E. Rep. 34 [22 N. Y. 578, 579].
   LAUBIE, J.

In this case the plaintiff company seeks to have a judgment set aside which was rendered against it in favor of the plaintiff below, Brown, in an action upon a fire insurance policy. We have examined with care all the alleged errors, and find that by reason of the condition ot the law in this state substantially all are immaterial. It is evident from the statement of the facts in the pleadings and as shown in the evidence, that the consent of the insurance company to the sale was, in effect a consent to all the terms of the sale, including the giving of the mortgage.

At the time of the sale of the stock of goods from Wagstaff to Brown, Wagstaff, in behalf of himself and Brown, took the policy to the agent of the company, Mr. Booth, and made a statement as to the sale of the property by him to Brown, in good faith, without referring to the mortgage, in order to obtain the consent of the company thereto, and to a transfer of the policy to Brown; and such assent was placed upon the policy by Booth as the agent of the company. Booth had authority to do this/ and to consent to the placing of a chattel mortgage upon the property. He had authority to issue policies, and was a general agent of the company. Having this authority, he entered this written consent of the company to the sale and transfer of the property from Wag-staff to Brown, and that consent operated as a consent to all the terms and conditions of the sale, whether it was a sale for cash, or part cash with security for the balance, or what not, and effected a valid transfer of the policy upon the stock of goods to its purchaser.

Whatever may be the law in other jurisdictions, it seems to be well settled in this state that such is the effect of such written consent, although not a word was said about the chattel mortgage.

In Farmer’s Ins. Co. v. Ashton, 31 Ohio St. 477, the syllabus is as follows;

“ It was stipulated in a policy of fire insurance, that if the property insured should be sold or transferred, or any change made in its title, without the assent of the company insuring, the policy should be void. The assured sold and conveyed the property for an agreed sum, to be paid in the future, the company assenting to the sale, but without knowledge of its terms. To secure the payment of the purchase price, the purchaser, at the time of the sale, and as a part of its terms, executed a mortgage of the property to the vendor, of which the company had no knowledge until after the property was destroyed by fire: Held, that the assent given by the company to said sale and transfer of title was an assent to the terms upon which the same were made, and, hence, that the execution of said mortgage did not avoid the policy.”

The opinion was rendered by Boynton, J., and upon the assumption that the execution of the mortgage was a change of title, he says, page 479:

“The assent of the company was expressly given to the sale and conveyance by Francis Ashton to the defendant in error, and the mortgage back was a part of the same transaction, and one of its constituent elements.
“ The assent given was in no wise qualified, or conditioned on a sale for ready money. Nor is it claimed to have been fraudulently induced or procured. We, therefore, must hold it to have been an assent to the sale and conveyance as actually made between the parties, and consequently an assent to whatever change in the title the execution and delivery of the mortgage,effected.”

In the case before us, it is admitted that the written assent to the sale was made in writing upon the policy, and if the agent did not seek to find out what the terms oí that sale were, whether for cash or not, was no concern of Brown’s, but was simply a matter for the insurance company itself and its agent. The agent assented in the name of the company to the sale, and that included an assent to all of its terms and conditions.

We also find that there was no misconduct shown on the part of the jury, and that the amount of the verdict was not excessive. All other of the alleged errors are immaterial, as the plaintiff was entitled to recover in any event, and the judgment is affirmed.

Mr. Starkey: “ They said in argument they did not rely upon the jury computing too much interest in this case, but if there is any question over it we would like to remit the amount.”
Judge Burrows: “You better remit it, as they might rely oá it in some other court if they don’t in this.
Mr. Starkey: " We remit twelve dollars.”


text:
    BENEFICIAL INSURANCE.
    [Lucas (6th) Circuit Court,
    October 26, 1901.]
    Hayne3, Parker and Hull, JJ.
    Barbara Foxhever v. The Order of the Red Cross et al.
    L Widow, as beneficiary and members of Beneficiad Order are Withhc Sec. 5242 Rev. Stat.
    The widow of a deceased member of a beneficial order, who brings an action against such order upon an insurance policy, issued to her husband and payable to her, claims as heir of a deceased person within the meaning of Sec. 5242 Rev. Stat., which provides that a party shall not testify where the. adverse party claims as heir, grantee, assignee, devisee or legatee of a deceased person, but the adverse interest of the order will not prevent the members thereof from testifying to matters that occurred in the lodge room when the deceased was present.
    2. Insurance Podicy Part of Insured Estate Where he has Right to Change Beneficiary — Rude as to His Decdarations, etc.
    Where a person insured in a beneficiary order has the right, under the constitution of such order, to change the name of the beneficiary under his policy at any time he sees fit, the policy remains part of his estate and is his during life. Hence, any declarations, admissions or statements he may make affecting the policy may be offered in evidence against the beneficiary in an action upon the policy.
    8. Pacts Justifying Presumption Against Insured Precduding Recovery by Beneficiary.
    A member of a beneficial order who, upon being charged, in the presence of the lodge, by its presiding officer, with misrepresentation as to his age at the time he became a member, makes no-attempt to1 deny the charge, but after using defiant and abusive language toward the lodge and its presiding officer, leaves the lodge room and never thereafter attends any meeting of such order, pays any dues or communicates with it in any way will be presumed to confess the truth of the charge, and in an action upon an insurance policy issued to such member the court will direct a verdict for the defendant.
    t Paidure of Beneficiad Order to Observe Formadities in Expelling Member — Effect.
    Where a beneficial order, in expelling a member, does not observe the formalities prescribed by its constitution, the expulsion is illegal and does not deprive him of his rights as a member, but a member so expelled who, for many months thereafter, makes no effort to be reinstated, pays no dues, attends no meetings, nor in any manner recognizes himself as a member of such order, may be held as a matter of law to have acquiesced in his expulsion, thereby defeating any recovery by the beneficiary upon an insurance policy issued to him by such order.
    O. S. Brumback and C. A. Thatcher, for plaintiff in error.
    Kohn & Northrup, for defendants in error, cited:
    People v. Benevolent Assn., 24 N. Y. Supp. 114 [4 Misc. 424]; Levy v. Magnolia Lodge, 42 Pac. Rep. 887 [HO Cal. 297]; Dimmer.v. Catholic Knights, 12 Circ. Dec. 413 (22 R. 366); Glardon v. Knights of Pythias, 50 Mo. App. 45; Railway Pass. & F. C. Ben. Assn. v. Leonard, 82 111. App. 214; Karcher v. Knights of Honor, 137 Mass. 368; Grand Lodge of A. O. U. W. v. Bunkers, 13-23 O. C. C. 487; Thesing v. Knights of America, 11 Re. 88 (24 Bull. 401); Shuman v. Knights of Honor, 81 N. W. Rep. 717 [HO la- 480;] Van Frank v. Benefit Assn., 41 N. E. Rep. 1005 [158 111.500]; Thomas v. Grand Lodge, 41 Pac. Rep. 882 [12 Wash. 500]; Steinhausen v. Accident Assn. 13 N. Y. Supp.- 86 [59 Hun 336]; Supreme Lodge K. H. v. Metcalf, 43 N. E Rep. 893 [15 Ind. App. 135]; Fidelity Mut. Life Assn. v. Winn, 33 S. W. Rep. 1045 [96 Tenn. 224].
    Heard on Error.
   HAYNES, J.

A petition in error is filed here for the purpose of reversing the judgment of the court cf common pleas in an action that was brought against the Order of the Red Cross et al. by the plaintiff for a death loss.

George Foxhever, on September 8, 1888, had received from this order a certificate lor the payment of $1,000 upon his death, he directing that it should be paid to his wife. He continued to be a member of the order down to 1894, when some events occurred which it is claimed changed the condition of affairs between him and the defendant, and by which he ceased to be a member of the order. Some eight or nine months after that he died, and subsequently his wife brought suit against this order for the recovery of this sum. Upon the trial of the case in the court of common pleas, at the close of the testimony, the trial judge directed a verdict for the defendant company. In doing so he followed, as he states, the rulings of this court in the case ol Dimmer v. Catholic Knights, 12 Circ. Dec. 413 (22 R. 366).

The testimony shows that Foxhever remained a member of the order until November, 1894. At that time it is claimed on behall of the order that they had discovered that he had made a misrepresentation in regard to his age at the time that he became a member of the order, he having stated his age at that time to be forty-nine years, when in fact, as the order claimed, he was fifty-nine years of age, the rules and regulations ol the order prohibiting the taking of any person as a member of the order over fifty-one years of age. Upon the discovery of this fact, Mr. Foxhever being present at a meeting of the order (whether sent for or not does not clearly appear, but the testimony shows that he was present) his attention was called to it, and apparently for the purpose of taking some steps against him leading to his expulsion. It was stated to him that they desired to inquire into it, and he replied, according to the testimony ol sundry witnesses, varying some in form or phraseology, but agreeing substantially in the main points, that he was "no chicken,” and that they "might go to hell." The^ all agree on the last clause. That seemed to impress them very forcibly. And he turned and ■walked out of the room, and never appeared there again.

Thereupon a resolution was offered and seconded and carried, and evidence was taken, upon which the order unanimously resolved to expel him, for the reason that he had misled them and misrepresented to them as to his age at the time he became a member ot the order. They directed the scribe, I think they call him, to notify Foxhever of the resolution that they had passed after he had left the room, and he accordingly addressed to him a postal card notice to his house.

Foxhever lived eight months after that, but paid no attention to the order. They sent him no notices, and he paid no dues, and made no inquiry; in tact, he was utterly silent from that time forth until the time of his death. After his death, as 1 have said, the widow brought this suit.

By the terms of the constitution of the order the assured had the right to name the beneficiary under his certificate or policy, and he might change it from time to time as he saw fit. It remained under his control until he ceased to be a member, or until his death. Foxhever never made any change. The original order was payable to his wife, and he never made any change in regard to it.

Some of the questions that have been argued here are important and interesting, and we have discussed them at considerable length in our consultation room.

The first is as to the admission of testimony of members of the order who were present at the meeting of November 16 in regard to what transpired there and what was said. It is claimed, that inasmuch as these members were liable to pay at each death a certain amount of money to make up the sum that was payable to the beneficiary, they were interested parties to the question; that as members ot the corporation they were interested to the extent of their liability at least to pay the amount ot $1,000 to this plaintifl. It is claimed that while they are not parties to the action, at the same time they come within that provision of the statute that provides that an interested party shall not testify, and that the spirit ot the statute should be applied wherever the facts of the case require it. The plaintiff is Barbara Foxhever, and some question was made whether she comes within the clause of the statute (Sec. 5242 Rev. Stat.) that provides that the defendant shall not be permitted to testify where the opposite party claims by or through a deceased person. We are of the opinion that she does come within that classification, because she takes under this certificate by the appointment ol the husband, by his authority and by his right as a member of the order, and that it may, therefore, properly be said that she claims by or through her husband.

So far as the right of these other persons to testify is concerned, the question is interesting, and is one that has never been passed upon by the Supreme Court of the state. Indeed, it is not very often raised. Thexonly time we have had any question like it come up was when objection was made to the officers of a corporation testifying in regard to a contract that had been entered into with a deceased person, the suit being brought by the administrator, and in that case we relused to allow the officers of the corporation to testify, holding, in effect, that they were the real parties in interest, the persons who had made the contract and were interested; that they were members of a corporation doing business, of course, under a name that the statute permitted them to assume, and under which they could be sued and could sue by; but inasmuch as they were the persons who had made the contract, that they ought not to testify, the lips of the other party being silenced by death. That is as far as we have gone, and that is as far, as at present advised, we think we ought to go. We are of the opinion that the interest these parties had in this matter ought not to prevent the members of that body from testifying as to matters that occurred within the lodge room at the time that the deceased was present and with the deceased.

This society was made up of persons who gave very little attention, apparently, to the orderly conduct of their business. Perhaps they are •engaged in vocations and duties that led them to be loose in methods of business. There are rules adopted by the body which govern it, and those rules provide for the manner in which a person may be expelled, for violations of rules of order, or for a misstatement of his age in becoming a member of the order:

“Section 86. * * * Members who shall be found guilty of knowingly obtaining membership in this order through fraud, such as concealing age or any bodily or mental infirmity, which would debar them ii known, or of falsely answering questions on their medical examination, shall upon conviction thereof, be suspended from the order, and shall not be reinstated or again received as members. Any member charged as above shall be entitled to a fair and impartial trial.
“Section 89. Any member shall be entitled to a fair trial for any offense involving fine, reprimand or suspension, (except for nonpayment of dues, death assessment, and for gross offenses committed in open commandery. No member shall be put upon trial unless charges, duly . specifying the offense, so as to fully apprise them of the nature thereof, and enable them to prepare for defense, shall be submitted to the commandery in writing, signed by a member oí the order. Such charges shall be referred to a trial committee of three members. And in case sueh committee or any member of it shall be challenged for cause, such challenge shall be tried by commandery, and if the challenge is sustained another member shall be appointed to act in his place,’’ etc.

They are to keep minutes, report to the commander, and the commandery are to decide upon the charges. The same section provides:

“It the accused refuse or neglect to stand trial when personally summoned, the committee shall report him or her guilty of contempt of the commandery, which report shall be conclusive as to guilt, and the penalty shall be at once fixed by the commandery, which shall take effect at the expiration of two weeks, unless an excuse is tendered for such absence which shall be satisfactory to the commandery.”

It will be observed, as I have stated, that this proceeding was not gone through with. The trial court held that the proper proceedings had not been taker] to expel him, but that under the decision in Dimmer v. Catholic Knights of America the question would properly arise as to whether or not, under the law of the land and upon the facts of the case, he had not acquiesced in his expulsion, although it was not properly made, and whether or no he did not cease to be a member of the order.

There is another question that arises in the case. It will be observed that the lodge did act upon the statement made by the accused at the time that he was spoken to by the commander at this meeting on November 2i. They took it practically as a confession, an admission, that he did misstate his age at the time of obtaining his certificate. The question arises as to whether, if that were true, if he did admit that fact, that that could or should affect the rights of this wife — whether, in short, his admissions in her absence could cut off her rights. Cases were cited (and I suppose there can be no question as to the law) where a policy of insurance is issued in the ordinary form, even although it be made with the wife as beneficiary, for the wife to be paid a certain sum upon the death of her husband, that she has a right in that policy which cannot be cut ofl by the admissions of the husband; but it is claimed that this class of policies stand on an entirely different ground; that by the terms, as I have stated, of the constitution, the husband in this case has a right to change the beneficiary and name some other person at any- time he sees fit to do so, and his right to do so has been recognized by the Supreme Court of Ohio, although he must do it in pursuance oí the constitution and by-laws of the order. There are a variety of decisions in the United States upon this question. We are cited by counsel to Niblack Benefit Societies, Sec. 377, and to Beache Benevolent Societies, Sec. 460. In Niblack there are some reference to cases, one in Indiana, in which it was held that the admissions of the husband could not be received to cut off the wife’s rights, and in another state (Illinois) it was held that they could be; the line of argument in Indiana being that while the husband had the right, he had not exercised it during his lifetime, and, therefore, the right remained in the wife, and so long as he had failed to exercise and change it, that any admission that he might have made affecting the policy could not cut off her right. In Illinois the court held that so long as he had the right, as he did, to at any time change the name oí the beneficiary under the policy, that the policy remained as his- — part of his estate; his property, his to do with as he chose, and for that reason any admissions, or declarations, or statements he might make affecting that policy during the time that he so held it (of course, being during his lifetime) might be offered in evidence as against the beneficiary under the policy. We are inclined to think, and we will so hold in this case, that the latter view is the correct one, and that the declarations made by Foxhever during his lifetime might be received, in evidence for the purpose of aflecting the validity of the policy

Such being the condition and position of aflairs, did the court err in directing a verdict by the jury for the defendants ? As I have stated, this declaration was made, which I will not repeat, in the presence of the lodge. From that time foith he never recognized the lodge in any manner or form, by any payment of dues, or anything else. It seems to us that that act was a clear and well defined admission that the charge that was made against him by the commander at that time was true; that he had made a false statement at the time that he became a member; and then he used very abusive language towards the lodge and the person .charging him with the offense. It seems to us that that is a very full and complete confession of the charge which was made against him. He ceased from that time forth, as I have said, to make any demand of the lodge, to go near the lodge, to ask for any explanation about any dues, or to in any manner or form recognize himself as a member of the lodge, up to the time of his death. And we think under the rules that were laid down by this court in Dimmer v. Catholic ¿nights, supra, which were, as we think, sustained by authority, in which case a very full opinion was delivered by judge Hull, with a citation of the authorities, that the court was authorized, upon the admitted tacts of the case, to direct a verdict in favor of the defendants.

We have, therefore, concluded, upon a careful investigation of the case, that the judgment of the court of common pleas ought to be affirmed, and it is so ordered.


author: HALE, J.

text:
    BOOK ACCOUNTS.
    [Lorain (8th) Circuit Court,
    October 12, 1902.]
    Caldwell, Hale and Marvin, JJ.
    Mary W. Burr v. R. H. Shute.
    A LEDGER is Competent Evidence oe Account, When.
    A ledger is competent evidence of an account where the books of original entry have been destroyed and it is shown that the transcript from these books to the ledger was correctly made.
    Heard on Error.
    I. A. Webster, for plaintiff in error, cited:
    It was error to admit in evidence, account standing in plaintiff’s book in name of another person than defendant. Richardson v. Win-gate, 1 Re. 478 (10 W. L. J. 145).
    Books of account unsupported by other evidence, insufficient proof upon which to base a verdict. Sheridan v. Tanner, 3 Circ. Dec. 10 (5 R. 19); Wood Practice of Ev. 407.
    F. Rudin, for defendant in error.
   HALE, J.

The case of Burr v. Shute, error to the court or common pleas. The defendant in error, Shute, obtained a judgment against the plaintiff in error in the court of common pleas for a small amount, for goods sold and delivered to the plaintiff by the defendant.

The case was first tried before the justice of the peace, and an attempted appeal to the common pleas court by the defendant in error, the judgment of the justice of the peace being in favor of the plaintiff in error.

The first error assigned is, that there was really no judgment in the justice court, and, therefore, nothing to sustain an appeal. We intimated to counsel on the hearing that we thought that judgment was good, and we have no doubt that the judgment, although irregular, was sufficient to determine the rights of the parties.

And second, that the court erred in admitting a certain book in evidence.

Shute owns a meat market, and the cause of action stated in the petition was on an account for meat sold by the defendant in error to plaintiff in error.

The book offered was a ledger. Some of the meat was sold from a meat wagon that was driven about the country by an agent of Shute, who made memorandums of the sales in a little book which he returned to the shop. Some of the meat was sold from the shop, if we believe the defendant in error’s statement, and that was charged in a day book. Both of those books of original entry were posted by the book-keeper, Boynton, into the ledger. It is shown in evidence that these two books of original entries are destroyed.

The proof is, that the transcript from these books to the ledger was correctly made, both as to the property sold and the amount and the price.

We see no reason why the book was not competent. If the books of original entry were destroyed, and there was a correct copy of them, such copy was proper evidence.

And secondly it is said the verdict of the jury was not sustained by sufficient evidence.

There was evidence tending to show that there was dealing between the plaintiff and defendant, and tending to establish the claim of the defendant in error. It was sharply met by testimony and evidence on the part of the plaintiff in error; but the evidence is not such as would authorize a reviewing court to reverse the judgment of the lower court on the weight of the evidence.

Had the verdict been for either party we would not disturb it. That is saying that the court did not err in refusing the motion for a new trial because the verdict was not supported by sufficient evidence, and the judgment will be affirmed.