text:
    (First Circuit—Hamilton Co., O. Circuit Court
    January Term, 1890)
    Before Swing, Cox and Smith JJ.
    JOHN BURGOYNE, Jr., Admr. of Estate of T. L. MacDonald, deceased, v. ROBERT MOORE.

      Rejected claim against estate — Suit to be brought loithin six months after rejection — Suit in II. S. Court dismissed othemvise than on the merits takes case out of the limitation—
    Section 6097 Rev. Stat. limiting the time within which suits on claims against an estate rejected by the administrator can be brought to six months, must be taken in connection with Sec. 1991, which provides that if in any action commenced in due time the plaintiff fail otherwise than upon the merits, and the time limited for the commencement of such action has at the date of such failure expired, plaintiff may commence a new action within one year after such date. And a suit on such a rejected claim commenced in the U. S. courts within six months after its rejection, and dismissed by that court otherwise than on the merits, is such a sui as will permit the plaintiff to commence another suit in the state court within one year after the dismissal of the action in the U. S. Court.

      Large books of account used in evidence below, but not attached to bill of exceptions under stipulation of counsel — Effect of such stipulation—
    Where four large books of account constituted part of the evidence, but were not attached to the bill of exceptions, but the bill contains this stipulation : It is agreed by counsel that the original books of account used in evidence in this case and referred to in this bill of exceptions may be referred to and used in the upper courts without being attached to the bill,” such stipulation is not sufficient to identify the books, or to show what parts of them were introduced in evidence, and such bill of exceptions will be considered insufficient, as failing to give all the evidence in the case.

      Error to the Court of Common Pleas of Hamilton County.
   Smith, J.

The only question argued to us was, whether the action, the judgment in which it is sought by this proceeding in error to reverse, was barred by the statute of limitations (Sec. 6097 R. S.), which provides that where a claim against the estate of a deceased person is exhibited to the executor or administrator of such estate, and is rejected by him, that suit must be brought thereon (if the claim be due) within six months from such rejection, or the action thereon be forever barred, when taken in connection with Sec. 4991, which provides that if in any action commenced in due time, * * * the plaintiff fail otherwise than upon the merits, and the time limited for.the commencement of such action has, at the date of such failure, expired, the plaintiff may commence a new action within one year after such date.

The petition in this case was filed March 9, 1889. It was brought by Moore against the administrator of the estate of MacDonald, and alleged that he had made due presentation of the claim sued on, to such administrator, in January, 1886, who, on January 18, 1886, rejected it, and that on March 25, 1886, the plaintiff brought a suit thereon in the U. S. Circuit Court of this circuit, to recover the amount due on such claim, which action on the 24th day of January, 1889, was dismissed by said court for want of jurisdiction of the subject matter, and that the plaintiff failed therein otherwise than upon the merits. He then states the amount he claims to be due to him thereon, and asks a judgment therefor.

The answer of the defendant, in one paragraph thereof, admits the presentation and rejection of the claim as stated in the petition, but denies all of the other allegations therein contained. In another paragraph he avers that the account sued on was rejected by him more than six ««oaths prior to the filing of the petition in this case. And he denies that any action was brought upon said account for the collection thereof in the Circuit Court of the United States within six months from the rejection of said account, or at any time. That the claim by him rejected was for the amount due from MacDonald to him, as a balance after closing up all the business of the firm in which the two were partners. That the action in the U. S. Court was based upon the idea that the partnership business was not all settled, and was for an account and a finding of the balance due, and that this bill was dismissed on the ground that the plaintiff had an adequate remedy at law. There were other allegations in the answer not necessary to state.

It is apparent that one of the main questions in the case was, whether this action in the U.. S. Court was substantially an action on the rejected account, and when this was dismissed in the way it was, plaintiff under the -statute had a right to bring this action within one year from its dismissal, On the trial the record of this case in the U. S, Court was introduced by the court without objection, and there being nothing to dispute it disclosed in evidence, the question of its effect as to this question was for the decision of the court; and this was asked for by the-defendant’s counsel when at the conclusion of the evidence offered by plaintiff in chief, he moved the court “to arrest the case from the jury and to direct a verdict for the defendant, on the ground that there is no testimony that the case is brought within the exception of the statute of limitations, it appearing upon the face of the petition that the case is barred unless brought within the exception, and that the testimony is conclusive proof that the case is barred by the statute of limitations.’’ This motion the court overruled, and exception was taken.

We incline strongly to the opinion that the point thus sought to be raised as to the effect of this record, or by the motion for a new trial based on the ground that the verdict was against the evidence, is not properly before us for decision, for this reason: It is manifest from the bill itself that all of the evidence which was submitted to the trial court and the jury is not before us, though it is certified in the bill that such is the case; and if this is so, it is clear that the ruling of the court refusing to grant the non-suit or to sustain the motion for a new trial on the ground named will not be disturbed by the reviewing court. This as to the non-suit is directly held in 17 Ohio 439, and as to the overruling of the motion for a new trial the cases are abundant.

That we do not have all the evidence submitted to the trial court is apparent. Four enormous books containing the accounts of the members of the firm, and its transactions with others, were before the jury. They are not attached to the bill, or identified in any way, but in the bill is this statement: “It is agreed bj' counsel that the original books of account of Robert Moore & Co., used in evidence in this case and referred to in this bill of exceptions, may be referred to and used in the upper courts without being attached to the bill. ” While we are disposed to go very far in carrying out the agreement of counsel in such matters, we greatly doubt whether this stipulation is sufficient to identify the books, or to show what parts of them were introduced in evidence. But in addition to this defect, several papers offered, and which are referred to as Exhibits “D”, “E”, and “F”, (pages41-62 and 63 of the bill) are not attached, and statements of accounts offered on pages 119 and 133 are also absent, as well as a lot of papers numbered from 21 to 23 inclusive. And there is nothing to show what they contained.

Was the question otherwise presented ? The court was requested by counsel for defendant below to give to the jury certain special charges, all of which were refused. We are of opinion that the court was justified in refusing the whole of them as not being correct in every particular, unless No. 8 be an exception. By it the court was asked to say to the jury that “unless you find that this plaintiff, did within six months from the date of the rejection of said claim by said administrator, bring a suit upon the account which had been, presented to the administrator, and by him rejected, your verdict must be for the defendant.’’

We see no objection to this charge asked for, for any reason other than this — that it seems tobe an abstract statement of law, not applicable to the questions arising on the pleadings and evidence why it should not have been given. It was an admitted fact that the claim was rejected, in January, 1886, and that the present suit had not been brought until March 1889, three years after the rejection of the account, and if no suit had been commenced upon it within six months, the claim was barred. But the real issue was on this point, whether the suit in the U. S. Court was on the rejected account.

■ If it was, the action under the circumstances disclosed in evidence would not be barred. The court in construing the record of that case presented in evidence- had decided that the two actions were substantially the same, there being no conflict of evidence as to the facts stated in the record, it being binding and conclusive on both of the parties; and without going into the case at length, or referring to the multitude of cases cited by counsel in their arguments and briefs, we will say that our construction of the record also is, that the first action, that in the U. S. Court, was substantially on the same claims sued on in this action, and that case having been disposed of and dismissed otherwise than upon the merits, this action brought within ons year after such dismissal was not barred by the statute, and that the charge referred to, while it stated an abstract principle of law, which might have been given to the jury with proper statements as to the suit in the U. S. Court having been one which prevented the running of the statute, we are of the opinion that the refusal to so charge was not prejudicial, for the evidence showed' conclusively, if our opinion is correct, that the suits were the same, the first one being brought on the equity side of the court, to settle the partnership accounts between the parties, and to obtain a decree as for a balance due by the defendant to the plaintiff, for precicely the same debt as was sought to be recovered in the last case, in an action on an account; and a mere technical error, even if one was committed, under such circumstances should not operate to the reversal of a judgment which, so far as this question is concerned, was right on the undisputed facts of the case. The judgment will be affirmed.

John J. Glidden and H. L. Burgoyne, attorneys for plaintiffs.

Judge Fayette Smith & Martin, and Lincoln, Stephens & Lincoln, contra.

(Judgment affirmed by Supreme Court without report, June 12, 1891. 31 Weekly Law Bulletin, 367.)


source: Caselaw Access Project

author: Haynes, J.

license: Public Domain

text:
    (Sixth Circuit—Erie County, Ohio, Circuit Court,
    Nov. Term, 1895.)
    Before Haynes, Scribner and King, JJ.
    JOSEPH REDFERN v. F. K. STACY and T. J. CAMPBELL.

      Qrain delivered in elevator — Receipt for same — Duty of court to construe contract—
    Plaintiff delivered wheat at defendants’ grain elevator, and received the following receipt therefor: “Bloomdale Elevators, April 27, 1892. Received of Joseph Redfern two hundred and sixty-five (265) bushels, twenty-five pounds (25) wheat at stored — —per bushel, payable to — --or order only, (signed) Stacy & Co. To be sold not later than the middle of July without insurance.” Held that this paper on the face of it contained a contract, and it is the duty of the court to instruct the jury as to its meaning and as to its effect — Construction of the paper by the^court.

      Error to the Court of Common Pleas of Wood County.
   Haynes, J.

The record in this case discloses that an action was brought on account for selling 265 25-60 bushels of wheat at 75 cents per bushel, on the 15th day of July, 1892, by Joseph Redfern to Stacy & 'Co. The defendants by answer deny every allegation in the petition except that they are a partnership.

They say that the business of such partnership is and at the date hereinafter mentioned was that of buying and selling grain, and storing grain for persons desiring to have the same kept in store to await a possible rise in the market.

That according to the custom of the business generally and of the business of these defendants, persons who stored grain are required to pay for the time such grain is in store ■J cent per bushel per month for storage and insurance of said grain against loss by fire.

That on April 27, 1892, the plaintiff delivered to defendants, as partners, the quantity of wheat mentioned in the petition, to be held in store subject to his order, but with the agreement on the part of these defendants that they should charge plaintiff nothing for storage or insurance for and during the first sixty (60) days after said wheat was delivered to them; that the wheat was so delivered to defendants and not otherwise. That from that date the plaintiff has never sold said wheat or ordered defendants to sell the same, or given any order or direction in relation thereto, nor made any demand for the same.

That defendants are and always have been ready and able to sell said wheat for plaintiff at the market price, or to purchase the same, and pay him the market price therefor, or to deliver to him the same quantity and quality of wheat according to his election or order, deducting, however, from the price thereof the amount due them for storage and insurance upon the terms above stated. The defendants say they are ready and willing to pay the market price of the wheat at the date of the commencement of this suit less the storage and insurance.

The reply says that this is not true, and that the wheat mentioned was agreed to be held by defendants in store, subject to plaintiff’s order. He denies that defendants, since April 27, 1892, have kept this wheat in storage subject to plaintiff’s order, and deniest hat defendants have kept any wheat in store during that time from which, on demand of plaintiff, said amount of the same kind of wheat could be returned to plaintiff. Denies that defendants have kept the wheat insured; denies that plaintiff did not sell the wheat as averred in answer; denies that there is anything due'for storage or insurance; denies that he did not give orders to sell the wheat, and says the wheat was sold as averred in the petition. -

The case proceeded to trial, and the plaintiff being called, proceeded to testify that on the morning of April 27, 1892, he called at defendants’ place of business, and asked Stacy what they were paying for wheat. He said they were paying 88 cents a bushel, but would pay him 88-| cents a bushel. He told him he had some wheat to sell, and would send it down. The next morning he sent to the defendants’ elevator in Bloomdale, by his sons, 265 20-0 bushels of wheat. He says he gave no direction to his sons as to the disposition of the wheat, and on the next morning his son brought him a grain check or receipt. The receipt is as follows:

“Bloomdale Elevators, April 27, 1892.

“Received of Joseph Redfern Two hundred sixty-five (265) bushels twenty-five (25) pounds wheat at stored — per bushel, payable to---or order only.

“(Signed:) Stacy & Co.”

He says, as soon as lie saw the paper,rhe[told his son that was not what he wanted; that he wanted|the£wheatAsold. His son told him that Stacy had asked him what he wanted done with the wheat, and he told him he did not know, and that Stacy thereupon gave him this paper.

He says that on the same day he took the paper back to Stacy, and he agreed that the wheat should be sold; that he, Redfern, had the privilege of selling it at any time before the middle of July, and after that it should be considered sold; that then Stacy wrote these words on the receipt: “To be sold not later than the middle of'July, without insurance.”

The defendant Stacy, being called as a witness, gave evidence tending to show that he received this wheat in storage only, and not otherwise.

The real question, first, is as to the character of this paper which is offered in evidence. It should be borne in mind that'the pleadings show for themselves that these parties were dealers in grain, and also receiving grain in storage, and the papers show they were in possession of the elevator where they received that grain. Upon the trial of the case the plaintiff wanted to offer testimony to show that the defendants did not have the full amount of grain on hand they should have had to have taken care of this receipt. That was ruled out and excepted to by plaintiff.

The testimony I have read was received without objection.. We are of the opinion that this paper, upon the face of it, states a contract, and it was the duty of the court to have instructed the jury as to the contract and as to its effect, and what their duty was under it.

Our construction is this: that this grain being received by the parties who were buying grain, was an agreement for the sale of this grain upon these conditions; they were to receive it, and hold it until the middle of July, without insurance and without charge.

A. Blackford,and Dodge & Canary,counsel for plaintiff.

Troup & Dunn, counsel for defendants.

From the time it was put in store until the middle of July, the plaintiff would have the option of demanding the sale of the grain at any time and at the market price. If he did not exercise that option by the middle of July, the wheat was by the contract then sold to the defendants, and the defendants would have the right to have tendered the market price at that time to the plaintiff, and the plaintiff on his part had the right to demand the market price on that date and have the amount paid to him.

Under that view of the case, the testimony that was sought to be offered in evidence here was immaterial, and the court was right in ruling it out.

There was.some question as to whether there had been a new contract made between these parties, and that the court should have submitted that question to the jury as to whether a new contract had been made, and given a charge to the jury as to the rights of the respective parties under that contract,

In so far as the charge of the court is at variance with the principles here laid down, the court was in error; and holding the views we do, the judgment of the court of common pleas will be reversed, and the verdict set aside, and the case remanded for a new trial.


author: King, J.

text:
    (Sixth Circuit, Wood County, Ohio, Circuit Court,
    April Term, 1896.)
    Before Scribner, Haynes and King, JJ.
    SYLVANUS W. NYE v. THE STILLWELL, BIERCE, SMITH & VALIE COMPANY.

      1. Mistake in judgment as entered — Proceeding to correct — Notice to party to be affected—
    Where by the neglect or mistake of the clerk of the court, the judgment as entered on the record does not conform to the judgment, order or decree as rendered by the court, a motion may be made in the court under Sec. 5354 of Rev. Stat. for the correction of such error within three years after such mistake was made.
    .2. Same — Notice to the party to be affected thereby — What not sufficient—
    A notice in writing containing the names of the parties to the action, name of court or judge before whom motion is to be made, place and day where and when it will be heard, and the nature and terms of the order to be applied for, must be served either by a sheriff, constable or coroner, or by some disinterested person, upon the party to be affected thereby, to be served before such motion is made. Where, such notice is omitted, or where an insufficient notice is made by one of the attorneys in the case, after the filing of such motion, the proceeding is irregular, and confers no jurisdiction on the court to correct such judgment, and such judgment as corrected will be without any force and not binding or the party having no notice or such irregular notice, unless he appeared and entered his appearance in the proceeding.
    3. Same — Want of bill of exceptions — Effect—
    Where no bill of exceptions was taken in such proceeding showing whether any and what evidence was taken, but the journal entry recites that the parties with their attorneys were present, and the proceeding is one within the jurisdiction of the court, an appellate court, on error, cannot reverse the judgment of the trial court.
    4. Judgment invalid for want of jurisdiction—

    A judgment can always be attacked on the ground that the court had no jurisdiction.
    Error to the Court of Common Pleas of Wood County.
   King, J.

This is a petition filed to reverse the judgment of the court of common pleas, rendered upon a motion filed in that court to correct a journal entry of a judgment before that time rendered in the court. The motion was based upon the errors, neglect and omission of the clerk of the court, and was filed in the court of common pleas September 6, 1895, and sets forth that the plaintiff, The Stillwell, Bierce, Smith & Yaile Company, for itself and all other creditors of the North Baltimore Furniture Company, and ' all the defendants except Sylvanus W. Nye and Nettie Adams, move the court to set aside the journal entry of judgment, decree and order entered herein on the 26th day of February, 1895, at page 35 of Journal 36, of this court, or to modify the same so as to make the same conform to the judgment, decree and order as actually pronounced and ordered by the court, as shown by the minutes of the court on the trial docket and otherwise by the record herein; and they say that said journal entry of said judgment, order and decree is different from and does not conform to said order, judgment and decree as actually pronounced and ordered by the court, and that the errors therein arose from the errors, neglect and omissions of the clerk of the court in failing to properly and correctly enter the same.

It will be seen that it does not designate what the trouble was with the journal entry, or what the omission or neglect of the clerk was, or in what respect it was claimed the entry should be corrected and changed. The motion was filed under section 5354 of the Revised Statutes, which provides that the court may vacate or modify its own judgment or order after the term at which the same was made, and the third paragraph of that section is “for mistake, neglect or omission of the clerk or irregularity in obtaining a judgment or order.”

This was filed under that section, and for that purpose. In section 5357 it is provided that the proceeding to correct the mistakes or omissions of the clerk or irregularity in obtaining a judgment or order, shall be by motion upon reasonable notice to the adverse party or his attorney; and by section 5363 it is provided that a proceeding to correct such a judgment under that section shall be commenced within three years after the mistake was made. It is then provided it shall be made by motion, and that it shall be upon reasonable notice to the adverse party. Section 5123 provides that the notice of a motion shall be in writing; that it shall contain the names of the parties to the action, the name of the court .of judge before whom it is to be made, the place where and the day on which it will be heard, the nature and terms of the order or orders to be applied for, and if affidavits are to be used on the hearing, that fact shall be stated, and the notice shall be served a reasonable time before the hearing.

In the motion which I have read, the only parties who are named are The Stllwell, Bierce, Smith & Vaile Company v. The North Baltimore Furniture Company, and it is set forth in the body of the motion that it is on behalf of all the parties except Sylvanus W. Nye and Nettie Adams.

It may be assumed from the reading of that motion that Sylvanus W. Nye was a party to the action somewhere, though he is not named as such. It is also provided by section 5124 that the notice required for such a motion— and that would mean the motion in this case — may be served by the sheriff, coroner or constable or by a disinterested person, and the return of an officer or affidavit of such pel son shall be proof of the service.

Section 5125 provides that the service of a notice shall be made as required for the service of a summons, and when served by an officer he shall be entitled to fees, “etc.” WheD this motion was filed no notice was served upon anybody that it had been filed or would be thereafter. Sometime afterwards, on the 16th day of November, 1895, there was served notice upon S. W. Nye, who is the plaintiff in error here, by Frank Taylor, who has made affidavit of such service upon the back of the notice, and who signed it himself as attorney of Stillwell, Bierce, Smith & Vaile Company in the motion.

The notice in itself notifies Mr. Nye to take notice that on the 2nd day of December the plaintiff, on behalf of all other creditors of the North Baltimore Furniture Company, will move the court to set aside the entry of judgment, decree and order entered in said cause on February 26, 1895, or to so modify the same as to make it conform to the judgment and decree actually pronounced and ordered by the court, as shown by the minutes of the court on the trial docket, and otherwise by the record therein, and especially so modify it as to make the judgment against Mr. Nye $1,800.00 instead of $1,000.00 as it read in the original judgment and" decree, for the reason that the journal entry of said judgment, order and decree is different from and does not conform to said order and decree as actually pronounced, and that the difference arose in an error of the clerk in failing to correctly and properly enter the same.

I have read enough of the statute to indicate that there was no proper motion for the correction of the judgment, and that no proper notice was ever served by a proper officer or a disinterested person upon the party to be affected thereby-

Now, that was clearly irregular. That notice' conferred no jurisdiction whatever upon the court of common pleas to change the decree rendered at the previous February term, and unless something occurred after that, the court obtained no jurisdiction.

More than that, the difficulty with this judgment of correction is that if the party to be affected thereby did not in fact actually appear in court and enter his appearance to this motion, it will affect the validity of that judgment whenever and wherever it shall be sought to be enforced, because you can always attack a judgment on the ground that the court acquired no jurisdiction.

Therefore, I say this judgment is not worth a great deal if the party to be affected thereby did not actually appear in court and enter his appearance; but when the proceeding came on to be heard there is this journal entry, and it is this journal entry and judgment that this petitioner now seeks to reverse.

No bill of exceptions was taken at the trial to show whether any evidence was heard on this motion, and therefore we don’t know upon what the court acted. Of the subject matter of the proceeding the court had jurisdiction, and if the parties were properly before the court, it would have jurisdiction of them, and upon proper evidence it might have made the correction.

The journal entry begins as follows:

“Stillwell, Bierce, Smith & Yaile Company v. “The North Baltimore Furniture Company.

“This day came the parties with their attorneys, and this cause was heard upon the motion of plaintiff and others filed herein on September 6, 1895, to set aside the journal entry of judgment and decree and order entered herein on the 2th day of February, 1895, at page 75 of Journal 86 of this court, or to so modify the same so as to make it conform to the judgment, decree and order as actually pronounced and ordered by the court. And it being made to appear that through error, omission and neglect of the clerk, said entry fails to conform to the judgment, decree and order of the court as actually made, and as announced, the same is modified and shall stand and read as follows, to-wit:’’

And then follows the journal entry as corrected, and it changes a judgment of $1,000.00 against him to $1,800.00.

The entry recites that the said parties with their attorneys came, and this cause was heard, and it was made to appear to the court that through the error, omission and neglect of the clerk this error had gotten into the journal entry, and therefore ought to be corrected.

Now, that recitation stands there as the judgment of the court, and prima facie established the fact that the plaintiff in error was present at the hearing of this motion; and upon the proceeding in error to reverse that order, in the absence of any testimony whatever in the case, we are powerless to change the judgment of the court of common pleas.

Dodge & Canary, attorneys for plaintiff.

Frank Taylor, attorney for defendant.

We cannot reverse it because the entry, as it stands, shows the fact that the plaintiff in error was present in court on the hearing of this motion.

It has no higher validity than that as a judgment, but on a proceeding in error, in the absence of any testimony, we cannot attack it.

Whether a petition in error might have been filed raising the question whether the plaintiff in error was present or not, we do not undertake to decide; but as I said before, the judgment, if the plaintiff was not in fact present, does not bind him, but we are powerless to act under the circumstances here presented.

We are' therefore compelled to affirm the judgment of the court of common pleas, though, as I have said, the record shows all of these irregularities.


author: Caldwell, J.

text:
    (Eighth Circuit Cuyahoga Co.O.,Circuit Court,
    January Term, 1896.)
    Before Caldwell, Hale and Marvin, JJ,
    REBECCA SMOCK v. JOHN BOUSE, Adm’r.

      1. Claim against estate — Allowance by administrator — What sufficiient under the Statute—
    Where a claim is presented to the administrator, and not disputed or rejected by him, that is a sufficient allowance of the claim by him to authorize a suit to be brought thereon for the money, pro rate amount or full amount as the assets may prove, to be recovered against the estate and also against the administrator. A formal endorsement of allowance by the administrator is not indispensable.

      2. Suit for protection of right where plaintiff has already as good protection as suit would bring—
    A party can not bring a suit for the protection of a right when he already has a better or as good protection as the suit would bring.
    Appeal from the Court of Common Pleas of Cuyahoga County.
   Caldwell, J.

This is an action brought in the Court of Common Pleas to have a claim owned by Rebecca Smock against the estate of Charles Homan, deceased, allowed by the administrator John Bouse.

The case has been appealed from the Court of Common Pleas to this court.

The question occurred to me that the Supreme Court in passing upon one of the decisions of the Circuit Court in another circuit had established the doctrine, that this was not an appealable matter, the allowance of a claim; but upon careful examination I find that it must have been something else I was thinking about, for I cannot find any of the cases reported in the circuit court have been reversed by the Supreme Court.

There are three cases reported in the Circuit Court Reports — one in this circuit, one in the Cincinnati and one in the Columbus circuit. The one in this court if found in the Third Circuit Court Reports, page 433. The one in the Cincinnati court is in the Third Circuit Reports, page 446, and the one decided in the Columbus Circuit Court is in the Fourth Circuit Court Report, page 195. I was under the impression that the one from the Columbus court had gone to the Supreme court and had been reversed, but I cannot find it has been reversed, and I know therefore, of no ruling of the Supreme Court upon this question, and we follow the rulings of the Circuit Court, and say no more about that matter.

That brings us to the merits of the case. It seems that the claim made out in this case was based upon a promissory note which was attached to an affidavit by pinning it to same. Upon the back of the promissory note was a blank acknowledgment of the justness and allowance of the claim by the administrator, to be signed by him, and the claim made out in that form was presented to the administrator by the husband of the plaintiff.

The administrator got some idea that if he signed that note he would be under obligation personally to make It good, and he told the husband, as related by the husband of the plaintiff, that if the widow’s allowance did not take all the estate, he would pay him the same that he did other creditors. It seems that the plaintiff’s attorney was not satisfied with that, and he went back in a few days. The administrator at the first presentation detached the note from the affidavit, by taking out the pin, and not caring for the responsibility of the note being left in his hands, he handed it back to the party who had presented it, and told him to keep it, and the administrator retained the affidavit.

In a few days thereafter the husband returned again, and insisted upon the administrator signing the blank place upon the back of the note as an allowance of the claim, and he still refused to do it; and then a demand was made for the affidavit that had been left there.

And the facts show he was willing to give it up, but the party concluded not to take it, and the husband of the plaintiff was then again assured that he would be paid the same as other creditors, but that the administrator would not sign the note.

Then the attorney of the plaintiff went toj’the administrator, who had however got it thoroughly in his head that if he signed that note he would be personally responsible, and he would not sign his name to the back of the note; but he assured the attorney that everything was all right. He took the attorney to the book where he had the accounts which he had allowed, and showed him that this account was put down with the rest; and not only that,but that he had filed a petition in the Probate Court of this county to sell lands belonging to the estate, and that in that petition he had included this account as one of the good accounts against the estate, but he refused to sign his name on the back of the note. Thereupon this suit was brought to compel the administrator to allow this claim. The administrator answers that he had allowed it; that he had at all times, first, last and all times ■allowed the claim, but refused to put his name on the back of the note.

Now, to maintain this action any further after that ■answer is put in, it devolved upon the plaintiff to show that the allowance which was made by the administrator was not sufficient in law to compel the payment of this claim and to stop the statute of limitations from running.

If it was not an allowance, then this claim had to be sued within six months or it would be barred by the statute of limitations. If it was allowed sufficiently to stop the statute from running, then this is a good claim against that estate .so.'] far as the administrator could allow it. Now, the language of the statute is, section 6097: “If a claim against ■the estate of any deceased person be exhibited to the executor or administrator, before the estate is represented insolvent, and be disputed or rejected by him, and the same ■shall not have been referred, the claimant shall, within six months after such dispute or rejection, if the debt or any part thereof be then due, or within six months after some part thereof shall have become due, commence a suit for the recovery thereof, or be forever barred from maintaining ■any action thereon; and no action shall be maintained thereon after the said period, by any other person deriving title thereto from such claimant. A claim shall be deemed disputed or rejected, if the executor or administrator shall, on presentation of the vouchers thereof, refuse, on demand ■made for that purpose, to indorse thereon his allowance of the same as a valid claim against the estate.”

The next section is 6108 with reference to this: (When executor or administrator to be liable to the suit of a creditor of the deceased.) “No executor or administrator shall be liable to the suit of a creditor of the deceased until after the expiration of eighteen months from the date of his administration bond or the further time allowed by the court for the collection of the assets of the estate; unless it bejfor the recovery of a demand that would not be affected by the insolvency of the estate; or unless it be brought after the estate has been represented insolvent for the purpose of ascertaining, a claim that is contested or unless the claim has been exhibited to the executor or administrator, and has|been disputed or rejected by him.” That section is clearly to the effect that if the claim is presented and is not disputed or rejected, then suit cannot be maintained upon it. Again in Section 6210 (when creditors may sue on administration bond): ‘ ‘After a creditor is entitled by law to the payment of his debt, from the executors or administrators, and the amount of the claim has either been admitted to be just and allowed by them, or has been ascertained by judgment £or award against them, or by an order of distribution, the bond given by them for the discharge of their trust may be put in suit by such creditor, if the executors or administrators shall neglect, upon demand made by such creditor, to pay such claim. ”

It becomes evident, then, from the reading of these sections that where a claim is presented and not disputed or rejected, that that is a sufficient allowance to allow a suit to be brought for the money, pro rate amount or the entire amount as the assets may prove, to be recovered against the estate, and also against the administrator.

The holding of the Supreme Court of Ohio, in the 39th Ohio'Státe, by Judge McIlvaine, page 112, amounts to the same thing, and in Bank vs. McIntire, 40 Ohio St. 528, it was held that where a National Bank was in fact organized as the successor of a State bank with the consent of more than two-thirds of the stockholders, it may hold it and own assets of its predecessor, although in form it was •organized as a new bank, and the assets were transferred to it as if by sale and purchase.

After a mortgage creditor had, in two actions, obtained decrees for sales of the mortgaged premises, the judgment debtor died testate. The will gave power to the executor ■to sell land to pay debts. The holder of the decrees and the executor agreed that the latter might sell the mortgaged lands under said power — he promising to pay said decrees in full out of the proceeds, or out of other assets of the estate, as preferred claims. The executor sold the lands for more than was due under the decrees, but paid nothing on the decrees, paid out and distributed the entire estate to others, and died. In an action by the holder of said decrees against the executor’s estate held:—

First — Said agreement in effect “allowed” the decrees as valid against the estate of the mortgage debtor.

There may be something in the fact that the statute gives •a party a right to have his testimony in such form that it will be perpetuated, so that it may never be called in question; but we do not think that right should be carried to such extent that a party may come into court and say that his claim has not been allowed because it is not put in the ■exact form that may be prescribed that the party may have it put in. If the claim is allowed, and that appears clearly by record testimony such as is presented that this claim is one ■of the just claims against this estate as set up in the Probate Court in his petition to sell lands to pay dobts, and he presents that as one of the debts of the estate, it seems to me that that is record evidence of the allowance of that ■claim; that would be better for the party than to simply ■have the name of the administrator indorsed on the back of ■the promissory note. It is a record that cannot be lost very well, nor can it ever be changed. It is of a more permanent character than that of the indorsement of the note.

Now,the husband of this plaintiff knew that this claim had been put in to the Probate^Court in the petition to seli land as one of the claims, as a good claim against this estate, by this administrator, and when he went to see him to get that indorsement on the note, the attorney knew the same-thing.

C. W. Johnson and J. H. Leonard, for plaintiff.

H. 6r. Reddington, for defendant.

Now, to stand upon a technical rule that they must have the very endorsement that the statute says a party may have, would be simply like a party bringing a suit for the protection of a right when he has got a better protection or just as good a protection as the suit would bring. And that being the case, we think this claim was clearly-allowed by this administrator before this suit was brought, and the parties knew that it was allowed, and we therefore hold that the plaintiff has no cause of action here against the defendant; that she asks for no right she had not already got. The petition will be dismissed, with costs.


text:
    (Sixth Circuit—Wood Co., O., Circuit Court
    April Term, 1896).
    Before Haynes, Scribner and King, JJ.
    BERT L. RUSSELL v. ELLA TIPPIN.

      Traffic in intoxicating liquor — Notice by wife not to sell to husband: —Damages—Sales must be shown to have been illegal—
    1. In an action by a wife against a liquor dealer, for damages for selling liquor to her husband after having received notice under the statute not to do so, it must be averred in the petition and shown at the trial that such sales of liquor to the husband were illegal under the penal provisions of the statute. And the fact of giving such notice not to sell, does not make such sales unlawful of itself.
    2. Pleading — Unlawful Sales — An averment in the petition that such sales were unlawful is a mere conclusion of law, and not sufficient.
    3. Notice — Proof— To prove notice, where such notice was given in the presence of a witness, such witness need not be produced at the trial. The fact can be established by other evidence.

      Error from the Court of Common Pleas of Wood county.
   King, J.

In her petition the plaintiff below Ella Tippin .says she now is and for the nine years last past has been the wife of George Tippin; that the family of plaintiff and her said husband consists of two children, both of whom are of tender years; that plaintiff and her family reside near the village of Weston in said Wood county, at which place the said defendant Bert L. Bussell is engaged in the saloon business, That being'liable to be injured by the sale of intoxicating liquors to her said husband, plaintiff on the 6th day of July 1893, duly gave notice to said defendant, in the presence of a witness, not to give or sell to said George Tippin any intoxicating liquors.

That said defendant disregarding said notice did thereafter, to-wit: on the 7th day of July, 1893, and from that date at divers times until the beginning of this action, and while the said notice was in full force, wilfully, knowingly and unlawfully sell and give intoxicating liquors to said George Tippin, and caused the s.aid George Tippin to become and be habitually intoxicated.

That theretofore the said George Tippin had been and was industrious, frugal, energetic and healthy, and by his efforts in his employment of farming, had provided for plaintiff and their said family a comfortable subsistence; that upon the earnings of her said husband plaintiff was dependent for her means of support.

That in consequence of said habitual intoxication so' caused by said defendant as aforesaid, said George Tippin neglected his business, squandered his time and money in drinking and carousing, and failed to properly care for and provide subsisience for plaintiff and their said family, and became frequently disabled and sick, and plaintiff was compelled to nurse and take care of him, and he became and was unable to provide a proper support for his said family. For and on account of which plaintiff says she has been damaged in the sum of three thousand dollars for which she prays judgment. The answer is substantially a general denial, except that defendant admits he is engaged in the saloon business. The parties went to trial, and the plaintiff obtained a verdict for $500.00.

There were four requests submitted on the part of the defendant below and asked to be submitted to the jury, which requests were refused.

We do not find any error in the refusal of the court to submit the first, third, and fourth requests. As to the second request, which reads as follows: “That the selling of the liquors mentioned in this case under the statute under which this action is brought, must be unlawful and the illegal character of such sale must amount to a certain offense under the statute, ” in that connection the court charged the jury certain things which were excepted to, and they are marked through the charge “A,” “B,” “0,” “D‘, ” “E,”and “F.” That part of the charge marked “D” is as follows:—

“But if having found that the notice was duly served, and having found that he did sell intoxicating liquors to her husband, then you will inquire whether such liquors produced intoxication, and whether the husband was disabled from performing labor and earning money by reason of such intoxication; and whether by reason of such use of intoxicating liquors he did not furnish such support to his family as he would have otherwise furnished them if he had not become addicted to the use of intoxicating liquors after due notice, and plaintiff’s husband did become intoxicated.”

Exception “E”is as follows: — ■

“If you find then that the proper notice was given the defendant, and he afterwards sold,liquor to the plaintiff’s husband, and it caused intoxication, and by reason of that, the ability of the husband to furnish support for his wife and children has been diminished, and she has been damaged thereby, then you will allow her such damages as from the evidence you find is right and proper.”

The part of the charge excepted to marked “E” is as follows:—

“But if you do find these several facts in her favor, that is, that the notice was given duly, that afterwards defendant sold intoxicating liquors to plaintiff’s husband, and by reason of these liquors he became intoxicated, and that he became incapacitated for work, and could not furnish support to her as he otherwise could have done, then you will allow her damages, and in addition to that you may allow her exemplary damages, that is, damages to make an example ■of the defendant. ’ ’

Now, these exceptions are urged upon the ground that it was the duty of the court to say that the sales were illegal •sales; sales in violation of some express provisions of the ■statute, and the request which is submitted has that idea expressed in it, as it asks the court to say to the jury that they must find that the sales were illegal.

It is urged in reply to that, that the trend of the decisions in this state has been of late to not require that the sales shall be illegal sales, and is also urged that the request submitted is not specific and definite enough. That objection to the request might be sufficient if this question alone was submitted. The request does not undertake to define, or to ask the court to define, in what respect it finds these sales were illegal. It is clear enough that if the court is to so charge the jury, the court should define what illegal sales were.

The objection to the request is .not of very much importance, neither is the request of very much importance itself when you take into consideration the charge of the court as given which refers to that subject. It shows that the court gave the case to the jury upon the theory that if they found that any sales of liquor were made to the husband of the plaintiff after the notice was given and, from these sales he became intoxicated, and the plaintiff was damaged thereby, that she might maintain this action and recover damages. We think that the exceptions to the refusal of the court in connection with that part of the charge to submit the whole case to the jury if the law be that these sales must have been illegal sales, are well taken; that'the sales relied upon which it is claimed did produce the damage to the plaintiff, must have been in violation of some statute of the state of Ohio and upon that point we think there can be-no doubt that the decisions have well settled it that- these-sales relied upon as the elements producing the damage claimed in the petition must have been in violation of the-law. That was first held in the case of Baker v. Beckwith in 29th Ohio St., page 341, and that case was alluded to and' quoted in Lyon v. Fleahmann, 34 Ohio St. 151 and on page-15 the court say: “In Baker v. Beckwith it was held that in order to recover- in a civil action under the seventh section of the liquor law, it is necessary to aver in the petition and prove on the trial,facts showing that the sales were made in contravention of the penal provisions of the Statute.”' This case was again referred to in the case of Sibila v. Bahney, in the same volume, at page 405, in which the court say in the opinion:

“The seventh section of the act to provide against the-evils resulting from the sale of intoxicating liquors, as amended April 18th, 1870, authorizes a recovery in damages for an injury to person, property, or means of support, resulting from intoxication caused by a sale or gift of intoxicating liquors when unlawfully made.”

Now it is suggested that there is a decision in the 49th-Ohio State which in some measure changes the doctrine of the law as laid down in the decision which I have referred to. That is the case of Mullen v. Peck, at page 447, the opinion-commencing at page 456. This was an action brought under section 4364 against the owner of the building for the purpose of subjecting the property to the payment of a judgment that had been recovered against the saloon keeper for-sales illegally made, and the court say that there are two • remedies given to the plaintiff. Under Section 4357 she-may sue the seller of the liquor alone, or him jointly with the owner of the building for all damages sustained by reason cf the unlawful sales. Now, under that section, if" the plaintiff proceeds against the owner of the building and the saloonkeeper jointly, the allegation in the petition must show that the sales were unlawfully made, and the proof in-the case must support the allegation. If the person in- ■ jured recover a judgment,she may have an action under section 4364, which is the section under which ‘this case I am-reading from was brought, and in that case the court held it was not necessary to allege in the petition that the sales • which were the foundation of the original action, were illegally made, and with the knowledge of the owner of the building. They say, this Section 4364 does not make it' essential, in order to charge the leased premises where the liquors were illegally sold, with the payment of the damages" caused by such sales,either that the premises be leased to housed for the purposes of selling intoxicating liquors thereon in violation of law, or, that the lessor had knowledge that' such liquors are so sold, or that he knowingly permitted the sales which caused the damages. It is sufficient if the-premises were leased to be used for the sale of intoxicating ■ liquors, or were permitted to be so used.

Section 4364, which they are considering,is different from section 4357, and they hold that under that section, in a action brought upon a judgment already recovered on account of illegal sales,it is not necessary to aver or prove that; the sales made were illegal, or that the owner of the building knew that the place was carried on as a place where intoxicating liquors were sold in violation of law. So we think' under these decisions it was the duty of the court to charge the jury that these sales were unlawful.

Neither was it sufficient in our opinion to aver that the-r sales were unlawfully made, as the court in the 84th Ohio State which I have referred to, say “it is necessary to aver in the petition and prove on the trial, facts that the sales were made in contravention of the penal provisions of that statute. ’ ’ There was no averment of any fact in this petition that these sales were illegally made except by the word “unlawfully”, which is a legal conclusion.

It is suggested in argument that the provisions of the statute in relation to notice which was incorporated in this statute after the passage of the original act, was a provision defining a new crime, that upon service of a written notice sales thereby became illegal. But that, we think, was not the object of the amendment. It was a- measure of precaution and warning to the seller from the party injured, bringing to the knowledge of the seller that he must not sell liquoi to some one named; otherwise it can be plainly seen that all that is necessary to make the selling of intoxicating'liquor in Ohio illegal, is to serve a notice, and it will be seen that if this were the law, that the sale of liquor •could be very speedily and thoroughly stopped. On the ■other hand the statute- does not declare such sales after notice illegal. If it did, it would be necessary to have a ■penalty enforcing it, and they have not provided that.

.This is only a method of procedure in order that there may be proof that the seller of the liquor had notice that for some reason he should abstain from selling liquor to this particular person, and that proof is obtained either by giving notice verbally or in writing in the presence of a witness to the person selling the liquor, or filing a notice with the township clerk.

We think these exceptions to the charge should be sustained, and upon the ground that the case was not properly ■submitted to the jury. They were not informed what illegal sales, and that any sales were in violation of the statute.

Another error was discussed here: That in order to show that notice was given, the statute requiring that the person must be served either verbally or in writing in the presence of a witness, it was necessary to produce on the trial the witness in whose presence that notice was given.

James & Beverstoch, for plaintiff in error.

Baldwin & Harrington, for defendant in error.

We do not think that it was necessary to produce on the trial the witness who was present when the notice was served.

The testimony of he party who served the notice or of any person who knew of it would be competent to show that the notice was served.

We therefore reverse this judgment, and remand the case for a new trial.


author: Marvin, J.

text:
    (Eighth Circuit—Summit County O.,Circuit Court,
    April Term, 1896.)
    Before Caldwell, Hale and Marvin, JJ.
    GATES v. POND.

      Will construed — Provision that executor shall use income in support and education of the children until the time of distribution provided for—
    Testatrix leaving two sets ot children, three by a former husband and one by a second husband who survived her, bequeathed all the balance of her estate to her children share and share alike, “the same to be kept invested by my executor until my daughter Ilda shall become of age, when the same is to be divided” ; and further directed that “the interest and income of said estate be used as far as needed in the judgment of my said executor and my sister E. G. C. in the support,care and education of my children till the final distribution of said estate.” (1.) Held: Until the distribution of the estate only the income can be used by the executor for the maintenance and education of the children. (2.) The income is not to be divided into four equal parts from the time the will takes effect, but the executor should take a general credit .for all the income he has used for the education and support of any of the children,up to the time of distribution, and the balance of the income and the principal of the estate is at the time provided to be distributed in four equal shares. (3.) The Probate Court is to say whether the executor has exercised his discretion properly, and it will be the province of that court to make the proper correction.

      Appeal from the Court of Common Pleas of Summit ■ County.
   Marvin, J.

This case is brought here for the purpose of having this Court give a construction to the will of Maria M. Brockett, deceased, and to give directions to the executor of that will asjjto what course to pursue in the final distribution of the estate which comes into his hands as such executor.

Maria M. Brockett died in 1886. She was the wife of Dr. Brockett at the time of her death. Before her marriage to Dr. Brockett she had been the wife of aman by the name ofJPond, and she was the mother of three children of Mr. Pond, and the mother of one child of Dr. Brockett. When .-.she died, her eldest child Daniel Herbert Pond was about sixteen years of age; her son Harry about fourteen; her •daughter Ilda S. Pond about ten and-a-half, and her son EarlJBrockett about four years of age. The petition avers, that the Pond children of Mrs. Brockett are without any property other than that which comes to them from their mother, and neither the answer filed on behalf of Earl Brockett, nor that filed on behalf of the Pond children denies that allegation.

The clause of the will which it is asked that the court . shall construe, is the third item, and reads-.“All the balance -of my estate, personal and real, I will and bequeath to my children share and share alike, the same to be kept invested by my executor hereinafter named until my daughter Ilda , shall become of age, when the same is to be divided.”

It then directs that the “interest and income of said estate be used as far as needed in the judgment of my said executor and my sister E. G. Oorey, in the support, care and education of my children till the final distribution of said estate.”

The question is whether by that item of the will the estate which is bequeathed, is to be divided into four equal parts from the time that this will takes effect, to-wit, the death of the testatrix; that is to say, shall each of the four children have one-fourth part of that estate, together with the income of such one-fourth of said estate, up to the time of the distribution, so that if anything is expended by the executor upon consultation and agreement with Mrs. Oorey in the education or maintenance and support of any one of the children, the amount thus expended shall be deducted from the income of that one child ? Or, whether the executor is to be credited with the money thus expended against the estate generally, in making up his account. In no event, of course, is he authorized to use more than the income. Shall he take credit for that generally against the estate and divide the balance into four parts? Or, shall he treat the estate as though divided when he took it, or immediately upon taking it, and then let the expense for each child be charged against the income of that one-fourth part to which each child would thus be entitled?

It is well settled that in construing a will, the language above all other things is to be examined to ascertain what was really the will of the testator; what was the thing that the testator meant to do. And it is settled by the authorities that that is to be determined by the words used, if they are so plain that there can be no mistake about them. But if there is any doubt in the words used, we may look to the surroundings, and see what the circumstances were, and what the testator would naturally desire to do.

If this item had ended with the words “when the same is to be divided,” there would have been no trouble about its construction. But following these words are those already quoted: “I direct that the interest and income of said estate be used as far as needed in the judgment of my said executor and my sister E. Gr. Corey in the support, care and education of my children till the final distribution of said estate.” Does that mean that the income of the entire estate may be used, or rather that out o£ the income of the entire estate, may be used such an amount as in the judgment of the executor and E. Gr. Corey is needed for the support and education of any one or more of these children ?

We learn by the pleadings — because the petition avers and nobody denies it — that the Pond children were without any bther means of support than that left by their mother, as I have already stated.

The boy Earl Brockett, four years old at the death of his mother, had a father with whom he was living and who would by law be bound to take care of him, if he had no other means. I do not mean by that that he would not be bound to take care of him if he had other means. Circumstances might be such that he would not expend that amount of money that ought to be expended, considering the amount of property that the boy is worth, compared with that which the father is worth. One of the things which Mrs. Brockett might well have considered, and doubtless did consider when she executed this will, was the fact that her youngest child had a father to look after and take care of him; that the other children would now be left without any parent, and had no property except that which was bequeathed to them by her. It is urged that that being true, she might very well have understood that more money might reasonably be needed out of her estate for the support and education of the older children than would be needed for the support and education of this youngest son; that that not only is likely to have been in her mind from the fact that the youngest boy had a father, but from the further fact that by reason of his youth the money that would be necessary for his education and support up to the time when the estate was to be divided, to-wit when the daughter Ilda should become of age — six and a-half years after the death of her mother and seven and a-half years after the execution of the will; that in the nature of things these older children might and would need more money expended for them than this young boy would need expended for him. That seems to be reasonable. It seems to us not an unnatural thing, not an improbable thing, that this mother when providing out of her property for her children, might well have thought that within the seven and one-half years, or thereabouts, which would elapse from the time the will was executed to the time she had provided for the distribution of theproperty, there might be considerable difference in the amount of money needed for the support and education of the several' children, and that she might well have thought that it would be equitable and fair that the estate be kept together, and that out of the income generally of that estate each of the children should have such support and education as would be reaonably needed up to the time when the daughter would become of full age, and at that time each of the Pond sons would be of full age, and that it would be equitable and fair to make the division then. But unless she used words which, fairly construed, indicate that that was what she desired, of course, the court should not so construe this item of the will, however reasonable we may think such disposition of her property might be.

We are cited to a very considerable number of cases somewhat like this. Two Kentucky cases were cited to us, one of them found in 2nd Bibb, at page 301, Triggs Administrator, against Robert Daniel. In that case the testator had provided that his property be equally divided between his widow and three children; that the division was not to be made until the oldest son should arrive at majority, the children to be “well educated and genteelly supported.’’ In that case the court held that the education and support was to come out of the estate generally; that the estate was not o be divided, or to be treated as though divided immediately upon the death of the testator; but that the income of the estate was to be used generally; that it was the proper thing for the .executor to charge in his general account, or rather credit himself in his general account, with the amount expended for the children, and not to keep a separate account for each one.

The case in the 5th T. B., Monroe,at page 50, Wood and wife v. Lee, is one where a provision had been made that certain property be sold and that the avails of the sale should be used for the education of the children of the testator, there are several provisions in that will for the sale of property and the using of the avails for the education and support of the children. The court say in that case: “When it is contemplated by a testator that a family is to be kept together, it does not require that separate accounts be kept for each, however it may be in other cases. ’ ’ Other cases similar to these are cited. There is one in 137 Mass. 543, James A. Jones, trustee, against Grace O. Foot, et al. There the testator provided a fund which he gave in trust for the maintenance and education of his minor children, Albert P. Brown and Grace O. Brown. Grace was adopted by a family named Foot, and they took care of her and supported her. Albert P. Brown was not adopted, but money was expended for his support. The court decided in that case that the property was to be divided into two equal parts,and that the fact that no money had been expended for the daughter made no. difference, but she was entitled to have one-half of the entire property. That case seems to be very much like this, except that in that case no discretion was left with the executor. In this case a discretion is left with the executor and the sister of the testatrix, Mrs. Corey, as to how the income of the property shall be expended for the children.

Bo far as we have examined the other cases, there is no case that warrants the conclusion that this estate must necessarily be divided into four equal parts, or treated as though divided into four equal parts at the death of the testatrix.

Authorities are numerous that sustain the position that the property is vested upon]the death of^the testator. This property did become vested, andlhe’children of Mrs. Brockett had vested rights'] m this] property upon the death of their mother; but it by no~means follows that the income is to be divided equally, or in any fixed ratio among them.

Now taking into consideration Nhe facts to which I have called attention, the surroundings of these children, and then reading these bequests in Hhe light of these circumstances, it seems to us that a fair reading of this is to treat it as'fhough provision for the]use~of the income of the estate for the support]and education of the children was to precede the division. It is in point of time to precede. It seems to us as]though this]testatrix meant, when she used these words, the same as though she had said “all the balance of my estate, personal and real, is to be held by my executor until my daughter Ilda shall become of full age, when the same is to be divided equally between my four children; my executor, however, to use so much of the income of said estate as shall be necessary, upon consultation with E. G. Corey, for the education and support of my children.” Therefore we think]that this estate should be settled by the executor taking a general credit for expenditures made for any of the children; that he should take credit in his]accounts as executor for what he has expended for the children. I mean in other words, for the education and support of the children.

Something has been said in argument about money having been expended by the executor for other purposes. That is a matter that the Probate Court has juirsdiction of when these accounts come to be settled in that court.

Hon. G. H. Foster, Messr. Boynton & Horr, for the Plaintiff.

Hon. E. C. PenneioeM, and A.J. Mitchell, Esq., for the defendant

Our holding is that the executor is entitled to have credit as against the gross income of this property for the expenditures that have been made for the education and support of all the children; that that which has been expended for the education and support of these several children may be added together and taken from the income, and that the distribution will be then made into four equal parts.

As I have said, it is for the Probate Court to say whether or not he executor has exercised his discretion properly, or whether he has abused it. If he has not exercised his discretion properly, it will be the province of that court to make the proper corrections; and when that is done the executor will be credited as against the entire income of the estate, with his proper expenditures, including what has been properly expended for the education and support of all the children of the testatrix,

The defendant Earl Brockett through his guardian excepts to the ruling of the court, and asks for the separate findings of the facts and the law.


author: Frazier, J.

text:
    (Seventh Circuit—Jefferson Co., O., Circuit Court,
    May Term, 1896.)
    Before Laubie, Frazier and Burrows JJ.
    THE PENNSYLVANIA CO. v. WILLIAM M. TRAINER, ADMINISTRATOR.
    1. Where it is claimed a witness who testified upon a former trial has changed his testimony, an official court stenographer who took his testimony in short hand, may as impeaching such wit- • ness, read his notes in evidence to the jury if he remembers and can testify that at the time it was correctly taken, and that the notes contain all the evidence of the witness, although at the time he is called to testify, he has no independent recollection ,of his testimony.

      2. In an action by an administrator for causing death while the deceased was crossing a railroad track in a conveyance drawn by a horse, it is error to permit the plaintiff to prove, in chief, that deceased was an unusually careful man in the care and management of horses.
    Error to the Courtof Common Pleas of Jefferson county.
   Frazier, J.

The defendant in error, the plaintiff below, recovered a judgment for the claimed wrongfully causing the death of Josiah Philips, against the plaintiff in error operating the Cleveland and Pittsburgh Railroad. The collision by which the deceased lost his life occurred at a point in or near the city of Steubenville, where the public highway crosses at grade the main track of the defendant’s road; where, by reason of an elevated track leading to a furnace and crossing the highway over head,persons, approaching the crossing of the main track in the direction deceased was traveling cannot by reason of the elevated track obstructing the view see a train approaching on the main track until within a short distance of the crossing. And on this occasion it is claimed no signal was given by bell or whistle of the approaching train.

At the time of the accident the deceased was traveling toward the city in a cart drawn by one horse. Counsel for plaintiff proposed to prove that deceased on other occasions, when about to pass over this crossing, stopped to look and listen for approaching trains; which testimony was rightfully excluded. But the plaintiff was permitted, in chief, to inquire of witnesses; “what kind of a man was deceased in reference to his habits in regard to carefulness in driving, management and care of horses, ’ ’ and witnesses testified they thought “he was one of the most careful men in driving horses in the neighborhood.’’ In the admission of such testimony the judge below erred. •

Another question more difficult of solution, and, as a question of practice, of much more importance is made in the record, Rebecca Hibbetts and Bertha Stevenhart, two young girls, were the only persons who saw the deceased approaching the crossing. They were sitting near the crossing, and one of them spoke to the deceased. They had testified upon a former trial, and it is not questioned that the proper foundation is laid for showing, as affecting their testimony, what they testified to on the former trial, by competent testimony.

The defendant called a's a witness T. A. L. Thompson, Esq., and showed that he was the official stenographer for Jefferson county, Ohio, appointed by the court of common pleas under á statute of Ohio, and was acting as such at the time of the former trial, and as such official stenographer he took down in short hand the testimony,including the testimony of Rebecca Hibbetts and Bertha Stevenhart; that he then had present his notes of the testimony; that such notes are correct as to what they testified upon such former trial.

Counsel for defendant asked the witness to turn to his notes of the testimony of the Hibbitt’s girl, and tell the jury what her answers were at' the former trial to certain questions; to which the plaintiff objected. The judge sustained the objection, holding and deciding that the stenographer may use his notes to refresh his memory, and then if he can remember, he can answer. He must have an independent recollection before he can answer. The witness stated: ‘ I rely entirely upon my notes taken at the time. I have no independent recollection”. The same rulings were made as to the testimony of Bertha Stevenhart.

It is claimed by counsel for plaintiff in error, that its admission is warranted by section 5242a Revised Statutes, 89 Ohio Laws, 148. This statute, like most of the reported cases and comments of text writers when treating of stenographer’s notes, has reference to the reproduction of the • testimony of a deceased or absent witness given upon a former trial, and not for the purpose of affecting the testimony of a witness who is present and testifies, but whose testimony it is claimed materially differs from what he testified on the former trial, for the purpose of impeaching his testimony. Nor is it a question whether the notes of a stenographer are the best or only evidence for that purpose. In Brice et al. v. Miller, 15 S. E. Reporter 272, in the case of an absent witness,it is held: “The stenographer’s notes of the testimony of a witness is not the best evidence of such testimony so as to prevent any other person who was present from testifying in relation thereto.’’

Counsel for defendant in error cite a number of authorities in support of the proposition that the notes of a stenographer, like other writings made by the witness at the time of the occurrence, can only be used to refresh his memory. In Thompson on Trials Sec. 504, under headnote “Former Testimony, How Proved’’, the author says; “It is not error to refuse to allow a transcribed phonographic report of the testimony of a witness given on a former trial, to be read to the jury for the purpose of contradicting him, unless the legislature has declared that such reports shall be evidence. The reason is that such stenographic reports are not seen by the witness, and that they may be fair and truthful reports of the testimony of the witness, and may not. ’ ’ The author adds: “But the rule is different where the testimony has been taken down by a commissioner and duly certified by him,although not read over by the witness before signing.’’

It has long been an established rule of evidence that a witness who has made entries in a book or reduced to writing facts which he is required to do in the regular order of his employment,on the day they purport to have been made, though he has now no independent recollection of the facts mentioned in it, if he remembers that at the time he knew the facts were correctly stated, may be permitted to use it to refresh and assist his memory; but the writing itself must be produced in court, in order that the other party may, by cross-examination, have the benefit of the witness refreshing his memory by every part. The American courts have carried the rule farther than it has been carried in England, by admitting the writing itself to go in evidence to the jury in all cases where it was made by the witness at the time it occurred, for the purpose of preserving the memory of it, if, at the time of testifying, he can.recollect nothing farther han that he had accurately reduced the whole transaction to writing. 1 Greenleaf on Evidence Sec. 437 and note 3 to 12 edition; Moots v. The State, 21 Ohio St. 653; Shriedley v. The State, 23 Ohio St. 130.

If entries or writings, made by a person in the performance of a private employment, are admitted in evidence upon the testimony of the person who made them that they are correct, although he has no recollection of the facts; whj on principle and reason should not the testimony of a witness taken in short hand by an officer of the court appointed for that purpose, and whose sworn duty it is to correctly report the testimony, be admitted when it is competent to prove it, although the officer at the time of testifying has no independent recollection of what the witnesa testified.

The violent changes effected in the modes of procedure by the courts, in the last few years, the progress of science, the startling and violent inroads effected by the telegraph, the telephone, the phonograph, the application of electricity as motive power and to other purposes with the application of photography in evidence, and the employment of court stenographers, have placed the line of relevancy far beyond what would be recognized by the courts of even twenty years ago.

If law is “the perfection of human wisdom’’,it should keep pace with science and the progress of our people, and institutions, or those who administer it, are not worthy of the trust committed to them.

Long and well established rules and precedents should not be lightly regarded, or hastily departed from, but whenever a rule or precedent is at variance with reason and the condition and habits of our people, by the introduction of new methods of procedure and the manner of conducting business, the rule should be changed, or the precedent disregarded. When the reason of the rule ceases, the rule itself should cease.

“Our courts have never adopted the common law, except “so far as it is reasonable in itself, suitable to the condition and business of our people, and consistent with the letter and spirit of our federal and state constitutions and statutes. But where it has been'foud wanting in either of these requisites, our courts have not hesitated to modify it to suit our circumstanes',or, if necessary, wholly to depart from it.” Bloom v. Richards 2 Ohio St. 387.

A recent author says: “At the present time the. custom of employing a court stenographer, whose duty it is to take down the testimony of the witnesses examined, is nearly universal. He is usually a sworn officer of the court, and his notes, or transcripts of them, possess an official character and authenticity which render them of great value in case of the subsequent death or absence of a witness. Where such records exist, their production on the subsequent trial should, it seems, be required under the rule requiring the production of the best evidence.” Underhill on Evidence, page 171.

In Rice on Evidence, vol. 1, p. 399, referring to a stenographer’s report of the testimony taken upon a former trial by a witness since deceased, says, “There is no substantial reason why the ' testimony taken in such trial .should not be read. The party was on the stand, and could have been cross.-examined, and the same opportunity for scrutiny and for contradiction existed as if the jury had agreed upon a verdict. ”

Carey, Boyle & Mullins, and J. Dunbar, for plaintiff.

Trainer & Bon, for defendant.

“Where, upon a witness denying that he has changed his testimony as given upon a previous trial, the stenographer who took the testimony produces and reads bis notes in full, which the witness recognizes as correct, all the testimony of such witness taken on the previous trial is admissible in support of the claim that the witness has changed his testimony. Bennett v. Syndicate Ins. Co., 39, Minn. 254.” 2 Rice on Evidence 658.

It is a rule of universal application that a party must produce the best evidence within his control, and though the notes of a stenographer may not be the best evidence in the sense that it excludes all others, experience teaches that it is more reliable than unassisted memory, and in practice is consulted with deference by counsel and judges in cases of controversy or doubt as to what a witness said.

In the light of principle and reason, supported by the better and more recent authorities, we hold, where it is claimed a witness who testified upon a former trial has changed his testimony,an official stenographer who took the testimony at the former trial, who produces his notes in short hand of the testimony of the witnesses, may read his notes'to the jury as affecting the testimony of the witness, if he remembers that at the time the testimony was correctly taken, and that the notes contain all the testimony of such witness, although at the time he is called upon to testify he has no independent recollection of what the witness did testify.

The judgment is reversed, and cause remanded for a new trial.


text:
    (Sixth Circuit—Wood Co., O., Circuit Court
    April Term, 1896).
    Before Haynes, Scribner and King, JJ.
    EDSON W. BAUMGARDNER, et al v. CLARK A. BROWNING, et al.

      Gas and oil leases — Duty of lessee to sinlc wells to develop territory— Temporary suspension of operations as proof of abandonment.

    Where wells have been sunk under a lease, and found to be productive wells, it is the duty of the lessee to proceed diligently and make a fair use of the premises in producing the oil, to the end that the lessor might have his royalty and the use of the premises; but in a new territory and under a lease like the one in this case, and where one well is sunk, and no oil is discovered, parties are not bound to go forward and sink other wells at a considerable expense, not knowing whether they would obtain any oil-or not in their search. In such case parties have a right to abide, at least for a reasonable time, to see what the developments are in the vicinity around and about there, unless there are express stipulations to the contrary in the lease, and such a temporary suspension of operations will not be considered an abandonment.
    Appeal from the Court of Common Pleas of Wood county.
   Haynes, J.

The action was brought to prevent the lessees Clark A. and Otis Browning from operating certain lands in Bloom township, this county, for the purpose of developing petroleum oil, and for an accounting for certain oil that has been taken from the premises by the Brownings.

• The testimony shows that the plaintiffs the Baumgardners had a lease of about 33 acres of land in Bloom township from Hugh Campbell, the owners of the premises. It is what is commonly known as an oil and gas lease, and was for the period of twenty years from the 5th day of April, 1888.

They were to pay the said Campbell, the lessor,the sum of $500.00, or did pay to him $500.00 at the time of making the lease as rental for the property, the receipt of $500.00 being acknowledged in the agreement.

The lessor leased the lands for the purpose and with the exclusive right to the lessees to drill for petroleum and gas.

The lessor was to remain in possession of the premises and use it for agricultural purposes. In consideration of said grant the lessees agreed to give or pay to the lessor the full equal one-fourth part of all the petroleum or rock oil produced or found on said premises, and to deliver the same free of expense into tank or pipe lines to the credit of the lessor; and should gas be found in sufficient quantities to justify marketing the same, the consideration in full to the lessor was to be 1300.00 per annum for the gas from each well so long as it should be sold therefrom. It was further agreed as follqws: “that the party of the second part shall complete a well on the above described premises with-' in six months from the date hereof, unavoidable accidents excepted; and a failure to complete such well will render this lease null and void and to remain without effect between the parties hereto. Two hundred feet from each line is hereby reserved from drilling operations, to be drilled upon only by the second party if the first party should desire to have it operated.

“If the well is a gas well, party of second part is to pipe same to dwelling house of first party free, and to furnish gas from the same for the use of sugar camp on the premises of the party of the first part. It is understood by the parties to this agreement that all conditions between the parties hereto shall extend to their heirs, executors and assigns.”

Under this lease the Baumgardners were put into possession of the premises, and sunk a well of the size and ordinary depth of wells as then sunk, and it turned out to be what is termed a “dry-hole,” no oil being found, but some gas, which was piped to the premises of the lessor, the lessor laying the pipes from the well to his house,and using the gas for quite a period of time, or so long as gas was found in the well.

Upon the discovery that this well was a “dry-hole,” the derricks and all the drilling and operating apparatus was taken away. The well had been cased, and the casing was left in the well, but nothing was done at the time by the Baumgardners in regard to operating the well. This was in the year 1888. On the 20th of March, 1890, Hugh Campbell and his wife conveyed the land to the Bowling Green Natural Gas Company, subject to this lease to the Baumgardners; and on the 11th of April, 1894, the Bowling Green Natural Gas Company, by an instrument of that date, made an agreement or lease with Browning & Co. giving them the right to drill for oil, and Browning & Co, entered upon the premises, sunk a well and found oil, and then drilling to a greaer depth the old well that had been drilled by the Baumgardners, found oil in that, and then proceeded to produce oil on the premises, until this suit was brought to enjoin them from so producing.

The testimony shows that, as soon as the Baumgardners were apprised of the fact that the Brownings were going on the premises, they notified them that they had rights by virtue of their lease, and sent a letter to them, and one of the Brownings called at the office of the Baumgardners, and the lease was exhibited to him, and the Baumgardners claimed then to have the exclusive right to use these premises for the purpose of mining for oil. However the Brownings claimed to have the right under their lease from the Bowling Green Natural Gas Company in the premises, and did proceed to sink and operaie their wells, and the question arises as to the respective rights of the parties.

It will be observed that two years after the first well was sunk,Hugh Campbell conveyed to the Bowling Green Natural Gas Company the land, but subject to the lease of the Baumgardners, thereby recognizing, we think, the right of the Baumgardners under their lease.

The conveyance that was made by the Bowling Green Natural Gas Company to the Brownings does not appear to say anything about the lease, but, of course, the Brownings could not take any greater rights than’ was possessed by the Gas Company

It is claimed by counsel in argument that it was the duty of’these parties, the Baumgardners, to have proceeded to sink other wells and to develop the territory.

The only well that was stipulated in the lease was this one well that was drilled, and that well was a dry hole.

Now we have held heretofore, that where wells have been sunk under a contract of lease, and found to be productive wells, that it was the duty of the lessee to proceed diligently and make a fair use of the premises in producing the oil, to the end that the lessor might have his royalty and the use of his premises; but we have here a case in which no oil is discovered, and it seems hardly just and right to say that in this case these parties are bound to go forward and sink other wells at a considerable expense, not knowing whether they would obtain any oil or not in their search.

We think the better rule is to say that under this lease the parties have a right to abide, at least for some time, to see what the developments were in the vicinity around and about there.

It will be observed that the Baumgardners had paid the lessor $500.00 for this lease for the term of twenty years. They had contracted for a long term. They did not know whether there was any oil there or not, and it is but just and right that they should have a reasonable time to ascertain from time to time by the developments as to whether there was any ground to see whether there was any oil there or not.

It does not appear that either Hugh Campbell or the Natural Gas Company ever made any demand whatever upon the Baumgardners to proceed to sink other wells. So far as the action of Hugh Campbell is concerned, he acquiesced in their remaining quiescent as they did. They did obtain a well, but it was not a producing well. He sold the premises subject to the lease, and recognized the rights of the lessees, and there is nothing to show that the Gras Company at any time had taken any steps whatever to demand that there should be any further action on the part of the Baumgardners before they attempted to lease it to the Brownings.

Parher & Fries, for plaintiff.

F. A. Baldwin & James O. Troup, for defendants.

It is further claimed that the evidence shows there was an abandonment of these lands, but we are unable to see the facts in that light; we do not think there is anything to show that.

"We think these parties were justified in taking time to consider the developments in the county,and see what could be done thereafter.

There is evidence tending to show that the business of oil well drilling in this county was in a nascent state at the time that well was drilled, and the reason that Browning & Company had come to the conclusion there was oil there was, that in the development of oil territory they had learned to sink wells deeper than they had before, and found that the oil was lying lower in the earth and deeper; and it was with that knowledge that they produced this oil.

Now, without in any way infringing upon any rule we have already laid down, but deciding this case as it stands, we are of the opinion that the equities are with the plaintiffs Baumgardners, and that they still have a fair and just right to hold the exclusive possession of these premises fox the time being, and at this time, for the purposes of determining whether there is any oil in the land or not