text:
    CORPORATIONS
    [Medina (8th) Circuit Court,
    December 31, 1912.]
    Marvin, Winch and Meals, JJ.
    State ex rel Van Epp, Pros. Atty., v. H. P. McIntosh et al.
    1. Holder of Proxy for Particular Purpose may not Vote on Other Questions.
    A restricted proxy, which authorizes the holder thereof to vote for certain men for directors at the annual meeting of a corporation or at any adjourned meeting, does not give the holder , thereof the right to vote upon any other question coming before the meeting, and a motion to adjourn the meeting carried by counting the votes cast by the holder of such proxy is of no effect.

      2. Impossibility of Determining which Four of Five Candidates were ■ Elected Directors, Defeats All.
    When five persons are voted for to fill four vacancies upon a board of directors and it is impossible to determine which of the five were elected, none of them can hold office as the result of the election.
    3. Directors of Corporations must be Bona Fide Stockholders.
    It is an essential qualification for holding the position of director in a corporation, that the person elected be a bona fide stockholder in such corporation; hence, one to whom one share of another’s stock has been transferred for the sole purpose of making him eligible as a director, but who has no financial interest in the corporation, is ineligible to the position of director.

      M. B. & 11. H. Johnson, for plaintiff.

      Henry & McQraw, for defendants.
   MARVIN, J.

The petition states that the following named five defendants have usurped the office of directors of the Wheeling & L. E. Ry. for the term of three years, viz: Joseph Ramsey, Jr., R. E. Slaven, F. E. Palmer, W. D. Holliday and John J. Taussig; that the following named five defendants have usurped such offices for the term of two years, viz: H. B. McGraw, George P. Rust, C. A. Henry, A. G. Webb and S. W. Carey; and that the following named five defendants have usurped such office for the term of one year, viz: F. J. Reynolds, C. M. Spitzer, R. B. Cohén, S. P. Avery and P. A. Worthington.

The petition avers that none of the defendants are entitled to hold the office of director of said railroad company.

The petition prays that the fifteen defendants, hereinbefore named, may be ousted from the offices severally claimd by them, and that the following named thirteen defendants may be adjudged to be entitled to hold the offices of directors of the Wheeling & L. E. Ry., viz: H. P. McIntosh, E. W. Ogleby, George S. Russell, C. H. Daugherty, Wm. R. Nicholson, Clarence L. Harper, Charles C. Jackson, Myron T. Herrick, E. S. Cook, James C. Chapin, Richard Sutro, Harry Bronner and F. H. Eckers.

To this petition the defendant, Ramsey, filed an answer in which he denies that he and the other fourteen defendants, whom the petition avers are usurping the office of directors, are so usurping such office, but says that they are the lawful board of directors of the company, duly elected for the several terms which the petition avers they are usurping, at an election by a stockholders’ meeting held June 4, 1912, and he prays that he and the fourteen others named in the petition as usurpers may be. confirmed in said offices and that the petition be dismissed. •

Twelve of the remaining defendants, charged in the petition to be usurpers, answered, adopting the answer of Bamsey and joining in its prayer. Neither the defendant, John J. Taussig, charged as usurping a three year term, nor the defendant, P. A. Worthington, charged with usurping a one year term, file an answer to the petition.

The defendants, TI. P. McIntosh, E. W. Ogleby and George S. Bussell, three of those averred in the petition to be legal directors, file an answer in which they state that they are no longer directors, their terms having expired and' their successors elected since the commencement of this action.

The defendants, C. A. Daugherty, Wm. E. Nicholson, Clarence Harper, Chas. C. Jackson, Myron T. Herrick, E. S. Cook, James C. Chapin, Bichard Sutro, Harry Bronner, F. H. Eckers, C. M. Spitzer and B. A. Worthington, file answer denying that either Bamsey, Slaven, Palmer, Holliday, Taussig, McGraw, Bust, Henry, Webb, Carey, Eeynolds, Cohen or Avery is entitled to the office of director of the company. It is not denied by this answer that Spitzer and Worthington are lawful directors, though it is denied in the petition.

Many other matters are set out in the pleadings, especially in the answer of the defendant, Bamsey, but, except as attention is called to them later on in this opinion, it is not deemed necessary to consider them for a proper determination of this case.

If those named in the petition as usurpers are entitled to hold the office of director, it is because they were lawfully elected to the position at a stockholders’ meeting June 4, 1912.

Without discussing how it came about that such meeting was held on that date, we hold that there was a lawful stockholders’ meeting on that day, which meeting had authority and right to' elect directors, insofar as there were vacancies on the board to fill. A full.board consisted of fifteen members.

At a stockholders’ meeting held for the purpose of electing directors on June 14, 1911, there were elected for the period of one year, beginning May 3, 1911, C. M. Spitzer, ÍH. P. McIntosh, E. "W. Ogleby, George S. Russell and C. H. Daugherty. Without question, the meeting of June 4, 1912, it being as we hold an authorized stockholders’ meeting for the purpose, had a lawful right to elect five directors to succeed the five last named, whose term of one year had expired.

This meeting of June, 1912, undertook to elect as successors to these five, the first five named in the petition as usurpers, viz: Ramsey, Slaven, Palmer, Holliday and Taussig.. But it is contended on the part of those who may be denominated the McIntosh board, that is, those who claim that there should be an ouster of such as are named in the petition as usurpers, that even if this meeting had authority of law to elect, directors, no election was actually had.

At the meeting a majority of the stock was represented by John H. Watson, Jr., as proxy for Walter S.' Wilson.

This is said notwithstanding the claim on the part of the so-called usurpers that Wilson was not such an owner of the majority of the stock as to authorize him to vote it'. We are treating the case as though Wilson were authorized to vote this majority of stock and therefore had authority to name a proxy to vote it for him. This proxy reads as follows:'

“Know All Men By These Presents:
“That I, Walter S. 'Wilson, do hereby constitute and .appoint George Cook Ford and John H. Watson, Jr., both of Cleveland, Ohio, or either of them, my attorney and agent for me, and in' my name, place and stead, to vote as my proxy at the annual meeting of the stockholders of the Wheeling & L. E. Ry., appointed to be held at the general office of the company, in room 418, Perry Payne Building, in the city of Cleveland, Ohio, on Wednesday, May 1, 1912, at two o’clock p. m., or at any adjournment thereof, according to the number of votes that I should be entitled to vote if then personally present, for the following named persons, or any of them, as directors of said the Wheeling & Lake E. Ry., viz:
“For three years from May 3, 1912 — C. M. Spitzer, H. P. McIntosh, E. W. Ogleby, George S. Russell, C. H. Daugherty.
“And I hereby give and grant unto my said attorneys and agents and each of them full power to substitute in his place and stead, as attorney and agent for me hereunder, any person or persons as he shall deem best; hereby ratifying and confirming all that my said attorney and agent, or his substitute or substitutes shall lawfully do in the premises by virtue hereof:
‘ ‘ In Witness Whereof, I have hereunto set my hand and seal the twenty-seventh day of April, in the year one thousand nine hundred and twelve.
“Sealed and delivered in the presence of W. C. Betts.
“Walter S. Wilson.”

The minority of the stock was represented by several persons. The meeting was not altogether harmonious and an effort was made by Watson, holding the proxy for Wilson, to adjourn the meeting. It is claimed that he effectually, in law, did so adjourn the meeting.

Without considering the question of whether an adjournment could be made by one person holding a majority of the stock as against several holding a minority, we are of the opinion that Watson, under his proxy, was not authorized to adjourn the meeting. He was authorized to do one thing, to-wit, to vote for C. M. Spitzer, H. P. McIntosh, B. W. Ogleby, George S. Russell and O. H. Daugherty as directors for the term of three years from May 3, 1912. A careful examination of this proxy will show that his authority went to that extent and no further

In Machen, Modern Law of Corporations, Sec. 1262 it is said that a proxy “may generally do all that the principal might have done if present, and hence may vote not merely on the main question, but also on all subsidiary and incidental motions, such, for instance, as a motion to adjourn; although, of course, a proxy may be framed in such restricted terms as to confine the agent’s right to vote to some one matter, such as the election of directors. ’ ’

Clearly the proxy under which Mr. Watson was acting authorized him to vote on one subject only, and directed how that vote should be cast, and if a proxy can be so restricted as stated in the text just quoted, this would seem to be such a proxy.

In the case of Cumberland Coal Co. v. Sherman, N. Y. (30 Barb.) 553, at page 577 it is said:

“A very large proportion of stockholders represented at that meeting were there by attorney, and the power given only authorized them to vote for the election of directors. It did not authorize them to bind their principals to acts and in reference to matters not authorized or assumed by the power. ’ ’

And then the court goes on to say that any ratification of acts of the directors by one holding such a power of attorney did not bind anybody, because his authority was restricted by the terms under which he acted.

In Cook, Corporations, See. 610, it is said:

“The ordinary proxy being intended to be for an election merely, does not enable the proxy to vote to dissolve the corporation or to vote upon other important business, unless the proxy itself, in general or special terms, gives the proxy the power to vote on such questions. ’ ’

After the effort on the part of Watson to adjourn, the meeting proceeded to elect, as successors to the five whose terms, by limitation, had expired, the first five named in the petition as usurpers, to-wit, Ramsey, Slaven, Palmer, Holliday and Taussig.

We are of the opinion, and so hold, that the prayer of the petition for the removal of these five men must be denied, and that they must each be confirmed in the office of director of the company.

Beyond the election of these five, the meeting of June 4, 1912, had no authority to elect, except to fill vacancies not result- ■ ing from the expiration of the terms of those elected in 1911.

It is claimed that there were such vacancies because, it is said, a considerable number of those elected in 1911 were ineligible to the position to which they were chosen.

As to those who were elected for three years in 1911, we find no one of them to have been, at the time of such election, a bona fide stockholder of the corporation. That being true, there were five vacancies to be filled in lieu of these, and to succeed these there were elected McGraw, Rust, Henry, Webb and Carey. These men are entitled to hold the positions to which they were elected because of the vacancies resulting from the ineligibility of those who had been elected for three yars.

Of those elected in 1911 for two years, we find that one of them, to-wit, Myron T. Herrick, was a bona fide stockholder at the time of his election, and, so far as appears from the evidence, remained such stockholder and is entitled to hold the position to which he was elected.

None of the others who were elected for three years in 1911, at the time of their election was a bona fide stockholder in the corporation, and hence, as to each of them, there was a vacancy; but as to those elected in 1912 to fill the vacancies claimed to have been occasioned by the ineligibility of those elected in 1911 for two years, since there were five voted for to fill such claimed vacancies, whereas there were but four such vacancies, it is impossible to say that any of those voted for in 1912 to fill these vacancies was elected. Five men were voted for; there were but four vacancies to fill. Neither we nor any one else can select from the five thus voted for, the four who are to fill these vacancies. The result is that those voted for to fill such vacancies, to-wit, Reynolds, Spitzer, Cohen, A very and Worthington, can not hold by reason of this election.

What has been said as to those who were elected in 1911 not being bona fide stockholders we think is borne out by the testimony of Henry B. Henson. He is the secretary of the Wheeling & L. E. Ry. He testifies from personal knowledge and from the records of the company, and shows that the only stock held by McIntosh, Chapin, Sutro, Bronner, Eekers, Nicholson, Harper, Jackson, Cook, Oglebay, Russell and Daugherty was one share each; that these shares were transferred to them from one Wilson on June 12,1911. Wilson is the man in whom a majority of the stock stood at the time of the election both in 1911 and 1912. Wilson held this stock in his name; it was stock which had been pledged by the owner of the Mercantile Trust Co., as security for an indebtedness of such owner of the stock to said pledgee. The said stock so pledged to said trust company was by it transferred to said Wilson, such transfer being entered on the books of said railroad company. Said Wilson had no interest in said stock except as trustee for said trust company, and it may be doubted whether Wilson had a right to sell any shares of that stock. But the earlier testimony of Mr. Henson in this same deposition shows that transfers of stock were made on the books of the company for the purpose only of enabling the transferees to be eligible as directors, and we think, in the absence of the testimony of these transferees, none of whom testify that they had actually purchased the stock, the only ones testifying showing by their testimony that their holding was only nominal, we are justified in holding that these transfers made by Wilson to the several parties named, were made for the purpose of enabling these men to hold the position of directors in this corporation.

It is significant that these several transfers were made immediately preceding the annual election of directors in 1911, and that each of such transferees was, at that election, chosen as a director.

That it is an essential qualification for one to hold the position of director in a corporation, to be a bona fide stockholder in such corporation, we think is clear, first, from the language of the See. 8661 G. C., which reads:

“And a majority of such directors must be citizens of this state. All directors and executive officers shall be holders of stock of the company for which they are chosen, in an amount to be fixed by the by-laws.”

That the language “shall be holders of stock” means “bona fide holders, ’ ’ is held by our Supreme Court in Bartholomew v. Bentley, 1 Ohio St. 87. In that case, it is true, the court found that those who claimed to be directors, not only were not bona fide owners of any stock, but that they had entered into a combination for the purpose of defrauding; but they were held not to be eligible because not coming within the terms of the statute, which required each director to be a stockholder at the time of his election.

Again, in the case of Deuber Watch Case Mfg. Co. v. Daugherty, 62 Ohio St. 589 [57 N. E. 455], it is held that one Coburn, to whom stock had been assigned.for the purpose of rendering him eligible as a director, but who had no actual interest in the stock, was therefore ineligible to the position of a director.

We can think of no valid reason for the provision in the statute, that in order that one may be a director of a corporation he must be a stockholder, except that the business of a corporation must be controlled and managed by those who have a bona fide interest in it. There is no greater protection to stockholders, or to those dealing with a corporation, in having a board of directors made up of those who have no bona fide interest in the corporation, than there is in having a board of directors made up entirely of those who are not even nominal stockholders.

The conclusion to which we come, therefore, is:

As already stated, that the petition must be dismissed as against Ramsey, Slaven, Palmer, Holliday and Taussig, for the reason that they were elected to fill vacancies occurring by expiration of term; that it must be dismissed as against McGfraw, Rust, Henry, Webb and Carey, they having been elected to fill vacancies caused by the ineligibility of those assuming to act under the election of 1911; that it must be sustained as against Reynolds, Spitzer, Cohen, Worthington and Avery, because, as already pointed out, they were not elected.

And so we hold, that these in whose favor we dismiss the petition, together with Myron T. Herrick, who appears to have been a stockholder at the time of his election in 1911 for the term of three years, are entitled to hold office.

Winch and Meals, JJ.', concur.


source: Caselaw Access Project

author: MARVIN, J.

license: Public Domain

text:
    INSURANCE
    [Cuyahoga (8th) Circuit Court,
    December 30, 1912.]
    Marvin, Winch and Meals, JJ.
    E. L. Hessenmueller, Exr. v. Barbara Sirilo et al.
    Beneficiary may be Related by Affinity after Dissolution of Marriage on Which it Depends.
    The grandniece of the husband of a member of a fraternal benefit society is a person related by- marriage within the meaning of Sec. 3631-16 R. S. (Sec. 9467 G. C.), which provides that anyone so related may be the beneficiary of a fraternal insurance certificate, and such relationship continues after the death of the husband upon whom the relationship depends.

      E. L. Hessenmueller and W. J. Hamilton, for plaintiff in error.

      D. B. Stone and J. C. Block, for defendants in error.
   MARVIN, J.

Barbara Sirilo brought a suit against the Amerikai Reformatus Magyar Eygesulet, claiming to recover the sum of $750 from such defendant. The defendant in the original action is a fraternal benefit society, organized under the laws of this state. The plaintiff claimed to recover because, as she averred in her petition, she was lawfully designated as the beneficiary in a certificate for benefits which was issued to one Mary Onody, who had been a member of the society and had died prior to the bringing of this suit.

The society, by way of interpleader, set out that Mary Onody was a member of the society in good standing at the time of her death; that the association was indebted to some person by reason of the membership and death of Mary, to the sum claimed in the petition, but that one John Gedeon, and also E. L. Hessenmueller, as the executor of the will of Mary Onody, deceased, each claimed to be entitled to have the amount paid to them and asked for the direction of the court.

Hessenmueller, as such executor, filed an answer and cross-petition claiming the fund, and Gedeon also filed an answer and cross-petition claiming the fund, and it is these rival claims which were before the court of common pleas in the trial of the ease.

The result of the trial was that the court ordered the money paid to the plaintiff below, the case having been tried to the court without the intervention of a jury.

The trial judge prepared an opinion in the case, which we think fully justifies the conclusion reached. We know of no rule of law which would entitle the executor of the will of the deceased to this fund.

The claim of the husband is based upon the proposition that the deceased died leaving no lineal descendant, and that he is therefore the heir at law of the deceased.

The plaintiff below shows that she is the granddaughter of a sister of a former husband of the deceased.

Under Sec. 3631 R. S. (Sec. 9467 G. C.), subdivision 16, which was in force at the time when the rights under this membership became fixed, a member of the association had a right to designate as the beneficiary any person related by blood or marriage to the member.

The question was raised in this case whether the plaintiff below was such relative of the deceased, and also whether she ever was properly designated as the beneficiary, and'further, whether under the by-laws of the organization she might be designated.

Of course, no person would be entitled to tbe payment of the money, even though properly designated, unless the person designated was a relative of the deceased within the meaning of the statute. The society could not, by any by-laws, enlarge the class of persons, beyond the statute, who might take as beneficiary. It might, however, restrict the classes, always keeping within the limits of the statute.

The official language of the association is declared in its bylaws to be the Hungarian language, and its laws are printed in that language.

On the trial witnesses were examined as to the meaning of certain words used in the by-laws, the contention being on the one side that the only person who could be designated must be an heir at law, as that term is used in the statutes of Ohio, but we think the evidence fairly shows, as pointed out by the trial judge in his opinion, that the language of the by-law did not intend to restrict the class of beneficiaries to those who might, under the laws of Ohio, be heirs at law. The word “heir” is frequently used in common parlance among the English-speaking people, as meaning one to whom the property of a deceased person goes either by descent or by will, and it is shown in the evidence, as we think fairly, that it was in this broad sense that the words are used in the by-law.

And so we reach the conclusion, as the court below did, that those who might legally be designated by members as beneficiaries under the certificate includes all those who, under the statute of Ohio, might be so designated; and we come to consider, therefore, the question of whether the plaintiff below comes within those enumerated in the statute as competent to be designated as such beneficiary.

If she was related at all to the deceased member; it was by marriage. There was no consanguinity between her and the deceased member, but she was, from the facts stated, a grandniece of the former husband of such deceased member. She was related to that husband by blood; she was the granddaughter of his sister. Without question had he been a member he might have designated the plaintiff below as beneficiary and it has been so held by many authorities, , as shown by the. citation made in the opinion of the court below to Bacon, Benevolent Societies, 621.

Authorities which seem to be directly in point are:

Simcoke v. Grand Lodge, A. O. U. A., 84 Ia., 383 [51 N. W. 8; 15 L. R. A. 114J : The statute provided that no beneficial certificate should be issued unless the beneficiary be the husband, wife, relative, legal representative, heir or legatee of the insured, and it was held in these words:

“A stepfather is a relative by affinity, and the relationship continues after the death of the wife on whom the relationship depends. ’ ’

In the case of Spear v. Robinson, 29 Me. 531, it is said:

‘ ‘ By marriage one party thereto holds, by affinity, the same relation to the kindred of the other that the latter holds by consanguinity, and no rule is known to us under which the relation by affinity is lost, on a dissolution of the marriage, more than that by blood is lost by the death of those through whom it is derived. The dissolution of a marriage once lawful, by death or divorce, has no effect upon the issue, and it is apprehended it can have no greater operation to annul the relation of an affinity which it produced.

In the case of Bennett v. Van Riper, 47 N. J. Eq., 563 [22 Atl. 1055; 14 L. R. A. 342; 24 Am. St. 416], it was held:

“Under a beneficial certificate which read: ‘Each beneficiary member, the person or persons designated by said member related to, or dependent upon him or her, shall be entitled, under the prescribed regulations and conditions, ’ etc., the words ‘related to’ include persons connected by affinity as well as by consanguinity. ’ ’

Our statute, it will be noticed, goes further than the language of this certificate last quoted from, because it in express terms provides that a beneficiary may be one related to the member either by blood or marriage, so that the plaintiff below in the present case might be held to be a relative of the deceased member without going so far as the court went in the last case mentioned. In the case of Bennett v. Van Riper, supra, this language is used in the opinion, and it appeals to us as entitled to great Aveight; speaking of the word “relative” or “relations”:

“When used in a contract, as in this case, I do not find that it has such a fixed and definite meaning that we must thwart the purpose of this decedent,- who supposed that, by the terms of the article giving him control of his benefit in the relief fund, he could bestow it on any one of those popularly called relatives whom he might select. It seems also that a liberal rather than a restricted meaning given to the word ‘relative,’ used in this article of the association, would better comport with its benevolent purpose. The construction contended for against this certificate would exclude a member’s wife, unless she came within the other part of the phrase by being dependent on him for her support. The ties of affinity are often stronger than those between collateral or even lineal kinsmen by blood; and there is nothing unreasonable in saying that this certificate was made payable to one whom the holder supposed was properly classed among his relatives, and that the council so intended. Where there is no fixed legal or technical meaning which the court must follow in the construction of a contract, then ‘the best construction,’ says Chief Justice Gibson, ‘is that which is made by viewing the subject of the contract as the mass of mankind would view it; for it may be safely assumed that such was the aspect in which the parties themselves viewed it. A result thus obtained is exactly what is obtained from the cardinal rule of intention.’ ”

There remains only the question whether the deceased member ever did designate in a lawful way the plaintiff below as such beneficiary.

From the evidence it is clear that she intended to, and in fact that she did all that she needed to do to make such designation, and the designation would have appeared upon the records of the association but for the failure on the part of the general secretary to make the entry in the record which he should have made, and this, he says, was because he overlooked the matter. ITe was called upon by the member, who brought with her the plaintiff below, and said to him that she was a relative and that she was the one that was to take under the certificate. He took the name down on a slip of paper, and simply overlooked it.

By releasing the funds to the plaintiff below, the court clearly carried out the desire and intention of the deceased member, whose right it was to say to whom this fund should go. As has been pointed out, she did all that was required of her to make-file designation, and the person whom she intended to make beneficiary, and whom she undertook to make the beneficiary, should not be deprived of the benefit which the member undertook to confer upon her, unless some fixed rule of law makes it necessary to so deprive her. We find no such fixed rule of law. On the contrary, the law seems to be in accordance with what seems clearly to be just and right in this case. The court below so found, and its judgment is affirmed.

Winch and Meals, JJ., concur.


author: KINKADE, J.

text:
    ATTORNEY AND CLIENT
    [Cuyahoga (8th) Circuit Court,
    1912.]
    Wildman, Kinkade and Richards, JJ., of Sixth Sitting in Place of Eighth Circuit Judges.
    In Re Disbarment of Horace Neff.
    Fraudulently Inducing Juror to Visit Prosecutor’s House at Midnight Held Unprofessional Conduct in Interfering with Administration of Justice.
    When an attorney approves of and aids in the execution of a plan to discredit a juror and the prosecutor in a criminal case then on trial, hy creating a false situation by causing the juryman, by means of a protended message from the prosecutor, to visit the prosecutor’s home at midnight, such attorney is guilty of unprofessional conduct, in interfering with the proper administration of justice, and such misconduct is not excused by an honest belief that the prosecutor had an unfair advantage in criminal trials which the attorney was seeking to expose.
   KINKADE, J.

This is a disbarment proceeding commenced in this eoqrt against Horace Neff, a member of the Cleveland bar. The alleged misconduct which the committee insists justifies his disbarment occurred in connection with a criminal trial in the common pleas court in Cleveland in December, 1911, before Honorable W. A. Babcock, common pleas judge.

The prosecution which involved a felony was one against J.' A. C. Golner, who is now serving sentence imposed in that case. Golner was represented in his trial in court by two members of the Cuyahoga bar who were men of ability and unquestioned integrity, and who were fully qualified to protect the interests ox their client in every respect. The trial was commenced on Monday and lasted until tbe next succeeding Monday, in tbe evening of which last mentioned day a verdict of guilty was returned by the jury. About the time the trial was begun or very soon thereafter, the accused, Golner, employed the respondent, Horace Neff, as additional counsel in his behalf. The scope of Neff’s employment is not very clearly shown by the evidence. Neff’s statement in respect to it is that he was employed by Golner for the purpose of aiding in securing as low a sentence as possible, if Golner should be convicted. Neff was to have nothing’ at all to do with the trial of the case in court. His employment was rather unusual, to say the least. About the time that Neff was employed, Golner determined that it was necessary, in order to properly safeguard his interest, to employ a detective agency to operate in his behalf. He was aware that for some time prior to. that the county had employed a detective regularly to work in connection with the prosecutor in criminal trials; and Golner, it seems, decided that his interests needed a like supervision during the trial. It does not appear that Neff had anything to do with the employment of the detective. On the Sunday night, the day preceding the Monday on which the case was finished, the chief of the detective agency, a Mr. Woodward, sent a messenger by the name of Noonan, who was well acquainted and had been for many years with the respondent Neff, to the Neff residence to say to him that he was wanted at the office of the detective agency forthwith to give advice concerning an important matter. Noonan represented to Neff that he did not know what the matter under consideration was. Neff went with Noonan to the detective agency’s office and on arrival he found there, Woodward, the man on trial, Golner, a brother of Golner and perhaps one or two others. The chief detective Woodward then explained to Neff that his agency had been retained by Golner some days prior, and that they had been keeping close watch of the parties connected with the trial, and particularly of the movements of the county detectives and the jurors sitting in the case, and that his men had reported to him a situation that led him to believe that Golner was not having a fair trial but was being railroaded,, regardless of the evidence, to a conviction. He stated it to be a fact that a number of the regular jurors, sitting in criminal •cases in Cleveland, were employed by the prosecutor as spies to take note of how jurors voted in various cases, whether for acquittal or conviction, and to report the facts to the prosecutor in order that with this information in hand, he might excuse on challenge for cause and peremptorily challenge jurors who were known to have voted for acquittal in different cases, to the end that he might secure on each trial jury as many as possible of the jurors who were strongly inclined to vote for conviction'in criminal eases, and it was there stated by Woodward that this practice was very general on the part of the prosecutor’s department, and through this means, aided by an unwarranted interference with witnesses and perhaps some intimidation of jurors by the county detective, one Doran, the prosecuting attorney was given a very unfair advantage against all defendants in criminal trials, and in connection with this general statement, it was stated to Neff that one of the jurors in the Golner case, a Mr. Glass, was one of the regular spies of the prosecutor’s department, and a very unfair man to sit in that case. In fact, the jury as a whole was said to have been unfairly selected and hence his anticipation of Golner’s conviction which I have stated. Woodward outlined to Neff that after getting this information he had evolved a plan which he thought would aid Golner and this was his plan: He proposed to send Noonan, alone in an automobile, to the residence of Glass that night, to say to Mr. Glass that the prosecuting attorney had sent for him, and would like to have him come to his house, and if he consented to go, Noonan was to take him in the automobile to the prosecutor’s residence, and thei-v him. In the meantime, another automobile’was to take several witnesses to a point near the residence of the prosecutor, and there await the coming of the juror with Noonan, in order that they might see the juror making a midnight visit to the prosecutor’s house, all of which it was claimed, when made known, would disclose that the juror was under the complete dominion and control of the prosecutor, and consequently not a proper man to sit in the trial against Golner. At this point, Neff was informed by Woodward that his advice was desired as to whether the proposed scheme was illegal, and was told that they had sent for him for that purpose. Neff says that he informed Woodward and his associates there assembled including Golner, that he knew of no statute that would be violated in executing the plan contemplated. That he said to them if they believed a juror to be thus biased and subject to the call at any time of the prosecutor, notwithstanding the instructions to the jury given daily by the trial judge, that Woodward and his associates had a legal right to test out whether that was a fact or not, and that they might do so without violating the law, under the plan outlined. Neff says that he inquired how it was to be made beneficial to Golner in a practical way and that some one of the party suggested something about a new trial but that he promptly informed them that taking a juror to the prosecutor’s home and leaving him there as they planned would not be sufficient to bring about a new trial, and that Woodward then remarked that they would have something in addition to this trip of the juror. Neff says he preferred to return home but that the others insisted that he should remain and go with them to procure the witnesses and accompany the party of inspection on its trip to the prosecutor’s house, and that he reluctantly acquiesced. Noonan was despatched in an automobile for Glass. Golner’s brother, acting as chauffeur, took another automobile with Neff and picked up three or four other witnesses and went to a point near the prosecutor’s house from which they could see the movements of Noonan and Glass at the proper time. It was definitely understood that nothing was to be said to Glass about why the prosecutor wanted him. Noonan was to state and did state to the juror that he did not know what Glass was wanted for by the prosecutor. All agreed that Golner’s trial was not to be mentioned by Noonan or any one else to Glass and this was carried out as planned. As soon as Noonan arrived at the residence of the prosecutor, which was several miles from the home of the juror Glass, 'Mr. Glass alighted from the automobile and went up on the porch of the prosecutor’s residence and rang the door bell. As soon as the prosecutor came to the door, Noonan left in his automobile and the prosecutor called to him, as he left, to halt, which he did not heed, but returned to the city followed by the other automobile. Mr. Glass learned in a few moments from the prosecutor that he had not been sent for at all, and he took the street car and went.home. No report of this occurrence was made by anybody connected with it in behalf of Golner to. the trial judge until after Golner’s trial was .over, but the trial judge learned of the occurrence shortly after midnight and very soon after the visit of Glass to the prosecutor’s residence. . This information came to the trial judge through the county detective, Doran, who probably learned of it through the prosecuting attorney. Mr. Neff insists that he called at Judge Babcock’s court room four times on Monday for the purpose of telling him of the occurrence, but each time found him busy, and went away without reporting it. On Monday evening the jury returned a verdict of guilty and immediately upon the coming in of the verdict, Golner had a whispered conversation with one of his counsel who immediately stepped to the bench and informed the trial judge what had taken place in connection with the visit of juror Glass to the prosecutor’s residence at midnight the night before, and was then informed by the trial judge that he, the judge, knew of it soon after it occurred, and that it was on that account, that he had not permitted the jury to separate on Monday. By Tuesday morning the whole matter had become public and it was stated in the newspapers. It is said, however, that Mr. Neff’s name was not published as one connected with the transaction. On that day,.Mr. Neff called upon the trial judge and expressed a desire to state all the facts in connection with the transaction, but was told by Judge Babcock that he understood contempt proceedings, were to be instituted against several of the parties involved, and that on that account he preferred not-to hear his statement until.the contempt cases should be called for hearing. Proceedings in contempt were begun against four of the parties involved (not including Neff) and those cases were heard before Judge Babcock and resulted in a conviction in each case and sentence. Mr. Neff voluntarily testified at the contempt trials. Error proceedings were prosecuted.from this judgment in the contempt proceeding and judgment was affirmed by the circuit court. Golner v. State, 39 O. C. C. 290 (19 N. S. 317).

No proceeding in contempt was instituted against the respondent but the bar association of Cleveland made an investigation of the facts and a recommendation to the circuit court that a committee be appointed to investigate and file charges, if the investigation so justified. The committee herein named was appointed pursuant to this motion in the circuit court and presented herein formal charges covering the facts I have detailed. The committee insists that the plan as carried out was intended to interfere with the administration of justice, and that it was undoubtedly the purpose of all concerned to rely upon itr at least in a substantial part, in making a showing for new trial for Golner, and while it is not claimed that Neff was instrumental in the employing of the detective agency by Golner, or that he originated the plan of procedure carried into effect on Sunday night, that still the scheme was his by adoption and that he must be held fully responsible for it, and that his action was such misconduct in office as justifies his disbarment.

On the other hand, counsel for respondent contend that the action of Neff was entirely laudable and that he was merely seeking to expose, in order that he might correct, a long continued line of unfair conduct on the part of the prosecuting attorney’s department.

Upon this hearing the committee offered in evidence a transcript of the evidence taken in the contempt case, in so far as it should be found by us to be competent, and also called and examined orally the trial judge, Hon. W. A. Babcock. The respondent testified in his own behalf.

We have been furnished with a transcript of the oral evidence of the trial judge and Mr. Neff and have read this in connection with the transcript of the contempt case.

We think it well established by the evidence presented that Mr. Neff thoroughly believed, when counselled with concerning this detective’s plan on Sunday night, that there then existed and had for a long time existed in Cleveland such conditions as gave to the prosecuting attorney an unfair advantage in the trial of criminal cases. We express no opinion as to whether any such unfair advantage did exist, because we have not heard the evidence concerning this question on the side of the prosecuting attorney, but we think it entirely clear from the testimony of Mr. Neff, the testimony of Judge Babcock and the other evidence presented to us, that Mr. Neff believed at that time that •such unfair conditions did exist.

It is possible that Mr. Golner, his brother and the detectives, may have thought that this midnight visit of the juror would be entirely sufficient, standing alone, to secure him a new trial if convicted, notwithstanding what Neff says he said to them on that subject, but it is difficult to see how any lawyer could reach any such conclusion, for to do so he must necessarily assume that both the prosecutor, who was a man of experience, and the trial judge, who had been many years on the bench, could be easily imposed upon by evidence which would readily be explained so that it would have no value in securing the end designed by it. It is possible that the detective may have thought that affidavits from these witnesses that were taken to the scene would pass for their full face value, with the prosecutor and judge, without further investigation, but it must be borne in mind that these witnesses were all residents of Cleveland, easily accessible, and of course they would be called upon within a few hours, after the filing of their affidavits, by the county detective under the direction of the prosecutor and the whole matter would receive a thorough investigation. It was explained at the detective’s office that what he desired in the way of witnesses was to have three or four men of high standing, in no wise connected with Golner and not connected at all with his office, in order that when their testimony was taken, it should have great weight, and it was agreed that they were not to be told anything of the plan more than to say to them that it was desired that they should take a certain position from- which they might see a juror visit the prosecutor’s house at midnight; the theory being undoubtedly that that single fact would be all that would be included in their affidavit, if it should be filed in aid of a new trial, and that this faé-t would exactly tally with the truth. The detective emphasized the fact that he desired honorable men of high standing for witnesses, and while Neff and Golner’s brother accompanied them, the plan did not contemplate taking their evidence in establishing the fact of the juror’s visit. Those.witnesses were selected by Golner, his brother and Neff. It is entirely clear that- as soon as any one attempted to make use of the affidavits of these three or four honorable witnesses, the trial judge would insist upon knowing all the facts, and these witnesses, being honorable men, would of course not hesitate to state the facts as to -who selected them, from what point they started, who accompanied them, how they went and how they returned, and all about it; and this would increase the list of honorable witnesses by two because it would immediately add Mr. Neff and Mr. Golner’s brother, and then it would develop, of course, that the visit of the juror was planned by the very men who were seeking to take advantage of it, as a piece of wrong-doing, to secure a new trial for Golner, and at about this point it might be expected that the motion for a new trial would be promptly overruled, and contempt proceedings ordered, very much as happened in this case. The whole scheme was silly in the extreme. It was wholly unneeesary to send for Mr. Neff or any other lawyer to secure advice concerning it. Had its authors called in some passing laborer, whose mind had not been perverted by long continued study of the best methods of accomplishing recognized impossibilities, no doubt he would have readily applied his common sense to the situation and branded the scheme as nonsense. It was Mr. Neff’s duty to have condemned the whole plan forthwith. This was not a case where a juror had been nibbling for a bribe. So far as the evidence discloses nothing irregular had occurred in the Golner trial.- It is true that a vigorous effort was made by Golner’s counsel to prevent Glass from sitting as a juror, but after the fullest examination he was accepted as qualified by the trial judge, and the evidence does not disclose any misconduct on the part of any juror during the trial of this case prior to this Sunday night. Even though the respondent Neff honestly believed the information which he says he did at that time as to unfair advantage being taken by the prosecutor’s department, and even though it be conceded that his sole purpose was to expose this, we can not at all sanction the methods by which he undertook to aid in correcting this alleged wrong. In fact, we think his own evidence discloses that before they left the detective’s office, he had reached the conclusion himself that the proceeding was an improper one. His reluctance to go with the party which he tells of, and his haste to get away from the scene near the prosecutor’s house, as he relates it, shows clearly that he was convicted of the impropriety of the-entire matter.

We note a discrepancy in the testimony of Mr. Neff before us as compared with his statements made in the contempt case. In the contempt case the transcript of his evidence shows that he went to the same point that all the other witnesses went and went in an automobile with them to that place near the prosecutor’s house, and that he remained there in that automobile until Noonan left his position and started down town, passing this automobile, when Neff alighted from his conveyance and got into Noonan’s machine. In his evidence before us, Mr. Neff testified that he went only part way to the prosecutor’s house and then alighted with a view of taking a car near there for his home, which he would have done but for the fact that while waiting for the car, Noonan came along in his automobile and picked him up. According to Mr. Neff’s own evidence, he approved and aided in the execution of a plan which tended to discredit a juror and a public prosecutor, by creating a false situation that would never otherwise have existed. We are not satisfied that he made all the effort he should have made to communicate all the facts to Judge Babcock on Monday, knowing the hours of court and being as thoroughly acquainted with the judge as he was. Mr. Neff is thirty-three years of age and had been in more or less active practice of the law in Cleveland for several years prior to the Golner trial. The committee insists that he was abundantly qualified to appreciate in every respect the whole plan laid before him by the detective and to see at a glance its effect upon the administration of justice and that no account can be taken of his inexperience which can in any way relieve him from the full measure of responsibility for what was done. If we consider Mr. Neff as possessing the ability which the committee says he does, we must at once acquit him of the charge that he intended to use this midnight visit of the juror to the prosecutor’s residence to secure a new trial for his client Golner. Exposure was inevitable, for the reasons I have stated, and when that came he would have accomplished the very opposite of what he was employed to accomplish for his client, by putting his client before the trial judge in the very worst possible light. The trick would not only have convinced the trial judge that the jury was unquestionably correct in finding Golner guilty but it would have presented Golner as willing and ready to carry out a scheme, the purpose of which was to impose upon the trial judge. No one pretends that Neff knew anything of the scheme until he arrived at the detective’s office where he insists he was called upon suddenly for a decision as to its legality in order that the parties might go ahead with' its execution. It is a significant fact in favor of Mr. Neff that no proceeding in contempt on account of this matter was ever begun against him.

Our* conclusion, after the fullest consideration of all the facts in the case, is that the situation does not justify a judgment of disbarment, but we are unanimously of the opinion that the evidence does justify a suspension of the respondent, Horace Neff, from practice for a period of six months, and such will be the judgment of the court.

Wildman and Richards, JJ., concur.


text:
    INFANTS
    [Cuyaboga (8th) Circuit Court,
    1912.]
    Marvin, Winch and Niman, JJ.
    John Screen, by Next Friend, v. George Linn, Mayor et al.
    Mayor can not Render Judgment against Infant Defendant without Guardian Ad Litem. Appointed.
    A mayor, who has obtained jurisdiction of an infant defendant more than fourteen years of age by means of personal service, has no authority to render judgment against the infant without first appointing a guardian ad Mtem to defend the suit.
    Error.

      I. Grossman, for plaintiff in error.

      H. C. Gahn and George Lwm, for defendants in error.
   MARVIN, J.

Ida K. Taggart brought suit against John Screen before the defendant, George Linn, as mayor of the village of Linndale. Summons was issued and served upon said John Screen within said village, and upon a proper affidavit garnishee process was issued and 'served upon the proper representative of the Cleveland, C. C. & St. L. Ey., within the village of Linndale, said railway company being then indebted to said John Screen.

Said Screen did not appear before said mayor in answer to said summons, and the mayor, as upon default, entered judgment in said action in favor of said Ida K. Taggart, for something like $25 damages and for costs.

The railway company, pursuant to an order made by said mayor in said garnishee proceedings, paid over to said mayor about $32 of money owing by it to said John Screen, which said mayor holds in payment of said damages and costs.

The plaintiff in this action seeks to have said judgment set' aside and the money so paid into the hands of said mayor released and paid over to him.

Several grounds are stated in the petition upon which the plaintiff bases his right to the relief sought; among these is the fact that he was a minor at the time the action was commenced and at the time the judgment was taken and that the proceedings against him were irregular, in that judgment was taken as upon default, though he had no guardian and no guardian ad litem was appointed for him.

We find as a fact that the plaintiff in this action, at the time said judgment was found against him, was a minor above the age of fourteen years and that no guardian ad litem was appointed for him. As already said, service of summons was made personally upon said John Screen. This was proper and sufficient service upon him, coming directly within the provisions of Sec. 10245 G. G. where it is said:

‘ ‘ If the minor is more than fourteen years of age, service on him alone is sufficient. ’ ’

On the part of the defendant in error it is urged that the service here, having been served upon the defendant in all respects as required by the statute, the court thereby acquired jurisdiction of the defendant, and that having such jurisdiction, the judgment against him was and is valid, and in support of this contention he calls attention to the case of Walter v. Drapp, 8 Dec. 705 (7 N. P. 232). This is a decision of a justice of the peace in Hamilton county, and so is, of course, no authority whatever for us. However, an examination of the case shows that the point necessary to be determined here was not passed upon by the justice.

In that case it was held, as we hold here, that the service of summons upon the defendant, a minor above the age of fourteen years, gave the court jurisdiction over him, so that the judgment in the case was not void, and therefore could not be collaterally attacked. The case before us is a direct attack on the judgment sought to be set aside, and a ground of such direct attack is that even though the court had jurisdiction it had no authority to render judgment against the defendant without first appointing a guardian ad litem for him.

Section 11252 G. C., reads:

“In an action against an infant, his defense must be by a guardian for the suit, who may be appointed by the court in which it is being prosecuted, or by a judge thereof or by a probate judge.”

Under this section it is clear that though the mayor acquired jurisdiction over the defendant in the action by service of summons, there was no person who could have made a defense for him. Roberts v. Roberts, 61 Ohio St. 96 [55 N. E. 411],

‘ ‘ Appointment of a guardian ad litem can not be dispensed with.”

In Long v. Mulford, 17 Ohio St. 485, it is said, at page 503:

‘ ‘ The appointment of a guardian ad litem, is not a mere matter of form. A suit against an infant can not be prosecuted without such guardian. ”

The proper thing for the mayor to have done is pointed out in General Code, 10234. That section provides that where an infant is the defendant in a case before a justice of the peace, a guardian to the suit must be appointed before the trial. That the provisions of this section are applicable to proceedings before a mayor, is shown by the reading of General Code 10491:

“So far as applicable, the provisions of this title shall govr ern the proceedings of mayors in the exercise of the jurisdiction concurrent.with justices.of the,peace given to them.”

Both Secs. 10234 and 10491 are under the same title, to-wit, “Title 2, Procedure in Justice’s Court.”

Without determining whether it is necessary in making a direct attack upon a judgment, as is done in this case, the party making the attack must show that he had a valid defense, it is sufficient to say that the defendant in the ease before the mayor, the plaintiff in this case having been an infant, and no allegation being made in the answer of either defendant that the judgment was obtained for necessaries furnished the defendant, it sufficiently appears that he had a valid defense.

The result is that the judgment of the mayor and all orders made by him in the case are vacated, and he is ordered to pay to the plaintiff all the money received by him from the railway company under the garnishee order, together with interest from the time it was so received.

Winch and Niman, JJ., concur.


author: WINCH, J.

text:
    LANDLORD AND TENANT
    [Cuyahoga (8th) Circuit Court,
    December 23, 1912.].
    Marvin, Winch and Meals, JJ.
    Pyle & Allen Co. v. Hippodrome Bldg. Co. et al.
    1. Grant of Exclusive Right to Sell Cigars in Building of Lessor Enforceable.
    A provision in a lease of a store room that the lessee shall have the exclusive right to sell cigars and tobacco in the building of the lessor, is not in the nature of a restriction but rather in the nature of a grant, is not against public policy, and is enforceable as against the lessor and his assignees who take with notice of the grant.
    2. Recording of Lease Notice of Exclusive Rights of Lessor.
    The recording of a lease containing a grant of the exclusive right to sell cigars and tobacco in the lessor’s building is notice to the lessees of other rooms in the building of the exclusive character of the rights granted in that lease.
    Error.

      C. N. Fisctis and M. W. Beacon, for plaintiff in error.

      Kline, Tolies c6 Morley and Hidy, Klein & Harris-, for defendants in error.
   WINCH, J.

Plaintiff by this action seeks to restrain the defendants, Stone & Stern, from selling cigars and tobacco in their cafe in the basement of the Hippodrome Building, on Euclid avenue, in the city of Cleveland.

Both parties are tenants of said building, which, in plaintiff’s lease, is described as “the Hippodrome Building situated on Euclid avenue in the city of Cleveland, Cuyahoga county, Ohio.”

Plaintiff occupies a store room “on the ground floor of said building, just east of the main entrance thereof, on Euclid avenue, ’ ’ which is leased to them for ten years from May 1,1910, to be used by them ‘ ‘ for a cigar and tobacco store, and for no other purpose.” In the lease appears the following:

“ It is further agreed that said lessee shall have the exclusive right to sell cigars and tobacco in that part of said Hippodrome Building fronting on Euclid avenue.”

This lease was left for record with the recorder of Cuyahoga county on March 20, 1911, and thereafter was duly recorded by him.

The lease to Stone & Stern was executed November 26, 1911, and covers the basement of the- Hippodrome Building on the Euclid avenue front, the basement entrance being in the middle of the main entrance of that building. Defendants run a cafe and restaurant in the basement and claim the right to furnish their patrons cigars. It appears that about eighty per cent, of those who eat in their restaurant buy cigars.

Defendants urge several reasons why they should not be enjoined from selling cigars in their cafe.

First, they say, the basement is not “in that part of the Hippodrome Building fronting on Euclid avenue;” they claim that, as the basement extends under the sidewalk and out to the curb on Euclid avenue, it does not “front” on the avenue. This objection is frivolous; the basement is certainly in that part of the building which fronts on Euclid avenue.

Second, it is claimed that the rights granted by the plaintiff’s lease are not in the nature of an easement running with the land, but merely in the nature of a restriction, and on this point they cite the case of Apollo Cigar Co. v. O’Brien, 30 O. C. C. 710 (11 N. S. 63), where the covenant was in the nature of a restriction.

In the case the lessor bound himself not to rent any part of his premises (not leased to the cigar company) for a cigar and tobacco business, except certain stands of specified dimensions in that part of the building' used as a hotel. The court held there was doubt as to the meaning of the covenant of restriction contained in this lease, and resolved the doubt adversely to the cigar company.

In the lease before us there is no doubt as to the meaning of the language used and it is not in the nature of a restriction, but rather in the nature of a grant; it reads: “lessee, shall have the exclusive right to sell cigars and tobacco in that part of the. Hippodrome Building fronting on Euclid avenue.” It is not necessary to cite authorities to the effect that such covenants as this are enforceable, not only against the lessor but also against his assignees who take with notice of the grant.

While the defendants, Stone & Stern, had no actual notice of the terms of plaintiff’s lease until sometime after they had concluded their lease with the lessor, still the recorded lease of plaintiff was sufficient notice to them.

That lease was an instrument entitled to record and fully describes the cigar privileges as being exclusive in that part of the building fronting on Euclid avenue. Defendants were taking a lease of part of that part of the building fronting on Euclid avenue, from the same lessor, and plaintiff’s lease was in the defendant’s claim of title and bound to be examined by them.

We find nothing invalid or contrary to public policy in the covenant under consideration; such exclusive rights are valuable and are frequently granted. Nearly every large office building in the city, and most of the hotels, have arrangements of this kind, where the cigar privileges are granted exclusively to the proprietor of one cigar store located in the building or hotel.

Doubtless the rent for plaintiff’s small store,in this theatre building was fixed with reference to the attractions which would draw the smoking public to that building, and a restaurant in the basement might reasonably have been anticipated by plaintiff as one of such attractions, as a large, popular theatre is located in the building.

Nor can the damage to plaintiff from a breach of its rights by defendants be easily estimated; doubtless, as defendants consider the right to vend cigars in their cafe very valuable, it is of considerable moment to plaintiff, but there is no accurate measure for this invasion of plaintiff’s rights and so it should have protection in equity, by injunction, restraining defendants from this daily and continuous invasion of rights.

It is said, however, that plaintiff has been guilty of laches in permitting defendant to go to the expense of $20,000 in fitting up their restaurant, before notice was given of plaintiff’s claims.

This suggestion overlooks the fact that the record of plaintiff’s lease, itself, was notice to defendants, and it loses sight of the further fact that defendants closed up their lease with lessor and obligated themselves to >pay rent for the basement, sometime before plaintiff was aware that the defendants were going to move into the building.

We find no reason at law or in equity why plaintiff should be denied the relief it prays.

Judgment for plaintiff.

Marvin and Meals, JJ., concur.


text:
    MASTER AND SERVANT — PLEADING
    [Cuyahoga (8th) Circuit Court,
    December 16, 1912.]
    Marvin, Winch and Meals, JJ.
    D. A. Defranco v. C. Bifaro.
    What Sufficient Averment of Failure to Enclose Machinery.
    In an action for personal injuries caused by a servant coming in contact with exposed cog-wheels, an averment that the defendant permitted said cog-wheels to be exposed without any enclosure and without any protection of any kind, sufficiently alleges defendant’s failure to enclose with substantial railings, etc., as required by statute.
    Error.

      C. V. Hull, for paintiff in error.

      Howland & Moffett, for defendant in error.
   MARVIN, J.

The plaintiff below was an employe of the defendant on June 1, 1910, and on said day and in the course of said employment, he was at work at a machine in the manufactory of the defendant, in mixing and stirring the material used for making' macaroni. This machine consisted in part of certain cogwheels, meshing into one another and connected with the devices for giving power to said machinery and causing the same to move in the performance of the work to be done.

The plaintiff alleges in his petition that while so in the performance of his duties the machine, which had been stopped, suddenly started, catching his fingers between the cogs on said wheels, crushing four of his fingers, necessitating their amputation. He says that the injury so sustained by him was due wholly to the negligence of the defendant and entirely without fault on his part.

In his answer the defendant denies all negligence on his part and avers that whatever injury was received on the occasion was caused wholly by the negligence of the plaintiff himself.

The result of the trial in the common pleas court was a verdict and judgment for the plaintiff.

The defendant complains that there was error to his prejudice in the trial and prays that the judgment be reversed. He says, first, that the petition does not state a cause of action against him under the statute, Sec. 1027 G-. C., and that if the plaintiff relied on his right to recover without reference to this statute, the facts show clearly that his negligence was such that he was not entitled to recover.

Without discussing the question as to whether, under the-answer, the defendant could rely for a defense upon the contributory negligence of the plaintiff, we proceed to a discussion of the other question, “does the petition state facts sufficient to bring the case within the provisions of the statutes. ’ ’

It is provided by Sec. 6245-1 G. C. that no “employee who may be injured or killed shall be held in any degree to have been guilty of contributory negligence in any case where the violation of any statute or law of the state, or United States, enacted for the safety of employes, in any way contributed to the injury or death of such employe, unless, by the terms of his employment, it was expressly made the duty of such employe to report such violation to the employer,” etc. There is no claim here that there were any such terms in the contract of employment, so that the next inquiry is whether the petition charges that the -defendant violated any law of the state, which violation contributed in any way to the plaintiff’s injury.

Section 1027 G. C., says:

“The owners and operators of shops and factories shall make suitable provisions to prevent injury to persons who use or come in contact with machinery therein or any part thereof.
. “2. They shall enclose with substantial railings or casing all exposed cog-wheels,” etc.

The language of the petition is “that on the side where plaintiff stood in so operating said machine were certain cogwheels, the outer part thereof fitting into each other and revolving together and being a part of said machine which plaintiff was so operating; that said cog-wheels were not enclosed or incased in any manner.”

And again, “that said defendant permitted said cogwheels to be exposed without any enclosure and without any protection of any kind. ’ ’

It is urged here that, whereas by Sec. 1028 G. C., a penalty is provided for the violation of Section 1027, said last-named section must be strictly construed and that when strictly construed the allegations of the petition fail to show that the same was violated by the defendant.

The language of defendant’s brief on this question is this: “The phrase ‘without any enclosure’ ” is not synonymous with ‘ ‘ enclose with substantial railings. ’ ’ This, of course, is true, the one is negative, the other positive; but what counsel meant was that “without any enclosure” is not synonymous with “not enclosed with substantial railings,” and this statement is true; the two phrases are not synonymous, but the former includes the latter. To say “John has one eye” is not synonymous with saying “John has two eyes,” but if the last statement is true, the first is necessarily true. If one is by law bound to maintain a stone bridge at a given point, an averment that he maintains no bridge whatever at that point is an absolute denial that he maintains a stone bridge at that point.

The ease referred to in defendant’s brief in support of his contention that there is no allegation in the petition showing a violation of the statute, viz., Marine Boiler Works v. Shuck, 33 O. C. C. 184 (13 N. S. 118), comes very far short of sustaining the position claimed for it. The syllabus reads:

“A petition for damages on account of injuries alleged to be due to exposed cogwheels, does not state facts sufficient to constitute a cause of action, where the petition merely avers that the wheels complained of. ‘were not covered,’ and does not allege that no railing had been placed around them. ’ ’

In the opinion, at page 121, the court uses these words, speaking of the petition:

“It does not allege at all that there was no railing.”

The entire opinion shows that if there had been an allegation that the cog-wheels were not enclosed by any railing, the petition would have been good.

The complaint made as to the admission of evidence, as shown on page 13 of the bill of exceptions, is not sound, for the reasons already given on the question of the sufficiency of the petition. The question asked was:

“Was there any enclosure or railing or easing about the cogwheels when you got your fingers hurt?”

The answer was: .“No.”

When the objection was made at the outset of the trial to the introduction of any evidence, the court was clearly right in overruling such objection, because the petition was sufficient, even if the allegations did not bring it within the statutes. When, however, a motion was made at the close of all the evidence, to direct a verdict for the defendant, the question was raised whether it was clear that under the evidence no case had been made outside of the statute; but if the question was so raised, the court reached the proper conclusion.

We find no error in the record to the prejudice of the defendant and the judgment is affirmed.

Winch and Meals, JJ., concur.


author: NIMAN, J.

text:
    EVIDENCE — PRINCIPAL AND AGENT
    [Cuyahoga (8th) Circuit Court,
    July, 1912.]
    Marvin, Niman and Shields, JJ.
    Judge Shields of Fifth Circuit Sitting in Place of Judge Winch.
    Adam Herig et al v. H. B. Harvey et al.
    Affidavit Introduced to Establish Plaintiff’s Agency not Evidence of Facts Stated Therein.
    In an action to recover a real estate commission alleged to have been earned in securing a lessor for certain property, an affidavit of the lessee, executed at the time of making the lease and in which it was stated that the lease was the result of direct negotiations with the owner and not as a result of an interview had with plaintiffs, when introduced by the plaintiff as evidence of an agency, can not be used by defendant as evidence of the facts contained in the affidavit.
    Error.

      J. J. McCormick, for plaintiffs in error.

      Hitchcock, Morgan, Fackler & Cross, for defendants in error.
   NIMAN, J.

The action was for the recovery of a commission for negotiating a 99-year lease on property belonging to the defendants. The jury returned a verdict in favor of the plaintiffs against all the defendants, on which judgment was duly entered after the overruling of the defendants’ motion for a new trial.

A reversal of this judgment is sought in this proceeding upon several grounds.

The first claim of error that challenges our attention is that the verdict is not sustained by sufficient evidence.

The defendants were the joint owners of the real estate covered by the 99-year lease which the plaintiffs claimed to have negotiated and for the negotiation of which they recovered their judgment. The plaintiffs, who are in the real estate business, claimed that the property was listed with them for leasing purposes by the defendant, Albert Herig; that said defendant was the agent of the other defendants; that through their efforts a 99-year lease of the premises was made to one H. D. Squire; that while their efforts were the moving cause in inducing Squire to take the lease, the defendants executed the lease to him without informing them of the matter, and that they did not discover the fact until sometime after the lease was made.

The defendants denied all of these claims and asserted that Squire was their own customer. The only one of the defendants who seems to have had the matter of leasing the premises up with the plaintiffs at all, was Albert Herig; and the other defendants dispute any agency given Albert Herig to list the property with the plaintiffs and deny all knowledge that it ever was so listed.

Within the limits of this opinion it would be impossible to enter into any extended review of the evidence. It is sufficient to say that there was evidence tending to sustain all the claims of the plaintiffs, and therefore a submission of the case to the jury was necessary. The jury, with the opportunity to observe the witnesses and with all the circumstances of the transaction laid before them, found in favor of the plaintiffs on the matters in dispute, and we are not able to say that the verdict was against the weight of the evidence. ,

The agency of Albert Herig was a question that rested largely upon inference, but there were sufficient facts in evidence to support the inference arrived at. If the right to recover against the defendants Adam Herig and Eva Herig, were denied because of insufficient evidence to support the finding of agency on the part of Albert Herig to represent them, it would not relieve Albert Herig from liability, because the entire property was listed, not merely his interest therein.

Another claim of error is based upon the limitation plaeed by the court upon the use in the case by the defendants and their counsel of a certain affidavit introduced in evidence by the plaintiffs.

At the time the lease was signed the affidavit in question was given by H. D. Squire. It states that about one year prior to an interview the affiant had had with Harvey & McClure on the subject of the Herig lease, he had made offers to bring the agreement for a lease about with Mr. Al. Herig, and not until said effort on his part did he have any talk with Harvey & MeClure concerning tlie same; that all efforts on the part of said Harvey & McClure to secure such lease for affiant failed and were entirely abandoned; that the present lease about to be signed is the result of resumption of negotiations between Mr. A1 Herig and the lessors, and without any influence or inducement from any other person or agent than the real parties to the lease in question.

On the cross-examination of Albert Herig the existence of this affidavit was discovered by counsel for the plaintiffs, and was offered by him in evidence. Counsel for the defendants attempted to use this affidavit in his argument to the jury as evidence of the facts therein set forth, but was prevented by the court from so doing, and in the charge the court said:

“The affidavit was introduced in evidence, gentlemen, as bearing upon the question as to whether there was any deal between Squire and Harvey & McClure. The contents of the affidavit are not competent in this lawsuit to prove the fact. That is not the proper way to get evidence into a lawsuit, and therefore the court eliminated that in the argument.”

We share the view of the trial court on this subject. The affidavit was competent evidence, bearing upon the question of the liability of the defendants to Harvey & McClure for a commission on account of the making of the lease. Any act or statement of the defendants tending to show a recognition of a claim for commissions could be shown in evidence against them. The facts recited in the affidavit were by no means admitted by the act of the plaintiffs in placing it in evidence. No claim of accident or surprise can be based on the refusal of the trial court to permit the affidavit to be used for an incompetent purpose, even though it appear that except for the mistaken belief that it could be used for the desired purpose, the defendants would have produced other and competent evidence in support of the facts averred in the affidavit.

Another alleged error is predicated on the action of the trial court in not permitting one of the jurors, on the hearing of the motion for a new trial, to answer the question whether or not he entertained a belief that Adam Herig, one of the defendants, was grasping and stingy.

It was set forth in an affidavit filed in support of the motion for a new trial, that the following question was put to each and every juror:

“Is there any cause or reason which would in any way influence or prejudice you against any of the defendants in this ease? Is there any cause or reason why you can not sit as a juror in this case, and impartially render a verdict in strict accordance with the law and evidence as it may. be given to you in open court ? ”

The affidavit further charges that a certain juror answered this question in the negative, but that he in fact harbored a belief that the defendant, Adam Herig, was a mean, grasping and stingy individual, and that this belief wrongfully prejudiced the juror against the defendant.

In support of the charge contained in the affidavit, the juror mentioned was called and examined by counsel for the defendants, and in the course of the examination the ruling claimed to constitute error was made.

If it should be admitted that the question was a proper one to put to the juror, which may well be doubted, it is not apparent that any prejudice resulted by the refusal of the court to permit it to be answered. The other questions put to the juror and which were fully answered, covered substantially the subject of the juror’s attitude toward Adam Herig, which does not appear to have been uncomplimentary. The juror’s examination was very exhaustive and disclosed nothing which would disqualify him from sitting as a juror in the case.

When the case was submitted to the jury, on request of the defendants, the jury were directed, in the event of a general verdict for the plaintiffs, to make answer to certain questions submitted to them. It is claimed for the plaintiffs in error that the answers returned by the jury are inconsistent with the general verdict, and must control.

If the special verdict is inconsistent with, or repugnant to, the general verdict, the latter must be set aside.

A careful examination of the questions submitted to the jury and the answers returned, discloses no inconsistency between the general verdict and the special findings. On the eontrary, the special findings support and fortify the general verdict.

No error prejudicial to the plaintiffs in error is found in the record, and the judgment of the court of common pleas is affirmed.

Marvin and Shields, JJ.


text:
    INJUNCTION — NUISANCE
    [Cuyahoga (8th) Circuit Court,
    December 23, 1912.]
    Marvin, Winch and Meals, JJ.
    Ira Bassett and Ella Bassett v. Ira Osborn.
    Landowner Enjoined from Contaminating Percolating Waters Feeding Adjoining Landowner's Well or Spring.
    A landowner is liable, if, by the accumulation of filthy or contaminating matter upon his own land, he contaminates the waters percolating therein to the injury of a neighboring landowner whose well or spring subsequently receives the percolating waters so contaminated, and an injunction will be granted to prevent such contamination.
    Error.

      D. E. Warner, for plaintiffs in error.

      A. W. Lamson, for defendant in error.
   MARVIN, J.

The facts in this case are, that the plaintiffs own a parcel of land in the village of South Newburgh. The defendant owns a parcel of land immediately north of the land of the plaintiffs in the same village.

On the land of the plaintiffs is a spring of water which they have protected with a curb made of crocks around an excavation made about the opening of this spring, and placing a spring house over it, using the water for domestic purposes.

The defendant has built into his land, a short distance north of the line between the lands owned by the respective parties, a cesspool. Into this cesspool the refuse from his dwelling, including such refuse from the water closet and bath room, as well as from his kitchen, is conducted and held. This cesspool consists of two excavations in the earth, each extending down below the natural surface about eight or nine feet. Each is about eight feet in diameter; there is a pipe or conduit from one of these excavations to the other about four or five feet above the bottom. One of these excavations is walled up with cement or concrete, with a concrete bottom and is probably water-tight, so that any water or other liquid getting into it must remain therein, except as it may pass into the other through the conduit already mentioned, or be removed from the top. The refuse from defendant’s house is conducted directly to this tight pool.

The second of these excavations is lined with brick a part of the way up and with cement the balance. It has no bottom other than the earth itself. This is designated a leeching pool, and the term indicates what its purpose is and what it accomplishes. The water or liquid which enters the first pool passes into the second and leeches through the wall and bottom of that pool into the surrounding earth.

The spring is about 325 feet southwest from the cesspool.

Each of the parties has a house used as a family homestead, the one about a hundred feet and the other about fifty feet west of the west line of Osborn avenue, on the west side of which both properties front. Between the two properties and about on a line extending from one house to the. other, is a depression, extending westerly beyond this spring, and opposite to the spring the bottom of this depression is about fifteen feet below the surface on either side. The water from the spring comes out in the south bank of this depression some feet above the bottom of the depression.

There is dispute in the evidence as to the nature of the soil along the north side of this depression, some of the evidence tending to show that there is a vein of gravel in the earth along this line, and other tending to show that the earth is composed exclusively of clay. ’

The cesspool was in process of construction when this action was begun on June 18, 1912. . The work was suspended because of a restraining order granted by the court of common pleas at the beginning of the action and was not resumed until such order was vacated on July 16, 1912, when the work was resumed and the double pool completed and in connection with the house made soon thereafter.

The prayer of the plaintiffs is for an injunction restraining the defendant from constructing and maintaining this cesspool, for the reason that the water of the spring is contaminated and rendered unfit for use by reason of deleterious matter escaping from said pool, and flowing into said spring. It is not. claimed and surely is not shown that the defendant has constructed this pool carelessly. On the contrary, he took pains to have it done to the satisfaction of the acting health officer of the village, and not only violated no law in its construction, but seems to have done all that could be done to prevent injury to the plaintiffs in error or others, if he is to have a cesspool, out of which the contents could leech into the ground.

Unfortunately, however, the contents do leech through the earth, to such an extent as to render the waters pf the spring unfit for drinking and for culinary purposes. We find this as a fact.

It is urged by the defendant that the contents of the cesspool can not, by percolation or otherwise, reach this spring; that the altitude of the spring opening, as compared with the bottom of the depression of the ground between the spring and the side of the depression on which the pool is located, renders this impossible. But notwithstanding this, the fact remains that somehow the contents of the pool do reach the spring. This is shown .by the testimony in regard to the analine dying matter which was east into the pool and was found to have caused a discoloration of the water in the spring, and also by the analysis of the water of the spring made by Mr. Tate, the chemist. He found the water to be pure and sweet before the pool had been used, and to be contaminated with the kind of filth in the pool, after the pool was used. We must find either that the plaintiff, Mr. Davis, Mr. Tate and others committed perjury, or that the water of the spring is contaminated by the pool. We think the testimony as to the facts completely outweigh the reasoning as to the improbability of the facts being as testified to. We think the contamination, too, must come from the percolation from the pool, and we are brought, therefore, to the question of the right of the plaintiffs to an injunction to prevent the defendant from permitting the filthy matter to percolate through the earth, to the injury of the plaintiffs.

Counsel for both sides of the ease call attention to the case of Frosier v. Brown, 12 Ohio St. 294.

In that (¡ase suit was brought charging the defendant with-having diverted the percolating waters upon his own lands from finding their way into the lands of the plaintiff and supplying a spring on the premises of the plaintiff. To the petition a demurrer was filed which was sustained and the Supreme Court affirmed the sustaining of such demurrer. The first clause of the syllabus reads:

“In the absence of express contract and positive legislation as between proprietors of adjoining lands, the law recognizes no correlative rights in respect to underground waters percolating, oozing or filtrating through the earth; hence, where a land owner digs a ‘hole’ on his own land for purposes connected with the use of his own land, thereby cutting off or diverting the underground waters which have always been accustomed to percolate and ooze through his land to the land of an adjoining proprietor, and there to form the source of a spring and rivulet, any damage thereby occasioned to such adjoining proprietor is damnun absque injuria

At the close of the opinion, at page 312, the court used the following language:

“It is hardly necessary to add, that this case does not include, and, in deciding it, we by no means intend to preclude, questions which may arise in a class of cases in which a land owner, by positive acts, poisons or corrupts the waters which percolate from his lands to those of his neighbor. Such cases are elearly distinguishable from this; and to them the considerations of public policy which govern this case do not necessarily apply. ’ ’

A large number of cases are cited and many of them quoted from in the opinion in this ease. An examination of such cases shows that in each case the matter decided was that the owner of the land through which waters percolate, has a right to use the water for his own purposes, notwithstanding the effect on the adjacent owner may be to deprive such adjacent owner of water which nature would have furnished him, and upon the hearing of this case it is urged that surely if one may wholly prevent the percolating water from escaping from his own land, and thereby deprive an adjacent owner of any use of such water, it must be based upon his right to make such use of the water on his own land as to him shall seem best, notwithstanding such use of such percolating water may send a poisoned or contaminated flow of water upon the land of his neighbor.

We think a distinction can clearly be made between the two propositions. In the one case, the lower proprietor is wholly deprived of the water which would by nature have percolated through the lands of the defendant and into the lands of the plaintiff. In the other, the water is not prevented from going upon the plaintiff’s land, but is allowed to go in a state wholly unfit for use, and, in fact, prejudicial to health, if thus used.

Attention is called by counsel for the defendant in this action to the case of Upjohn v. Board of Health, 46 Mich., 542. In this action the purpose of the suit was to enjoin the location of a burying ground near the residence of the plaintiff, for the reason, among others, that it would destroy his well. Injunction was denied, and the reasoning of the court in denying it is considered in the case of Brady v. Steel & Spring Co., 102 Mich., 277, as a distinction made between the two sets of facts. In this latter case suit was brought against one upon whose premises was kept for use fuel oil, which escaped and percolated through to the premises of the plaintiff. The first clause of the syllabus in this case reads:

‘ ‘ The percolation of deleterious matter, from the premises of the party who suffers it, through the soil, upon the lands of an adjacent owner, to tíie injury of the latter, is an actionable nuisance. ’ ’

Without stopping to further discuss this case, we call attention to 30 Am. & Eng. Enc. of Law, 2 Ed. p. 319, where this language is used in the text:

“In some few cases it has been held that as a landowner has the absolute right to appropriate the water percolating under his land, he is not liable for contaminating or polluting such water in the reasonable use of his own land, though thereby a well or spring upon the land of a neighboring landowner is polluted or contaminated. Still, since one who collects filthy or offensive matter upon his land is required to prevent its escape therefrom, and is liable in damages to neighboring landowners who are injured by the percolation of such matter through the soil, and since this liability does not depend upon negligence, but the reasonable precautions which the law requires must be such precautions as will effectually exclude the filth from the neighbors’ land, it is generally held that a landowner is liable in damages if, by the accumulation of filthy or contaminating matter upon his own land, he contaminates the waters percolating therein to the injury of a neighboring landowner whose well or spring subsequently receives the percolating waters so contaminated, and injunctions have been granted to prevent such contamination. ’ ’

Numerous cases are cited in the notes fully sustaining the text.

Again on page 321 of the same work, this language is used:

‘ ‘ The artificial collection of waters into large reservoirs has frequently caused injury to neighboring landowners by reason of the percolation of such waters through the ground, and it has been held that the owner of the reservoir is liable for the injuries sp caused, without regard to the question whether he was or was not guilty of negligence in the construction of the reservoir. ’ ’

We call attention also to Gould, Waters, Sec. 288, which reads:

“The foregoing rules do not apply to cases where a person poisons or corrupts the water which percolates from his land to that of his neighbor. ‘To suffer filthy water,’ says Foster, J., in Ball v. Nye, ‘to percolate or filter through the soil into the land of a contiguous proprietor, to the injury of his well and cellar, where it is done habitually and with the knowledge of the party who maintains the vault, whether it passes above ground or below, is of itself an actionable tort. Under such circumstances, the reasonable precaution which the law requires is, effectually to exclude the filth from the neighbor’s land; and not to do so is of itself negligence. In the present instance, there was no pretense of a sudden and unavoidable accident which could not have been foreseen or guarded against by due care. The percolations appear to have been constant and their existence to have been known to defendant. ’ In the absence of negligence or knowledge, the same rule of liability would, it seems, apply, he whose filth it is being required to keep it on his premises at his peril. Fouling an underground stream, which flows into the plaintiff’s mill stream or colliery, is an actionable injury. When it is clearly proved that a place of spulture or such a structure as a gas reservoir or privy vault will corrupt wells or springs, a court of equity may grant relief by way of injunction, and it appears to be immaterial that the nuisance was existing and noticeable, when the plaintiff dug or built upon his land. If the water of a well is rendered impure by an escape of gas therein, the fact that other causes contributed to make it unfit for use is not a bar to an action, but may be shown to affect the amount of damages.”

This is in accord with the holding of this court in the case of Krazeweski v. Berea, 43 O. C. C. 378 (21 N. S. 449), decided November 12, 1906, in which the following language was used:

“But it is said on behalf of the village that the mere percolation or seeping or sewage through the soil to and into another’s premises is not an actionable wrong, for the rule is analogous to that of the interception or diversion of percolating natural waters. This question is, however, expressly reserved in Elster v. Springfield, 49 Ohio St. 82, 94 and 101, and the clear weight of authority is against the contention made. Mears v. Dole, 135 Mass., 508; Beatrice Gas Co. v. Thomas, 41 Neb., 662 [59 N. W. 925; 43 Am. St., 711]; Wheatley v. Baugh, 25 Pa. 528 [64 Am. Dec., 721]; Kinnaird v. Standard Oil Co., 89 Ky., 468 [12 S. W. 937; 25 Am. St., 545; 7 L. R. A. 451].

From these authorities, and from what seems to us the better reasoning, we hold that the plaintiff in this action is entitled to an injunction perpetually restraining the defendant from permitting any part of the contents of the cesspool upon his land to percolate into and upon the premises of the defendant.

Winch and Meals, JJ., concur.


author: MEALS, J.

text:
    CREDITORS’ BILLS — JUDGMENTS AND DECREES
    [Cuyahoga (8th) Circuit Court,
    December 23, 1912.]
    Marvin, Winch and Meals, JJ.
    Citizens’ Savings & Tr. Co. et al. v. Mary O. Palmer et al.
    Lien of Creditor’s Bill Dates from Service of Summons and Prior to Judgment Liens in Actions Subsequently Instituted.
    A lien upon equitable interests, resulting from an action in the nature.of a creditor’s bill brought under favor of Sec. 11760 G. C., dates from the date of service of summons upon the trustees, and is prior to liens of creditors who have secured judgments and instituted proceedings in aid of execution while the first mentioned áetion was pending.
    Error.

      H. D. Messick,iov plaintiffs in error.

      Ingersoll & Vandemark and D. M. Bader, fo.r defendants in error.
   MEALS, J.

On February 3, 1911, Mary O. Palmer commenced an action in the nature of a creditor’s bill, in the court of common pleas, against D. T. Palmer and the Citizens Savings & Trust Co., upon a judgment previously recovered in the court of common pleas against said D. T. Palmer, in which she sought to enjoin the Citizens Savings & Trust Co., trustee from disposing of any funds in its hands which were then due or which would become due and payable to the said D. T. Palmer and to subject the same to the payment of her judgment.

The Citizens Savings & Trust Co., trustee, was duly served with summons in said case on February 3,1911, and in the April term of said court, in 1912, to-wit, on June 7, 1912, a decree was entered in said suit which enjoined said trust company, trustee,from paying any funds in its hands as aforesaid to the said D. T. Palmer, and in which it was ordered to pay any funds which were then due or thereafter became due to the said D. T. Palmer, to the clerk of the court of common pleas, in satisfaction of the judgment and costs' in favor of Mary O. Palmer.

On June 4, 1912, the defendant D. M. Bader recovered a •judgment, by confession, in the municipal court of the city of Cleveland, against the said D. T. Palmer, in the sum of $1,000, and on June 5, 1912, an order in aid of execution was issued out of the court of common pleas of this county and served upon the said Citizens Savings & Trust Co., trustee; and on the same day, to-wit, June 5, 1912, the defendant, S. H. Herbeson, trustee, who had theretofore also secured a judgment against the said D. T. Palmer, procured an order in aid of execution from the court of common pleas of*this county, which order was also served upon the said trust company, trustee, on June 7, 1912.

Whereupon, to-wit, on August 12,1912, the Citizens Savings & Trust Co., filed in the court of common pleas of this county, a petition in interpleader praying that all of said defendants be required to interplead together, asserting their claims in said funds, and be enjoined from taking any proceedings against it in regard thereto, and that it be allowed to pay over said funds to the clerk of the court of common pleas, or to such other person as may be designated by the court of common pleas to receive the same, and that it thereupon be discharged from all further liability in relation to said funds, amounting to $1,187.50.

In this state of the case the defendant, Mary O. Palmer; claims to have the first and best lien upon said fund. The defendants, D. M. Bader and S. H. Herbeson, trustee, also claim liens upon said fund and assert that their liens have priority over the lien of Mary O. Palmer.

The sole question, therefore, to be determined in this aspect of the ease, is the date or dates on which these respective liens attached.

Mary O. Palmer claims that her lien dates from February 3, 1911, when service was had on the Citizens Savings & Trust Co., trustee, in her suit commenced on that day in the court of common pleas, heretofore referred to. On the other hand, Bader and Herbeson claim that inasmuch as the order in aid of execution, issued at their instance on June 5, 1912, and June 7, 1912, respectively, were served upon the Citizens Savings & Trust Co., trustee, before the entry of a decree in the court of common pleas in favor of Mary O. Palmer in her suit, that their liens first attached and have priority over the lien acquired by her.

Section 11760 GL C. provides:

“When a judgment debtor has not personal or real property subject to levy on execution, sufficient to satisfy the judgment, any equitable interest which he has in real estate as mortgagor, mortgagee or otherwise, or any interest he has in a banking, turnpike, bridge or other joint stock company, or in any money, contract, claim or chose in action, due or to become due to him, or in a judgment or order, or money, goods or effects which he has in the possession of any person or body politic or corporate, shall be subject to the payment of the judgment by action.”

In pursuing this fund Mary O. Palmer proceeded under this section. Her suit was in the nature of a creditor’s bill and doubtless was properly brought. It is also clear that by this proceeding she acquired a lien upon the fund. When did this lien attach?

In Miers v. Zanesville & Maysville Turnpike Co., 13 Ohio, 197, it is said “that a creditor, on filing his bill to reach equitable assets, acquires a preferable equity to other creditors, which attaches ánd becomes a specific lien by the filing of the bill,” service, of course, having been duly made, and we believe that the rule as here expressed obtains in this ease. It is our conclusion, therefore, that the lien of Mary O. Palmer dates from February 3, 1911. Antedating the liens claimed by the defendants Bader and Herbeson, she undoubtedly has the first and best lien.

The defendants Bader and Herbeson claim that Mary O. Palmer, by virtue of her judgment in the court of common pleas, acquired a lien on a one-third interest in a farm in this county, held by D. T. Palmer; and ask that she be required to exhaust her remedy against this land before looking to the fund in the hands of the Citizens Savings & Trust Co., trustee.

The evidence discloses that the legal title to this land is in R. L. Palmer and that D. T. Palmer owns the equitable title only. This being true, Mary O. Palmer did not acquire a lien on the land as claimed by Bader and Herbeson. Kemper v. Campbell, 44 Ohio St. 210 [6 N. E. 566],

The evidence also shows that prior, valid and subsisting liens against the interest of D. T. Palmer in this land already exceed the value thereof. For these reasons the application must be refused.

Decree accordingly.

Marvin and Winch, JJ., concur.