text:
    DECREE OF DIVORCE NOT CONCLUSIVE AS TO VALIDITY OF MARRIAGE.
    Court of Appeals for Hamilton County.
    Pappalardo et al v. Pappalardo.
    Decided, June 8, 1917.

      Divorce and Alimony — Decree of Divorce Not ReviewaUe Nor Does Appeal Lie — Parties to an Alimony Proceeding — Not Concluded as to Validity of Marriage Toy Previous Decree of Divorce — Comt petency of Evidence as to a Former Marriage. ■

    1. No appeal or review by error proceedings of a divorce decree can be had.
    2. In the prosecution of error in a suit involving the right to alimony on the part of the wife, the parties are not concluded by a decree of divorce, previously rendered, so far as the validity of the marriage is concerned.
    3. In a suit for alimony where the defendant claims that he was never legally married to the plaintiff, for the reason that he had a first wife still 'living at the time plaintiff claimed the marriage took place and that no divorce had been had between such first wife and the defendant, it is error to refuse to permit the defendant to testify as to his former marriage and to exclude the testimony of witnesses who were, present at the church and witnessed the former wedding.

      Charles Ginocchio, Jesse M. Simon and Hachett, Yeatman & Harris, for plaintiffs in error.

      Joseph B. Derbes and Gideon C. Wilson, contra.
   Jones (Oliver B.), J.

This is a proceeding in error in which it is sought to have this court review the judgment of the court of common pleas, division of domestic relations, granting a divorce and alimony.

Previous to the recent amendment of the Constitution, under which the jurisdiction of the court of appeals was fixed, it has consistently been held, under the different forms of the divorce statute, that no appeal or review by error proceedings of a divorce decree could be had; and this rule was established as a matter of public policy, because of the inherent nature and effect of the decree of divorce, rather than because-of the terms of the statute. Bascom v. Bascom, 7 Ohio (pt. 2), 125; Laughery v. Laughery et al, 15 Ohio, 404; Tappan, Jr., v. Tappan, 6 Ohio St., 64; Parish v. Parish, 9 Ohio St., 534, and Mulligan v. Mulligan, 82 Ohio St., 426.

The terms of Section 6, Article IV of the Constitution, as amended September 3, 1912, as construed by the Supreme Court in the case of Cincinnati Polyclinic v. Balch, 92 Ohio St., 415, broadly taken, might authorize and require a review even of a decree of divorce, as was indeed suggested in the dissenting opinion of Nichols, C. J., at page 424; but considering the uniform rule that has existed in this state up to this time we are loth to hold that such change was intended by the amendment to the Constitution, and therefore declare that in our opinion the judgment for divorce is not subject to review by this court.

The same rule, however, has not obtained with respect to a judgment for alimony, and this court in the instant case has jurisdiction to consider that part of the judgment below which related to the subject of alimony.

The amount and method of payment of the alimony allowed by the court below is not criticised by plaintiffs in error, but the contention is made that no valid marriage between the defendant in error, Louise Pappalardo, and the plaintiff in error, Joe Pappalardo, w.as established by the evidence, for the reason that said Joe Pappalardo had a first wife still living at the time defendant in error claimed the marriage took place, that such first wife was living at the time of the- judgment below, and that no divorce had been had between her and said plaintiff in error, Joe Pappalardo.

It is however contended by the defendant in error that the question as to the marriage has been conclusively settled by the decree of divorce rendered in the court of common pleas, and that, if that decree can not be disturbed by review in this court, the parties are concluded by it so far as the validity of their marriage is concerned, upon which is predicated the right to alimony on the part of the wife.

We are unable to grant this contention, however, because if this court is authorized to review the matter of the judgment below so far as it related to alimony, which'review could'in no way disturb the divorce, the judgment below must not be deemed conclusive in any way as to the right of defendant in error to secure alimony. The point contended for, as to the conclusiveness of the divorce judgment fixing the right to alimony, was raised in the case of Cox v. Cox, as found in 19 Ohio St., 502. The only difference between .that case and the one under consideration here is that that case came into the district court from the common pleas court by appeal, while the instant case comes into this court on error. In Cox v. Cox the Supreme Court held that the effect of the appeal was to reopen for trial in the appellate court all the issues of fact upon which the rights of the parties with respect to alimony depended. The same rule would apply here and permit the court to review all of the issues between the parties upon which the right to alimony depends. It is not necessary, however, for this court to determine the weight of the evidence or the question as to whether or not plaintiff below might ibe entitled to alimony, under all the facts shown by the record, consideration being given the rule laid down in Vanvalley v. Vanvalley, 19 Ohio St., 588.

The record clearly discloses that the court below erred in regard to the admission of evidence, in refusing to permit the defendant Pappalardo- to testify as to his former marriage, and also in refusing to admit the testimony of Angelo Zapulla and Dominick Bosca, offered to show that they were present at the church and witnessed the former wedding of Pappalardo.

In the case of Wolverton v. State of Ohio, 16 Ohio, 173, it was held that the admissions of the defendant to a prior marriage might be given in evidence to prove the fact of such marriage in a trial for bigamy. Birchard, C. J., on pages 177 and 178, used the following language :

“It is said on behalf of plaintiff that the rilling of the court was in conflict with the well-established rule requiring the best evidence to be produced of which the nature of the case admits, and that, by the law of the state of Michigan, records are required to be kept of all marriages, and that the prosecutor should have been required to produce the record. Upon this theory, it would follow that the marriage could not be proved by a person present at the ceremony; and yet such proof is always admissible. ’ ’

In Miles v. United States, 103 U. S., 304, it was held that the' trial' court, on .an indictment for bigamy, properly admitted the declarations and admissions of the husband to prove the facts of his first marriage, and the Supreme Court approved the charge of the trial court to the effect that the declarations of the accused were evidence proper to be considered by the jury as tending to prove an actual marriage; that such marriage might be proven, like any other fact, by the admissions of the defendant or by circumstantial evidence; and that it was not necessary to prove it by witnesses who were present at the ceremony. In the opinion of the court, at page 311, it is said:

“To hold that, on an indictment for bigamy, the first marriage can only be proven by eyewitnesses of the ceremony, is to apply to this offense a rule of evidence not applicable to any other.
“The great weight of authority is adverse to the position of the plaintiff in error.”

In Umbenhower v. Labus, 85 Ohio St., 238, which was a case involving the validity of a common-law marriage and the legitimacy of a child, it was stated at page 244 of the opinion of the court, rendered by Judge Price, that the state recognizes marriage as a civil contract, and that “it may be proved by competent parol proof and circumstances when the degree of proof is clear and satisfactory to the court or jury.”

In 1 Bishop on Marriage, Divorce and Separation, Sections 1047, 1048 and 1049, the rule is laid down that it is competent to prove the fact of a marriage by the clergyman or other official person by whom it was solemnized, by the testimony of one who was present, or by either of the parties, when they are not incompetent witnesses. In Section 1050 it is stated.

“Proof by witnesses present has been deemed better than by record.. Yet in law either will in any case suffice.”

The record in this ease fails to show the state of the lay? in Italy, where defendant claimed to have been first married, in regard to the essentials of a ceremonial marriage and its record. Defendant’s counsel, however, stated that they had endeavored to procure a record of the marriage, but had failed to do so because of the existing European war seriously interfering' with shipping and communication with Italy, thus furnishing an excuse for their failing to obtain and produce record evidence of the marriage.

Because of these errors in regard to the admission of testimony, the judgment below, so far as it relates to the matter of alimony, must be' reversed, and the cause remanded for further proceedings.

In order, however, that the plaintiff below may not fail to secure any relief to which she may ultimately be found to be entitled, the temporary restraining order against the Union Savings Bank & Trust Company will be continued, subject to the further order of the court of common pleas.

Judgment reversed,, and cause remanded.

Jones (E. H.), J., and Gorman, J., concur.


source: Caselaw Access Project

author: Grant, J.

license: Public Domain

text:
    DETERMINATION OF “MARKET VALUE” OF RAILWAY STOCK.
    Court of Appeals for Cuyahoga County.
    The Society for Savings in the City of Cleveland v. The Lake Shore & Michigan Southern Railway Company.
    Decided, May, 1918.

      Railways — Consolidation of Lines — -Market Value of the Stock of the Company Absorbed — Ascertained from Sales, and Not by Deduction from Broad Generalizations — Section 9034.
    Under the statutes relating to consolidation of railway lines, the “market value” of- the stock of the company absorbed is properly ascertained by . sales of stock' made in good faith at any time within two years next preceding the making of the agreement of consolidation, and the value of said stock as so determined will not be set aside by a court on the plea that the true value of the stock is not shown by occasional sporadic sales, but must be determined from consideration of the value of the property owned and its earning power, together with the fact, if such be the case, that more or less of the net income has been turned back into the property instead of being distributed to the stockholders according to the usual custom.

      M. B. & H. H. Johnson, for plaintiff in error.

      S. H. West, contra.
   Grant, J.

Error to the court of common pleas.

In promotion of our own burden of conservancy of time and labor, we shall Iiooverize what might otherwise be a tedious recitation of various things.

Having read the one hundred and eighteen pages of briefs commended to us, we assume that counsel .are sufficiently informed of their case to render extended recitals here unimportant, and the matter is of no particular interest to any but the parties immediately concerned in the disposition of it.

Obeying also this law of parsimony in another respect, we pass by all discussion of the various questions of procedure technically raised by the record. We agree with counsel that all these are merged in the main point of controversy, presently to be stated, and that with this settled, they too have no workable importance.

Addressing our inquiry then to this controlling consideration, it became the duty of the arbitrators named for the purpose to take testimony and from it to find and award to the plaintiff in error the highest market value of the stock theretofore owned by it in the defendant company at any time within the two years next preceding the consolidation; this duty was enjoined by statute.

The arbitrators accordingly proceeded to hear testimony tending, as they said, to fix and establish such highest market value within the period so limited.

The testimony so taken was confined to sales of the stock, actually made within the two year period. Of such sales of the guaranteed stock within that time there were nine in all, aggregating 205 shares, at prices ranging from $478 (one share only) to $460 per share — the low rate being for 14 shares.

Of the non-guaranteed stock, the sales proved were 57 in number, totalling 1787 shares; for these the highest price obtained was $500 per share and the lowest $461.

That these were genuine and not simulated or collusive sales, is not controverted, nor is it in dispute that they were all the sales known to have been made'within the required time.

From this testimony and no other, the arbitrators found that a prima facie case of market value was made out, within the meaning of the statute, and called on the plaintiff in error to rebut the conclusion, if it could, by proof tending to discredit the sales actually shown. No such proof was forthcoming.

But it contended that sales alone did not and could not establish a “market value” of the stock, prima facie. It maintained that the sales shown were sporadic and occasional only, and that they could not be relied on in any just sense of the term to fix a “market value.”

As countervailing testimony the plaintiff in error offered and suggested a much broader field of inquiry, involving the property represented by the stock and tending, as it claimed, to establish “a fair buying and selling value, ‘market value’ in a broad sense, of upwards of $1,000¡ a share. ’ ’

It would be difficult, within reasonable limits, to particularize -this entire offer to prove, but a fair intimation of what the ultimate range of it was, as well as the reason given why an inquiry based upon sales alone would be inadequate to fix a “market value” with any justice to the offerer, may be gathered from the following statement of its counsel at the hearing:

“In part, we expect to be able to show from the books of the company that the preferred stock of the Lake Shore & Michigan Southern Railway Company during the two-year period had a fair buying and- selling value, ‘market value’ in the broad sense, of upwards of $1,000.00 a share; that these figures are based on the property of the company and on its income, properly computed; that the New York Central & Hudson River Railroad Company owned, during the two-year period, approximately ninety per cent, of the stock of the Lake Shore & Michigan Southern Railway Company; that the policy of the New York Central management has been to turn fifty per cent, or more of the net earnings of the Lake Shore & Michigan Southern Railway Company back into the betterment of the road that the distribution of dividents to stockholders, compared with the net earnings, has been away below the usual custom of railroad companies; that the turning back of so much of the net income into the road has had a double effect, in the first place, it has lowered the selling price, in sporadic sales, of the small fraction of the stock which is scattered in the hands of the public, and, in the second place" it has increased the value of the stock; that the result is that the New York Central Railroad Company wishes to appropriate stock worth upwards of $1,-000.00 a share for $500.00 a share; that the fact is that the stock has been so valuable that it has been an investment stock; that the only real purchasers for it have been the New York Central Railroad Company and William A. Read & Company— very likely the same thing; that there were so few sales of it .as to furnish no criterion of its value; that the very fact that stock worth upwards of $1,000.00 a share was sold in three or four instances for less than $500.00 a share shows in itself that the stock had no market, for the doctrine that market value, in the narrow sense, fixes the limit of recovery in conversion and other cases, is predicated upon the fact that taken by and large the sale price approximates the real value.
“It is thus evident,” the brief goes on to say, “that if we could prove what we offered to prove, not only were there too few sales of any kind of Lake Shore stock to show a ‘market value’ proved by selling price, but these selling prices were so abnormally depressed as to be worthless as a barometer of ‘market value.’ ”

But the arbitrators rejected this view altogether, and held that the extraneous considerations could have no proper place in fixing “market value,” and that such value was to be referred to sales only, in the absence of fraud or collusion in making them and no claim being made that they were other than bona fide. We have thus presented the two theories, in substance. The record under review, notwithstanding the discursive outlook of discussion in the briefs, calls upon us only for the adoption of the one or the other of these points of view.

The bearing of the cited cases upon the narrow real question, considering the particular service which the statute requires of the arbitrators, is for the most part not very obvious, nor do they afford us much practical aid in resolving the difficulty.

We assume of course that the arbitrators ,are bound by the substantial rules of evidence, as courts are upon all basic and controlling points.

Going a little afield from the ordinary line of legal quotation, we find the term “market value” defined in the New International Encyclopedia, as follows:

“Market Value. The value of an article as established by public sales of such property in a particular locality. At times this value is proved by regular market quotations. It is also proved by persons familiar with the price at which such property sells regularly in the market. If the market price is abnormally enhanced or depressed at the time or place for the delivery of any goods, by wrongful combinations or by an illegal monopoly, other evidence than the market sales may be resorted to for the purpose of showing the fair value of the property in question.”

Here the synonym of market value is the sales price, normally. The ease at bar is not within the exception which would let in other evidence.

■ But a very persuasive — we may say coercive — consideration with us at the present time rests in what the Legislature itself has done to help us to a conclusion as to what it meant by “market value” when it put that term in its statute. For if we can once ascertain the legislative intent in using the words, judicial inquiry can go no further with legal propriety, no matter how strongly we may — in a proper case — Teel that another meaning should be annexed to its expression.

The statute under which the arbitrators acted was passed in its present form, so far as the term “market value” is the thing required, to be fixed is concerned, more than sixty years ago.

It remained in that form on the books, unchanged in this respect, for more than a generation. In 1890 it was repealed and replaced by a provision which really seems to have been framed to conform it to the line of proof offered by the plaintiff in error to the arbitrators and rejected by them. It was made to coincide, as we read it, with the exact theory propounded in this case by the offers to prove, in its essential respects and evidenced - a clear legislative departure from the line of “market value” to its actual value, unless the two values should happen to be the same, and let down the bars into an unlimited field of inquiry as far as the dissenters might care to explore.- Its language as to this material point was as follows:

“A stockholder who refuses to convert his stock into the stock of the consolidated company shall be paid at least the actual value of such stock, to be ascertained, not alone from its market value previous to the making of such agreement for consolidation by the - directors, but from a consideration of the earning capacity of the road, in which such stock is held without reference to such proposed consolidation, the condition of said road, betterments, cars and other property, its existing connections, and any other facts tending to increase or diminish the value of the stock, such payment to be made before the consolidation takes effect.”

• This, it will be seen, was' a veritable letter of marque, a roving commission to privateers, to sail the high seas from Wall street to the “off again, on again, gone again” of Flanigan at the switch shanty.

If such were the statute now, it would be conclusive in its support of the plaintiff’s contention. This replacing enactment seems on its face to be an impracticable and wholly unworkable thing. It undertook to furnish a test of valúe which may overnight so fluctuate as to shift the estimate by hundreds of thousands of dollars. A thunder storm coming up while the, arbitrators were making up their award, might disastrously affect “the condition of said road,” a fire in the sheds might, in the same time, materially reduce the “betterments, cars and other property;” all “existing connections” would have to be, at the peril of the inquirer, inquired into in their remotest ramifications and to their consequences by possibility. And the “any other facts” provision would inevitably make the inquiry endless and interminable and bring up at last at a place which, as I recollect, is somewhere on the line of this very consolidated road — to-wit: Point No Point. But it admirably fulfilled the conditions on which the theory of the offered testimony and line of inquiry was bottomed.

The actual work-out covered only a couple of years.

The provision last quoted was repealed by the act of 1892, which restored the thing to be found by the arbitrators to the “market value” of the statute of 1856, pure and simple, untangled from the test of actual value allowably to be established by the considerations in that behalf annexed by the statute as it was amended in 1890. By the exclusion from the law as it was when the arbitration was had, of the tests allowed by the repealed act, as tending to fix actual value, aside from “market value”; by this restoration of the ancient landmark, we think the Legislature must have acted advisedly and with some end in view. To our apprehension that purpose was to clear the field of inquiry from the particular tests and standards which were in the act of 1890 but were omitted in the law of 1892: This, in our estimation, fairly repels the idea that these particular tests may be read into the statute after having been taken out of it, and, so interpolated, be pressed into the service of proving what “market value” is. If such was the purpose, then the Legislature deliberately threw overboard a plain rule and substituted a doubtful one for it. Sueh an outcome of legislative scrutiny is not to be presumed.

Our opinion is that the arbitrators, in holding that the sales proven to them, in good faith made, were evidence from which a “market value” of the stock might be established, and in rejecting the enlarged scope of inquiry proposed to them, but followed the plain requirement of the statute and the intent of the Legislature in enacting it. We can think of no other conclusion which would satisfy the statute and yet do no perceived violence to a just determination of the duty laid upon them by it.

This conclusion of what we must regard as the last legislative expression of the intent and purpose of the statute, to abandon the theory of the case held by the plaintiff in error here, is not materially at variance with, or shaken by, any of the authorities 'brought forward in the briefs and arguments at the bar, so far as these are in point at all. On the contrary, so far as they are applicable, they seem to us to fortify and support it.

That this consideration of what the Legislature meant in bringing the statute back to its rule of first instance after a trial of the opposite rule, was influential in shaping the decision of the arbitrators to hold evidence of actual sales sufficient to establish “market value,” ,and to reject testimony reaching beyond that, is most likely. And in so basing their finding that they were right, we are equally without doubt. If they were, this consideration settles the whole case for us.

Of course in one hundred and eighteen pages of briefs and two hours of oral argument at the bar, a great deal more than this has been said. But that anything else has been said, really to the purpose, or need be said, is in our opinion extremely doubtful.

We say this to show why no more particular attention is paid to the many, very many, questions urged upon us, but which are, as we think, all contained, in substance, in what has already been said.

"We can think of no more satisfactory way of eliciting the truth as to what was the market value of the stock, than that adopted by the arbitrators. If they had entered the fields of controversy proposed to them by the offers to prove, it would, we think, have been at the risk of obscuring and not clearing a correct vision of their one duty. For example, the statement found on pages 44 and 45 of the brief is as follows:

“To show the court, however, that our claims are not withqut foundation and that we reasonably believe that if opportunity be given we can clearly prove the stock to be of a fair value— market value in the broad sense — of upwards of one thousand dollars ($1,000.0¡0) a share, we may add that the Wall Street Journal, the financial organ of the railroads and other large interests in New York City, has said that the stock of The Lake Shore & Michigan Southern Railway Company was worth one thousand dollars ($1,000) a share.”

Ijt is thought by some uncharitable people that the Wall Street Journal not only “has said,” but is in the habit of saying, a great many things besides its prayers, but surely men charged with a duty of fixing values and whose time is worth something, can not be expected to spend it in listening to that kind of first aid to reach a just and reliable conclusion. It is indeed a question, we think, whether the .adoption of the offer would have been effectual either in the “broad sense” ostensibly sought, or in-the broad cents really struggled for.

' Although there are several assigned grounds of error before its, the foregoing intimations it is believed dispose of the substance of them all.

We find none of them to be of controlling merit towards disturbing the action of the arbitrators or the consequent judgment under review. In our opinion that judgment in each case, does substantial justice between the parties to it.

It is, therefore, affirmed.

Dunlap, J., and Lieghley, J., concur.


author: Jones (E. H.), J.

text:
    REFORMATION OF A FIRE INSURANCE POLICY.
    Court of Appeals for 'Hamilton County.
    The R. K. LeBlond Machine Tool Co. v. The Humboldt Fire Insurance Co.

    Decided, June 29, 1914.

      Reformation of Written Contract — Made tof Correspond With the In- ' tention of the Parties — Description of Property Covered by a Policy of Fire Insurance Corrected.

    1. Where the meaning of a written instrument is not clear, it will he construed most strongly against the person who prepared it.
    2. Where through mistake, fraud or inadvertence, the agent of an insurance company failed to insert in a policy of fire insurance a proper description of the location of the risk, 'a court will reform the policy in such a way as to make the description correspond with the intention of the parties.

      Robert A. LeBlond, for plaintiff in error.

      J. L. Kohl, contra.

       Affirmed, Humboldt Fire Insurance Co. v. LeBlond Machine Tool Co., 96 Ohio State, 442.

   Jones (E. H.), J.

Plaintiff in error, who was plaintiff below, brought suit on a certain policy of-fire insurance issued by the defendant company. The issues were made upon the plaintiff’s fourth amended petition, which alleged that the defendant, by the policies of insurance referred to, insured the plaintiff against loss and damage by fire to the amount oí $400 on live patterns, etc., “all while contained in the building occupied by the Mowry Car Whéel Works Company, situated at the southeast corner of Eastern avenue and Lewis street, Cincinnati, Ohio.” It is then alleged that the patterns of the plaintiff on the premises of the Mowry Car Wheel Works Company were stored in two separate buildings at the time the policy was issued, which fact, it is alleged, was known to the defendant’s agent; that the intention of the parties was that the said property should be'covered while located and contained not only in the building at the corner of Eastern avenue and Letvis street, but also while located and contained in the other building on the premises of the Mowry Company; and that by mistake, fraud or inadvertence the agent of the defendant company failed to include both buildings in the description of the location of the risk.

The reformation of the policy, so that the same will stipulate for insurance on the property referred to while located and contained on the premises of the Mowry Company at the southeast corner of Eastern avenue and Lewis street, Cincinnati, Ohio, is prayed for, and that after reformation is ordered plaintiff be given judgment against said defendant in the sum of $400.

The total amount of insurance on these patterns, etc., at this time,'was $2,400, which was divided among different companies who issued separate policies in amounts of about $400 each. It appears from the evidence in this case that at the time these policies were issued, and at all times since, the patterns had been left in the custody of the Mowry Car Wheel Works Company by the plaintiff, and that about nine-tenths of the patterns were stored in the'frame building which burned, and which stood a few feet away from the brick building immediately upon the corner of the two streets named.

Mr. Dillaby, a stockholder and a frequent visitor at the car wheel company’s plant, was at-the time engaged in the insurance business, and undertook at the request of the superintendent to obtain insurance upon said patterns, which Said superintendent had been requested by the plaintiff company to secure.

We think that there is satisfactory evidence that Mr. Dillaby knew that the great bulk of these patterns were stored in the frame building, and it was unquestionably his duty and the duty, of the agents of the defendant company who wrote this policy to know what it covered and where the property was located. In the absence of evidence to the contrary the company through its agents must be presumed to have known where the patterns were. The building which was destroyed, or at least a portion thereof, had been for at least thirty years, and possibly for fifty years, used exclusively for the' storage of patterns. It is true that in late years some few patterns were stored in the brick building at the corner, which, .according to the claim of the defendant in error, is the only building described or contemplated in the policy. In this connection see Richards on Insurance (2d Ed.), page 53, paragraph 6 of Section' 43, which reads :

‘ ‘ The contract of insurance having been framed by the insurers in their interest, and the insured being compelled to accept the form offered in order to secure insurance, any ambiguity as to the intent or meaning of its terms, or wh.at properly was intended to be covered, or where situated, will be construed in favor of the insured, and with the purpose of granting him an indemnity for his loss.”

This policy was written and executed by the insurance company and by it delivered to the insured, or rather to the Mowry Car Wheel Works Company for the insured. It is a familiar rule of construction that an instrument will be construed, where its meaning is not clear, most strongly against the person who prepared it. This rule of construction, coupled with the presumption of knowledge as to the location of the patterns on the part of the defendant company, makes it appear to the court that there should be a reformation of said policy and that the court below erred in instructing a verdict for the defendant. We think that the instruction w.as prejudicial to the rights of plaintiff in error, and that substantial justice has not been done.

For these reasons the judgment is reversed, and the cause remanded for further proceedings.

Judgment reversed, and cause remanded.

Swing, J., and Jones (Oliver B.), J., concur.


author: Jones (Oliver B.), J.

text:
    DAMAGES FOR, CHANGE OF GRADE.
    Court of Appeals for Butler County.
    The City of Middletown v. Doty.
    Decided, January 13, 1917.

      Streets — Damage to Property Claimed Because of Grading for Construction of Sidewalk — No Liability Against the City, When.

    In an action against a municipality for damages for change of grade in a street, the plaintiff must show either that his buildings were constructed in accordance with a grade regularly established, either by ordinance or user, and that the improvement of the street had been made to a different grade and damages caused thereby; or that while no grade was then established, the buildings were originally erected to conform to what would be a reasonable grade for the unimproved street when it should be improved, and that instead of establishing such reasonable grade the city authorities had adopted one entirely unreasonable.
    W. G. Palmer, for plaintiff in error.

      Andrews & Andrews, contra.
   Jones (Oliver B.), J.

This proceeding in error is brought to reverse the judgment of the court of common pleas in favor of Charles G. Doty, plaintiff below and defendant in error here, for damages to his property caused by the grading and construction of sidewalks on Bellemonte avenue in front of same.

The amended petition alleged that prior to the improvements put upon said lot Bellemonte avenue had an established grade, which was a reasonable grade and afforded reasonable access to said lots, and' that after the grade was established and so existed the streets were improved with reference to the grade then existing; that the city has changed the grade of this street so that the grade in front of plaintiff’s property has been, lowered about 8 feet; that plaintiff’s dwelling is about 14 feet from the sidewalk line'of the street, and that in cutting down the street the ingress and egress of plaintiff’s property is greatly interfered with, making it necessary for plaintiff to construct steps and retaining walls, or to grade and rearrange said property.

The city as defendant denied that, prior to the improvements upon the lots of plaintiff, Bellemonte avenue had an established grade or that the lots were improved with reference to that grade, and averred that the buildings and improvements of plaintiff were made before any grade whatever had been established by the city oE Middletown, and were made without reference to a reasonable grade for Bellemonte avenue, and that by the use of ordinary care plaintiff or his grantor could have anticipated the grade which has since been established. The city further averred that the established grade of Bellemonte avenue is a reasonable and proper one, and necessary for its proper use as a public street of said city.

These averments were denied by plaintiff in his reply.

The evidence shows that Bellemonte avenue is a street but two squares long, .extending from Third street to North street; that the dwelling house on plaintiff’s lot was built and other improvements made in the year 1908, the house being opposite the end of Second street, which terminated at Bellemonte avenue; that at that time Bellemonte avenue was simply a platted and dedicated street upon land which had not been graded but-was'at-the time fenced and temporarily used as a pasture; and -that no grade had been fixed by user because no public travel passed over same.

By ordinance passed in 1910 the city established the first grade for Bellemonte avenue, and, subsequently, in 1915, two ordinances were passed by the city authorities establishing a grade for the east curb and for the west curb, respectively. Both of the grades established by these ordinances provided for a descending grade from the level of Third street, at its intersection, with Bellemonte avenue, to the level of North street, at its intersection. There was in front of plaintiff’s property a change, by the second ordinance of less than six inches; and no improvements were made to conform to said first grade of 3 910, nor were any improvements made between the passage of the first grade-ordinance and the second grade-ordinance.

The evidence of Charles Goldman, plaintiff !s grantor, who built the house, shows that he made no application to the city for the establishment of a grade for Bellemonte avenue at the time of building, and that he located the house at the particular place at which it was built because he regarded it as a beautiful site for a home, having the outlook at the head of Second street. There is. nothing in the record to show that there was any effort to anticipate the reasonable grade at which Bellemonte avenue would be improved, nor does the record contain any evidence showing that the grade established by the city, upon which improvements have been made, is in any way unreasonable. The record also fails to show that any claim for damages was filed by plaintiff under the provisions of either Section 3823 or Section 3830 of the General Code.

As is well known, the law' of Ohio, in compensating property owners for damages to improvements caused by change, of grade, or by the establishment of an unreasonable grade in the construction of streets, is different from that of most of the states of the-Union, in-that it is deemed inequitable to permit’ the whole burden to fall upon the owner of property, which'' has -been improved with reference to an established grade, rather than to have it borne by the public which is benefited by ‘the new grade. The rule in Ohi.o is well stated in the syllabus in'. The City of Akron v. The Chamberlain Co., 34 Ohio St., 328, as follows:

- ‘1 The owner of a lot abutting on an unimproved street, of a. city or village, in erecting buildings thereon, assumes the risk of. all damage which may result from the subsequent grading and improvement of the street by. the municipal authorities, if made within the reasonable exercise of their power.
“The liability of'á municipality for injury to buildings on abutting - lots exists only ■ where such buildings were erected with reference, to a grade actually established, either by ordinance or such improvement of the streét as fairly indicated that the grade was permanently fixed, and the damage resulting from a change of such grade, or, where the buildings, if erected before a grade was so established, were injured by the subsequent establishment of ' an unreasonable grade.
“Whether a grade be unreasonable or not, must be determined by the circumstances existing at the time the grade was established, and not by the circumstances existing at the time abutting lots may have been improved.”

If plaintiff had been able to show that his buildings were constructed in accordance with a grade regularly established, either by ordinance or by user, and that the improvement of the street had been made to a different grade, and damages caused thereby, he would be entitled to recover such damages; or if he had shown that while no grade was then established the buildings were originally erected to conform to what would be a reasonable grade for the unimproved street when it should be improved, and that instead of establishing such reasonable grade the city authorities had .adopted one entirely unreasonable, then he might have recovered. As stated by Judge MeIlvaine, in The City of Akron v. The Chamberlain Co., supra, in the opinion of the court, at page 335:

“Whatever latitude there may be in the exercise of discretion in fixing the grade of a street is lodged in the municipal authorities, and not in the adjacent lot-owners.”

In other words, the duty of establishing the grade rests primarily with the municipal authorities, and the city can only be held for an unreasonable grade when they have failed to perform that duty and made the grade so unreasonable as to amount to an abuse of discretion. Plaintiff failed to produce any witnesses to show such abuse of discretion in this case. The only evidence as to the reasonableness of the grade came from witnesses produced by the defendant, and there is nothing to show that the grade to which Bellemonte avenue is improved could be considered an unreasonable grade.

The verdict of the jury and the judgment of the court below is contrary to the evidence and to the law. The judgment is therefore reversed and the canse remanded for snch further proceedings as are authorized by law.

Judgment reversed.

Jones (E. H.), J., and Gorman, J.. concur.


text:
    IMPROVEMENT OF SIDEWALKS.
    Court of Appeals for Hamilton County.
    Thompson et al v. City of Cincinnati et al.
    Decided, April 5, 1915.

      Sidewalks — Improvement of — Power so to do Tested in the City Council — Necessity for — Court of Equity May Intervene to Prevent Arbitrary Action.

    The power to determine when it is necessary to improve or repair a sidewalk is vested in the council of a city, hut this power can not he exercised in an arbitrary manner regardless of the public necessity or the rights of the property owners. A court -of equity will intervene to prevent arbitrary action amounting to. a manifest abuse of discretion.

      W. W. Clippinger, for plaintiff.

      W. M. Schoenle, City Solicitor, and Saul Zielonka, Assistant City Solicitor, for defendant.
   Jones (Oliver B.), J.

The law announced by this court in Livingston v. City of Cincinnati, 22 C.C.(N.S.), 383, 4 Ohio App., 338, is applicable to this ease. The power to determine when it is necessary to improve or repair a sidewalk is vested in the council of the city. But this power can not be exercised in an arbitrary manner, regardless of the public necessity or the rights of the property owners. A court of equity will only intervene to prevent such arbitrary action amounting to a manifest abuse of discretion.

The evidence shows that the brick sidewalk described in the petition, having a frontage of 250 feet on the north side of Eighth street, between Depot street and State avenue, is out of repair in the following particulars: that, commencing 18 or 19 feet from the west end, and running 20 feet or more in length in front of the property described as a carpenter shop, it is in bad condition, the bricks being entirely missing one-third of the width of the sidewalk, and the other two-thirds of the width being of a rough and uneven surface containing ,a two-inch depression and projecting bricks, which portion should be replaced with a new sidewalk; that the center of the sidewalk just east of this front for a distance of about 40 feet is rough, which should be so relaid as to be smooth and even; and that four certain depressions or valleys are shown, varying from one to two and a half inches deep, extending from the curb eight to ten feet across the sidewalk, at.stop-boxes, being evidently where trenches have been dug for water or gas service pipes which have not been properly filled and tamped when repaved, which depressions should be filled and repaved. Other slight defects are indicated by the evidence, especially the evidence of City Sidewalk Engineer Barr and by the plan or blueprint submitted. With the exception of the sidewalk in front of the carpenter shop above referred to, where a new sidewalk should be constructed, the remainder of the sidewalk is in good condition, favorably corresponding with the brick sidewalks laid in that portion of the city, and answering all the needs of public travel. The defects above pointed out are of minor importance and can all be remedied by comparatively inexpensive repairs, which should be made by the property owner under the supervision of the city.

Plaintiffs should be permitted to repair all of that part of the sidewalk except that portion lying in front of the carpenter shop, where a new sidewalk should be built. Under the circumstances shown, the court find that it would be .an abuse of discretion for the city to require the destruction of the entire brick sidewalk and its replacement by a cement sidewalk at the cost of the property owners.

Attention is called by the city in its evidence to the fact that certain stop-boxes situated in this sidewalk near the curb are above the grade and the surface of the sidewalk, and that several drains from the yard empty upon the surface of the sidewalk. Neither of these complaints would be rectified by changing the sidewalk from brick to cement. If they áre contrary to the legal requirements of the city, proper steps may be taken for their correction,but they are not involved in the sidewalk order here under consideration.

An injunction will be granted as above indicated.

Injunction allowed.

Jones (E. H.), J., and Gorman, J., concur.


author: Middleton, J.

text:
    PURPOSE AND EFFECT OF THE CARMACK AMENDMENT.
    Court of Appeals for Ross County.
    Norfolk & Western Railway Co. v. Nelson Dresbach and The Cleveland, Cincinnati, Chicago & St. Louis Railway Co.
    Decided, April 4, 1917.

      Carriers — Goods Lost in Transit — ¡Effect of the Remedy Against the Initial Carrier under the CarmaoTz Amendment — Action Under this Amendment May he Prosecuted Against the Initial Carrier Only.

    1. In an action against an initial and connecting carrier for the loss •of goods in transit, such action being based upon their common law liability and sounding in tort, no recovery may be 'had against the initial carrier by reason of the provisions of the Carmack amendment of Section 20 of the Federal act to regulate commerce.
    2. The remedy against the initial carrier, provided by this section and Section 8994-1 of the General Code, may be prosecuted only against the initial carrier, and in such action a connecting carrier or carriers is neither a necessary nor proper party.
    3. While this section is intended to provide the shipper with a special remedy against the initial carrier, thereby relieving him from the necessity of actually locating the carrier or carriers by whose negligence he sustained his loss, yet it also saves to him all his common law rights and remedies against all carriers, but he may not prosecute both remedies under one cause of action.

      Bannon & Bannon and Lyle S. Evans, for plaintiff in error.

      J. D. Withgott, for Nelson Dresbach.

      Fred C. Rector, for Big Four Company.
   Middleton, J.

This action was instituted by the defendant in error, Nelson Dresbach, against the plaintiff in error, Norfolk & Western Railway Co., and the - Cleveland, Cincinnati, Chicago & St. -Louis Railway Co., which will hereinafter be designated as the Big Four, to recover damages alleged to have been sustained by reason of the negligence of the defendants in not properly carrying and handling two ear loads of hogs shipped by the plaintiff over the lines of said defendants.

The petition alleges that plaintiff delivered said hogs to the defendant, Norfolk & Western Railway Company, at the village of Kingston, Ohio, to be transported to Buffalo, New York, and that said defendant company thereupon delivered to plaintiff its written agreement to so carry said hogs to said destination. It alleges further that said defendant, the Big Four Comipany, received said hogs at Columbus, Ohio, subject to the agreement entered into by the defendant, Norfolk & Western Railway Company. It alleges further that said defendants did not carry said hogs- safely and were negligent and careless, and permitted said cars of hogs at points along the lines of said companies to stand without attention or water for several hours and to be unnecessarily delayed in transportation, etc.

- It is apparent from this petition that the plaintiff below, Nelson Dresbach, launched his ease against the defendant companies upon the theory that they were joint tort-feasors and that the . combined negligence of both was the proximate cause of the injury sustained by him. A careful review of the facts set up in " the petition admits of no other inference or conclusion. Mani- ' festly," the action was not brought against the initial carrier uncler its liability as defined by wbat is known as the Carmack amendment of Section 20 of the Act to Regulate Commerce, because in ®n action against the initial carrier under said amendment the connecting carrier is neither a necessary or proper party and if joined with the initial carrier the petition would be subject to a special demurrer upon the ground of misjoinder of parties defendant. So that the action as originally instituted must be treated as an .action to enforce the common law liability of both carriers, which liability may be joint or several as the evidence may disclose.

Both defendant companies filed answers setting up substantially the same defense, with the exception that the Big Four Company' in an amendment to its answer pleads a failure of the Norfolk & Western Railway Company to notify it of the shipment of said hogs so that it could promptly transport them from Columbus and, if necessary, hold a train for that purpose.

After the jury was impanneled and the case had proceeded to trial the court sustained a motion to dismiss the Big Four Company upon the ground that it had not been notified of the claim of plaintiff within thirty days, as required by the terms of the contract with the initial carrier, or Norfolk & Western Railway Company. The dismissal of the Big Four Company is one of the grounds of error now urged by the Norfolk & Western Railway Company. After the dismissal of said defendant company the case proceeded against the one defendant, Norfolk & Western Railway Company, and resulted in a verdict in favor of plaintiff. The jury also returned a special verdict, in which it found that the loss and damages complained of m the petition were sustained upon the line of the Big Four Company.

Various errors are assigned for the reversal of this judgment, to which, for the purposes of this decision, it will’not be necessary to refer in detail.

Coming direct to what we consider to be the controlling question as shown by the record it becomes necessary to examine Section 20 of the commerce act aforesaid to determine whether said section has any application to or connection with this action under the pleadings. That section as amended is the same as Section 8994-1 of the General Code of Ohio and provides as follows :

“That any common carrier, railroad, or transportation company, receiving property for transportation from a point in one state to a point in another state, shall issue a receipt or bill of lading therefor and shall be liable to the lawful holder thereof for any loss, damage, or injury to such property caused by it or any common carrier, railroad or transportation company to which such property may be delivered or over whose line or lines such property may pass, and no .contract, receipt, rule, or regulation shall exempt such common carrier, railroad or transportation company from the liability hereby imposed: Provided, that nothing in this section shall deprive any holder of such receipt or bill of lading of any remedy or right of action which he has under existing law.
“That the common carrier, railroad or transportation company issuing such receipt or bill of lading shall be entitled to recover from the common carrier, railroad or transportation company on whose line the loss, damage, or injury shall have been sustained, the amount of such loss, damage, or injury as it may ibe required to pay to the owners of such property, as may be evidenced by any receipt, judgment, or transcript thereof.”

Plaintiff in error contends that the dismissal of its co-defendant is in effect an adjudication of the latter’s liability, and that such dismissal deprives the former of its right of action to recover from its co-defendant the loss or damage It has sustained by reason of this judgment, because the jury has found that th* loss to the shipper occurred on the line of said Big Four Company. It contends further that the court erred in dismissing said Big Four Company from the case because while the contract between the Norfolk & Western Railway Company and the shipper provides that no common carrier shall be liable for any loss sustained upon its line unless such carrier is notified as required by the terms of said contract in respect to the notification of th« initial carrier, yet in as much as the initial carrier was- notified of such claim that notice to it is notice to the connecting carrier because the latter was the agent of the former in the transportation of said hogs. In support of this contention the eourt is cited to the case of Railway Co. v. Wall, 241 U. S., 87, in which it is held that notice to the connecting carrier is notice to the initial carrier.

¥e are not impressed with either of the foregoing contentions of the plaintiff in error. We do not think that the dismissal of the Big Four Company, for the reasons named in the entry of said dismissal, is a final adjudication of its liability to the initial carrier, if such liability exists; and as to the second contention, while notice to the initial carrier may be notice to the connecting carrier in all matters within the scope of the latter’s .agency, yet when the liability of the connecting carrier is a several liability and depends upon facts wholly independent of its agency and its relation to the initial carrier such a rule may not obtain, .and that is precisely the situation here. The initial carrier has written this provision into its contract. It has placed it there for the protection of the connecting carrier, not as a protection to the connecting carrier as its agent, but as a protection to the connecting carrier against the latter’s separate and independent liability to the shipper growing out of acts wholly disconnected with its responsibility to the initial carrier. It would seem that such a provision in the contract was wholly unnecessary and in reality one against the interests of the initial carrier, but it is there by the act of the initial carrier alone and it ought not complain of results that may not be as favorable to it as it anticipated when it placed this condition in the contract.

We have, however, in this connection, another question of much more serious import as regards the interests of plaintiff in error.

When the court dismissed the Big Four Company such dismissal did not thereby change the nature of the action. It still remained a suit to enforce the common law liability of the Norfolk & Western Railway Company. The dismissal of the Big Four Company, under the circumstances, could not and did not change in any respect the character of the suit. The only effect of this dismissal was to relieve the Big Four Company from any liability and to confine the plaintiff entirely to his right of action against the Norfolk & Western Railway Company under its common law liability as fixed and determined by its contract with the plaintiff.

"While there has been much confusion and some conflict in the construction placed on Section 20 of the commerce act aforesaid, it now appears to be the settled law that the provision of this section, whereby the shipper or holder of any receipt or bill of lading shall not be deprived of any remedy or right of action which he has under existing law, authorizes him to sue any one or all of the carriers whose negligence, joint or several, resulted in any loss or goods in transit on their respective lines. "While this section is intended to provide the shipper with a right of action against the initial carrier, thereby relieving him from the task of actually locating the carrier whose negligence caused the loss, yet if he does not desire to pursue this remedy which, as before observed, is one against the initial carrier alone, and if be knows which carrier or carriers caused the injury he may sue it or them. Bichlmier v. Railway Co., 150 N. W., 508, Elliott v. Railway Co., 150 N. W., 777.

"When a statute gives .a remedy where one already exists at common law the statutory remedy is considered merely cumulative, and a party may sue at common law as well as upon the statute. Ency. Pl. & Pr., Vol. 20, p. 603. But both remedies may not be prosecuted together under one cause o,f action.

Com. Dig., Action upon Statutes, C.

So in this case, as before observed, the defendant in error, Nelson Dresbach, having elected to pursue his common law remedies against said defendant companies, must be held to the lay applying to the cause of action so selected by him.

The learned court in its general charge to the jury, after quoting Section 20 aforesaid, proceeded to instruct the jury to the effect that, if they found the loss was caused by the negligence of the Big Four Company, they could nevertheless return a verdict against the Norfolk & Western Railway Company under its liability as an initial carrier as fixed by this section. We think this instruction was erroneous and not applicable to the case under plaintiff’s petition. When the Big Four Company was dismissed it did not change the character of the action.. The plaintiff shipper could not then be heard to say that the Norfolk & Western Railway Company was liable to him as an initial carrier, because no cause of action against it as an initial carrier was pleaded in his petition. After the dismissal of the Big Four Company the plaintiff was compelled to establish the fact that the Norfolk & Western Railway Company by its negligence, or its negligence combined with that of the other company, caused his loss. If the evidence did not disclose either one or the other state of facts he could have no recovery under his petition against the Norfolk & Western Railway Company. If the negligence of the Big Four Company .alone was the proximate cause of the injury, under plaintiff’s petition' the Norfolk & Western Railway Company could not be held liable for his loss. We are, therefore, of the opinion that the instruction of the court aforesaid was highly prejudicial to plaintiff in error, and for this reason alone the judgment of that court must be reversed.

The judgment of the court of common pleas will be reversed and the cause remanded to that court for a new trial.

Sayre, J., and Walters, J., concur.


text:
    EMPLOYEE INJURED IN A CHAIN-DRIVEN AUTOMOBILE TRUCK.
    Court of Appeals for Hamilton County.
    Farrell v. The Roche-Bruner Building Co.
    Decided, June 21, 1915.

      Negligence — Employee Riding on Motor Truck — Has Foot Crushed in Sprocket Wheel — Proximate Cause of Injury.

    Plaintiff was employed by defendant in loading brick upon an automobile truck at one point and unloading same at another point, and with other men similarly engaged was permitted to ride on the truck. While so riding he sat with his feet hanging over the side and directly over the sprocket wheel and chain by which the truck was propelled. The truck was driven near an approaching wagon, and, fearing for his safety, plaintiff instinctively drew back his leg, which was thereby caught in the sprocket and chain and crushed so that amputation was necessary. The evidence showed that seventy per cent, of all automobile trucks are chain driven, and that the sprocket and chain are in all makes exposed and uncovered. Plaintiff had a choice of position upon the truck and there was ample opportunity for him to have placed himself where he would have been in no danger whatever from the sprocket wheel and chain. Held: That no negligence can be attributed to defendant from .the use of such chain-driven automobile truck, and that the proximate cause of the plaintiff’s injury was Ms own act in placing himself upon the truck at such point as to be in danger.

      Shuey & Anderson, for plaintiff in error.

      Robertson & Buchwalter and Theodore C. Jung, contra.
   Jones (Oliver B.), J.

Plaintiff, Charles Farrell, was in the employ of the defendant and was engaged in loading brick upon an automobile truck at the railroad yards and unloading same from the truck at a building which was being constructed by defendant on Main street in the city of Cincinnati. He and other men engaged in the same task were permitted to ride on the truck from the building to the railroad yards, and while so riding, at the time of the injury, March 17, 1913, he sat upon the side of 'the truck with his feet hanging over the side directly over the sprocket wheel and chain by which said truck was propelled, other men sitting on either side of him. "When the truck arrived at the railroad yards it was driven within a' few feet of an approaching wagon, and plaintiff, fearing for his safety, instinctively drew back his leg, whieh was thus caught in the sprocket and chain and was crushed so that amputation was necessary.

The defendant at the time employed more than five workmen in the same line of business, and had not then availed itself of “the protection of the workmen’s compensation law.

At the close of the evidence, the court, upon motion of defendant, directed the jury to return a verdict for the defendant, upon which a judgment was entered; arid error proceédings are) here, prosecuted to set aside that judgment.

Two grounds of negligence were alleged in plaintiff’s petition :

1. That the defendant “negligently and carelessly permitted and suffered the said sprocket and chain on said automobile to remain exposed and uncovered.”

2. That the defendant “negligently and carelessly ran and moved said automobile truck dangerously close to a passing wagon, and that plaintiff reasonably anticipated bodily injury from collision from said wagon and sought to withdraw himself from said .apparent danger, that in so doing his leg became entangled in said sprocket and chain.”

The bill of exceptions does not purport to contain all the evidence, but on the contrary it is certified that it is a “narrative form of the evidence produced by the parties and heard by the court on the question of negligence and the injury.” The evidence in the bill of exceptions, however, shows that 70 per cent, of all truck automobiles known to the business ,are chain driven, and that the sprocket and chain in all makes are exposed and uncovered.

It appears also that the sprocket and chain are in a measure protected by the wheels and the edge or bed of the truck. These trucks are made for the purpose of hauling freight, and it is not intended that people riding upon them should extend their legs down over the side in the vicinity of the sprocket and chain.

It appears in this ease that plaintiff had a choice of position upon the truck and there was ample opportunity for him to have placed himself where he would have been in no danger whatever from the sprocket wheel and chain. Had he so placed himself, no injury could have resulted from his fear of contact with the passing wagon, and there would have been no reason for his thrusting his leg in contact with the chain and sprocket, because of fear of such collision.

It therefore appears that no negligence can be attributed to defendant from the use of such chain-driven automobile truck, and that the proximate cause of the plaintiff’s injury was his own act in placing himself upon the truck at such point as to be in danger.

Error is urged, on the part of the plaintiff, in the court’s refusal to allow him to prove that ‘ ‘ a cotter pin in the sprocket wheel had been lost and defendant had replaced it with a wire, which extended some distance beyond the axle.”

The refusal to admit such testimony is shown in the bill of exceptions, as follows:

"The court sustained the objection for the reason that there was no allegation in the petition as to any negligence on account of a defective construction or condition of the sprocket wheel except that it was exposed, and the court offered to allow the plaintiff to amend his petition, which the plaintiff refused to do. ”

A careful consideration of the petition shows that the trial court was correct in its statement that no allegations of defective construction or condition of the sprocket wheel appeared ip the petition, and plaintiff, having refused to avail himself of the opportunity offered by the court to amend his petition in that respect, can not now be heard to complain of the refusal b' receive such testimony.

The second defense of the answer of defendant set up a payment in full and a settlement and a release in bar by the plaintiff. There is nothing in the bill of exceptions to show what evidence was introduced in that respect, and, under the presumption in favor of the ruling of the trial court, it must be held that a directed verdict was justified under that defense.

The court finding no prejudicial error, the judgment below is affirmed.

Jones (E. H.), J., and Gorman, J., concur.


author: Meals, J.

text:
    AUTHORITY OF THE PROBATE COURT TO TRY THE RIGHT OF PROPERTY.
    Court of Appeals for Cuyahoga County.
    Jennie Tibbott, Administratrix of the Estate of James Rees, Deceased, v. Mrs. Frances Cadisch.

    Decided, March 27, 1916.

      Right of Property — Frótate Court Has Authority to Determine — Title Thus Settled is Res Judicata in Another Court.

    The statutes of Ohio, . as they now stand, provide for trial of the right of property by the probate court, and proceedings before •that court pursuant thereto may be pleaded in bar of an action in another court to try the title to or the right of possession of the property involved in said proceedings.
    Kerruish, Kerruish, Hartshorne & Spooner and E. J. Cherney, for plaintiff in error.

      R. J. Selzer, contra.

      Motion to certify the record in this case overruled by the Supreme Court May 18, 1916.

   Meals, J.

Error to the court of common pleas.

On the 20th day of January, 1915, the plaintiff in error instituted proceedings in replevin against the defendant in error in the Municipal Court of Cleveland for recovery of certain personal property, to-wit, one diamond ring, one diamond stick pin, and sixty dollars in currency. Thereupon summons was duly issued by the clerk of the municipal court and placed in the hands of a deputy bailiff of said court for service. On the 22d day of January, 1915, said bailiff returned said summons endorsed as follows:

“Received this writ January 20, 1915, and by virtue thereof I searched for the chattel ..property within described but failed to find the same. I served this writ on the within named defendant, Mrs. John Cadisch, whose real name I found to be Frances, by delivering to her a true and certified copy thereof, with all endorsements thereon. Charles L. Selzer, bailiff, by Ed E. Peck, deputy bailiff.”

During the pendency of said action in the municipal court, to-wit,. on the 22d day of January, 1915, the plaintiff in error duly instituted in the Probate Court of Cuyahoga County proceedings charging the defendant in error with concealing, withholding and appropriating property to her own use in fraud of the rights of the administratrix and others interested in the estate of James Rees, deceased. Summons was duly issued and served.

On the 27th day of January, 1915, during the pendency of said replevin action in the municipal court, and without objection, a trial was had in the Probate Court of Cuyahoga County before the Honorable Alexander Hadden, judge of said court, on the merits of said complaint, and the judgment of said court — a jury having been waived — was entered for the defendant in said proceeding, the defendant in error in this action.

On the 5th day of February, 1915, a trial of said replevin action was had in the municipal court. At said trial the defendant in error offered in evidence the original papers and a certified copy of the docket entries of the proceedings had in the probate court, in support of a plea In bar to said action. This evidence was excluded by the court, and the trial resulted in a judgment for the plaintiff in error. This judgment was reversed by the court of common pleas. Error is prosecuted in this court to reverse the judgment of the court of common pleas.

One question only is presented for our consideration: Did the proceedings in the probate ■ court constitute a trial of the right of property? If so, it is admitted that the municipal court erred in excluding the evidence offered of said proceedings in the probate court.

The act of February 26, 1843, supplementary to the act for the settlement of estates of deceased persons, provided that "upon complaint of an executor or administrator before the probate court against any person suspected of having concealed, embezzled or carried away the property or effects of the estate, the parties suspected shall be cited to appear before the court and submit to an examination touching the matter of complaint.” It also provided that either party might examine witnesses and required the court to reduce all such examinations to writing, to be signed by the parties and witnesses respectively, and file the same in the court. The act further provided that “if upon such examination the probate court shall be of opinion that the person or persons so accused is or are guilty of having concealed, embezzled or carried away any of the money, goods,” etc., of the estate, “the court shall forthwith render judgment in favor of the executor, etc., against such person for the amount or value of the money or goods, together with ten per cent, penalty, which judgment, the act declared, shall be a lien upon his estate and be collected by execution.”

In Howell v. Fry, 19 O. S., 556, the constitutionality of this act was attacked, on the ground that it provided for a trial of the right of property to court and without the intervention of a jury. The court held the law unconstitutional, and in its opinion said:

“If the defendant denied the truth of the charge, he had a constitutional right to a jury trial, and could not be deprived of that right by this summary proceeding, in which no provision is made for a jury trial or for the right of appeal. The statutory provision authorizing a judgment can only be sustained as constitutional and valid in so far as it applies to a case where the defendant does not controvert the truth of the complaint. ’ ’

Thereupon the statute was amended so as to cure the defect found in it by the court in Howell v. Fry, supra. It is found in Sections .10673, et seqs, of the General Code:

“Section 10673. Upon complaint made to the probate court or the common pleas court of any county, by the executor, administrator, creditor, devisee, legatee, heir or other person interested in the estate of a deceased person, or by the creditor of any devisee, legatee, heir or other person interested in such estate, against the executor or administrator of such deceased person, or against any person suspected of having concealed, embezzled, or conveyed away moneys, goods chattels, things in action, or effects of such decedent, tbe court shall cite such executor, administrator or other person suspected, forthwith to .appear before it to be examined, on oath, touching the matter of the complaint.
“Section 10674. When complaint is made to the probate court and a jury is demanded by either party, the court may forthwith reserve the case to the court of common pleas for hearing and determination, and it thereupon shall proceed in all respects as though the complaint had been originally made therein. ’ ’
“Section 10678. By the verdict of a jury, if either party requires it, or without, if not required, the court shall determine whether the person or persons accused is or are guilty of either having concealed, embezzled or conveyed away moneys, goods, chattels, things in action or effects of such deceased persons, and if found guilty, the amount of damages to be recovered on account thereof. In .all eases except when the person so found guilty is the executor or administrator of such deceased person, the court forthwith shall render judgment in favor of the executor or administrator or if there be no executor or administrator in this state, in favor of the estate, against the person or persons so found guilty for the amount of the moneys or the value of the goods, chattels, things in action, or effects so concealed, embezzled or conveyed away, together with ten per cent, penalty and all costs of such proceedings or complaint, which judgment shall be a lien upon the real estate of the person or persons against whom it is rendered within the county from the rendition thereof. If the party so found guilty is the executor or administrator of such deceased person, the court forthwith shall render li'ke judgment in favor of the estate against him for such .amount or value, together with penalty .and costs as aforesaid.
“Section 10)679. Such judgment shall be a lien upon the real estate of the executor or administrator, within the county from the rendition thereof. The probate court must forthwith remove such executor or administrator and commit the administration of the estate, not .already administered, to some other person or persons. The executor or administrator so removed, shall not receive compensation for acting as such, and must be charged in his account .with the amount of such judgment. His property also shall be liable for the satisfaction of the judgment on execution issued thereon by his successor, who-, when the judgment is rendered by the probate court, must file a transcript with the clerk of the common pleas court and cause such proceedings to be had as are contemplated in the next following section.
“Section 10680. The executor or administrator in whose favor such a judgment has been rendered by the probate court, may forthwith deliver to the clerk of the common pleas court in the county, an authenticated transcript which the probate judge on demand of such personal representative shall make out and deliver to him. On such transcript the clerk forthwith must issue an execution of the common pleas court for the amount of the judgment and costs, and the costs accrued, or that may accrue thereon. Thenceforth proceedings on execution shall be the same as if the judgment had been rendered in such court.”

In our opinion the act now provides for a trial of the right of property, and á judgment entered by the probate court, in proceedings before it pursuant to the provisions of said act, may be pleaded in bar of another action to try the title to or the right of possession of the property involved in said proceedings.

But few of the states have statutes on this subject similar to ours. Authorities, therefore, which might aid us in arriving at a correct conclusion in the case at bar are not numerous. The statute of Missouri on this subject is similar in substance to that of Ohio, and the Missouri courts have held that it contemplates a trial of the right of property.

In Re Estate of Jacob Huffman, Deceased, et al v. Huffman, 132 Missouri Appeals Reports, 44, paragraph 2 of the syllabus is as follows:

“In a proceeding under the provisions of Sections 74 and 78, Revised Statutes 1899, interrogatories may be exhibited against the person cited and evidence heard on them to try the right of property, concealed or embezzled or otherwise wrongfully withheld by such person; the former rulings that such a proceeding was only to facilitate the discovery of hidden assets, preliminary to an action to recover them, and a showing, on the part of the person proceeded against, that they were held in good faith, would stop further proceedings, are unsound in principle and in conflict with the decisions of the Supreme Court! ’ ’

In the opinion the court say:

“The Missouri statutes dealing with the subject differ from those of ,all the other states we have examined in essential particulars; chiefly in providing for a trial by jury of the issues raised. This provision is not found in any of the statutes of other states cited infra, except Maryland (and we might add, Ohio) ; and text-writers derive the proposition that the right of property can not be tried in a proceeding like this one, from oases in other jurisdictions. * * * But those cases, so far ,as the decisions are based on the lack of a statutory provision for a trial by jury, should be eliminated in considering the effect of our statutes. The opinions usually treat this omission as the decisive reason.for saying property rights can not be determined. * * * In Maryland the Orphans’ Court of probate jurisdiction, in analogy to the old chancery- practice, may refer the issues to -a law court to be tried but can not try them itself. * * * Under statutes granting this privilege, it was held in -a majority opinion, the jurisdiction of the orphan’s court was confined to determining whether or not the defendant had concealed the property mentioned in the affidavit, and if he openly admitted possession, but claimed title, his right could not be determined. A dissent was filed. Gilson v. Cook, Admr., 62 Md., 256. In several states the sole aim of the law is the discovery of assets — -not to compel the party in possession to turn over or inventory property, but to compel him to submit to an examination in order that his statements, and some times those of other witnesses as well, may be filed.in writing as a basis for other proceedings to recover the property. * * * In New York .the statutes expressly provide that if the defendant files ,a verified answer alleging ownership of the property, the proceeding shall be dismissed without further examination. * * * The Texas statutes pertain only to papers and documents belonging to the estate. * * * The statutes of Arkansas, Utah and Nevada permit a summary order by the court for the delivery of the detained property, but provide for no examination of witnesses or jury trial. * * * The following decisions held the purpose of the statutes dealt with was to provide a means of discovery, not recovery, of assets; Gardner v. Gillihan, 20 Ore., 598; and others. It will be seen from the foregoing summary of statutes and cases that the adjudications in other jurisdictions can lend little assistance in the attempt to ascertain the object and effect of our statutes, in consequence of the wider scope of the procedure these provide and •the use materially different language — language suggestive of an intention to create a new method of both discovery and recovery. It is worthy of note that in the statutes of 1845, where the proceeding w,as first authorized and presumably the policy of the Legislature put into effect, it is said if the defendant appears and in his answer to the interrogatories denies the right of the executor or administrator to the goods, chattels, money, etc., ‘the right thereof shall be tried by a jury; or, if .neither party require a jury, by the court, in a summary manner, and judgment shall be rendered according to the right and for costs.’ This language imports a purpose to provide a method for determining the right of property as between the estate and the person accused of concealing or embezzling assets. The statutes of 1855 (Sec. 10) instead of saying the right shall be tried, say the issue shall be tried; meaning the issue of whether the property is concealed or embezzled. The present statutes cover .assets concealed, embezzled or otherwise wrongfully withheld, and Sections 77 and 78 say the issue upon the interrogatories and answers filed, shall be tried by a jury, etc., and if the defendant is convicted, the court shall compel him to deliver the property detained; or if he be an executor or administrator, compel him to inventory it. In our opinion this legislation was not enacted merely to provide a method of investigating the good faith of a person who detains assets, but to provide also a remedy by which detained assets could be brought quickly into the course of administration. The notion that the only object was to facilitate the discovery of hidden assets, preliminary to an action to recover them, is fallacious and founded on the decisions of jurisdictions where statutes, enacted only to assist discovery, prevail; and which do not take care of the constitutional right of trial by jury in eases involving property rights, because no property rights are involved under said statutes, but only information. In this state a jury trial of the issues is .allowed and also an appeal; thus preserving ■ to a defendant all the rights he would enjoy in any other form of action. It is unlikely that this elaborate procedure was devised simply to discover assets. The purpose was broader — to expedite the administration of estates by .affording a new and speedy remedy for collecting assets.”

On these considerations, we find no error in the record, and the judgment of the court of common -pleas is affirmed.

Grant, J., and Carpenter, J., concur.


author: Wilson, J.

text:
    MORTGAGEE GIVEN PRIOR. LIEN BY SUBROGATION.
    Court of Appeals for Hamilton County.
    The East End Loan Association Company v. The Methodist Book Concern, etc., et al.
    Decided, June 24, 1918.

      Priority of Liens — Lien of a Judgment Creditor Subsequent to that of a Later Mortgagee, "When.

    The fact that a judgment, by relating back to the first day of the term during which it was rendered antedates the execution of a mortgage, does not give the judgment creditor a prior lien, where the proceeds of the mortgage were, by agreement with mortgagor, used in liquidating previously existing liens, and the mortgagee thereby became subrogated to the rights of said former lienholders.

      M. W. Conway and David Davis, for plaintiff.

      Wolf & Bailey, contra.
   Wilson, J.

This action was brought in the court below by the Methodist Book Concern, a corporation, against Mary B. Corwin, the East End Loan Association Company et al, to enforce the collection of a judgment, marshal' liens and for the sale of real estate, the judgment having been recovered on January 11, 1917, and by force of statute related hack to the first day of the term of court, to-wit, January 2, 1917.

The defendant, the East End Loan Association Company, filed a second amended answer and cross-petition therein alleging that on January 9, 1917, it loaned to Mary B. Corwin the sum of $2,000, secured by a mortgage of that date on the property described in plaintiff’s petition, and further alleging that said money was applied by it at the request and direction of Mary B. Corwin to the payment of a $1,500 mortgage on the property held by the Southern Ohio Loan & Trust Company, dated February 7, 1913, and a $500 obligation of Mary.B. Cor-win to Edward B. Quinn secured by a conveyance by way of deed, of tbe legal title to said property to said Quinn, dated August 26, 1916, with a lease back containing a privilege of purchase for the sum of $500; that said obligations were paid on said January 9, 1917, and said property was then and there conveyed by said Quinn to said Mary B. Corwin, who thereupon executed the mortgage to said loan association company. Said company by reason of the facts so alleged claimed a right to be subrogated to the rights of the lienholders so paid by it and prayed that it might be so subrogated and declared to have the first and best lien on said property prior and superior to the lien asserted by the plaintiff.

To this answer and cross-petition the plaintiff demurred on the ground “that it does not state facts sufficient in law to entitle it to priority over plaintiff’s judgment lien.” The court below sustained the demurrer and entered' a judgment in favor of plaintiff, holding that it had a prior and superior lien to the mortgage of the East End Loan Association Company, to which the said company excepted.

The question presented for the consideration of this court is as to whether or not the facts alleged, if proven, would entitle the said defendant, the East End Loan Association Company, to be subrogated to the rights of the prior lienholders whose secured claims were so paid by the said company at the request and direction .of the mortgagor.

It will be observed that on January 2, 1917, when it is. claimed the plaintiff’s lien attached to the property, the two liens of the Southern Ohio Loan & Trust Company and Edward B. Quinn aggregating $2,000 were then subsisting liens on the property, so that if the East End Loan Association Company is subrogated to the rights of said two lienholders, it will work no injustice to the rights of the Methodist Book Concern, as its security remains the same as when the lien attached and its position will in no way be changed for the worse on account thereof.

The right of subrogation is founded in equity, and will be invoked only when necessary to secure some equitable right and without which an injustice will be done.

In Straman, Admr., v. Rechtine, 58 O. S., 443, the court say:

“Where money is loaned under an agreement that it- shall be used in the payment of a lien on real, estate, and it is so used, and the agreement is that the one who so loans the money shall have a first mortgage lien on the same lands to seeure his money and through some defect in the new mortgage or oversight as to other liens, the money can not be made on the last mortgage, the mortgagee has a right to be subrogated to the lien which was paid by the money so by him loaned, when it can be done without placing greater burdens upon the intervening lienholders than they would have borne if the old mortgage had not been released. ’ ’

To the same effect are the cases of Amick v. Woodworth et al, 58 O. S., 86; Joyce v. Dauntz, 55 O. S., 538.

The court is of the opinion that the facts alleged in said answer and cross-petition, if proven, will entitle the East End Loan Association Company to be subrogated to the rights of the lienholders so paid by it out of said $2,000, and that the allegations contained in said answer and cross-petition are sufficient to state a cause of action for such relief, and that the court below erred in sustaining said demurrer.

“An answer which seeks affirmative relief must be treated as a cross-petition, and if the facts therein set forth entitle the defendant to any relief, the defense thus set up is good as against a general demurrer.” Cincinnati & Columbus Traction Co. v. Jewett Car Co., 11 C.C.(N.S.), 189.

This court has some doubt as to the right of the court below to entertain and pass upon said demurrer by reason of the fact that it does not conform to the requirements of the code. However, it appears upon inspection of the record that the court below, while sustaining said demurrer and the said defendant having declined to further plead, did proceed on final distribution as though said demurrer had not been sustained, to determine the rights of said loan association company, although said company was not in court with any pleading, and ordered it to pay a portion of the costs, and further ordered paid to it out of the proceeds of the sale tire sum of $516.99 on account of its distributive share of said proceeds. The court having found the lien of the Methodist Book Concern to be the first lien on the fund so realized, and entitled to be paid before the claim and lien of the East End Loan Association Company, ordered its claim paid in full out of the proceeds of said sale, to all of which said company excepted.

By reason of the erroneous action of the court. below in sustaining said demurrer and in adjudging and decreeing that the lien of the Methodist Book Concern was prior and superior to the lien of the East End Loan Association Company and distributing the proceeds of the sale in the manner it did, prejudicial to the rights of the East End Loan Association Company, this court orders the judgment of the court below in sustaining said demurrer, and the finding, judgment and decree of the court in determining and marshalling the liens on said property ,and distributing the proceeds thereof be reversed, and that this cause be remanded to the court below for further procedings according to law.

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


text:
    REPAIR OF PUBLIC HIGHWAYS.
    Court of Appeals for Brown County.
    George Kress v. Cornelius Wilson, Treasurer of Brown County, Ohio.
    Decided, July 17, 1917.

      Roads — Levies for Repair of — Conditions Caused Toy Freshets and Repairing Emergency Levies — Repairs Necessitated 6y Neglect or Long XJse — Limitation on the Aggregate Levy.

    A levy for tlie repair of roads under favor of Section 7419, General Code, wlien no emergency exists, is controlled by Section 6649-2, General Code, and must be within its limitations.

      Young & Barnes, for plaintiff in error.

      R. E. Campbell, John R. Moore and John M. Markley, Prosecuting Attorney, contra.
   Middleton, J.

This action was instituted in the court of common pleas of this county by the plaintiff in error, George Kress, for himself and others as tax-payers, to enjoin the collection of a, levy of two mills on the dollar of all the taxable property situate in said county, said levy having been made for the year 1916 by the -board of county commissioners for the .repair of certain public highways under favor of Section 7419, General Code.

The petition sets forth in detail the resolution adopted by the' board of county commissioners under which said levy was made, and this resolution shows that in every instance it was found and declared that each public highway to be affected by. the levy had been damaged by freshets, and that by reason thereof and by reason of a large amount of traffic thereon, and from neglect and inattention to the repair thereof, said highway had become unfit for travel and caused difficulty, danger and delay to- teams passing thereon. The petition further alleges that said public highways “had not been damaged by freshets, landslides, wear of water-courses or other casualities, but that the condition thereof was caused from neglect and inattention and by reason of ,a large amount of traffic thereon, and that by reason thereof the said county commissioners had no authority of law to make said levy of two mills and the same is void.”

To this petition the defendant in error, the county treasurer, filed an answer which contains three defenses, the first of which may be considered merely a denial of the operative facts in the petition. In his second defense, however, the treasurer .alleges that the aggregate tax rate in the taxing district in which the plaintiff in error resides, including the levy involved in this action, was and is less than fifteen mills on the dollar of the taxable property therein; and in his third defense he pleads that in no taxing district in the county does the tax rate exceed said fifteen mills, including this levy of two mills.

The plaintiff filed a demurrer to- the second and third defenses aforesaid, upon consideration whereof the court of common pleas held that said defenses were sufficient but that the petition itself did not state a cause of action. The plaintiff not desiring to plead farther, a judgment of dismissal was entered, to reverse which judgment these proceedings are now prosecuted here.

It appears from the facts stated in the petition and the claims now made by the plaintiff in error that he launched this ease upon the theory that if no emergency existed requiring the levy in question, the board of county commissioners, under the provisions of said Section 7419, were without any authority to make said levy.

Whatever doubt and uncertainty have heretofore obtained in the courts and with the taxing authorities of this state in respect to the construction to be given Section 7419 are now removed by the very recent case of State, ex rel, v. Zangerle, 95 O. S., 1. In this ease it is held that roads affected by the provisions of said section are of two classes, and Judge Mathias, who announced the majority opinion of the court, discussing this phase of the ease says—

“Roads requiring reconstruction or repair are of two general classes, the first embracing those roads which have been destroyed or damaged by freshet, landslide, wear of water courses, or other casualty, any one of which conditions comes within the term ‘emergency’ as above defined; the second, those roads which by reason of the large amount of traffic thereon or from neglect or inattention to the repair thereof have become unfit for travel or cause difficulty, danger or delay to teams passing thereon.”

The resolution adopted by the commissioners aforesaid, as before observed, finds and declares conditions to exist in respect to each turnpike which places each road within both classes as above enumerated and defined. In other words, it is found and declared by the commissioners in said resolution that an emergency exists as to each road, and farther that all the other conditions also exist in respect thereto which are set forth in said section and which, under the definition above given, may be said not to constitute- an emergency. We are now dealing with what this resolution contains only as an abstract proposition of law and are, therefore, not concerned with any appar'ent conflicting and inconsistent findings that may appear therein. It therefore follows that the plaintiff when he adopted the whole resolution without question and bases his petition upon its declarations and does not attempt to dispose of any of the facts alleged therein except those which refer to the existence of an emergency, has met only one phase of the situation. If it be true, as he alleges in his petition, that no emergency may be shown to exist as to any of the roads named this fact will only remove them from the first class as specified in State v. Zangerle, supra, and as roads of the second class they still may be repaired by a levy under favor of this section within certain limitations. The only distinction between the two classes of roads which may be repaired under favor of this section is, that a levy for the repair of the first or emergency class may be made independent of the so-called Smith Law (being Sections 5649-1, et seq., G. C.), while a levy for-the second class or for roads which are out of repair by reason of the large amount of travel thereon or from neglect and inattention must be made within the limitations of said law. State v. Zangerle, supra.

The material matter now to be considered, however, is that the plaintiff does not in his petition in any manner whatever question, challenge or deny that conditions obtain, as stated in said resolution, which will authorize a levy if the roads named have become and are out of repair and dangerous by reason of the large amount of travel thereon or from inattention and neglect. We are, therefore, impelled to conclude that in this respect the petition is defective and does not cover the whole situation as presented by the facts stated therein and, therefore, is insufficient to sustain an action for an injunction.

The judgment of the lower court, therefore, in sustaining -a demurrer to the petition will be affirmed.

As before observed, a demurrer was filed to the second and third defenses of the answer, which was overruled bv the learned trial judge and which ruling must now be affirmed for the reason that any answer to a defective petition must be held good as .against a demurrer. But in thus affirming this entry we do not thereby sustain the sufficiency of the facts, stated in the defenses aforesaid, were they pleadefd in answer to a good petition. The theory of these defenses is that so long as the aggregate tax r.ate, including the levy under Section 7419 aforesaid, does not in any taxing district in the county exceed fifteen mills, any of the conditions specified in said section, .when found to exist, will sustain this levy. As we have already indicated, we do not question the proposition that a levy may be made under favor of Section 7419 which is within the limitations of the Smith law if conditions are shown to exist other than emergency as defined in State v. Zangerle, supra, but we can not adopt the contention that a limitation of fifteen mills may apply to such a levy. Upon the contrary, the limitation of the Smith law applying to this levy is ten mills, .as provided iby Section 5649-2, which section controls and fixes the aggregate amount which may be levied under the facts as shown here and which must include this levy of two mills i'f it is to repair only such roads as have become dangerous by reason of neglect and inattention or because of a large amount of travel thereon.

In the case of State, ex rel, v. Zanzenbacher, 84 O. S., 506, the relative bearing of Sections 5649-2 and 5649-3a on the aggregate amount of taxes that may be levied was considered and determined by the court, and the former section was held to be the controlling law, while the latter section was considered as having only to do with interior limitations. "While taxing authorities, therefore, may levy the full amount specified in the latter section for any one, or even more, of the purposes specified therein, yet they may not make such levy for all, for in that event the aggregate amount levied would exceed the ten mills prescribed in the former section and it would impose upon the budget commission the duty of eventually reducing the levy so made to conform to the provisions of said last named section. Rabe v. Board of Education, 88 O. S., 418, State, ex rel, v. Patterson, 93 O. S., 34. We are, therefore, of the opinthat the facts stated in the second and third defenses of the defendant’s answer would not constitute a valid defense to a good cause of action.

"While the pleadings do not disclose the actual tax rate in the taxing districts in which the plaintiff in eSror resides, it appears from one of defendant in error’s briefs that it is made up as follows:

County (other than road under Case Highway law). .2.8 mills.
Township (other than road under Case highway law). .95 mills.
School .........................................5.0 mills.
Making a total of ....................8.75 mills.

Manifestly, if these figures are true, the addition of two mills on the levy herein will make the aggregate rate 10.75 mills, which is in excess of the limitations of said Section 5649-2 and contravenes its provisions. If, therefore, no emergency may be shown in this case to sustain this levy, and the foregoing facts are true, the levy is without authority of law and void.

We are, therefore, of the opinion that it is our duty in affirming the judgment herein of the lower court to remand this case to that court for further proceedings according to law, which would include leave in said court to the plaintiff in error to file an amended petition setting forth in full the facts in respect to the aggregate amount of the tax rate in the district involved.

Walters, J., concurs. Sayre, J., not sitting.