author: Richards, J.

text:
    PROCEEDINGS TO COMPEL ISSUANCE OF COMMITMENT PAPERS.
    Court of Appeals of Cuyahoga County.
    The State, ex rel. Doerfler, Prosecuting Attorney, v. Haserodt, Clerk of Courts.
    Decided March 6, 1920.

      Criminal Laiv — Time for Filing Motion for New Trial — Remedy of Prosecutor Where Trial Judge Has Granted a New Trial Out of Time — Annulment of Order, Not Mandamus, the Proper Proceedure.

    1. By virtue of the provisions of Section 13746, General Code, a motion for a new trial in a criminal case must be filed at the term the verdict is rendered, and except for the cause of newly-discovered evidence, within three days after the verdict is rendered, unless unavoidably prevented.
    2. Mandamus will not lie against the clerk of the common pleas court to require him to issue commitment papers and ignore a judgment of the common pleas court granting a new trial, even though the motion therefor was not filed within the statutory time, the appropriate remedy being against the trial judge to procure an annulment of the order granting a new trial.

      Samuel Doerfler, prosecuting attorney, for relator.

      Edmund B. Haserodt, in person, and Mr. J. S. Krajeioshi, for respondent.
   Richards, J.

The action is an original one in mandamus commenced for the purpose of procuring a writ commanding the defendant, as clerk of the common pleas court of Cuyahoga county, to issue commitment papers against certain persons convicted of robbery in the common pleas court of said county. No evidence has been offered, and the right of the plaintiff to a writ, if that right exists, arises on the face of the pleadings.

The petition avers in substance that on December 3, 1918, Joseph Kernegis and Edward Yitkiwicz were indicted by the grand jury of Cuyahoga county, charged with the crime of robbery, that they were duly tried on January 8 and 9, 1919, and convicted by the jury and were thereupon duly sentenced to indeterminate terms in the Ohio state penitentiary. The petition avers that at the January term of said court a motion for a new trial was duly filed by the defendants on the ground of newly-discovered evidence, and for other reasons, and that on January 13th of said term the motion was overruled by the court. The petition further alleges that said defendants prosecuted error to the court of appeals of Cuyahoga county, where the case was duly heard, the judgment of the court of common pleas affirmed, and the sentence of said court ordered to be executed; that a mandate was duly filed in the office of the clerk of courts; and that this relator demanded that the clerk of said court issue capiases for the arrest of said Joseph Kernegis and Edward Yitkiwicz and commitment papers to carry out the sentence and judgment of the courts, but that the respondent Haserodt, as clerk of the court of common pleas, refused and still refuses to issue the papers.

All the foregoing averments contained in the petition are admitted by the respondent in an answer filed by him, and the respondent further answering alleges that subsequent to the January term, 1919, of the court of common pleas, to-wit, in the July term of said court, counsel for Joseph Kernegis and Edward Yitkiwicz filed a motion for a new trial on the ground of newly-discovered evidence, and that on the same day, to-wit, July 1, 1919, said motion for new trial was duly granted by the common pleas court.

On the record the relator demands a writ of mandamus against the clerk of the court of common pleas for his failure and refusal to issue the commitment papers, to carry out the sentence of the court, affirmed by the court of appeals.

By the provision of Section 13746, General Code, the application for a new trial in a criminal case must be by motion upon written grounds filed at the term the verdict is rendered, ' and, except for the cause of newly-discovered evidence, material for the person applying, which he could not with reasonable diligence have discovered and produced at the trial, shall be filed within three days after the verdict was rendered, unless unavoidably prevented. The plain import of the language of this section requires that the motion must be filed at the term the verdict is rendered, and must also be filed within three days unless based on the ground of newly-discovered evidence. It appears from the averments of the answer in the ' case at bar that the motion for new trial on which the court acted against the state, was filed at the July term, 1919, while the cause had been tried and a verdict returned, and judgment and sentence had, at the January term of that year, and affirmed by the court therefore, within the time required by statute, and did not vest any power in the common pleas court to grant the same. It was specifically so held in the case of Lisberger v. State, 10 C. C. (N. S.), 66, decided by the circuit court of Lucas county. The decision in that case was followed, October 30, 1919, by the court of appeals of Wood county, in the ease of Allen v. State, 19 Court of Appeals Opinions, Sixth District, page 340, unreported. Allen v. State, supra, was a case in which a motion for new trial had been promptly filed, one of ■the grounds being newly-discovered evidence, and that motion was overruled and the defendant sentenced. The judgment was affirmed by the court of appeals and a motion for leave to file petition in error overruled by the supreme court. Immediately after the decision of the supreme court, upon the case being remanded for execution, a new motion for new trial was filed, being at a subsequent term, and the ground being for newly-discovered evidence.

We have no difficulty in reaching the conclusion that the trial judge was without jurisdiction to grant the motion which was filed July 1, 1919, for a new trial.

Even with this conclusion, it does not follow that the relator is entitled to a writ of mandamus against the clerk of the, court of common pleas for declining to issue the commitment papers. The judgment and sentence of the court in the original case had been affirmed by the court of appeals, and the cause remanded to the court of common pleas for execution, and a mandate therefor sent to that court. The trial court, however, instead of proceeding to carry out the mandate, as should have been done, granted the motion for new trial. By the provisions of Section 2899, General Code, the clerk of the court is under the direction of the court as to the performance of his duties. We think he was not called on to determine, at his peril, as to the validity of the order of the common pleas court in July, 1919, granting the motion for new trial.

The state would not be without remedy in such case, and that remedy is clearly indicated in Ex parte United States, Petitioner, 242 U. S., 27, where the supreme court of the United States held that mandamus issued by the superior court is a proper remedy for enforcing a criminal sentence where the district court which had passed it had defeated its execution by an ultra vires order of suspension. The court in that case further held that the proceedings should be directed to the district judge with a view to the annulment of the order of suspension, and not to the clerk with a view to the issuance of a commitment in spite of it. In the course of the opinion the supreme court of the United States cites numerous authorities sustaining the proposition thus announced, among which are the following, In re Winn, 213 U. S., 458; Ex parte Metropolitan Water Co., 220 U. S., 539, and In re Metropolitan Trust Co., 218 U. S., 312.

The supreme court of Ohio has indicated in various cases that the proper remedy under similar circumstances is against the trial judge. We call attention to Hollister and Smith v. Judges of District Court, 8 Ohio St., 202, and State, ex rel. Glass, v. Chapman, 67 Ohio St., 1. Of course it is fundamental that mandamus will not lie to control the judicial discretion of a trial judge, nor will the writ supersede the ordinary proceeding by way of appeal or error, but in the case at bar we find that the trial court was without jurisdiction to grant the motion for new trial filed at a term, succeeding that in which the verdict was returned and the judgment rendered, which were assailed' by the motion for new trial.

For the reasons given a writ of mandamus is refused and the petition dismissed.

Kinkade and Chittenden, JJ., concur.


source: Caselaw Access Project

author: Shohd, P. J.

license: Public Domain

text:
    VALIDITY OF ORDER REQUIRING HUSBAND TO PROVIDE SUPPORT.
    Court of Appeals for Hamilton County.
    The State, for the Use of Sherwood, v. Sherwood et al.
    Decided January 17, 1921.

      Constitutional Law — Validity of Statute Providing for Delay in Entering a Decree of Divorce Until Alimony Has Been Paid — Payments for Support of a Non-Resident Child.

    Section 11979-1, General Code, providing that when a husband is ordered to pay alimony or money for the support of a child the c entering of a decree of divorce may be delayed until the husband secure the payment of said alimony or money for the support of the child, is constitutional and valid, and is applicable to a case where the husband is ordered to pay for the support of a child domiciled in another state.

      Matthews & Mattheios, for plaintiff in error.

      Charles L. Hopping, for defendant in error.
   Shohd, P. J.

Peter V. Sherwood filed an action for divorce against his wife in the court of common pleas of Hamilton county. He also asked for an order granting to him custody, care and control of their child. At the conclusion of the trial the presiding judge handed down a memorandum opinion setting forth that plaintiff was entitled to a decree, that no order would be made as to the custody of the child, that plaintiff should pay into court the sum of $10 a week for the support and maintenance of the child, and, further, that the decree for divorce would not be entered of record until the said Peter Y. Sherwood should secure the payment of the $10 per week by a bond of $1,500, pursuant to Section 11979-1, General Code. The plaintiff then tendered an entry without furnishing the bond. The court refused to sign the order, and thereupon Sherwood brought an action in mandamus in this court to require the trial judge to enter the decree as presented. This court refused the writ, and upon petition in error its judgment was affirmed by the supreme court. See State, ex rel. Sherwood, v. Hoffman, 95 Ohio St., 144. Thereafter, on January 27, 1917, Sherwood gave bond with the Maryland Casualty Company as surety, and the decree of divorce was entered. For more than a year he made the payments stipulated in the bond, but later discontinued payments. Thereupon this action was brought in the court of common pleas upon the -bond for the benefit of the child. The answer admits the order of the court and the execution of the bond and alleges that the child Jocelyn E. Sherwood resided with her mother in the state of New York at the time of the decree and is now domiciled there. It sets up that the bond was given under protest, the giving thereof having been made a condition precedent to the entry of the decree of divorce. The defendant alleges that Section 11979-1, General Code, under and by virtue of which the order of the court of domestic relations was made, is unconstitutional and void, being opposed to the provisions of the Bill of Rights of the Constitution of Ohio and of Section 1, Article XIY of the Constitution of the United States. The reply denies that the bond was given under protest and that the Code section is unconstitutional.

The defendant then moved for judgment on the pleadings. This motion was granted by the court and judgment was entered in favor of the defendant. Plaintiff prosecutes error to this court.

When the matrimonial affairs of Peter V. Sherwood and his wife were before the court it had the power to pass upon the rights of both parents, of the child, and of the state of Ohio. The domicile of the child following that of the father, as a matter of law (19 Corpus Juris, 411, 412, and Toledo Traction Co. v. Cameron, 137 Fed. Rep., 48, 56), and the father being domiciled and residing in Ohio, the court had jurisdiction in the suit brought there by the father to determine the right to custody and the duty to support the minor. Section 16 of the Bill of Eights of the Constitution of Ohio provides:

“All courts shall be open and every person, for an injury done him in his land, goods, person, or reputation, shall have remedy by due course of law, and shall have justice administered without denial or delay.”

It is argued that divorce is a remedy provided by law for the amelioration of injuries suffered by one party to a marriage contract at the hands of the other party, and that by establishing one of the grounds for divorce the party is entitled to have the contract of marriage dissolved. The argument fails to take into consideration that marital relations are not merely a matter of the rights of parties to a contract. The relation once formed, the law steps in and creates a status and holds the parties to various obligations and liabilities. (Maynard v. Hill, 125 U. S., 190.) The power of the legislature over the subject of marriage as a civil status is unlimited except as restricted by the constitution. The English law concerning divorces, as it existed prior to the Eevolution, was the ecclesiastical and not the common law. (Robbins v. Robbins, 140 Mass., 528.) Throughout the United States, and in Ohio, divorce is purely a matter of statute. (Marleau v. Marleau, 95 Ohio St., 162, 164.) The marital status may be abrogated by the sovereign will without regard to the consent of both parties. (Maynard v. Hill, supra.) No person has a vested right in any general rule of law or policy of legislation entitling him to insist that it shall remain unchanged for his benefit. (Chicago & Alton Rd. Co. v. Tranbarger, 238 U. S., 67, 76.) A man, therefore, does not acquire a vested right to a divorce by reason of the happening of one of the acts set out as a ground therefor in the statute.- The legislature might abolish that ground entirely without violation of any constitutional rights. It may impose conditions like that provided in Section 11979-1, General Code. The right to require a bond to be given to secure the performance of the obligations of the father to his minor child, and the reasons supporting such procedure, are illustrated by the cases of Miller v. Miller, 64 Me., 484, and Stone v. Bayley, 75 Wash., 184. See also note in 48 L. R. A. (N. S.), 429.

The court is of opinion that Section 11979-1 is a proper exercise of the powers of the legislature in respect to the subject of domestic relations and that it does not violate any constitutional provision.

It is further argued that even if the statute is constitutional the intention of the statute is only to require a father to make provisions for a child who is domiciled in Ohio, and that the failure to support a child domiciled elsewhere is and should be protected only by the law of the state where the child is.

The eases of State v. Sanner, 81 Ohio St., 393, and In re Poage, 87 Ohio St., 72, show the policy of the criminal law of Ohio. A father can be punished criminally for failure to support a child when the child is in this state, and only then. It does not follow, however, because no criminal penalty is applied for failure to support a child elsewhere, that the state of Ohio does not recognize the obligation which a parent owes to his child. A father owes to a minor child duties arising from its immaturity and its inability to care for itself. Those duties are prescribed by the most elementary principles of civilization as well as by law. Such a duty is sometimes spoken of as a “natural duty.” (In re Poage, supra, 72, 86.) By the great weight of authority the obligation is not founded solely on the statute. (20 Ruling Case Law, 622, Section 30, note 10; Pretzinger v. Pretzinger, 45 Ohio St., 452, 459.) While criminal proceedings are often the most available mode for enforcing this duty, there exists an obligation independently of the criminal statutes referred to in the Sanner and Poage cases. The statute pursuant to which the court acted is a further means of securing to the child the performance by the father of the duty which the father owes, regardless of where the minor child may happen to be. The statute does not limit the obligation of the bond to be given, nor can the court by so-called interpretation read into it something that the legislature did not intend.

It follows that the statute is applicable to the ease at bar. Since the court could exact the execution' of such a bond under the statute as a condition precedent to the entry of the decree, the entry of the decree furnished the consideration contemplated by law. The bond, therefore, was duly given in accordance with a valid statute.

The court erred in granting judgment in favor of the defendant on the pleadings.

The judgment will be reversed.

Hamilton and Cushing, JJ., concur.


author: By the Court.

text:
    ACCEPTANCE OF RENT UNDER A LEASE WHICH HAS EXPIRED
    Court of Appeals for Butler County.
    Pabst v. Fischer.
    Decided, November 16, 1920.

      Landlord and Tenant — Option of Lessee to Terminate Lease in Case of a Certain Contingency — Contingency Occurs hut no Notice is Given of Intention to Vacate — Right of Forfeiture Waived hy Acceptance of Rent.

    A provision in a lease that upon the happening of a certain contingency during the term of the lease “this lease, at the option of the lessee, shall cease and terminate” at the time the contingency takes effect, but that if the lessee desires to continue to occupy the premises after such contingency has happened he shall give to the lessor ten days notice before it takes effect, is a condition subsequent, and, when the lessee has continued to occupy the premises after the contingency has taken effect, without giving notice as provided for in the lease, the acceptance of rent thereafter by the lessor is a recognition of the continued existence of the lease and constitutes a waiver of the right of forfeiture.
    Error. Court of Appeals for Butler County.

      Walton H. Bowers, for plaintiff in error.

      W. C. Shepherd, for defendant in error.
   By the Court.

The defendant in error, William J. Fischer, brought suit against the plaintiff in error, John Pabst, in the court of common pleas, and the case was tried upon an agreed statement of facts.

Pabst leased from one Frank Bieker a saloon in Hamilton, Ohio, for a period of one year, beginning November 22, 1918. The lease contained the following covenant:

‘ ‘ That in the event the business of conducting a saloon for the sale of intoxicating liquors or traffic in intoxicating liquors is by lawful authority prohibited in the city of Hamilton, during the term of this lease, either by virtue of a local, state or national act or law, or the lessee is refused a license to traffic in and sell intoxicating liquors, or has a license which he has obtained, revoked, and the lessee is unable longer to sell and dispose of intoxicating ' liquors in said premises, this lease, at the option of the lessee, shall cease and trminate, at the time such prohibitive law takes effect or lessee ceases to have right to vend such liquors, the lessee is thereupon released from any and all liability for the payment of rent, or the performance of any of the covenants or conditions of this lease; in the event however, that the lessee, upon said traffic being prohibited, or he is refused a license, or has his said license revoked, as aforesaid, by lawful authority, desires to continue to occupy said premises, he shall give the lessor notice in writing, at least ten (10) days before said prohibitive law goes into effect or his right to vend liquors ceases.”

The sale of intoxicating liquors was prohibited in the state of Ohio by constitutional amendment, which became operative on May 27, 1919. The lessor had by that time assigned his interest in the reversion to one Charles Trostel. Pabst gave no notice to the lessor, nor to his successor in title, as provided in the lease but he did continue to occupy the premises, and-in June paid one month’s rent to Trostel, and in July paid one month’s rent to the defendant in error, who was successor in title to Trostel. When he tendered the rent in August, Fischer refused to accept, and notified him that the rent was increased from $80 per month to $120 per month.

The trial court held that the lease had terminated and that the defenndant was liable for tbe increased rent for the remainder of the period. Judgment was awarded in favor of the plaintiff.

The contention of Fisher is that by virtue of the provisions of the lease, the lease terminated on May 27, 1919. To put the matter in another way, it is contended that the provision constitutes a limitation upon the estate conveyed. An examination of the authorities discloses that this argument is based upon a failure to distinguish between a condition and a limitation. See 2 Tiffany on Landlord and Tenant, Section 194c. The language on the deed will bear no construction more favorable to the lessor than would warrant the court in holding it to create a condition subsequent, on a breach of which by the tenant his estate may be terminated by the landlord. There are no words providing for the termination of the estate except at the option of the lessee, and if the failure of the tenant authorized the landlord to take action that would result in the termination of the estate the facts show that the right of the landlord was lost. If the landlord had a right to declare a forfeiture of the tenant’s lease, the acceptance of rent in June and July amounted to an unequivocal recognition of the continued existence of the tenancy. This constitutes a waiver of the right of forfeiture (2 Tiffany on Landlord and Tenant, Section 194i [b], and eases therein cited). The tenant was therefore authorized to continue to occupy the premises during the period of the lease for the rent therein stipulated.

Shohl, P. J., Hamilton and Cushing, JJ., concur.


text:
    CONTROL OF ELECTRIC LIGHT RATES.
    Court of Appeals for Wood County.
    The Universal Machine Co. v. The Ohio Northern Public Service Co.

    Decided November 24, 1919.

      Municipal Corporations — Authority to Fix Electric Light Rates — Right to Increase Rate Jxirisdiction of Public Utilities Commissions— Rates Controlled by Ordinance or by the Public Utilities Commission.

    1. By virtue of the provisions of Sections 614-44 and 614-47, General Code, municipalities may fix by ordinance the rates which public utility companies may charge private consumers for electric current furnished for heat, light and power.
    2. In the absence of an ordinance effective for that purpose such contracts are subject to the regulation of the public utilities commission.
    3. An ordinance which merely orders the director of public service to advertise for bids for lighting the streets and public places, and to enter into contract therefor in accordance with the plans and specifications and profiles on file, does not limit the power of the Public utilities commission to fix a higher Tate for electric current furnished private consumers than is specified in the same plans and specifications.

      Biegle & Avery, for plaintiff.

      Harrington & Dunn, for defendant.

      Motion to certify record overruled by the Supreme Court, Feb. 17, 1920.

   Richards, J.

The plaintiff is a manufacturing company doing business in the City of Bowling Green, and the defendant is a public utility company, located in said city, engaged in furnishing electric current for purposes of heat, light and power.

In the year 1917 the parties to this litigation entered into a contract by the terms o.f which the defendant company was to furnish to the plaintiff company electric current for use in con- • ducting its business for the period of two years, at certain rates specified in the contract. Current was furnished by the defendant pursuant to this contract, and at the prices named therein, for a portion of the period named, but in the year 1918 the defendant declined to furnish current any longer at the rates specified in the contract, claiming that those rates had been superseded by higher rates as set forth in a revised schedule approved by the Public Utilities Commission of Ohio. The plaintiff insists that its contract must be carried out for the two-year period named therein, while the defendant insists that • the contract was in law subject to the power of regulation by the Public Utilities Commission of Ohio, and having been so regulated and higher rates established, that it, the defendant is authorized to charge such higher rates.

There has been much litigation within the last few years arising out of situations quite similar to that disclosed by the evidence in this case, and as a result of such litigation various matters have been adjudicated and are no longer open to controversy. In the case of Union Dry Goods Co. v. Georgia Public Service Corp., 248 U. S., 372, decided January 7, 1919, it was held that private' contracts with a public service company, fixing rates, are subject to the police power of the state and may be regulated thereby, and that the exercise of such power and the fixing of a higher rate does not impair the obligation of a contract. The establishing of rates to be charged by public utilities in Ohio is within the control of the Public Utilities Commission of the state, except in so far as the same is vested in municipalities by virtue of the exceptions in the statutes. Under Section 614-44, General Code, municipal corporations are authorized to fix public utility rates by ordinance. By virtue of the provisions of Section 614-47, General Code, valid contracts for supplying electric current by a public utility company are not subject to control or modification by the Public Utilities Commission of the state, if the rates have been lawfully fixed by a municipality under Sections 614-44, 3982 and 3983, General Code. This principle has been clearly enunciated by the supreme court of Ohio in Ohio River Power Co. v. City of Steubenville, 99 Ohio St., 421.

This leaves for determination in the case at bar only the question whether the municipality by an effective ordinance, duly accepted, has fixed and established the rates which control the parties to this litigation. The power conferred upon the municipality to fix the rates to be charged for electric current supplied by the public utility must be exercised by an ordinance effective for that purpose, as required by Section 614-44, General Code, and held in City of Cincinnati v. Public Utilities Commission, 96 Ohio St., 270.

We proceed then to determine, under the evidence, whether the city council of the city of Bowling Green did pass an ordinance effective for this purpose. The record discloses that an ordinance was introduced, entitled as follows-:

“An ordinance authorizing and directing the Director of Public Service of Bowling Green, Ohio, to advertise for bids and enter into a contract for lighting the streets, avenues, and alleys and public places in the City of Bowling’ Green, Ohio, for a period of ten years beginning November 1st, 1912.”

This ordinance was enacted in the year 1912, which was after the statute empowering municipalities to fix rates, and before the amendments to the constitution of Ohio, adopted that year, became effective.

Section 1 of the ordinance empowered and directed the direct- or of public service to advertise for bids for the lighting of the streets, avenues, alleys and public places of the city, for the period named in accordance with the plans, specifications and profiles on file in the office of the director of public service. Section 2 of the ordinance authorized and directed the -director of public service to enter into a contract with the lowest and best bidder for “such” lighting for a period of ten years, beginning November 1, 1912, and in accordance with the plans, specifications and profiles on file. It is said, and we assume the statement to be true, that the plans and specifications on file not only covered the lighting of the public streets of the municipality but also included rates for current for lighting and power for private consumers, but the ordinance itself, which is the source of authority, embraced only lighting the streets and other public places and authorized a contract for such lighting. It is entirely immaterial that the specifications on file include rates for current for private purposes, because the municipality by the terms of the ordinance has seen fit only to go so far as to authorize a contract for lighting the public streets and other places in the city, even though it be conceded that the ordinance was duly and legally passed.

The ordinance clearly failing to embrace the furnishing of current to private individuals, it necessarily follows that the contract was subject to regulation by the Public Utilities Commission. The case in this respect is similar to that of Hocking Glass Co. v. Ohio Light & Power Co., 11 Ohio App., 80. In that case the opinion discloses that the city of Lancaster had not fixed the rates which could be charged by the utility company and had enacted no rate-regulating ordinance for that purpose.

It results from what has been said that the municipality not having by any effective ordinance established the rates which the defendant company might charge private consumers, and the Public Utilities Commission of the state having duly established rates -and approved a schedule fixing higher rates than those embraced in the contract between the parties to this litigation, such higher rates established by the Public Utilities Commission are lawful -and must be held applicable.

Kinkade and Chittenden, JJ., concur.


author: Shohl, P. J.

text:
    ADMISSIBILITY OF A CONFESSION BY DEFENDANT IN A CRIMINAL CASE.
    Court of Appeals for Hamilton County.
    Edinger v. The State of Ohio.

    Decided, December 22, 1919.

      Criminal Law — Admissibility of a Confession — Jury Sole Judges of its Truth and Weight — Joint Confession not Testimony by an Accomplice — Flight of the Accused not a Presumption of Cuilt.

    1. The confession of a person accused of a crime is admissible in evidence against him only when the statement was voluntarily made; its admissibility is a question for the court.
    2. After a confession has been admitted in evidence the jury has no power to reject it as being incompetent, but are the sole judge of the truth and weight to be given it.
    3. The admission of a confession signed by the accused and several accomplices is not testimony by an accomplice.
    4. Blight from the scene of a crime after the act has been committed is a circumstance which may be considered by the jurv, but does not raise a.presumption of guilt.

      Bert E. Long and James Q. Stewart, for plaintiff in error.

      Louis E. Gapelle, prosecuting attorney and CJiarles S. Bell, assistant prosecuting attorney, for defendant in error.

      Motion for leave to file a petition in error in tbis case overruled by tlie Supreme Court, March 2, 1920,

   Shohl, P. J.

Plaintiff in error was found guilty of murder in the first degree upon an indictment of the grand jury of Hamilton county, Ohio, charging him with the killing of William Thie in the city of Cincinnati.

The evidence shows that the defendant, with several others, pursuant to a plan to rob Thie, went to his house, and in the course of their robbery, shot and killed him.

An important item of evidence was the confession of the ac- ' cused. He, with several others, had been arrested and brought to the Cincinnati police hadquarters. There a statement was made by another of the joint principals in the presence of all of them. It was taken down in shorthand, transcribed, and read over to them. Each of them then stated that it was true, and each of them signed every page of it and also signed it at the end. It recites in detail the commission of the crime. Counsel for the defendant objected to the admissibility of this evidence. While the objection and exception do not show specifically that it was on the ground that the confession was not voluntary, we shall treat the situation as if a sufficient exception had been taken.

At the conclusion of the charge of the court, counsel requested the court to charge the jury that they were not entitled to consider any of the confessions that defendant signed, unless the same were given without any threats or without any force or promises. The court declined to charge further than he had already done.

When the confession of a person accused of crime is offered m evidence against him, it is admissible in evidence only if the statement was voluntarily made. Spears v. State, 2 Ohio St, 583

The question of the admissibility of a confession is a matter of law for the court. Lefevre v. State, 50 Ohio St., 584.

If evidence was offered to determine whether or not the confession is voluntary, the court may, if the evidence is conflicting, submit the preliminary proof to the jury under instructions to disregard the evidence, if satisfied that the confessions were involuntary. Burdge v. State of Ohio, 53 Ohio St., 512.

He may, however, conduct the reliminary inquiry in the presence and hearing of the jury, or not, in his discretion. While there is some authority to sustain the contention that where the evidence is conflicting the court is required to submit the question of fact to the jury, the better considered eases hold that the court alone must determine the admissibility of evidence, whether that determination involves issues of law or fact. (1 Wigmore on Evidence, Section 861.) The subject is fully discussed in the note in 18 L. R. A., N. S., 777 et seq., and 50 L. R. A., N. S., 1077 et seq.

• A confession is either admissible or inadmissible and it is the function of the court to determine what evidence is to be submitted to the jury. After a confession has been declared admissible, it is before the jury for consideration. The jury have no authority to reject it as incompetent. The jury, however, are the sole judges of the truth and of the weight to be given to a confession, as they are of any other fact. In weighing confessions a jury taking into consideration all the circumstances surrounding them and under which they are made. They thus necessarily consider those facts upon which their admissibility, as having been voluntary, depends. While there is no power in the jury to reject confessions as being incompetent, the court has no power to control the jury in the weight to be given to facts. The jury may, therefore, within their proper province, determine that the confessions ar untrue, or not entitled to any weight, for any reason, including the reason that they were not voluntarily made. This is to determine their weight. It follows that although the jury may come to the conclusion that the confessions were not voluntary, yet, if, from extrinsic evidence, or from their character and circumstances, the jury are satisfied that they are true, the jury should act upon them. See 2 Chamberlayne Modern Law Evidence, Section 1589.

It will not be profitable to set forth here the cases which are collected in the foregoing authorities. The defendant was not eutiPed to the charge requested and the refusal of the court was proper.

At the close of the general charge, the defendant requested the court to charge that the testimony, statements or evidence of any who claimed to be accomplices of the defendant should be viewed by the jury with suspicion. The court stated that he had so charged. This statement; made in the presence of the jury, was an acquiescence in the contention of the defendant, and, in substance, gave him the benefit of the requested instruction. But there is a further reason why the defendant was not prejudiced. Aside from the question as to whether or not the charge previously given by the court embodied the substance of this request, there is a further reason why the defendant was not entitled to it. There was no testimony by any accomplices. The point which counsel for the accused had in mind was the confessions which were part of the document signed by the accused. It therefore, became his confession, by adopting the language used by the others, and was not admitted solely as a statement by some one else. There was no testimony by accomplices and accused was not entitled to a charge upon that subject.

Complaint is made that at one portion of the general charge the court admonished the jury that the testimony of those witnesses clearly shown to have committed perjury in one or more points should be rejected. While this language standing alone might be looked upon as an invasion of the right of the jury to determine the weight and credibility of the witnesses', it is but part of a clear and able exposition of the true rule. • It is plain from a reading of the entire charge that the jury were instructed that they were the sole judges of the weight of the evidence, the credibility of the witnesses, and that they had a right to believe any part or parts in the statement of any witness or witnesses .

Exception was taken to the statement of the court that flight of a person immediately after a crime has been committed, with which he is charged, is a circumstance which the jury should consider. The evidence showed that after the commission of the homicide the murderers fled from the scene. While flight raises no presumption of guilt, it is a circumstance which the jury may consider in connection with other facts In evidence. Hickory v. United States, 160 U. S., 408; Alberty v. United United States, 162 U. S., 499; Starr v. United States, 164 U. S., 627; Territory of New Mexico v. Lucero, 16 N. M., 652, and note to same, 39 L. R. A., N. S., 58.

The judgment will be affirmed.

Hamilton and Cushing, JJ., concur.


text:
    COMPENSATION TO ATTORNEY DENIED WHERE CAUSE OF ACTION FAILED.
    Court of Appeals for Hamilton County.
    Oliver v. The City of Cincinnati et al.

    Decided, December 22, 1919.

      ■Injunction will not he Granted where Circumstances have Changed— Attorneys’ Fees Disallowed in such a Case — Taxpayer’s Suit — iSection 4316, General Code.

    1. In the absence of exceptional circumstances, relief granted in an equitaoie action is such as is demanded by the nature of the case and the facts as they exist at the close of the litigation, and an injunction will not be granted where conditions have so changed that no unlawful act is threatened at the time of the hearing.
    2. Upon the refusal of the city solicitor to bring an action, a tax-payer commenced suit to enjoin defendants from carrying out the terms of a franchise ordinance. Before the case came to trial the prosecuting attorney brought an action in quo warranto against the same defendants and a judgment was rendered enjoining them from carrying out the terms of the said franchise ordinance. Subsequently the defendants filed an amended answer in the injunction proceedings, setting up the facts in connection with the quo warranto proceedings and denying any attempt or threat to carry out the teTms of the franchise ordinance. Under such state of facts there is not even a moot question for determination by the court in the taxpayer’s suit, and since judgment is not rendered in favor of the taxpayer the court can not allow compensation to plaintiff’s attorney as part of the costs, under Section 4316, General Code.

      George 8. Bailey and Oliver & Oliver, for plaintiff.

      Saul Zielonka, city solicitor, for defendants.

      Motion to certify record of the Court of Appeals overruled by the Supreme Court April 20, 1920.

   Shohl, P. J.

On March 14,1917, the council of the city of Cincinnati passed ordinance No. 96rl917, pertaining to the street railway franchise and the operation of the rapid transit loop authorized by said ordinance to be construed by the Board of Rapid Transit Commissioners. It provided that a special election should be held on Tuesday, April 17, 1917, of which due notice was to be given as required by law. The project, submitted to the voters at said election, prevailed. On the day after the passage of the ordinance, the plaintiff, ■ a tax-payer of the city of Cincinnati, requested the city solicitor, in writing to bring an action to enjoin the proposed street railway franchise. The city solicitor refuséd to bring the action, and, on March 21, 1917, the plaintiff filed his petition in the court of common pleas. After the election, the plaintiff, on April 26, 1917, filed an amended and supplemental petition, but without making a new request upon the city solicitor to bring the action. The defendants, the city of Cincinnati, the Board of Rapid Transit Commissioners, and the traction companies, filed answers in which they admitted that it was their intention to carry out the provisions of the franchise established by the ordinance and vote, and the con-’ tract entered into pursuant thereto.

Before the ease came to trial, on June 18, 1917, John V. Campbell, the prosecuting attorney for Hamilto'n county, filed an action in quo> warranto in the supreme court of Ohio against the same parties who were defendants in the taxpayer’s suit, and, on March 5, 1918, the supreme court of Ohio rendered judgment in favor of the plaintiff in the action in quo warranto, enjoining the carrying out of the terms of ordinance No. 96-1917. (State ex rel, v. Cincinnati St. Ry. Co., 97 Ohio St., 283.)

Thereafter, on May 3, 1918, the city of Cincinnati filed an amended and supplemental answer wherein it alleged all the facts in connection with the suit ’by the prosecuting attorney, and alleged that the supreme court had rendered judgment in favor of John V. Campbell as prosecuting attorney, ousting the defendants from the franchise, rights, privilege and authority unlawfully assumed, usurped and abused by them under and by virtue of said ordinance No. 96-1917 and the contract and agreements entered into pursuant thereto. Further answering, the defendant city of Cincinnati alleged that it was obeying the writ issued by the supreme court of Ohio, and denied that it was now attempting to or threatening to carry out any of the provisions of ordinance No. 96-1917, or the contract or agreements made thereunder. No reply was filed by plaintiff and the allegations of the aumnded and supplement n nusvvcr stand admitted.

Plaintiff contends that he is now entitled to a judgment enjoining the defendants and each of them from carrying out the terms of the ordinance and the contract, and further asks that as part of the costs that he be allowed a reasonable attorney’s fee.

This cause is now heard on appeal by the city from the judgment of the court of common pleas; and, under the constitution of Ohio, the parties are entitled to a hearing de novo.

It is contended on behalf of the plaintiff that inasmuch as he had a right of action at the time of the filing of the petition and answer, he is entitled to a judgment herein, irrespective of what may have supervened, and without regard to the conditions that are now presented to the court.

Chancery speaks in the present tense and issues its relief as of the day of the decree. Continental Securities Co. v. Interborough, Rapid Transit Co., 207 Fed. Rep., 467, 471.

If the relief prayed for will not avail the plaintiff at the time the court renders its decision, a decree in his favor will not ordinarily be granted. See Miner v. Witt, City Clerk, 82 Ohio St., 237 and Biederman, a taxpayer, etc., v. Bell (decided by this court, March 29, 1915, by Judges Chittenden, Richards and Kinkade).

The mere discontinuance by the defendant of his wrongful or illegal acts will not necessarily defeat the right of plaintiff to an injunction. Piano & Organ Workers’ International Union of America v. Piano & Organ Supply Co., 124 Ill. App., 353; Majenica Telephone Co. v. Rogers, 43 Ind. App., 306; Pacific Mutual Tel. Co. v. Chicago & Atchison Bridge Co., 36 Kan., 118; Patterson v. Barber Asphalt Paving Co., 94 Minn., 39; Roberts v. Louisville, 92 Ky., 95, and United States v. Workingmen’s Amalgamated Council, 54 Fed. Rep., 994.

In the exercise of a discretionary power, where the conditions require it, the court may grant an injunction although the defendant may have abandoned his intention to commit a wrongful act. See Reynolds v. Everett, 144 N. Y., 189.

An apt illustration is the decision of Davis v. Berry et al, 216 Fed. Rep., 413. In that case a statute provided that a certain operation should be performed upon prisoners who had twice been convicted of felony and an order for such operation had been issued against complainant Davis. Thereafter, the board of parole rescinded the order, on the advise of the attorney general, and it was then urged that the injury no longer threatened the complainant. The court held that the opinion of the attorney general was advisory only and was not .binding on the defendants, nor their successors, as it was the duty of an officer to follow the mandates of the statute; that there was a presumption that the statute would be observed and irreparable injury done to complainant. A restraining order was granted. That decision, like that of Williams v. Boynton, 147 N. Y., 426, is an instance of the performance by an officer of a duty already commanded by an apparently competent authority, the regularity of which it was not the duty of the officer to investigate. The court' said that it required no threat to establish the danger apprehended. The act was more certain to be done than one merely threatened by a person under no obligation at all.

In the absence of exceptional circumstances, in equitable actions, the right to judgment or decree is not limited to the facts as they existed at the commencement of the action, but the relief administered is such as the nature of the case and the facts as they exist at the close of the litigation demand. An injunction will not be granted where at the time of the hearing conditions have so changed that no unlawful act is threatened. Continental Securities Co. v. Interborough Rapid Transit Co., 207 Fed. Rep., 467; Sherman v. Foster, 158 N. Y., 587; Pond v. Harwood, 139 N. Y., 111, 120; Peck v. Goodberlitt, 109 N. Y., 180; Union Bag & Paper Co. v. Allen Bros. Co., 107 N. Y., App., 529, 539; Hale v. Jenkins, 106 N. Y. Supp., 282; Brown v. Cole, 1015 N. Y. Supp., 196; Boone v. Von Arx, 4 Alaska, 716, and Grand Trunk Ry. Co. of Canada v. Michigan Railway Commission, 198 Fed. Rep., 1009, 1022. See note to Alsager v. Peterson, 31 S. D., 452, in 38 Ann. Cases, 1915D, and cases therein cited, and 16 Am. & Eng. Ency. Law, 431.

In the case at bar, before this canse was presented to the court for decision, there was a binding judgment by the court of last resort determining that the agreements in question were void. It was between substantially the same parties as those in this case. Unlike the situation presented in Davis v. Berry, supra, there is no apprehension that the defendants will attempt to carry out the ordinance, the invalidity of which has been conclusively established and the performance of which has been prohibited. The city requires no further decree to protect its interest. To paraphrase the decision in Continental Securities Co. v. Interborough Rapid Transit Co., 207 Fed. Rep., 467, 471, the obnoxious franchise is dead and the supreme court nas written its epitaph. There is not even a moot question for determination by this court. The plaintiff is not entitled to a decree.

Inasmuch as judgment is not rendered in favor of the taxpayer, the court is without power under Section 4316, General Code, to allow compensation to plaintiff’s attorney as part of the costs. The action was undoubtedly brought in good faith, and this court in the exercise of its discretion orders that all taxable costs shall be assessed against the city and in favor of the plaintiff. The plaintiff by bringing his action would have procured a benefit to the city had n.o other action intervened rendering the further prosecution of the suit unnecessary. He is in no better position in regard to services rendered by him than he would have been, if, after an examination of the law, requiring labor and sir'll, and after a presentation of his views to the eity solicitor, that official had brought an action on behalf of the city. It is not contended that such conduct, though meritorious and beneficial, would have entitled him to compensation by the city under those circumstances.

This conclusion makes it unnecessary to consider the contention of the city that plaintiff did not renew his request of the city solicitor prior to filing the amended petition.

Decree for defendants at defendant’s costs but without attorney’s fees.


author: Hamilton, J.

text:
    ALL ISSUES DETERMINABLE IN A COURT OF EQUITY.
    Court of Appeals for Cuyahoga County.
    Judges Shohl, Hamilton and Cushing of the First Circuit sitting in the place of the Eighth Circuit.
    Gray et al v. Gordon.
    Decided January 23, 1920.

      Injunction — Cross-Petition for Damages on Bond — Action in Law or Equity — Jurisdiction—Appeal to Court of Appeals — Dissolution of Temporary Iniunction — AP"ineys Fees and Expenr.s -Action for Damags lies, When.

    1. A plaintiff having invoked the jurisdiction of a court of equity by a proceeding in injunction, the court may determine all issues arising in the case, including one on a cross-petition by the defendant for damages by reason of the injunction, or leave the parties to an action at law upon the injunction bond.
    2. A cross-petitioner against whom judgment has been rendered' in such original action in injunction, may prosecute appeal to the court of appeals.
    3. A decree dismissing the action and dissolving a temporary injunction, in a proceeding for the surrender and cancellation of certain notes and mortgage, is sufficient for the basis of an action for damages upon the injunction bond although the decree dissolving the injunction does not state that it was wrongfully obtained.
    4. In such case attorney’s fees, expenses incurred in procuring the dissolution of the injunction, and loss of time and expenses at the hearings in obtaining the dissolution, are not items for which damages may be had. The cause having .been determined on demurrer, the dissolution of the injunction was only incidental to the result and no additional expenses were incurred because of the injun tion or its dissolution.

      Howell, Roberts & Duncan, for plaintiffs.

      Mathews, Orgill & Maschke, and James Metzenbaum, for defendant.
   Hamilton, J.

Plaintiffs filed a petition in the court of common pleas of Cuyahoga county, undertaking to allege fraud and misrepresentation in the sale to them by the defendant, of certain property in the city of Cleveland, and seeking the surrender and cancellation of notes, chattel mortgages and stocks given in payment therefor. Incidental thereto plaintiffs procured a temporary restraining order, restraining the defendant from disposing of the notes, mortgages and stock certificates pending the action. An injunction bond in the sum of $500 was executed and a temporary restraining order granted. Defendant demurred to the petition'on the ground that it did not state a cause of action, and the court sustained the demurrer, dismissed the petition, and, afterwards, on motion, dissolved the temporary restraining order.

Further proceedings were taken and an amended petition was filed by plaintiffs, and, in the progress of the case, the defendant filed a cross-petition making the surety company, surety on a bond, a party, and asking for damages by reason of the injunction having been wrongfully issued. The damages claimed were for attorney’s fees and expenses by way of loss of time in defending the injunction proceeding.

Upon the entering of the final judgment in the case, the trial court retained the case for hearing upon the answer and cross-petition of the defendant, and, upon final hearing on the cross-petition, found that the cross-petitioner was not entitled to the relief prayed for and entered dismissal of the cross-petition. Thereupon, the cross-petitioner appealed his case to this court.

Plaintiffs move to dismiss the- appeal for the reason that the action is not a chancery case, but one at law. Plaintiffs having invoked the chancery powers of the court, the rule is that the court can, upon dissolution of the injunction, retain the case and assess the damages arising in consequence of the injunction. The trial court might however, have dismissed the case, and left the parties their action at law on the injunction bond. Roberts et al v. Dust et al, 4 Ohio St., 503, and The Commercial Tribune Building Co. v. Rapid Electrotype Co., 13 C. C., N. S., 559.

The .filing of the cross-petition setting up the claim for damages by reason of the,injunction was-proper procedure- and the court heard the-case as in the original action. The plaintiffs having invoked the jurisdiction of a court of equity, it is entirely proper that such court should determine all the issues in the ease,.although, as before stated, it might have remanded the defendant to an action at law upon the bond. Commercial Tribune Co. v. Rapid Electrotype Co., supra.

The case is, therefore, properly before this court on appeal and the motion to dismiss the appeal is overruled.

It is urged, on the merits, by plaintiffs, that the defendant is not entitled to recover for the reason that there has been no finding that the temporary restraining order was wrongfully obtained. While this is the language of the bond,.it is not necessary that the decree dissolving the injunction should contain that precise language. The court found that there was no cause of action, dismissed the petition, and dissolved the restraining order. This was sufficient upon which to base an action for damages upon the bond. In substance, it is a determination that the injunction ought not to have been granted. Columbus, Hocking Valley & Tol. Ry. Co. v. Burke et al, 54 Ohio St., 98; Machold v. P., C., C. & St. L. Ry. Co. et al, 4 N. P., N. S., 273, and Bishop v. Bascoe et al, 8 Dec. Rep., pp., 423, 425.

However, the record discloses that the damages claimed are not such as will permit a recovery in this action. The cross-petition claims for attorney’s fees and expenses incurred in procuring the dissolution of the injunction, and for loss of time and expenses at the hearings in obtaining the dissolution. No other item of damages is claimed.

In the case of Noble v. Arnold, 23 Ohio St., 264, the court holds that where the attorney’s fees and expenses are incurred in defeating the action, and the dissolution of the injunction is only incidental to the result, such fees and expenses are not damages sustained by reason of the injunction and no recovery therefor can be had upon the undertaking.

In the case at bar the main action was one to set aside the sale on the ground of fraud and misrepresentation, and for the delivering up and cancellation of certain instruments in writing, and the injunction against the transferring of the instruments in writing pending the action was only incidental to the main action. The cause was determined on the demurrer, and the dissolution of the injunction was only incidental to the sustaining of the demurrer, dismissing the petition. No additional attorney’s fees or expenses were rendered necessary by the allowance of the injunction, nor in procuring the dissolution thereof, as disclosed by the record. Any fees paid would have been paid if the injunction had never been allowed, as the questions were determined by the demurrer. Riddle et al v. Cheadle, 25 Ohio St., 278.

It is therefore apparent from the record that the cross-petition sets up no enforceable claim against the bond.

The cross-petition will be dismissed. A decree may be entered in favor of the plaintiffs.

Shohl, P. J., and Cushing, J., concur.


author: Winch, J.

text:
    PRIORITY AND VALIDITY OF MECHANICS’ AND MORTGAGE LIENS.
    Court of Appeals for Cuyahoga County.
    M. A. Gill v. B. Konvisser et al.
    Decided, May 18, 1914.

      Mechanics’ Liens — Notice to Owner of Property of Filing of, an Affidavit for a Lien — Personal Knoivledge Not Required in ■Making of Affidavit — Credits for Money Made Without Designation as to How to Be Applied — Priorities.
    1. The “owner of the property,” designated . in Section 8315, G. C., as the one who must be notified of the filing with the county recorder of an affidavit for a mechanics’ lien, is the owner to whom the materials were furnished or for whom labor was done, and not some subsequent purchaser who acquired title after the date of the furnishing of the first item of material or labor.
    2. The rule that the affidavit which is the foundation of a mechanics’ lien must be sworn to absolutely and not upon information and belief, has reference to the form of the jurat and does not require that the person making the affidavit shall have personal knowledge of all the facts therein contained if he is satisfied of their truth.
    3. Where part payment is made by the debtor without designation as to the application to be made of the payment, the creditor may apply the payment to that part of the debt for which he has no lien.
    4. Failure of the present owner to plead that his deed contains covenants against incumbrances, is fatal to the claim that he is entitled to have the amount of a mechanics’ lien set off against the amount due on a mortgage.

      Thompson, Sine & Flory for plaintiff.

      A. Kolinsky, S. J. Deutsch, Ulmer & Bernsteen and L. N. Lawrence, for defendant.
   Winch, J.

In this case we hold that “the owner of the property” who must be notified of the filing with the county recorder of an affidavit in order to obtain a mechanic’s lien, as required by General Code, Section 8315, is the person who was the owner to whom the materials were furnished or for whom the labor was done, and not a subsequent purchaser of the property who acquires title after the date of the first item of labor done or material furnished. Rockel on Mechanic’s Liens, Section 74; 20 Am. & Eng. Enc., 375; 27 Cyc., 113.

This is so because credit is extended on ownership of the lot by the person contracting for labor or material. Account is kept with him and it is his debt, no matter to whom the property may afterwards be conveyed. The contractor should not be required to keep track of changes in ownership after he has furnished material or labor that has increased the value of the property. It is for a purchaser of such property, from the appearance of things having notice that perhaps some work has been done on the premises within four months, to make inquiries and find out whether any lien may accrue against the property.

The affidavit, specified in General Code, Section 8314, as the foundation for a mechanic’s lien, must be sworn to absolutely and not upon information and belief. This has reference to the form of jurat attached to the affidavit, and does not require that the person making it should have personal knowledge of all the facts contained in it, if he is satisfied of their truth and is willing to make oath thereto. In other words, an affidavit in which the affiant states that the facts stated by him are true, “as he verily believes,” is not sufficient, but if the affidavit is sworn to absolutely and the facts stated in it are true, it is immaterial whether the affiant had personal or hearsay knowledge of their truth. The suggestion that if it turn out on the hearing of a suit on the lien that the affiant was the proprietor of a business and got his facts which he swore to from his bookkeeper, the affidavit would not be sufficient, can not be entertained, for few could be able to make such affidavits and the statute would lose its efficacy. Such a theory would render invalid affidavits forming the basis of prosecutions for misdemeanors upon information, where the affidavit is made by a public officer upon information received from others upon which he has a right to rely, notwithstanding all the farts stated in such affidavits might be true. Neither business nor public affairs can be carried on upon any such theory of the law. The pains and penalties of the law are sufficient protection against false affidavits if their form is correct.

The credit of $200 was properly applied by plaintiff. There' was no direction from the debtor as to what account it should be applied to. It seems that several accounts of the debtor upon the creditor's books were balanced and a note given for the aggregate amount. There was 90 agreement that the note should be received in payment of these accounts. It was received as evidence of the several debts and as collateral security for their payment. Merrick v. Boury & Son, 4 O. S., 60. See opinion by Judge Thurman.

Being received as collateral security only, there was no agreement for extension of time on the account when the note was given, though it ran for 60 days and the payment was made before the sixty days was up. Credit was made on both the note and the account. The credit on the account still stood after the maturity of the note and the affidavit for lien was not made until long afterwards. It was not until after the maturity of the note that the debtor objected to the application of this payment to the older debt.

There being no. designation by the debtor at the time of payment of the application desired by him, .and the creditor being entitled to a lien for part of his account and for part not, and attempting some time after the payment to apply the payment to those items, for which he was not entitled to a lien and to secure a lien for the balance, lie should be sustained by the court in application of the payments made. Bank v. City of Cleveland, 10 C. C., 222.

Such is the case here with reference to the $200 payment and the same rule is applied to the $40Q payment, part of which was applied to the payment of accounts for which no lien was claimed. for we find as a fact, from the evidence, that when said $400 payment was made the debtor did not ask that it be applied to the account for which the lien was afterward claimed, though he did later complain that it was not applied.

The foregoing observations decide all contentions regarding the mechanic’s lien set up in plaintiff’s petition in favor of said lien.

It remains to consider the claim of defendant Feinstein, purchaser of the property from the owner who subjected it to the mechanic’s lien, that the amount of this lien should be set off against the second mortgage which she gave said owner in part payment for the land which he conveyed to her with covenants of warranty and against incumbrances, though said mortgage was assigned to another of the defendants.

Her deed is not in evidence and so we do not know from the record that it contained such covenants, notwithstanding a previous contract for the sale of the land is in evidence which contemplated the giving of such a deed.

Whether it is the settled law in Ohio that a mortgage in the hands of a Iona fide assignee thereof, is subject to the same defenses by the mortgagor that he might have made against the mortgagee, as intimated in the cases of Bailey v. Smith, 14 O. S., 396, and Tinnerman v. Howell, 2 C. C., 27, may well be doubted See Bank v. Brotherton, 78 O. S., 162.

But in any event, Mrs. Feinstein did not set up any such claim for damages in her pleadings nor did she have the same adjudicated by a jury, as such claims under the law must be adjudicated, unless a jury is waived, and this court has no jurisdiction on appeal to try such issues of facts, for such issues, triable to a jury, are not appealable.

Mrs. Feinstein filed what she denominates an answer to the amended petition of plaintiff and to the various answers and cross petitions, in which all she says about Ulmer’s mortgage is that she admits that he is “the owner of a mortgage on the premises but denies the amount thereof and demands proof.”

This tenders no issue as to Konvisser’s breach of a covenant in Ms deed to her. It says nothing about there being any such covenant. For aught the pleadings show her deed from him may have been a quitclaim deed, entitling her to no relief by reason of the mechanic’s lien which he suffered to attach to the property. Her answer asked no affirmative relief and so required no answer from either Konvisser or Ulmer.

Only one condition that she pleaded a deed with covenants . against incumbrances was she entitled to have the amount of the lien set off against the amount due from her on the mortgage. Not having pleaded it, no relief on account of it could be granted her in the common pleas court, and much less can it be granted in this court which is without jurisdiction to entertain such a claim for damages either as a set-off or as a counterclaim.

For these reasons Ulmer’s mortgage will be marshalled in its order for its full amount.

There is no dispute as to the priority of the liens which are involved herein and decree may be taken marshalling them in their order and as indicated herein.


author: Hamilton, P. J.

text:
    MUNICIPALITY NOT LIABLE FOR TORTS OF POLICE OFFICERS.
    Court of Appeals for Hamilton County.
    The City of Cincinnati v. Butterfield.

    Decided, June 6, 1921.

      Municipal Corporations — (Governmental and Ministerial Functions — Liability Against a Municipality — Not Created by Negligent Acts of its Policemen.

    A police officer while engaged, in a performance of his duties is discharging a governmental function, and the city is not liable for acts of negligence committed by him. while thus engaged.

      Saul Zielonha, city solicitor, and Dennis J. Ryan and Clifford 'F. Cor des, assistant city solicitors, for plaintiff in error.

      Edward H. J ones, for defendant in error.

       Motion to require the Court of Appeals to certify its record in this case overruled by the Supreme Court, December 13, 1921.

   Hamilton, P. J.

The defendant in error, Martha J. Butterfield, recovered a judgment in the court below against the city of Cincinnati in an action for damages for personal injuries alleged to have been caused by a mounted police officer negligently driving his horse against her, throwing her to the ground and injuring her.

It is alleged in the petition:

‘ ‘ She was struck by a horse mounted and driven by and under the control of one Edward Van Dehre, at that time a member of the police force of said defendant, the city of Cincinnati. Said Edward Van Dehre was at the time acting and on duty as mounted patrolman and as such was the agent and in the employ of the defendant. ”

The answer admits that Van Dehre was at the time a member of the police force of the city of Cincinnati, but denies generally the allegations of negligence and pleads contributory negligence.

In the opening statement counsel for plaintiff stated, among other things, in substance, the above-quoted allegation of the petition. At the close of the opening statement, counsel for the city moved for judgment of dismissal of the petition, for the reason that neither the opening statement nor the petition showed a cause of action against the city. The court overruled the motion, and this overruling, and the point that the judgment should have been for the defendant instead of for the plaintiff, are among the claimed grounds of error.

These points involve the question of liability of a city for acts of negligence committed by its police officers while in the discharge of their duties. In other words, Is a city, through its policemen engaged in the discharge of their duties, discharging a governmental function, or is it acting in a ministerial or proprietary capacity? If it is discharging a governmental function, there can be no liability on its part, otherwise an action lies. Fowler, Admr., v. City of Cleveland, 100 Ohio St., 158.

The police department derives its authority from the state. State, ex rel, Doerfler, Pros. Atty., v. Price, Atty. Genl., 101 Ohio St., 50.

The duties of a police officer are the upholding of the law, to see that the laws are obeyed; to prevent and punish infraction of the criminal laws of the state and city; and to patrol his beat for these purposes. In procuring the performance of these duties, through its police officers, the city is engaged in the discharge of a governmental function. It is the exercise of a state power. This conclusion is supported by the following cases: Bell v. City of Cincinnati, 80 Ohio St., 1; City of Cleveland v. Payne, 72 Ohio St., 347; State ex rel, v. Price, Atty. Genl., supra, Burnell v. City of Columbus, decided by the court of appeals of Franklin county, September 29, 1920, and Peterman v. City of Youngstown, decided by the court of appeals of Mahoning county, March 25, 1921.

In this case we hold that the city through the police officer was at the time engaged in the discharge of a governmental function, and no liability attached. The trial court therefore erred in overruling the motion to dismiss and in rendering judgment for plaintiff instead of for the defendant, the city of Cincinnati.

We find no other error in the record.

Coming now to render the judgment that the lower court should have rendered, judgment will be entered here in favor of the plaintiff in error and the petition dismissed.

Cushing and Buchwalter, JJ., concur.


author: Per cnriam.

text:
    LIABILITY OF SPECIALISTS AS COMPARED WITH THAT OF ORDINARY PHYSICIANS-!
    Court of Appeals for Summit County.
    Denis Pantazatos v. Emmet C. Jelm.
    Decided, January 19, 1923.

      Physicians and Surgeons — Degree of Shill Required of a Specialist Greater that than of an Ordinary Practitioner — Malpractice.
    Where a physician is employed because of his peculiar learning and skill in a specialty practiced by him, his duty to his patient is not measured by the average skill of a general practitioner, and he should be held to that degree of skill and knowledge which is ordinarily: possessed by those who devote special time and study to the disease as to which he has held himself out as a specialist.

      Carl M. Myers and Donald Gottwald, for plaintiff in error.

      Waters, Andress, Southworth, Wise <& Maxon and Benner, Harter, Walker & Watters, for defendant in error.
   Per cnriam.

This is an action in which plaintiff sued the defendant to recover damages for an alleged malpractice. The verdict of the jury and judgment of the court was for the defendant.

The principal error complainel of and set out in the brief and noticed in oral argument is in reference to the charge of the court.

At the request of plaintiff, the court charged before argument as follows:

1. “You are instructed that a physician who offers his services to the public impliedly agrees with those who employ him that he possesses that reasonable degree of learning, skill and experience which is ordinarily possessed by persons engaged in that profession and sufficient to qualify him to engage in that profession. A physician assumes to exercise the ordinary care and skill of his profession, and is liable for injuries resulting from his failure to do so, if his failure to exercise the ordinary care and skill of his profession is the proximate cause of the injuries.” • ...... i

The plaintiff also asked the court to: charge as follows:

2. “You are instructed that a physician holding himself out as having special knowledge and skill in the treatment of a particular disease is bound to bring to the discharge of his duty to a patient employing him as such specialist to treat such disease, not merely the ordinary degree of care and skill possessed by general practitioners, but that special degree of care, skill and knowledge possessed by physicians who are specialists in the treatment of such disease in similar localities, having regard to the present state of medical and scientific knowledge at the time of- treatment. ”

This request the court refused to give before argument, to which ruling plaintiff excepted. The general charge of the court was along the lines indicated in the first request quoted, which was given, and at the conclusion of the charge, plaintiff again requested that request No. 2, which had been refused, or some similar statement of the- law, be charged, which the court refused, and to which plaintiff excepted.

The petition alleged, and the proof established by the admission of the defendant, that he held himself out as a specialist in the treatment of the disease concerning which it was claimed he was guilty of malpractice.

The courts of Ohio have not spoken on the subject as to whether or not a physician who holds himself out as a specialist is held to a greater degree of care and skill than the ordinary care and skill of general practitioners, but numerous authorities outside of the state of Ohio sustain the proposition that where a physician is employed because of his peculiar learning and skill in the specialty practiced by him, his duty to his patient can not be'measured by the average skill of a general practitioner, but that he should bring to the ■ discharge of his duty to patients employed by him as such specialist, that degree of skill and knowledge which is ordinarily possessed by physicians who devote special attention and study to the disease of which he has held himself out as a specialist. McClarin v. Genzfelder, 126 S. W., 817; Coleman v. Wilson, 85 N. J. L., 203; 88 Atl., 1059; Rann v. Twitchell, 82 Ver., 79, 71 Atl., 1045; Physicians and Surgeons 30 Cyc., 1571; Physicians and Surgeons, 21 R. C. L., 387; Stewart’s Legal Medicine, p. 254, see. 93; Gillette v. Tucker, Note C, 93 Am., St., Rep., 664; Notes, 20 L. R. A. (N.S.), 1030.

No decisions holding to the contrary have been cited and we have found none, and we are satisfied that the trial court in the instant case should have adopted the view of the law expressed in these cases and that it was error not to charge that a specialist, employed as such, is charged with the duty of exercising that degree of skill and care which is ordinarily exercised by specialists in his line under the same or similar circumstances.

The court’s attention to this phase of the law was challenged both before and after the general charge, and it was error to refuse to charge on the subject.

We further find upon a review of the record that such error was prejudicial in this case. Judgment will therefore be reversed for such error, and the cause remanded.

Washburn, P. J., Pardee, J., and Funk, J., concur in judgment .


author: Dunlap, J.

text:
    PROOF AS TO WHETHER INJURIES WERE RECEIVED IN THE COURSE OF EMPLOYMENT.
    Court of Appeals for Cuyahoga County.
    The Industrial Commission of Ohio v. Dense.

    December 13, 1920.

      Workmen’s Compensation — Appeal from Industrial Commission — Denying Award on the Gi-ound Injuries were not Received in the Course of Employment.

    A judgment for plaintiff in an action on appeal from the Industrial Commission, denying an award upon the ground that the injuries causing claimant’s death were not sustained in the course of his employment, will not be reversed for failure of proof, where the undisputed testimony furnished a scintilla of proof to the effect that the injuries were received while in the course of employment.

      Samuel Doerfler, B. A. Baskin and A. W. Qhaloupka, for plaintiff in error.

      Tolies, Hogsett, Ginn & Morley, amicus curiae.

      Lamb, Tfauglvan c& Lamb, for defendant in error.

       Motion to require the Court of Appeals to crtify its record in this case overruled, April 12, 1921.

   Dunlap, J.

This cause is here on error to the court of common pleas. The judgement under review is one obtained by Mary Dense, on behalf of herself and her minor son, against the Industrial Commission of Ohio, on account, as is claimed in the petition, of the death of her husband, Fred Dense, due to injuries received while in the employ of The Cleveland Provision Company, which injuries were sustained by the decedent in the course of his employment,

The petition recites that the Industrial Commission denied the right of the plaintiff to participate in the insurance fund, on the ground that the death of said Fred Dense was not caused by an injury sustained in the course of his employment. The action in which this judgment was obtained was an appeal to the.common pleas court from that finding.

A review of all the testimony offered in the ease produces the impression in our minds that the main question in this case was peculiarly one for a jury, and not for a court, to decide. That question — and it was necessarily the sole issue in the case — was whether or not Fred Dense came to his death by an accident happening in the course of his employment. There was little, if any, conflict in the evidence, although it is quite possible that different deductions might be drawn therefrom. Thus, it was shown that Dense had been employed by The Cleveland Provision Company for a period of eight years, prior'to the time of his death; that he was a salesman, required to take care of all the company’s customers in a certain territory, which territory included about twenty butchers, maintaining meat stalls in the West Side market-house. Some of these butchers resided outside of that territory, in various parts of the city, and he frequently called upon them at their homes, in the evening. He worked both on salary and commission, and although he punched a clock in the company’s main office, at such times as he had occassion to go there, still, he had no definite, fixed working hours, but used such time and number of hours as his work required him to use, and sometimes worked at nights, and very seldom ceased working any day before 6:30 to 8:30 p. m. He was required by the contract between himself and The Cleveland Provision Company to use an automobile in covering his territory. The upkeep and wear and tear of this automobile were taken care of by the employer. It is sufficient to say that in this respect his contract with his employer required him to keep the ear in a garage, an dto keep it in good repair and presentable appearance. In order to do this, at his employer’s suggestion, and with his full permission, Dense had built a garage in the rear of his house, where he kept the ear that he was using. Dense was known to have left the company’s office, on the day of his death, at about I p. m. and between 5:30 and 6 o’clock that evening, while driving his automobile eastward over the Harvard-Denis on bridge, which was in the direction of his own home, the automobile overturned on the street-car rail, throwing him to the pavement, and causing injuries from which he died a few minutes thereafter, without regaining consciousness. He was alone at the time. Books and order blanks fell out of his coat. Some of the order blanks were filled in with orders for various kinds of meat. These books and order blanks were turned over to his employer’s officers, at the hospital, but were not produced at the trial. The widow, Mary Dense, the plaintiff: below, and one minor child, were both dependent on Fred Dense for support, and survived him.

We are not at all unmindful of the general rule, “A workman’s employment begins in the ordinary course when the time has arrived and the locality has been reached at which he is employed to work.” (Boyd on Workmen’s Compensation, Section 486.) Nor of the further rule, laid down by the same authority, that, “As a general rule, however, the period of going to and returning from work is not included.” We do not mean by this decision to set aside any general rule; but a general rule, applicable to workmen in and about a shop or factory, is hardly applicable to a salesman, the bulk of whose duties and work is outside of the factory, and performed on trains, or upon automobiles. The contract existing in this case between Dense and his employer required him to use, and keep and maintain an automobile, which it was fully understood he was keeping at his home garage It is undisputed that he kept the car there at the request of his employer. We shall' not go so far as to say that it is the law, under such circumstances, that, from the time he drives out of his garage, in the morning, until he returns the car to tlie garage, at the close of the day’s work, he is to be regarded as constantly in the course of his employment; but we will say tilas the facts disclosed by the evidence in this particular ease presented a question of fact for the determination of a jury, as to wnether or not, at the time of his injury, and under all -the circumstances, he was injured while in the course of his employment. We regard the testimony in this case as furnishing at least a scintilla of proof to the effect that he was in the course of his employment, and perhaps as raising a strong presumption to that effect. Upon this question, we regard the verdict of the jury as decisive, and the judgment will not be reversed for failure of proof.

"We have* examined the record with a view to determining whether any error, prejudicial to the rights of the defendant in error, was committed, in the admission or rejection of evidence, and in the charge of the court. "We find no such error, end the judgment will be affirmed.

Washburn and Vickery, JJ., concur.


author: Per Curiam.

text:
    PARTITION IN CASE OF A MISSING HEIR.
    Circuit Court of Clermont County.
    John Nichols and Frank A. Davis, Administrators of Joseph Clare v. John Clare et al.
    Decided, 1906.

      Presumption of Death after Absence of Seven Years — Does not Permit oj a Decree of Partition — Unless the Missing Party or his Heirs is Given Protection by Execution of Bond.

    Inasmuch, as the presumption of death after an absence of seven years without being heard from is rebuttable, a court will order, in a partition of property in which the missing party has an interest, that on distribution bond be given for repayment to him of the amount of his interest in the event of his reappearance, or to his heirs upon satisfactory proof being offered of his death.
    (We have been asked to publish the following opinion by the old Circuit Court, rendered in a Clermont county case, and affirmed by the Supreme Court, November 27, 1906 (75 Ohio State, 600). There have been many inquiries for the opinion from adjoining counties and also from other states.)
   Per Curiam.

In the finding of facts made by the court of common pleas, it appears that Joseph Clare died intestate in Clermont county, Ohio, leaving three children and the child of a deceased daughter, surviving him; that he had one other child, George Clare, born to him, but who had been absent from the state, unheard of 'for twelve years prior to the death of said Joseph Clare, his father; that the administrators filed their final account in the probate court, which was afterwards confirmed by the court and the said administrators ordered to distribute the sum remaining in their hands according to law; that four-fifths of the sum so in their hands for distribution were paid by the administrators to the plaintiff and the other living heirs, and the remaining one-fifth was reserved as the share of George Clare, if living; that George Clare, some twelve years prior to the death of his father, left the county of Clermont and has been absent and unheard of ever since; that diligent search has been made for him both prior to his father’s death and since; that George Clare is dead and left no widow, child or children, or issue of children, legatees, or devisees surviving him; and that he died prior to the death of his father.

The court found as a conclusion of law that said sum of $1,-187.32 should be distributed by said administrators in equal proportions among said John W. Clare, Mary Ann Israel, Joseph Clare and Anna Belle M'oberly.

The only foundation for the claim of the plaintiff and the other living heirs is the death of George Clare, and this is based upon facts which raise only a presumption of death which may be rebutted by other evidence.

The presumption of death from a person’s absence for seven years is not a conclusive presumption of law, but is merely a rebuttable presumption of fact or of mixed fact and law.

It is sought in this case to strengthen the presumption by attempting to give notice of the pendency of the suit to George Clare by publication, but if he is dead as claimed by the plaintiff, any attempt at service of summons or by publication would be of no avail; and on the other hand, if he is alive, the plaintiff has no claim whatever upon the fund in the hands of the administrators .

The judgment of the court therefore, disposes of the interest of George Clare in his father’s estate without any notice to him and without any support of the plaintiffs’ claim other than the presumption of death arising from his absence from the state, and being unheard of for twelve years.

The judgment is conclusive between the parties and their privies until reserved or vacated, but it can not estop George Clare, who was wholly a stranger to the cause and whose rights are sought to be concluded thereby. In the case of Young v. Heffner, 36 O. S., 232, the second proposition of the syllabus is , as follows:

“The legal presumption of death which arises from the absence of one from his home for the period of seven years, and who in the meantime is not heard of, is but prima facie evidence of the fact, and may be rebutted by counterproof.
“Third: The plaintiff, the owner in fee simple of two undivided sevenths of a farm, had been absent and unheard of for nearly thirty years, when proceedings for the partition of said farm were instituted by persons who would have been his heirs had he been then deceased. Under these proceedings the premises not being divisible without manifest injury to the value thereof, were sold by order of the court and bid off by defendant H, owner of the remaining five-sevenths thereof, and who after said purchase made valuable improvements thereon.
“Held, 1. That H, by such purchase acquired no title to the interest of the plaintiff in said land.
“2. That in the partition of said premises,the defendant H, is entitled to the benefit of such improvements, and, in making partition, respect should be had thereto.”

We think this ease is conclusive of the one before us, and that if the administrators should pay the fund now in their hands to the plaintiff and the other heirs defendants, in the case they would still be liable to George Clare if he should hereafter return.

The administrators, by answer have asked the advice and direction of the court in the distribution of the fund, and we see no objection to affirming the judgment upon condition that the parties receiving the money give security for its repayment in' the event that George Clare or his legal representatives should appear and make claim to the fund or to modifying the judgment to that extent. Sehouler on Executors, Section 484.

If security is not thus given, the judgment should be reversed and cause remanded with direction to the court of common pleas to authorize the administrators to invest the fund according to the statute or deposit it in the county treasury.