text:
    ACTION FOR. INJURIES SUFFERED BY NON-RESIDENT WARD.
    Circuit Court of Mahoning County.
    The Pennsylvania Company v. Walter W. Raub, by his Guardian, William H. Raub.
    Decided, October Term, 1907.

      Guardian and Ward — Action for Injuries to an Infant — Guardian and Infant Non-residents — Comity Between States — Action for Injuries Distinguished from Action by a Guardian Demanding Money from a Trustee — Dilatory Objections to Jurisdiction — Sections 6279 and 6290.

    An action may be maintained in this state by a minor to recover damages for personal injuries, through his guardian, appointed in the state of Pennsylvania, although such minor lives in such foreign state. Smith v. Madden, 37 Weekly Law Bulletin, 291, not followed.

      Arrel, Wilson & Harrington, for plaintiff in error.

      Anderson, McNab & Anderson, for defendant in error.

      Cook, J.; Burrows, J., and Laubie, J., concur.
    Error to Mahoning Common Pleas Court.
   The action below was by Walter W. Raub, by his guardian, William IT. Raub, to recover damages for injuries sustained while a passenger upon the railroad of plaintiff in error by: a head-on collision.

A judgment was obtained in the common pleas court and error is prosecuted in this court. Two grounds of error are relied upon by plaintiff in error:

First. The guardian being appointed in a foreign state, Pennsylvania, and. the ward continuing to live in that state, the action could not be maintained in this state.

Second. Raub was guilty of contributory negligence.

As to the second ground it is sufficient to say that we have examined the evidence carefully and we are of the opinion that the claim of contributory negligence is not maintained. Indeed we see little, if any, evidence to sustain such a claim, and we therefore come to the first ground relied upon.

May a minor, through his guardian appointed in a foreign state, bring an action in this state to recover damages for a personal injury? Even if there was no statute in this state upon the question, it seems to us that as a matter of comity between the states, a minor by his guardian appointed in another state in such case should be permitted to sue in this state. It is not a case of a guardian demanding money or personal property from an executor, administrator or other trustee, or even from persons not trustees, but simply the attempt to reduce to judgment an undetermined demand which the guardian claims to have in favor of his ward; and if after judgment there are any reasons why the foreign guardian should not come in possession of the money, the court has ample authority to require the guardian to qualify under the provisions of Section 6279 of the Revised Statutes.

But has not the Legislature specifically provided that a foreign guardian may bring such an action?

Section 6290 of the Revised Statutes, found in chapter 3 of title 2, _ which provides for the government and direction of guardians and other trustees, provides:

“Section 6290. [Foreign minors ancl guardians; their rights in this state, etc.; sale of their lands; additional security.] Minors living out of this state and owning lands within the •same shall be entitled to the benefit of this act; and guardians of minors residing out of this state, who have been appointed according to the laws of the state or territory where they may reside, shall have the right -to bring and maintain actions and enforce the collection of judgments, rendered in such cases in their favor, in the same manner and to the same extent that they could do if they had been appointed under the laws of this state, upon giving security for the costs which may accrue in such actions, in the same way other non-residents’ are obliged to do under the laws of this state. All’ applications for the sale of real estate by guardians of minors who live out of this state shall be made in the county in which the land is situate; or, if situate in more counties than one, then in one of the counties in which a part of such real estate is situate; and additional security shall be required from such guardian or 'guardians when deemed necessary, and such as may be approved by the probate court of the county in which such application is made. (55 v. 54, Sec. 32; S. & C., 677.)”

It is claimed that all the provisions of this section apply alone to the disposition of the lands of a minor situated within the state. We do not think so. If there had been a period instead of a semi-colon after the words, “shall be entitled to the benefit of this act,” the section would no doubt be less ambiguous, but when we take into consideration the fact the Legislature was intending to cure any supposed defect in our law that militated against foreign guardians by closing the doors of our courts against them, punctuation should have little effect.

Something is also claimed for the words, “rendered in such eases in their favor.” What cases? Certainly the cases in which the actions have been prosecuted. We repeat that if there had been a period instead of a semi-colon after the word “act,” there could be little if .any, doubt but that language was intended to be used in its broad sense and applicable to all actions.

It is also claimed that , the language of Section 6279 tends to show that it was not intended that the provisions of 6290 should apply to all actions.

It seems to us that the provisions of this section apply to a different subject entirely, to cases as we have heretofore intimated, where money or other property is in the lawful custody of a trustee hr other person, and which the foreign guardian desires-to obtain possession of and remove it from the state. In such a case he must proceed under Section 6279. Banning, Executor, v. Gotshall, Administrator, 62 O. S., 210.

We should not be inclined to sustain the contention of plaintiff in error in this case without it was absolutely necessary to do so, as it waited until the case was ready for trial and the jury in the box before it made the objection that plaintiff below had no right to maintain the action by objecting to any evidence being introduced.

We are not unmindful of the fact that Judge Ricks, of the United States Circuit Court of the Northern District of Ohio, in the case of Smith v. Madden, 37 Weekly Law Bulletin, 291, came to a different conclusion than that to which we have arrived.

Judgment of common pleas court affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    FOREIGN EVICTIONS.
    Circuit Court of Morgan County.
    P. Smith Sons’ Lumber Co. v. Kennard et al.
    Decided, April 22, 1908.

      Liability of Sheriff- — For Failure to Inclew Foreign Execution Dochet Attaches, When — Non-feasance—Amercement—Plain Language of a Statute Must be Followed, Irrespective of Results or Intention of the Legislature — -Sections ISIS and 5596.

    A judgment creditor can not maintain an action against a sheriff for failure to execute a foreign writ of execution, or for failure to index his foreign execution docket, or to do other things enumerated in Section 1212, Revised Statutes, unless such judgment creditor has made a deposit of the sheriff’s fees with the clerk issuing the writ, as required by Section 5596.

      Ivors & Danford and Kibler & Montgomery, for plaintiff.

      Weber c& Fonts, contra.
    Craine, J.; Taggart, J., and Donai-iue, J., concur.
    Error to Morgan Common Pleas Court.
   The P. Smith Sons’ Lumber Co. filed an amended petition in the Court of Comon Pleas of Morgan County, in which it alleged, in substance, that the plaintiff was a corporation under the laws of Ohio; that R. A. Kennard was the sheriff of Morgan county, Ohio, and that the other defendants (L. Si Holcomb, J. L. Bailey and G. B. Dougan) were his bondsmen as such sheriff; that at the September .term, 1905, of the Court of Common Pleas of Licking County, Ohio, plaintiff recovered a judgment against L. H. Campbell and Dollie Campbell in the sum of" $162.97, with interest thereon at 8 per cent, from September 21, 1905, and for costs .of suit; that on November 16, 1905, an execution was- issued by the clerk of Licking county to the sheriff of that county, which execution was returned unsatisfied for want of property whereon to levy; that on December 18, 1905, the plaintiff had a foreign execution issued by the clerk of the Court of Common Pleas of Licking County, directed to the defendant, R. A. ICennard, as sheriff of Morgan county; that on December 21, 1905, the sheriff of Morgan county received the writ and entered upon his foreign execution docket the time when said writ was received by him, from what county it issued and the amount of the judgment, and that said'sheriff of Morgan county, then, for want of goods and chattels whereon to levy, levied on certain real estate of said L. II. Campbell and Dollie Campbell, situated in Morgan county, Ohio/being of the value of $1,500, and that after making such levy, said sheriff entered in his foreign execution docket, a full description of the real estate levied upon, .and entered said description, in full, \ipon said writ and also copied in said execution docket as shown by said writ, and indorsed his fees on said writ in the sum of $1.50; but said sheriff then and ever afterward omitted, neglected, and failed to make any indexing of said acts, either direct or reverse, on his execution docket, and that he neglected, failed and omitted to enter on said foreign execution docket the court from which said execution issued, and failed to enter in said execution docket the date of -the execution and the date* of the judgment, contrary to Section 1212, Revised Statutes; ■ that on February 16, 1906, said execution was by the direction of plaintiff, through its attorney, duly returned to the Court of Common Pleas of Licking County; that at the time of the issuing of said writ and the levy of the same upon said real estate, L. H. Campbell and Dollie Campbell were the owners in fee simple of the same, and that they continued to be such owners until June 26, 1906, at which last named date they sold said real estate to Harriet W. Class; that Harriet W. Class at the time of the purchase of said real estate was ignorant of any levy having joeen made by said sheriff and that she, being a Iona fide purchaser, -took said real estate free from said levy. Plaintiff further avers that by the failure of the sheriff of Morgan county to do the things omitted by him, as aforesaid, it was damaged in the sum of $162.97 together with interest at 8 per cent, from September 21, 1905, together with costs, and asks judgment against the defendant for the amount that it was so damaged.

R. A. Kennard, the sheriff, filed an answer in which he sets up three defenses to the amended petition. The first of which was a denial of many things set forth in the amended petition. The second defense alleged in substance, .that the • real estate levied upon was only worth the sum of $1,000 and was covered by a mortgage to the extent of $800, and that L. IT. Campbell and Dollie Campbell were entitled to the difference between the value of said property and the mortgage upon the same, as an exemption. The third defense and the only one which need be’ considered in this case, read's as follows:

“The defendant, R. A. Kennard, for a third defense herein says: that said execution so issued from said Court of Common Pleas of Licking County, Ohio, had indorsed thereon in substance — ‘Fees deposited for service of this writ’; that said plaintiff caused and procured said indorsement to be made by the clerk of said last named court for the purpose of causing this defendant to believe that funds were .then on deposit in said court to pay his fees on said writ; that in fact no funds had been deposited with said clerk to pay said fees, as plaintiff then well knew, and this defendant never received any fees for the execution of said writ and -the making of said levy; that plaintiff so caused and procured said false indorsement to be made on said writ for the purpose of deceiving this defendant and thereby causing this defendant .to accept and undertake the due execution of said writ; and this defendant, believing and relying upon said indorsement being true, and that funds had been so deposited, accepted said writ and levied the same upon said lands, which, had it not been for said false indorsement, he would not have done.”

The .plaintiff filed a reply to the second and third defenses of the answer. The reply to the third defense reading as follows :

“Plaintiff admits that said execution so issued from said Court of Common Pleas of Licking County, Ohio, had indorsed thereon in substance, ‘Fees deposited for service of this writ,’ and admits that no funds had been deposited with said clerk to ‘pay said fees; but avers that said fees were deposited in the office of .the clerk of courts of said Licking county for him, and before this action was commenced. Plaintiff admits that said defendant accepted said writ and levied the same upon said lands, and plaintiff denies each and every allegation in said defenses contained, not herein expressly admitted to be true.”

A demurrer was filed to the reply and sustained, and the plaintiff, not desiring to amend, judgment was rendered for the defendant, and error was prosecuted by plaintiff to this court, asking this court to reverse the' judgment of the court of common pleas.

Section 5594, Revised Statutes' prescribes the duties of a sheriff and provide .that upon his failure to perform said duties, the court shall amerce him. Section 5596, Revised Statutes, reads as follows:

“If an officer fail to execute any summons, order, execution, or other process, directed to him, or to return the same, as required by law, unless he make it appear, to the satisfaction of the court, that he was prevented by unavoidable accident from so doing, he shall be amerced, upon motion and notice, as provided in Section 5594, in a sum not exceeding one thousand dollars, and be liable to the action of any person aggrieved by such failure; but he shall not be liable to an action or amercement for a failure to execute any such process directed to him from any county other than that in which he was elected, unless his fees are deposited with the clerk who issued the process, and an indorsement of that fact is made and subscribed by such clerk on the process, at the time of its issue, in these words: ‘Funds are deposited to pay the sheriff on this process.’ ”

It will be observed by this statute that before a sheriff will be liable to an action by a judgment creditor on a foreign execution, there must be: first, a deposit by the judgment creditor of the fees with the clerk who issued the execution; second, the clerk must indorse on the writ, the fact that the fees have been deposited in the following words: “Funds are deposited to pay the sheriff on this process.”

The right of a judgment creditor to have a foreign execution issued and the duty of a sheriff to execute such writ is a pure matter of statutory law, and the Legislature in granting such right to a judgment creditor had a right to provide on what conditions the sheriff in the foreign county should be liable for failure to execute such writ. If the judgment creditor desires to avail himself of the right to hold the sheriff liable for non-performance of duty, he must make the deposit of the necessary fees with the clerk issuing the writ. It is his duty to -act first, in making the deposit, and he can not consistently complain of the sheriff for the non-performance of his duties, when he himself has failed to observe the law on the same subject. We think that under the statute the deposit of the necessary fees by the judgment creditor was a condition precedent to his right to hold the sheriff for his failure to execute the writ.

It is claimed by the plaintiff, however, that the fees were deposited in the office of the clerk of court of.Licking county before this action was commenced, and hence the sheriff had been made secure as to his fees. This, however, in our judgment, does not satisfy the statute. In Duncan v. Drakeley, 10 Ohio, 45, a writ had been issued to the sheriff of another county, without the indorsement required by the statute. The sheriff refused to execute the writ, notwithstanding the fact that the judgment creditor tendered to the sheriff an amount more than was sufficient to satisfy all fees, yet the court refused to amerce the sheriff and -the case having been carried to the Supreme Court, it was held:

“A sheriff can not be amerced for not executing a capias ad satisfaciendum from another county, unless such an indorsement ('funds deposited’), be made on the writ, and tender of his fees can not be substituted in the place of such indorsement.”

It is true that in the ease just mentioned, a motion liad been made to amerce the sheriff and an amercement is a pecuniary penalty imposed by the court upon an officer for non-performance of his duty. In that case, however, the sheriff pled the statute as a defense and'the courts construed the statute according to the letter. Where -the language of a statute is plain, courts must follow it, irrespective of the results or intention of the Legislature. In Woodbury v. Berry, 18 Ohio St., 456, a case of an attempted amercement, the first paragraph of the syllabus reads as follows:

“Where the words of a statute are plain, explicit and unequivocal, a court is not warranted in departing from their obvious meaning, although from considerations arising outside of the language of the statute it may be convinced that the Legislature intended to enact something different from what it did in fact enact.”

In Slingluff v. Weaver, 66 Ohio St., 621, a part of the syllabus reads as follows:

“But the intent of the lawmakers is to be sought first of all in the language employed, and if the words be free from ambiguity and doubt, and express plainly, clearly and distinctly, the sense of the lawmaking body, there is no occasion to resort to other means of interpretation. The question is not what did the General Assembly intend to enact, but what is the meaning of that which it did enact. That body should be held to mean what it has plainly expressed, and hence no room is left for construction.

And again:

“The language of the act of May 12, 1902, entitled, ‘An act to amend Section 6710 of the Revised Statutes,’ is plain and free from doubt, and effect must be given to its clear import without regard to the consequences which may result.”

The statute in question having expressly stated that the sheriff should not be. liable, except on certain conditions, and the plaintiff having admitted that those conditions had not been complied with, there could be no liability without violating the very letter and spirit of the statute.

Counsel for plaintiff contend that although the sheriff was not required to execute this writ without the fees being first deposited, yet if he undertook to execute the writ and did it negligently, he would be liable; that is to say, that if he undertook to execute the writ without the fees having been deposited, he must do everything required by Section 1212, Revised Statutes, and if he failed and the plaintiff was damaged, a recovery might be had against him. If' the sheriff of Morgan county was liable to the plaintiff, it must be by reason of some duty the sheriff owed the plaintiff, and our opinion is that .the sheriff owed the plaintiff no duty from the fact that the plaintiff had failed to do the thing which would have created the duty, viz., -the deposit of the necessary funds with .the clerk. If the sheriff was-under no obligation to take any steps or do anything in the way of executing this writ, he certainly would not be liable for a failure to do some of the things required by statute. If he was under no obligation to execute the writ, we think it clear that he could not be liable for executing the writ defectively, or putting it in other words, if he was not required to do any of the things enumerated in Section 1212, Revised Statutes, he could not be liable for omitting to do some of them. We think the court of common pleas was right in sustaining the demurrer to the reply of the plaintiff to .the third defense of the answer, and the judgment of the court of common pleas- will he affirmed.


text:
    INJURY FROM A FALL ON A DANGEROUS SIDEWALK.
    Circuit Court of Lucas County.
    Smith v. City of Toledo.
    Decided, March. 6, 1908.

      Defective Sidewalks — Degree of Care Required of Pedestrians — Negligence — Municipal Corporations.

    A pedestrian must exercise ordinary care both in the selection of a route and in its use after selecting it; but a pedestrian on a city street, desiring to go from one residence to another on the same side of the street, is not negligent as a matter of law in attempting to pass over a defective sidewalk, where his only alternatives are to take a very circuitous route by another street or to cross through deep mud the street he is on to a more dangerous sidewalk on the other side.

      G. A. Aien .and G. E. Friedman, for plaintiff in error.

      G. 8. Norihwp and G. E. Masters, contra.

      Wildman, J.; Parker, J., and EIinkeade, J., concur.
    Error to Lucas Common Pleas Court.
   The plaintiff in error sued the city of Toledo for damages caused by its claimed negligence in permitting a sidewalk on the north side of Woodland avenue in said city to become and remain in a dangerous and defective condition. On October 8, 1906, the plaintiff, while passing along said sidewalk going from his residence to the residence of his daughter on the north side of said street, fell and was injured by stepping upon a decayed plank.

Upon the trial in the court below, at the close of plaintiff’s evidence, the court arrested the testimony from the jury and. directed a verdict for the defendant. For this and other claimed error this proceeding .is brought here.

There ig little, if any, dispute that the evidence offered and received in the court below tended to establish the negligence of the municipality. The sidewalk was an old one, which had been suffered to fall into decay. During the year 1908, a resolution had been passed by the city council for its repair. At some time, whether before or after the passage of this resolution does not very clearly appear, some repairs were made; but in the making of them, as the testimony indicates, the original materials were again used. The stringers and some of the planks had been weakened by reason of the lapse of years, and at some places in the sidewalk spaces had been made by the removal of planks. At the particular point where the injury was received, the sidewalk, according to the testimony of the plaintiff, appeared to be in fair condition. A plank broke under one of his feet, and he was precipitated forward and into an opening where two or three planks had been removed.

It is claimed on behalf of the defendant in error, in support of the ruling of the court below, that the danger was obvious; that the hazard was voluntarily encountered by the plaintiff; and that he was guilty of such contributory negligence, as would bar recovery. Reliance is placed upon two or three recent decisions of the Supreme Court in cases of claimed defective sidewalks, and brief reference may be made to some of them. One of them is the case of Dayton v. Glaser, 76 Ohio St., 471, in which a very familiar principle is enunciated in .the syllabus, as follows:

“A municipal corporation is charged with the duty of keeping its streets free from nuisance and in a reasonably safe condition for travel in the usual modes, but it is not an insurer of the safety of persons using them, and when they are in that condition it is not chargeable with negligence, although an accident happens in the use of the streets.”

The syllabus does not touch upon the question of contributory negligence of the plaintiff, and really affords not very much aid to our present inquiry; because, as I have already stated, there is not much dispute in the case at bar as to the asserted negligence of the defendant. The other question as to contributory negligence of the plaintiff in going upon and using the defective sidewalk is not .touched in the decision.

Another case is that of Norwalk v. Tuttle, 73 Ohio St., 242, a case with which I have some familiarity, because on one of its trials I sat as common pleas judge. This is one of a class of cases growing out of an accumulation of ice and snow upon sidewalks in cities, rendering them more or less dangerous. Mr. Tuttle had slipped and fallen upon an icy sidewalk in Norwalk, and claimed that the city was negligent in permitting the sidewalk to be and remain in that condition. The Supreme Court held otherwise, announcing in the syllabus the result of its examination of the case. I quote:

“One who voluntarily goes upon a sidewalk of a city which is obviously, and by him known to be, in a dangerous condition, can not recover on account of injuries which he may thereby sustain, even if the negligence of the city is admitted or shown. (Schaefler v. Sandusky, 33 Ohio St., 246, and Conneaut v. Naef, 54 Ohio St., 529, approved and followed.)”

i

Counsel for the defendant in error -and possibly the court below may have inferred from this broad statement in the syllabus that some departure was intended from the qualified rule which had theretofore been held in the state, to-wit, that one could not recover who went upon such a defective sidewalk with knowledge of its defective condition when he might easily have avoided such use of it by going by some -other road to his destination.

Whether or not the court intended to abandon this qualifioa-' tion of the earlier rule becomes an important question in the present ease, in view of the testimony of the plaintiff, Smith, corroborated to some extent by the testimony of another witness, that there was no other convenient route to his destination. I have said that his residence and that of hds daughter were situated on the north side of Woodland avenue. He ivas going from his daughter’s residence to his own, and to avoid the defective part of this sidewalk he would either have had to take a very circuitous route, greatly lengthening his journey, or would have been compelled to cross the street and then reeross it, having passed the defective sidewalk. He .testifies that along the north side of the sidewalk and only six or eight inches from it was a barbed wire fence or a picket fence with barbed wires strung along the top leaning toward the sidewalk; and on the other side of the sidewalk was a row of trees, some three trees, which were close to the sidewalk, indeed encroaching upon it; south of the trees was .a 'ditch; the street was an unpaved one and at the time of this occurrence ivas in a very muddy condition; one of the witnesses testifying that a person walking along there would sink in at places almost to his knees, the soil being a mixture of clay and muck and sand. Mr. Smith testifies that the sidewalk on the opposite side of the street was worse, so far as the defective condition was concerned, than the sidewalk along which he was passing and on which he received his injury.

Now, assuming the correctness of these statements, and that the evidence tended to prove the facts asserted there can be no dispute, can it be said that the plaintiff failed to exercise that care which is ordinarily used by prudent people, and has the Supreme Court, in its somewhat general statements in two or three of the recent cases, laid down a rule which will hold a pedestrian to .a higher degree of care than that which had been deemed to devolve upon persons of prudence, as ordinarily exercised by them?

To determine what is intended by the Supreme Court in the two cases to which I have referred, Norwalk v. Tuttle, and Dayton v. Glaser, supra, we may have recourse to the reference in the opinions to the earlier cases. As already said, it appears in the second paragraph .of the syllabus in Norwalk v. Tuttle, supra, at page 242, that the cases of Schaefler v. Sandusky, 33 Ohio St., 246, and Conneaut v. Naef, 54 Ohio St., 529, are approved and followed. Dayton v. Glaser, supra, does not refer to these earlier eases by titles or otherwise, but as already suggested this case bears rather upon the asserted negligence of municipal corporations than upon the claim of contributory negligence of a plaintiff, and so has little relevancy to our present inquiry. I have in my hand Schaefler v. Sandusky, supra, and read from the syllabus:

“A person who voluntarily .attempts to pass over a sidewalk of á city, which he knows to be dangerous by reason of ice upon it, which he might easily avoid, can not be regarded as exercising ordinary prudence, and therefore can not maintain an action against the city, to recover for injuries sustained by falling upon the ice, even if the city would otherwise have been liable.”

The other case said to be approved and followed in Norwalk v. Tuttle, supra, is Conneaut v. Naef, supra. In it is stated without qualification, in the syllabus, that:

“One who goes voluntarily upon an .accumulation of ice on a walk of a village can not maintain .an -action against such village for a personal injury resulting to him, if the source of danger is plainly visible.”

There is nothing said here as to the opportunity to avoid such accumulation of ice; but on pages 530 and 531, in the reasoning of Judge Shauck, speaking for the court, we find that reliance is placed upon Schaefler v. Sandusky, supra, in which that qualification is asserted. He says, in speaking of a certain instruction .and certain evidence with regard to it:

“The only question is whether it imposed upon the plaintiff, as a condition to recovery, a higher degree of care than the law requires. If it did not, it is not objectionable because it stated the rule definitely instead of leaving it as a matter of inference to be drawn by the jury from a statement of general principles. This is determined ip Schaefler v. Sandusky, 33 Ohio St., 246, where it is held, as matter of law, that one who voluntarily attempts to pass over a sidewalk of a city, which he knows to be dangerous by reason of ice upon it, which he might easily avoid, can not maintain an action against the city to recover for injuries sustained by falling upon the ice. The precise question left undetermined by the case cited is whether in cases of this character a recovery will be denied on account of the plaintiff’s failure to avoid a source of danger that is plainly visible as well as one that is actually known. ’ ’

The matter that was specially in the mind of the judge rendering the opinion, is the distinction between a claim that the plaintiff had knowledge of a dangerous condition and a claim of the obvious character of the dangerous condition, so that the inference ought to be drawn that he had knowledge, and the court is not paying very much attention to the other question as to whether he would be excused for going upon a sidewalk more or less dangerous by reason of defects, by his having another ready route to his destination. The adoption of the language of Schaefler v. Sandusky, supra, without criticism, leaves in the mind the inference that the court does not intend to change the rule therein expressed. It seems to be left in Ohio, as it is in other states, as a recognized rule that the plaintiff is held to the exercise of ordinary care, and that in the exercise of that ordinary care he must avoid choosing a dangerous route in preference to a safe one which he might take without inconvenience.

But in the ease at bar we have evidence tending to show that he could not avoid the route selected without very great inconvenience to himself by going around upon another street, or possibly incurring greater danger by selecting a more dangerous sidewalk on the other side of the street. Surely the Supreme Court does not intend to hold him to the latter alternative. Several adjudications have been had in the circuit counts of the state touching the question. It was held in the case of Ohlinger v. Toledo, 20 C. C., 142, in the fourth paragraph of the syllabus, that:

"It is not'negligence, as a matter of law, for a person to attempt to pass over a sidewalk which he knows to be out of repair to the extent of having a board out of it. Such person is at liberty to use the walk, but must exercise such care as the nature of the walk requires.”

Of course the pedestrian must exercise ordinary care both in the selection of the route and in its use after he has- selected it. Smith testifies here that he did not deem the sidewalk dangerous at the point where he was injured; it had apparently been repaired within seven years, perhaps, and possibly at a still more recent time; that there was nothing in its appearance at that particular place that indicated to his mind its danger, lie says, however, that he was walking with care and that he was walking very slowly, because he was expecting some members of his family to meet him. on the sidewalk.

Schaefler v. Sandusky, supra, has been so often cited in other jurisdictions as to become a somewhat leading case, and reference may be made -to some of the cases in other states, where the rule has been followed, sometimes perhaps with slight modifications, but in the main as announced. Without express citation of them I refer to the annotations of Schaefler v. Sandusky, Cent. Anno. Ed.; and also invite attention -to the decision of our own court in Toledo v. Fuller, 7 C. C.—N. S., 598. And the case cited -by counsel in argument, Kendall v. Albia, 73 Iowa, 241, 247 (34 N. W. Rep., 833), especially the language on page 248. We think that the rule of contributory negligence is not so exacting as counsel for the defendant in error contend, and our judgment is that in view of the evidence tending to disclose the difficulties- and dangers attendant upon the choice of another route than that by which the plaintiff traveled and on which he was injured, the court was in error in arresting the case from the jury. The questions as to the asserted negligence of either party should have been submitted to the jury.

Another point, somewhat relied upon by counsel for plaintiff in error, that the court erred in the exclusion of evidence, is not well taken for two reasons — first, there is no formal offer of proof on the face of the record in response to question asked; and, second, plaintiff in error was not prejudiced thereby if the court erred, because of the fact that the witness did testify quite fully upon this subject in another part of his examination.

The judgment of the court below will be reversed and the case remanded for a new trial.


text:
    THE LIEN OF AN INNKEEPER.
    Circuit Court of Hamilton County.
    Joseph S. Thoma v. Remington Typewriter Company.
    Decided, June 6, 1908.

      Gonsituiional Law — Statute Granting Liens to Innkeepers Valid — Lien Attaches to Property Left by 'a Guest Regardless of his Want of Title.

    1. Section 44276, relating to the lien of an innkeeper, is merely declaratory of the common law, and does not violate any constitutional provision.
    2. The lien of an innkeeper attaches to a typewriter, left at the inn by a guest who departed without paying his bill, notwithstanding the guest had no title to the machine, and had obtained possession of it by false pretenses.

      James R. Jordan and Geoffrey Goldsmith, for plaintiff in error.

      Burch & Johnson, contra.
    Smith, J.; Swing, P. J., and Giffen, J., concur.
   The undisputed facts in the evidence disclose that on or about the 21st day of April, 1905, the defendant company delivered to one B. L. Wendelborn a certain typewriter, belonging to defendant in error, upon said Wendelborn’s statement that he was acting as agent for an amusement company; that said company desired to rent a typewriter from the'Remington Typewriter Company, and that said amusement company had authorized him to rent the typewriter for it. Thereupon said typewriter was delivered to said Wendelborn on the agreement that for each and every month said typewriter was so rented said amusement company was to pay therefor a rental of five dollars per month, but no rent was ever paid for the use of the same.

Upon the delivery of the typewriter to said Wendelborn, the latter took it to the Newmarket Hotel, at which hotel he was and had been a guest since the 1st of February, 1905, stating to the proprietor of the hotel that the typewriter belonged to him. A few days later said Wendelborn left said hotel without paying his account of forty dollars for board and lodging, leaving said typewriter in the possession of the proprietor of the hotel, who claims a lien upon the machine for the unpaid bill incurred by said Wendelborn.

Thereupon an action in replevin was brought by the defendant in error to recover possession of the typewriter. The undisputed facts further disclose that the statement made by Wendelborn to the Remington Typewriter Company that he was authorized by the amusement company to rent said typewriter for it, and also his statement to the proprietor of the hotel that he was owner of said typewriter, were false. The value of the typewriter was placed at seventy-five dollars.

Upon a hearing of the case in the-court of common pleas, at .close of all the testimony, the court instructed the jury to return a verdict for the defendant in error, and entered judgment thereon, and this case is now brought to reverse the action of said court.

Under these facts the relation between the plaintiff in error and Wendelborn at the time of the above transaction was that of innkeeper and guest. This being the relation, the plaintiff in error was entitled at common law to a lien upon the baggage and other property of the guest brought by him into the hotel, and said plaintiff in error was entitled to detain any property brought into the hotel by the guest as security for the payment of an amount due by the guest for lodging, board and accommodations furnished.

This lien became a part of the law of this state, as our courts administer the common law of England, in so far as its principles are not inconsistent with our own institutions, or opposed to the habits, customs and policies of the people of our state. Railroad Co. v. Keary, 3 O. S., 202.

This being so the plaintiff in error could retain the typewriter in question for the unpaid amount of his guest’s bill, unless Section 44276 would deprive said innkeeper of his lien. The section in question provides, that the keeper of any inn shall have a lien on the baggage and other property in and about said inn belonging to or under the control of his guest for the proper charges due him from said guest, for the accommodation, board and lodging furnished said guest, and said innkeeper shall have the right to retain said baggage and other property until the amount of such charges is paid.

It is urged in argument, that while the possession of the typewriter passed to Wendelborn, the -title to the same did not pass, and therefore said typewriter did not belong to 'and was not under the control of said AYendelborn, and consequently the innkeeper’s lien would not attach thereon.

We believe that this section is declaratory of the common law and does no-t enlarge or extend an innkeeper’s lien, so far as it relates to the property of a third person in the possession of the guest, and that said section is not in violation of any constitutional right. Under the facts in this case, Wendelborn was possessed of the typewriter in question, and it was under his control.' The words “under the control of the guest” we think, should be construed in the light of the common law decisions, and while the title to the typewriter in question may not have passed to Wendelborn, yet the innkeeper had a lien on the typewriter superior to the right of the defendant in error to retake possession of the same.

A very full and able discussion of this matter is set out in the case of Watters v. Gerard, 189 N. Y., 302 (82 Northeastern Reporter, 143).

The judgment of.the court below will be reversed, and upon the undisputed facts in the case, judgment for plaintiff will be entered in this court.


author: Kinkade, J.,

text:
    JUDGMENTS OF REVERSAL NOT CONCLUSIVE IN OTHER. JURISDICTIONS.
    Circuit Court of Lucas County.
    United States Mortgage & Trust Co. v. Anderson et al; and United States Mortgage & Trust Co. v. Messenger et al.

    Decided, April 4, 1908.

      Foreclosure — Outstanding Claimant a Proper Party — Judicial Sales — Appraisement — Title—Judgment—Effect of a Reversal in Another Jurisdiction — Where the Cause is Remanded for Further Proceedings — Final Order — Res Judicata — Judgment Embodied in Mandate, not in Opinion — State Court not Bound by Adjudication in Federal Cowrt, When.

    1. Foreclosure proceedings under the Ohio statutes contemplate an appraisal and sale of the entire land mortgaged, and not merely the equity of redemption; and in order that title may be conveyed without cloud to a purchaser at judicial sale, all persons having claims against the property are made parties, including an outstanding claimant, although such claimant derives no title and makes no claim to title from the defendant in possession or his immediate predecessors in title.
    2. A judgment by a federal circuit court of appeals, reversing the federal circuit court having original jurisdiction of the controversy and remanding the cause for a new trial, is not a final order or conclusive adjudication binding on a state court.

      B. A'. Hayes, for plaintiff.

      O. B. Snider, for Emily O. Butler.

      C. H. TrimMe, B. P. Cary and C. A. Thatcher, for Anderson.

      King, Tracy, Chapman & Wells and C. W. Everett, for Messenger.
    Widdman, J.; Parker, J., concurs; Kinkade, J., dissents.
    Appeal from Lucas Common Pleas Court.

       For other opinions in the same litigation see, Anderson v. United Realty Co. et al, 9 C. C.—N. S., 473, and Anderson v. Messinger, 4 O. L. R., 361.

   In these two cases, which were consolidated, two mortgagees, the United States Mortgage & Trust Company and Miss Emily O. Butler, seek to foreclose mortgages upon property with regard to which there has been much controversy in the courts; the rival claimants for the property being Rosewell E. Messenger, at present in possession, and Peter Anderson.

The question was made before us early in the consideration of the eases in this court, to which they were brought by appeal from the court of common pleas of this county, as to whether Peter Anderson, who is not in possession of the property, but ’Who claims to be the owner, may be a party in a suit to foreclose mortgages and marshal the liens and sell the property. The demurrers to the petitions setting up this misjoinder were overruled by the court, the majority of the court entertaining the opinion that an outstanding claimant, although deriving no title from Rosewell E. Messenger and not claiming such, was a proper party in a suit to foreclose the mortgages and sell the land. Recognizing the difference of view entertained by the courts of various states, the judgment of a majority of this court has been, and' still is, that our statutes contemplate the appraisal and sale of the entire land in a foreclosure proceeding, and not merely the equity of redemption; that it is the policy of the Ohio law to convey a title to the purchaser at a judicial sale without clouds upon it, if it be possible to avoid them, by bringing into court all parties who have claims against the property. The court united in overruling the demurrers to the petitions, but one of the members of the court based, his view upon another ground.

Passing, then, this question as to whether Anderson was a proper party .to these suits, we come to the consideration of the various matters which are made contention between Anderson and Messenger, and also between the one defendant or the other or both and the plaintiff.

We are none of us disposed to accept the view of Anderson that there has been an unlawful collusion between these mortgagees, or either of them, and Messenger, to retain the adjudication of the important controversy which has arisen, in the state; court. That there is a desire ou the part of Messenger, and perhaps those claiming under him, to conduct this litigation in the state court, may be entirely true; .and it is equally true that Anderson is evidently solicitous to conduct it in the federal court, each party relying to some extent upon favorable decisions which have been already obtained, in one court in favor oE Messenger, and in the other in favor of Anderson.

In the case between these parties, Anderson v. Messenger, 146 Fed. Rep., 929, there is a substantial recital of- the history of transactions involving the title .to this property, and in a decision rendered by this circuit court, Anderson v. Realty Co., 9, C. C.—N. S., 473, reference was made to the recital in the federal court as to such history. It is not necessary for this reason to attempt any resume of ¡the facts involved in the controversy.

Some new evidence has been offered upon the trial before us, but I will 'not take time to review it. It bears especially upon the question whether or not a certain indebtedness from Charles Butler to Henry Anderson was ever entirely paid; and also, whether a deed made by order of court to Henry Anderson was designed to convey an absolute title, or whether he held the property in trust as his security for the payment of the indebtedness referred to. There is no evidence newly offered that I now recall, that bears upon any other controversy between the parties.

Prior to the former consideration of the controversy between Messenger and Anderson by this court, the judgment of the United States Circuit Court of Appeals, Anderson v. Messenger, supra, had been rendered, but no claim was made to us at that time that such judgment in the federal court in any way precluded our consideration of the case before us. This was a proceeding in error to reverse a judgment which had been rendered in favor of Messenger and against Anderson in the court of "common pleas, and involved an examination of the facts disclosed to. the court of common pleas to determine whether the judgment of that court in favor of Messenger was justified. We-have now -before us two claims of prior adjudication: On the one hand, a claim in behalf of Anderson that the judgment in the federal court-to which reference has been made was a, final adjudication of the questions of law now litigated, and that this court is estopped on the principle of res adjudicaba from entertaining the claims of Messenger or those of his mortgagees; while on the other hand, it is insisted by counsel for the mortgagees and.for Messenger that the original judgment rendered by the court of common pleas of this county on March 31, 1906, a date prior to the judgment of the federal circuit court of appeals, was itself a final adjudication of the controversy and that that judgment has never been disturbed but, on the contrary, was affirmed by this court so .as to be preserved in full force and validity. As to this last contention, we are not altogether satisfied with the condition of the pleadings .to support the claim of Messenger as to res adjudicaba.

We are quite clear that the judgment of the federal court of appeals was not a final judgment. The nature of .that judgment and its effect constitute the most important of the questions which have remained for our consideration. It was not a final judgment, because the proceeding w.as in the federal court of appeals to review a judgment which had been rendered in the United States Circuit Court, and upon the conclusion of the consideration of the case by the court of appeals the cause was remanded to the circuit court for a new trial. We entertain no doubt that when so remanded the circuit court had full jurisdiction, not only to receive evidence which had been received under the issues presented to the circuit court of appeals, or any other relevant evidence, but also to permit amendment in its discretion of the claims of the litigants; and indeed it has been said to us that a new issue was made in the United States Circuit Court — ■ an issue which has not yet been there determined, to-wit, the claim of Messenger that the judgment of the Court of Common Pleas of Lucas County, Ohio, constitutes a final adjudication of the controversy between Messenger and Anderson. Inasmuch also .as new evidence has been offered to us, as already stated, it may be deemed highly probable that new evidence will be offered in the United States Circuit Court as to the nature of Henry Anderson’s title, upon the question whether the deed to him wa,s a trust deed or conveyed an ¡absolute fee simple, and also whether, if it was a trust deed, the conditions attaching to it had been fully satisfied. It is possible that in the United States Circuit Court there may be new evidence in aid of the construction of the will of Henry Anderson. So that all these matters have been preserved for contention between the parties and the introduction of evidence and the amending of pleadings, by the judgment of reversal and the mandate of the circuit court of appeals returning the cause to the circuit court for a new trial.

Counsel for Anderson, among citations which I will not take time tp review, cites the ease of Haley v. Kilpatrick, 104 Fed. Rep., 647, in which it was held, as appears by the first paragraph of the syllabus:

‘ ‘ A second appeal or writ of error in the same case' only brings up for review the proceedings of the trial court subsequent to the mandate, and does not authorize a reconsideration of any question, either of law or fact, which was Considered and determined'on the first appeal or writ of error, notwithstanding a contrary decision of such question in the meantime by a state court in a different case.”

Much reliance is placed by counsel upon this ease, and in' courtesy we should give attention to it with a view to see what bearing it has upon our action.

What was “considered and determined” in the federal court of appeals in the ease which I have cited? And, I might add, in a hearing of a second like proceeding to reverse the circuit court's judgment, in which again the circuit court of appeals sustained the contention of the plaintiff in error, Anderson, and again remanded the cause to the circuit court for a new trial.

There is no lack of decisions of the federal court, and we have examined a number of them in addition to those cited by counsel, holding substantially that a reversal of the judgment-of a lower court, either by the Supreme Court or by the court of appeals, is- not a final adjudication of the controversy. It does seem to be held in some of these adjudications, as indicated in the case of Haley v. Kilpatrick, supra, that the question which-was in fact considered and determined in the judgment of the appellate court will be binding, not only upon that court in any future adjudication, but also upon the subordinate courts, and that it is not merely a matter falling under the principle of stare decisis, a principle enunciated which is to be received and considered with respect, but not having a conclusively binding authority.

It is urged by counsel for Anderson that the language of the mandate of the circuit court of appeals conclusively makes the opinion rendered by .the court, showing certain conclusions as to .the facts .and law, a part of the judgment of the court. The language of the mandate in each of the two oases wherein the circuit court of .appeals rendered judgment, so far as this question is concerned, was as follows:

“On consideration whereof it is now here ordered and adjudged by this court' that the judgment of the said circuit court in this cause be .and the same is hereby reversed with costs, and the cause is remanded to the said circuit court with directions .to award a new trial. You therefore are hereby commanded that such proceedings be had in said cause in conformity with the opinion and judgment of this court as according to right and justice .and the law of the United States ought to be had, the said writ of error notwithstanding.”

Emphasis is placed upon the use of the word “opinion” in the mandate. It is contended that by the phraseology used the opinion was made a part of the judgment; that the lower court was bound to follow the opinion as well as the judgment, and upon any attempted litigation of the cause in any other court, whether of the United States or any state, that opinion must be deemed to express the law of the case and the conclusion of the court as to all facts in controversy, unless such conclusion as to the facts should be disturbed by additional evidence upon any rehearing in the court below'. This contention has been of sufficient interest and importance to justify our search of some of the federal authorities to determine whether the views entertained by counsel for Anderson in this respect are well founded.

The case of Smith v. Adams, 130 U. S., 167, gives as the holding of the federal court of last resort that:

“A judgment of a lower appellate court which reverses the judgment of the court of original jurisdiction, and remands the ease to it for further proceedings, is not a final judgment.”
On page 177 Mr. Justice Field, as reported, used these words, speaking of the judgment of the lower appellate court:
“It not merely reversed the judgment of the district court, but remanded the cause to the court for further proceedings according to law and the judgment of the appellate court. A judgment of a lower -appellate court which reverses the judgment of the court of original jurisdiction, and remands the case to it for further proceedings, is not a final judgment. A judgment of reversal is only final when it also enters or directs the entry of a judgment which disposes of the ease.”

No express language is used in the mandate, so far .as appears, connecting the opinion rendered by the judge of the ap-' pellate court with the judgment of the court, but we have some eases where there is some such indication. The case of Tampa Waterworks Co. v. City of Tampa, 124 Fed. Rep., 932, seems to have been a case in which a contention somewhat similar to the one at bar w-as urged. A brief statement of this case as embodied in the first paragraph of the syllabus seems essential to a full understanding of the views entertained by the court, which was the Circuit Court of Florida, Southern Division:

“Plaintiff brought suit in the state court to restrain defendant from enforcing a certain city ordinance fixing the maximum rates which plaintiff should charge for water supplied to patrons in defendant city, on the ground that the passage of the ordinance was a violation of plaintiff’s contract rights. A demurrer was filed to the bill, which was overruled, and a final decree of injunction rendered. ' On appeal the judgment was reversed, and the trial court directed to sustain the demurrer -and permit further proceedings. On remand of the case the bill was dismissed, and a final decree rendered, from which plaintiff appealed, in order that .the Supreme Court might render a final decision, from which a writ of error might be prosecuted to the Supreme Court of the United States. Pending such appeal plaintiff sued in the federal court to restrain the city from enforcing such ordinance, on the ground that the rates fixed were unreasonable, and operated as a taking of plaintiff’s property-without due process of law. Held: That’the prior suit, while still pending, was not res judicata or a bar to the second.”

On page 935, Judge Pardee, who rendered the opinion, says:

"The Supreme Court having remanded the cause for further proceedings, the decision was not final, and although a federal question was clearly involved no writ of error to review the same in the Supreme Court of the United States was permissible. ’ ’

And towards the bottom of the same page he uses this language :

"The decree of the Supreme Court on the former appeal was as follows—
" ‘The interlocutory -decrees granting the primary injunction and overruling the demurrer to the bill, as well as the final decree perpetuating the injunction and awarding costs against the city, are reversed, and the -cause is remanded with directions to sustain the demurrer to the bill and for such further proceedings as may be ? agreeable to equity practice and consistent with .this opinion.

And then tile judge having made this quotation, says:

"It is- not necessary to cite further authority to the effect that a decree of an -appellate court remanding a, cause for further proceedings is not a final decree, and can not be sustained as res judicata in any other court. Certainly, the views of judges, as expressed in opinions and not embodied in a decree, are not res judicata. Such views may be conclusive on the court which announces them, and on inferior courts of the same jurisdiction, but they are subject to doubt and denial in o-ther courts.”

As long -ago as 1840 in a decision in which Taney, J., delivered the opinion of the court, we have an indication of the extent to which the Supreme Court of the United States deemed that the opinion of a judge expressed in connection with a judgment rendered by the court might be considered and used by the court to which a cause was remanded. The case is West v. Brashear, 39 U. S. (14 Pet.), 51:

"The mandate of the Supreme (Court to the circuit court must be its guide in executing -the judgment or decree on which it issued.”

I invite especial attention to this language:

“The mandate is the judgment of the Supreme Court, transmitted to the circuit court; and where the direction contained in it is precise and unambiguous, it is the duty of the circuit court to carry it .into execution, and not to look elsewhere for authority to change its- meaning. But when the circuit court are referred to testimony to -ascertain the amount to be decreed, and are authorized to take more evidence on the point, it may sometimes happen that there will be some uncertainty and ambiguity in the mandate; and in such a case, the court below have unquestionably the right to resort to the opinion of the' Supreme Court, delivered at the time of the decree, in order to assist them in expounding it.”

An examination of the case will show that embodied in the mandate was -a somewhat uncertain statement of what was- to be done in the court below, -and that it was almost imperatively necessary for the guidance of the court to which the cause was remanded, that it should have recourse to the opinion for a thorough understanding of the mandate, but we dan not escape the conclusion of the Supreme Court that the judgment of the appellate court was not the opinion or any part of it, but that it was .the mandate itself, and the Supreme Court held clearly that if a mandate is unambiguous and precise, it is- the duty of the lower court to carry it into execution, and not to look elsewhere for authority to change its meaning.

If that be true, a fortiori it would, seem that the opinion is not a conclusive adjudication to be followed and obeyed by courts of other jurisdictions, -as for instance, the court of a state as distinguished from the federal, court.

The ease of McComb v. Knox Co., 91 U. S., 1, is a case which went to the Supreme Court from this state, in which the Supreme Court of Ohio had reversed the decision of a lower court and remanded it. The lower court followed the views of the Supreme Court, rendering the kind of judgment indicated in the opinion, and .an attempt was then made to carry the case, which involved some federal question, to the Supreme Court of the United States, and it was there held as I read:

“The judgment oT the Supreme Court of a state reversing that of the court of common pleas and remanding the cause for further proceedings according to law is no.t final; nor can the judgment subsequently rendered by the inferior court be re-examined here. ’ ’

Of course that last clause is based upon the fact that a case can not be carried to the Supreme Court of the United States to reverse the judgment of a court which is not of final resort in the state. On page 346, Waite, J., says in his opinion:

“The court of common pleas is not the highest court of the state; but the judgment we are called upon to re-examine is the judgment of that court alone. The judgment of the Supreme Court is -one of reversal only. As such, it was n-ot a final judgment. * * * The common pleas was not directed to enter a judgment rendered by the Supreme Court and carry it into execution, but to proceed with the case according to law. The Supreme Court, so far from putting an end to the litigation, purposely left it -open. The law of the case upon the pleadings as they stood was settled; but ample potver was left in the common pleas to permit the parties to make -a new ease by amendment. In fact, the cause was sent back for further proceedings because of the suggestion by McC-omb that he might want to present a new defense by amending his answer. ”

It seems that he did not amend his answer and that the judgment of the Supreme Count wa-s followed and respected by the court below.

I cite, also, Clark v. Kansas City, 172 U. S., 334, a ease which went to the Supreme Court of the United States from the Supreme Court -of the state -of Kansas. The syllabus reads: '

“As the laws of Kansas permit an amendment of the plaintiff’s pleadings in the count below after -the overruling by the Supreme Court of a demurrer to them, and -as the Supreme Count of the state, in deciding this case, did not take that right away, it follows that the judgment of the state court was not final and that this ease must be dismissed .for want of prosecution. ”

On page 336, McKenna, J., speaking for the court' says:

“The defendants in error, however, object to the jurisdiction of this court, and urge that the judgment appealed from is not a final .one, and is not therefore reviewable in this court.
“It is further urged that the record does not show that anything was done in the lower court after decision in the Supreme Court, but that error is prosecuted directly to the judgment of the Supreme Court, and that that determined only a question of pleading, and that its direction has not yet been acted on, and that no judgment of any kind has been entered against Wyandotte township or school district No. 9.
“The law of Kansas prescribing action on demurrer is as follows: ‘If the demurrer be sustained, the adverse party may aiñend, if the defect can be remedied by way of amendment, with or without costs, as the court, in its discretion, shall direct. ’
“In Bostwick v. Brinkerhoff, 106 U. S., 3, it was decided that ‘the rule is well settled and of long standing that a judgment or decree to be final, within the meaning of that term, as used in the acts of Congress giving this court jurisdiction on tween the parties on the merits of the ease, so that if there should be an affirmance here, the bourt below would have nothing to do but to execute the judgment or decree it had already' rendered, ’ for the support of which many eases were cited; and further: ‘If the judgment is .not one which disposes of the whole case on its merits, it is not final. Consequently, it has been uniformly held that a judgment of reversal, with leave for further proceedings in the court below, can not be brought here on writ of error.’ ”

With the view which we entertain that the judgment .of the federal court of appeals can not be deemed a final adjudication so as to bind us,-it is not necessary that we should pay attention to the contention of counsel for Messenger that even if it be final it is so only as to the legal title and right to possession of the property and does not affect .any equitable claims of Messenger, a contention which was ably argued, and supported by the case of Witte v. Lockwood, 39 Ohio St., 141.

Although as I stated at the outset some new evidence has been offered to us which was no.t disclosed in the record when we originally passed upon the title in Anderson v. Realty Co., supra, we are not thereby led to abandon the conclusions as to the facts and law which we then entertained. On the contrary, at least so far ,as concerns the nature of the title originally taken by ITenry Anderson, we feel fortified in the opinion which was then expressed and the judgment thereon rendered. We are not disposed to depart from those conclusions. Our view is now, as then, that ITenry Anderson took this title in trust to secure the payment to him of -the indebtedness from Butler; that by the will of ITenry Anderson, Peter Anderson, his grandson, took no title; and also that the trust has been discharged by full payment of the indebtedness from Butler to ITenry Anderson, and that the title should be made absolute in Messenger by reason of the intermediate conveyances from the trustees and heirs of Henry Anderson to Bronson, and from Bronson’s heirs .to Messenger.

In the suit, as it has been presented to us at this time, we have been somewhat embarrassed iby the fact that injunctions have been .allowed by the federal circuit court to restrain the litigation in the state court .as to a large part of; the property described in the mortgages. We feel quite clear that neither the United States Mortgage & Trust Company nor Emily O. Butler are bound by those restraining orders, and it has seemed difficult in attempting -to enforce the mortgages by foreclosure, by marshalling the liens and sale of the real estate and distribution of the proceeds, to avoid any .interference with the questions sought to be litigated in the federal court. We entertain the highest respect both for the federal circuit court and court of appeals, and have no wish or disposition to enter into any controversy with either, or any difference of view, and from all that has been said and done by counsel upon either side in the litigation before us, we have gathered the impression that-there is no disposition to commit any breach of the order which has been made to restrain .the parties against whom the order was directed.

Our finding will be as I have indicated. The judgment will be that the mortgages of the United States Mortgage & Trust Company and Miss Emily O. Butler be foreclosed; that the liens be found according to their dates; the land appraised and sold according to law; that the proceeds of such sale be distributed first, to the payment of taxes and costs and the payment of the mortgage lien, and that any residue thereof be held to abide the further order of this court, and that the plaintiffs and Messenger have judgment for costs against Anderson.

Mr. Everett: How about the quieting of title?

The Court: And as to the prayer of Messenger to have his title quieted, the same is granted so far as it concerns the parcels of property not in litigation in the federal court, and as to appeals and writs of error, must terminate the litigation be-the residue of the property, the court reserves its decision, and the cause as to all matters now undetermined will be continued.

Kinkade, J.,

dissenting.

I do not concur in the finding by the majority of the court that Peter Anderson is a proper party defendant in this ease. In my opinion neither the plaintiff nor any of the cross-petitioners in this action can compel Peter Anderson against his will to come into this case and here try out his adverse title with Messenger or with any other party to the action. If Peter Anderson can be compelled to do this in this action, then I agree withu the conclusions reached by the court as now stated in the opinion on all other questions which were presented by counsel at this hearing of the case for our consideration. Por the reason stated I desire it noted that I dissent.


text:
    BREACH OF WARRANTY AS A DEFENSE.
    Circuit Court of Hamilton County.
    Cincinnati & Columbus Traction Company v. Jewett Car Company.
    Decided, June 20, 1908.

      Pleading — Erroo—Breach of Warranty — Contracts—What the Parlies Had in Contemplation at Time the Contract was Made — Pinal Order.

    That portion of an answer which seeks affirmative relief must be treated as a cross-petition, an<t if the facts therein set forth entitle the defendant to any relief, the defense thus set up is good as against a general demurrer.

      C. B. Matthews, for plaintiff in error.

      Wright & Wright, f or' defendant in error.
    Giefen, J.; Swing, P. J., and Smith, J., concur.
   The Jewett Car Company as plaintiff in the original action set up a contract for the construction of certain railroad cars, alleged full performance, and prayed judgment for the balance due.

The defendant admitted the contract and that it received the cars, but denied each and every other allegation of the petition; and as a second defense and by way of cross-petition pleaded an express warranty and breach thereof, for which it asked dam.ages.

A demurrer to the second defense was sustained and an amended answer and cross-petition being presented to the court for filing, permission was denied, and thereupon the original cross-petition was dismissed at defendant’s cost.

The second defense must as a whole be treated as a cross-petition because affirmative relief is demanded therein (Section 5055, Revised Statutes; Kloun and wife v. Bradstreet et al, 7 O. S., 322). Hence, if the facts stated entitled the defendant to any relief against the. plaintiff, the general demurrer was improperly sustained. The defendant averred in substance that the plaintiff agreed to construct the car of good materials and workmanship and warranted .the same and its several parts fit for the purpose of operating the same on its interurban line; that while so operating the car w'ith due care the brake rod broke, by reason of a defective weld, and the car was precipitated down an embankment and damaged in .the amount of $200 in addition to certain necessary repairs amounting to $167.07, and defendant was deprived, by reason of said breach of warranty and damages to said car, of its use for the period of thirty-nine days, estimated at $25 a day.

The express terms of -the warranty show that the parties had in contemplation, at the time the contract was made, that the brake rod was fit for the use to which i-t was put, and was expected to be so used. The car Mrould'be of little value to the defendant while deprived of the use for which intended. The amount of the damages claimed, and whether the defendant had another car to use in place of the disabled car while being repaired, are questions of fact to be submitted to the jury. It does not appear how much of the damage to the car occurred before, and how much after the car was precipitated down the embankment, nor does it definitely appear that such precipitation was caused by the fracture of the defective brake rod. Enough appears, however, to show some injury to the ear, and some loss of its use by reason of such defect, thereby mailing a pleading good against demurrer. Ice Manufacturing Co. v. Iron Co., 68 O. S., 229.

We entertain-some doubt whether the order complained of is final within the meaning of Section 6707, Revised Statutes, as it does not in effect determine the action nor prevent a judgment, but as the question was not raised by counsel we have so treated it. Holbrock v. Connelly, 6 O. S., 199; Carpenter v. Canal Co., 35 O. S., 307.

The judgment will be reversed for error in sustaining the demurrer to the second defense of the answer and in denying leave to file amended answer.

The cause is remanded for further proceedings.


text:
    PROCEEDINGS IN ATTACHMENT.
    Circuit Court of Cuyahoga County.
    The Henry & Scheible Company v. The Collinwood Furnace Company.
    Decided, May, 1908.

      Attachment — Motion to Discharge Overruled — Duty of the Common Pleas upon Reversal of the Ruling Below — Sections 652J¡, 6726 and 6783. '

    -Upon reversal by the common pleas court of an order of-a justice of the peace overruling a motion to discharge an attachment, the common pleas court should retain the matter for trial as upon appeal.

      E. H. Tracy, for plaintiff in error,

      C. B. Robinson, contra,

      Winch, J.; Henry, J., and Marvin, J., concur.
    Error to the Court of Common Pleas.
   Plaintiff in error sued defendant in error before a justice of the peace 'and caused an attachment to be issued against the defendant’s property.

The defendant moved to discharge the attachment and, his motion being overruled, filed a petition in error in the common pleas court to reverse said ruling, under favor of Section 6524, Revised Statutes.

The common pleas court reversed the ruling of the justice of the peace and discharged the 'attachment, without retaining the case for trial and final judgment, as in cases of appeal, as provided in Section 6733, Revised Statutes.

We think this was error. Section 6726, Revised Statutes, provides, that “when a judgment or final order is reversed, either in whole or in part, in the common pleas court, the circuit court or the Supreme Court, the court reversing the same shall pro-' ceed to render such judgment as the court below should have rendered, or remand the cause to the court below for such judgment, ” but the last clause in the section reads: “but this section shall not apply to judgments of justices of the peace.”

There is no other statute authorizing the common jileas court, upon reversing the judgment of a justice of the peace, to either render the judgment the justice should have rendered or to remand the cause to the justice for further proceedings, so we hold that Section 6733 applies to error predicated to a ruling on a motion to discharge an attachment the same as to error proceedings generally, from a justice of the peace. This con-, elusion finds some support in the cases of Bradley v. Wacker, 13 C. C., 530, and Tombow v. Haskins, 15 C. C., 656.

Evidently the point here made was not called +o tbe attention of the court in the cases of Hoyman v. Beverstock, 8 C. C., 473, and Seville v. Wagner, 46 O. S., 52.

For error in rendering final judgment instead-of retaining tin-case for trial, as upon appeal, that part of the judgment of the common pleas court is.reversed and the cause remanded to that court for further proceedings.


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    REASONABLENESS OF REQUIREMENT AS TO INSURANCE COVERING CHATTEL PROPERTY.
    Circuit Court of Hamilton County.
    National Fire Insurance Company of Hartford, Connecticut, v. John Kneidel, Jr.
    Decided, June 20, 1908.

      Fire Insurance — Covering Chattel Property — Failure to Endorse Mortgage on Policy — Reasonableness of Such a Requirement — Policy not Enforcible in the Absence of Fraud or Mistake.

    The provisions in a policy of fire insurance covering chattel'property, that the policy is rendered void by the encumbering of the property with a mortgage, consent to which on the part of the company is not endorsed thereon, is a reasonable and binding provision, and in the absence of evidence that the omission of the endorsement was through fraud or mistake, an action for recovery on the policy can not be maintained.

      W. T. Porter, for plaintiff in error.

      M. C. Lyhins, C. D. Robertson and Burch, Peters & Matthews, contra.
    Swing, P. J.; Giffen, J., and Smith, J., concur.
   This action is here on error to the judgment of the superior court. Kneidel brought his action in that court against the National Fire Insurance Company on a fire insurance policy, and recovered a judgment. To the petition is attached a copy of the policy of insurance sued on. The policy contained these provisions:

"If the subject of insurance be personal property and become encumbered by a chattel mortgage the policy shall be void. * * * This policy is made and accepted subject to the foregoing stipulations and conditions, together with such other provisions, agreements or conditions as may be endorsed hereon or added hereto, and no officer or agent or other representative of this company shall have power to waive any provision or condition of this policy, except such as by the terms of this policy may be the subject of agreements, may be endorsed hereon or added hereto, and as to such provisions and conditions no officer, agent or representative shall have such power or be deemed or held to have waived such provisions or conditions unless such waiver, if any, shall be written upon or attached hereto, nor shall any privilege or permission affecting the insurance under the policy exist or be claimed by the insured unless so written or attached hereto.' ’

The defendant filed an answer alleging that at the time the policy was issued there was a chattel mortgage on the property covered by the policy and that it was not endorsed on the policy. Plaintiff filed a reply admitting the existence of the chattel mortgage, and that it was not endorsed on the policy, but alleged that at the time the policy was taken out that plaintiff had informed the agent of the company that there was a chattel mortgage on the property, and on the trial the plaintiff introduced evidence tending to prove this allegation.

It is settled law that the conditions contained in this policy are reasonable and are binding on the parties when made. So that the case presented by -the record is one where plaintiff sues on a policy which contains a provision that if the property insured is mortgaged, it is to be void, unless the fact of the mortgage is endorsed on the policy. There was a chattel mortgage on the property, and it was not endorsed on the policy. By the express terms of the policy such a state of facts-rendered the policy void. No claim was made, and no evidence was introduced tending to show that the endorsement provided for in the policy was omitted by the fraud or mistake of the defendant company, or that the company agreed to place such an endorsement on the policy. It is not sought to reform the policy, but a recovery is sought on the terms of the policy, -and it is admitted that -the terms of the policy are reasonable and binding on the parties. By the terms of the policy it was to be void if there was a chattel- mortgage on the property insured, unless the fact was endorsed on the policy, and it is admitted that -there was a chattel mortgage -on the property and that it was not -endorsed on -the policy. It follows that the- plaintiff, Kneidel, can not recover.

Judgment -reversed, and -the facts being admitted, judgment will be entered for defendant.