text:
    ALLOWANCES TO CONSTABLES IN PROSECUTIONS AFFECTING MINORS.
    Court of Appeals for Lucas County.
    State of Ohio, ex rel William Eugene Stiles, v. Gabe Cooper, as Auditor of Lucas County, Ohio.
    Decided, July 22, 1916.

      Fees and Costs—Constables May Recover for Services in Certain Cases ■—’Notwithstanding the Limitation of Section 3019. . . .
    The limitation fixed in Section 3019, General Code,' of $100 per year for services rendered by a Constable, does not apply to services- rendered by him under Sections 13436 and 13439, General Code, in ■ prosecutions for neglecting minor children.

      L. E. Mallow and W. T. 8. O’Hara, for plaintiff.

      J. G. D’Alton, Prosecuting Attorney, and A. J. Seney, contra..
   Richards, J.

This is an original action in mandamus filed in this court on June'19, 1916. The defendant has filed a demurrer to the petition. The petition sets forth, in substance, that the relator is' a duly elected and acting constable in and for Washington town-' ship, this county, and the defendant is the auditor of the county, and that in February, 1916, Oscar Redding, a justice of the peace in said township, duly issued and delivered to relator a warrant for the. arrest of a defendant upon a charge that such defendant neglecting his minor children, in violation of Section 1297,0, General' Code. The petition further .avers that the relator,"in', obedience to the command of the warrant, arrested .said defendant' and brought him before the justice of the.peace, and that there-, upon the’defendant waived, in writing, a trial by jury 'and'was. tried. before said justice of the peace and adjudged to be not' guilty, and'was discharged from custody. 'The petition further avers that the fees taxed on behalf of. this relator by the justice' of th'e"'peace 'for pursuing" and arresting "the" defendant and subpoenaing witnesses áre the same as those allowed by law to the sheriff in criminal eases, as provided for in Section 13436, General Code, and that all other fees therein taxed are the fees allowed by law to constables as provided for by Section 3347, Gen- • eral .Code, the total fees taxed in favor of relator being $3.80, and that this amount was duly certified by the justice of the preace to the defendant as county auditor. The relator further avers that there has been heretofore taxed in his favor- by said" justice of the peace, under Section 13439, General Code, during -, the year 1916, as fees in criminal eases brought before said jus-tice of the peace wherein the defendants were charged with neglecting their minor children, the aggregate sum of $103.05. Relator, avers that the defendant as county auditor neglects, and: refuses to issue a warrant in the amount of $3.80 in favor of re-' lator, on the treasury of Lucas county, and he prays that said deféndant may be compelled to issue his warrant in favor of the relator for said sum.

t The action is brought to determine the construction of the statutes relative to fees of constables where defendants are prosecuted for the neglect of minor children. The provisions of the General Code which bear on the matter in controversy are Sections 3016, 3017, 3019, 13436 and 13439. The first three sections cited supra have been embodied in -the statutes of the state for.many- years and cover prosecutions under the general criminal laws of the State. ' Section 3019, General Code, is' limited-in its operation, -by. its terms,, to felonies wherein the .state fails, and to misdemeanors wherein the defendant proves insolvent, and the limitation of $100 which may be allowed to a constable in any one year is for services in the class of cases therein enumerated. No provision is made therein for any class of cases except the ones mentioned, to-wit, “felonies wherein the state fails,” an'd “misdemeanors where the defendant proves insolvent. ’ ’ The case set forth in the petition in mandamus does not fall within either of those classes. The sections of the General Code from 13432 to 13440, inclusive, were originally Revised Statutes, Section 3718-a, first enacted in the year 1884 -and were applicable to prosecutions for cruelty to children or animals, and for adulteration of food, etc. In that class of cases the General Assembly saw fit to authorize prosecutions without empowering the magistrate to require security for costs, and to allow to constables increased fees therefor, making the same allowances to such officer as are provided for sheriffs.

To further stimulate the prosecution of such offense's, Section' 13439, General Code, not only dispenses with the duty of giving security for costs, but provides that if the defendant be acquitted', or discharged, or convicted and committed in default of paying fine and costs, “all costs of such case shall be certified, under oath, by the proper magistrate to the county auditor who, after' ebrrecting errors therein, shall issue a warrant 'on the county treasury in favor of the person to whom such costs and fees are payable.” 'This section of the General Code and the allied sec-' tiohs are in effect a supplement to Sections 3017 and 3019, Gen-' eral Code, and cover eases not embraced within those sections. ■

We find no limitation in the General Code as to the amount which may be allowed in any one year to a constable for services rendered under Sections 13436 and 13439, General Code. The provisions of the Code fixing salaries for sheriffs and authorizing' annual allowances for them in certain cases, have nothing to do with' the' amount provided by statute for constables.

The demurrer to the petition will be overruled and judgment entered for the plaintiff, awarding a writ of mandamus. ■

Chittenden, J., and Kinkade, J., concur.


source: Caselaw Access Project

author: Richards, J.

license: Public Domain

text:
    VALIDITY OF A GIFT BY THE LATE COLUMBUS. DELANO TO HIS DAUGHTER..
    Court of Appeals for Knox County.
    Columbus Ewalt, as Administrator de bonis non, with the Will Annexed, of the Estate of Elizabeth Delano, Deceased, v. Benjamin Ames, et al.
    Decided, May 23, 1917.

      Gifts Inter Vivos—Omission of Signature to Back of Certificate of Stock Gift Not Rendered Incomplete Thereby—Receipt of Dividends by Donor of the Stock Not Sufficient to Impeach the Gift, When—Appeal from Refusal by Probate Court to Appoint an Administrator De Bonis Non—Conduct by a Widow Constituting an Election to Take.

    1. The probate court having-, on application made therefor, refused to appoint an administrator de bonis non, and the court of common pleas, after a hearing on the merits on appeal, having made such appointment, -the parties can not thereafter contest the validity of the appointment by contending for the first time that appeal would not lie from the judgment of the probate court.
    2. A father, residing in Mount Vernon, in consideration of love and affection, executed and delivered to his daughter four years before his death a written assignment of a large portion of his personal estate consisting of stocks and securities and other property, including 230 shares of the stock of the Western Union Telegraph Company, and caused her name to be written on the back of the certificates of stock as assignee thereof, and the certificates were found in her possession at her home in Washington, D. C., after his death,-but he- had omitted to attach his signature to the transfer on the back of the stock certificates. Held: 1st, That the gift was complete notwithstanding the omission of the donor’s signature on the back of the certificates. 2d, The receipt by the father of some of the dividends declared after the execution and delivery of the instrument of transfer is not, in view of the affectionate relations existing between the parties, so inconsistent as to impeach the gift.
    3. While the law requires that the acts of a widow, in order to constitute, an election by conduct on her part to take under the will of her husband, must clearly and unequivocally evince a purpose on ner part so to elect, yet where the husband and wife have together deliberately planned an arrangement for the disposition of their respective estates by will and have executed their wills to carry out that purpose a court will be readily convinced that she has elected to take under the will.

      Pomerene, Ambler & Pomerene, Williams & Nash, and F. 0. Levering, for plaintiff in error. -. .

      H. C. Devin, Jones & Jones, Carl Norpell and Frank Moore, contra.
   Richards, J.

Error to the court of common pleas.

■ Columbus Ewalt, as administrator .of Elizabeth Delano, deceased, commenced this action in the court of. common.. pleas against the defendant, Benjamin Ames, individually and as surviving executor of the last will and testament of Columbus Delano, deceased, and also against other defendants, for’ a citation to appear and disclose 'as to the assets of the estáte of said Columbus Delano, deceased, in their possession or under their control. Benjamin Ames filed a second amended answer denying most of the allegations contained in the petition and setting up numerous defenses thereto.

On the trial in the court of common pleas the issues were found and adjudged with the defendants and the petition dismissed. Error is prosecuted to this court and a reversal of the judgment so rendered is demanded upon numerous grounds.

Columbus Delano was a distinguished citizen of Mount Vernon who died testate on October 26, 1896, leaving as his widow Elizabeth Delano. The widow died testate in August, 1897. At the time Columbus Delano executed his last will and testament, to-wit, on November 13, 1891, he was eighty-two years of age, had been a brilliant lawyer, was a man of wide experience in business affairs, had represented Knox county in the General Assembly, had represented his .district in Congress, had served as Commissioner of Internal Revenue during the first term of President Grant, and as Secretary of the Interior diir-ing the second term of that president. His wife, Elizabeth, appears by the evidence to have been a lady of education and refinement and to have enjoyed his implicit confidence and to have been entirely familiar with his numerous business transactions and with the extent of his large estate: His will is shown to be in her handwriting, and her will was prepared in her own handwriting, but before she executed it she had the same typewritten by an attorney-at-law. At the time of Columbus Delano’s- death he had an estate variously estimated but apparently exceeding one hundred and fifty thousand dollars in value. His wife was the owner, also, of a very considerable estate. They had two children, John S. Delano and Elizabeth Delano Ames, the latter residing in Washington, D. C. Mrs. Ames had three sons and one daughter, and John S. Delano was married •and had a daughter named Eleanor Delano Shealey. John S. Delano died in 1896 shortly before the death of his father Columbus Delano.

While many defenses are urged in this case to the contentions made by the plaintiff, we find it necessary to discuss only three of them.

First. It is insisted that Columbus Ewalt is not the administrator de bonis non of Elizabeth Delano, deceased.

Second. It is insisted that the property which is sought to be reached by this proceeding was given by Columbus Delano to his daughter, Elizabeth Delano Ames, by completed gift inter vivos a number of years before the donor’s death.

Third. It is insisted by the defendants that the widow, Elizabeth Delano, elected in fact to take under the will of Columbus Delano, and that having done so she was not by the terms of that will entitled to any of the assets now sought to be reached.

If either of the defenses named should be found to be sustained, the plaintiff can not recover. We will take up first the issue as to the appointment of Columbus Ewalt "as administrator de bonis non with the will annexed of the estate of Elizabeth Delano, deceased. In her will she named as executor H. H. Greer, a prominent attorney of Mount Vernon, who qualified and served as such executor, filing a final account and subsequently resigning his trust in'May, 1911, the resignation being

accepted' by the probate court. Shortly thereafter application was inade in the' Probate Court of Knox County- by Eleanor Delano Shealey for the appointment of an administrator de bonis• non of1 the estate on the claim that there Were assets' be^ l’ónging to the estate'which were -unadministered,- to the amount óf many thousands of- dollars.' The probate court on hearing this application' denied the same and refüsed to appoint- an -administrator dé bomis nón.- The proceeding was taken- On appeal -to- the eóúrt of 'common pleas and was there heard on its merits, the'court of common' pleas adjudging that-an administrator de bonis non should be appointed, and thereupon proceeded-to add did appoint’the plaintiff, Columbus Ewalt, as such administrator ■dé bonis non. So far as the record before - us discloses, ■ the adjudication and appointment thus made in the court of common pleas was never reviewed- on- error or appeal. •

It is insisted, however, that the validity of the appointment may be contested in this ease, -and it is contested on the ground that the decision of the probate court refusing to appoint an administrator de bonis non was not appealable and that the court of common pleas had no jurisdiction t-o make the appointment. It appears that the parties went to trial 'on the merits in the court of common pleas in the case so ■ attempted to be appealed, and it does not appear that any objection Was -made in- that court to the appealability óf the proceeding. -We ’think it not important to review the statutes on the question- of whether an appeal lies from the refusal of the probate court to appoint ■ an ■ administrator de bonis non. ’Whether of hot such appedl would lie, it is apparent that error could have been prosecuted to that judgment of the probate court.

The parties having gone to trial on the merits1 in the court of common pleas and permitted the action to proceed to judgment, without objection, so far as the record shows, to its appealability and on a matter in respect to which that court could have taken jurisdiction on error, they could not thereafter be permitted to question the jurisdiction of the court to try the ease on appeal, even if they had so attempted in that action; much less can they do so collaterally in this proceeding. Drake et al, Trustees, v. Tucker et al, 83 O. S., 97; Gadwell v. Cadwell, 93 O. S., 23; Barner v. Barner, 93 O. S., 477; State, ex rel Faber, Receiver, v. Jones et al, 95 O. S., 220.

The two cases from 93 O. S., cited, were tried in the court .of appeals by the judges now sitting in the case at bar.

. Furthermore, it must be remembered that a proceeding for the appointment of an administrator is one in rem, and, the court having jurisdiction, its decision in that class of proceedings binds the whole world. That an application for the appointment of an administrator is a proceeding in rem was directly announced by the Supreme Court in Cross v. Armstrong, 44 O. S., 613, in the course of the opinion delivered by Judge Spear, on page 624.

It was held In the Matter of the Guardianship of Oliver, an Imbecile, 77 O. S., 474, that a court of common pleas could appoint a guardian of an imbecile on appeal from an order of the probate court refusing to make an appointment and dismissing the application. The court , in that case held that the common pleas court was empowered to make the appointment. It is true that the statute specifically authorizes an appeal from an order refusing to appoint a guardian, while no such specific provision is found as to the refusal of the probate court to appoint an administrator. 'That distinction, however, becomes unimportant in view of the facts already recited showing that the parties on the appeal went to trial on the merits of the case without objection.

We conclude, therefore, that the defendants can not now contest the validity of the appointment of Columbus Ewalt as administrator de bonis non of the estate of Elizabeth Delano, deceased.

We proceed, therefore, to determine the issue as to whether the assets sought to be recovered in the proceeding at bar were really assets of the estate at the time of the death of Columbus Delano, or whether he had effectually parted with them by gift to his daughter, Elizabeth Delano Ames. The validity of the gift depends largely upon the execution and delivery of an instrument dated February 16, 1892, and the delivery of the property pursuant to such instrument. That instrument recites, in substance, that in consideration of natural love and affection he sells, assigns, transfers and sets ever to his daughter, Elizabeth Delano Ames, of Washington, D. C., all of his personal property, consisting of bonds, notes, mortgages, ehoses in action, stocks and securities, except his bank stock and the live stock on his farms and the farming implements and household goods. The original of this instrument had been written out and. was carried by Mr. Delano to the law office of Mr. Greer in Mount Yernon, and at Delano’s request R. M. Greer copied the-same on the typewriter and it was there signed in his presence and the acknowledgment of the signature taken before him as notary-public. At the time of the execution of this instrument Columbus Delano was the owner of two hundred and thirty shares of the capital stock of the Western Union Telegraph Company and of stock and securities in various other companies. The stock of the Yrestern Union Telegraph Company, however, is the item about which most of the controversy in this case revolves. Subsequent to the making of this instrument Columbus Delano received from the Western Union Telegraph Company stock dividends on this stock amounting to twenty-three shares, and on February 7, 1894, he purchased forty-seven additional shares making three hundred shares in all.

The assignment of his personal property to his daughter is shown to have been delivered to her in the summer of 1892 when she was visiting at her father’s home, known as Lake Home, about a mile from the city of Mount Yernon. The certificates of stock were never signed over on the back by Columbus Delano to his daughter, but the assignment was made after his death by the defendant Ben Ames, as executor, who is the grandson of Columbus Delano and a son of Elizabeth Delano Ames, the executor claiming to act under authority of the written assignment to which reference has been made. There is, however, endorsed on the back of these certificates in a blank printed form prepared for that purpose the name “Mrs. E. Delano Ames,” and it is shown that in each instance this name appears in the handwriting of a confidential friend of Columbus Delano who was employed in the First National Bank of Mount Vernon, in which bank Mr. Delano was a stockholder and director, and that the death of this friend occurred before Columbus Delano died, so that the name of Mrs. Delano must of necessity have been writien on the back of the certificates before the death of Mr. Delano. It was in this bank that Mr. Delano kept his private papers. After the death of Columbus Delano these certificates of stock and other securities claimed to have been passed by gift to Elizabeth Delano Ames were found in her possession in Washington, D. C., and it was at her request that her son Ben Ames, as executor, completed the formal transfer on the back of the stock by signing his name thereto as executor.

It is apparent that the certificate for forty-seven shares of stock in the Western Union Telegraph Company could not pass directly- and specifically under the provisions of this assignment and gift by Columbus Delano to his daughter, because it represents stock which he did not at that time own, but subsequently purchased. The evidence shows, however, .that he had contemplated making a gift of three hundred shares of stock in this company to his daughter and was sufficient in connection with the other evidence to justify the finding by the trial judge that he had made and completed such gift.

The evidence shows that although this certificate for forty-seven shares of stock was taken in his name and paid for by him, yet that he intended it as a gift, to his daughter to complete the full number of three hundred shares which he had in mind at the time of the execution of the instrument transferring securities to her.

It is strenuously insisted by counsel for plaintiff that the fact that Columbus Delano had not signed his name to the endorsement of the stock on the back thereof , shows that his intention was not to complete the gift to his daughter, but to retain control himself of the stock notwithstanding the execution and delivery of the written transfer already mentioned and the subsequent delivery of the stock. We have no doubt that the execution and delivery of the written transfer followed by the delivery of the securities completed the gift without the signature of the donor on the back of the certificates.

Neither is the fact that Columbus Delano received some of the dividends subsequent to the transfer sufficient evidence to overcome the gift shown by' the written transfer and delivery of the securities and the conduct of the - parties. By reason of the affectionate relations existing between Mr. Delano and his daughter, it may well be that she was content to have him receive a part of the dividends declared on the stock, and the fact that he did receive some is not inconsistent with the completion of the gift. The oral evidence shows that he was solicitous about the continued support of his daughter and her children and this evidence is supported by the language of his will in the bequest with relation to the children. He had already advanced to his son large amounts of money and property aggregating perhaps to one-half of his estate.

■ • By reason of the - fact that the certificates of stock were not themselves assigned to Elizabeth Delano Ames by written endorsement on the- back thereof, the dividends on the same continued to be issued by the "Western Union Telegraph Company in the name of Columbus Delano. The evidence is not very clear as-to who really received and appropriated the proceeds of these dividends subsequent to the execution of the instrument of transfer, but a considerable number of the drafts for the quarterly dividends on this stock were made payable to the daughter. The evidence is of such a character as to amply justify the common pleas judge in finding, as he did, that the gift to Elizabeth Delano Ames was completed and was a valid one, and that the securities were not a part of the estate of Columbus Delano at the time of his death. All through the record it is apparent that the relations existing between Columbus Delano and his daughter were very close. Indeed, the first item of his will gives all of his correspondence and private papers to her and expresses a desire that no one shall have access to or direction over the same'without her consent.

The conclusion reached would necessitate an affirmance of the judgment, for the plaintiff can not maintain an action for concealing assets of an estate where the evidence discloses that the assets had been disposed of by the testator in his lifetime. There is, however, another defense urged and we have given it careful consideration. 'That defense is that the widow of Columbus Delano elected in fact by her words and conduct to take under the will, and if she did do so the securities now sought to be reached would not pass to her, even though they had been a part of the estate of Columbus Delano at the time of his death.

It will be unnecessary to review all of the evidence bearing on the subject of the widow having made an election, but it will be pertinent to indicate some of the facts bearing on that subject appearing in numerous places throughout the oral and documentary evidence. It is perfectly apparent that Mr. and Mrs. Delano had entered into an agreement with each other on the subject of the disposition to be made of their property, in pursuance of which each had conveyed certain property to the other, and their respective wills were made in fulfillment of the terms of this agreement. It was understood between them that the will of Mr. Delano was to provide for his grandsons and that Mrs. Delano was to provide for the granddaughters in her will. This understanding was carried out by the terms of the wills. Mrs. Delano fully understood this matter and the evidence in the record impresses the court that she was extremely anxious that the provisions of their wills should be carried out. This joint project which was carefully planned by Mr. and Mrs. Delano could not be carried out if she should take under the law rather than under the terms of the will left by him. Both Columbus Delano and his wife repeatedly stated to several of .their intimate friends that they had made this arrangement and indicated to these friends their wish and desire that the same should be carried out. Shortly after the death of Columbus Delano, in the presence of several witnesses and. upon the occasion of the reading of his will, she again expressed her earnest wish that the provisions of the will should be carried out and that she wanted to do her part to accomplish that object. Indeed, so far as the record discloses, every statement made and act performed by her in relation to her husband’s estate indicated unequivocally that she elected to take under the will. We search the record in vain for any evidence looking to a contrary intent.

Certain payments were made to her- by the executors and receipted for by her as being payments under the will of her deceased husband. We would, however, in the absence of this receipt have no hesitancy in saying that the record contains ample evidence to justify the trial judge in finding that she had elected to take under the terms of the will. That will gave her the right to use the entire income of the estate for her life if she required it. We are, however, entirely in accord with the following statement made by the trial judge jn the opinion rendered by him in this ease:

“In our judgment Mrs. Delano would not have refused to take under her husband’s will and elected to take under the law if in so doing she could have secured the entire estate of her husband, for in so doing she would have repudiated the deliberately planned arrangement which she and her husband had made for the distribution of their estates.”

The principles announced in the case of Baxter v. Bowyer, 19 O. S., 490, are entirely applicable to this case. See, also, Thompson v. Hoop, 6 O. S., 481.

Counsel on both sides cite and rely on Colored Industrial School of Cincinnati v. Bates, Admr., 90 O. S., 288. In reaching the conclusion that Mrs. Delano elected to take under the will of her husband we are not unmindful of the language of the court in the case just cited, that the acts relied on to constitute an election by conduct must be plain and unequivocal and with a full knowledge of rights under the will and under the law respectively, and of the true condition of the estate, and generally be of such long duration as to clearly show a purpose to take under the will. In the absence of evidence to the contrary the presumption, of course, is that the widow chooses to take under the law rather than under the will. That presumption, however, is a rebuttable one, and in a case where the evidence clearly shows a long continued purpose on the part of both the husband and wife to make a disposition of their property by will, and where that purpose has been carried out with the full knowledge and approval of both, the presumption is not difficult to rebut. We have no hesitancy in reaching- the conclusion in this case that it is rebutted by the evidence and that Mrs. Delano is shown by her words and conduct to have elected to take under the will.

Some of the evidence on this subject comes from H. H. Greer and R. M. Greer, who are claimed to have been attorneys for Mr. and Mrs. Delano and to have received the information under such circumstances as to make it privileged and render them incompetent to testify on this subject. It is apparent that much of the information which they received from the Delanos on this subject was imparted to them for the very purpose of having them make it manifest when the proper occasion should arrive. When we remember that Columbus Delano was himself an eminent member of the bar and that he and his wife determined between themselves as to the disposition of their property and prepared their own wills, simply going to attorneys for the purpose of having them formally executed, wé are not able to assent to the contention that the relation of attorney and client existed between them in respect to these matters, nor that the information given to H. H. and R. M. Greer was given under such circumstances as to be privileged. However, the case being in this court on error, we would be unable to say, even without the testimony of these attorneys, that the evidence was insufficient to maintain the finding and judgment of the court that Mrs. Delano had elected to take under the will of her husband.

Finding no prejudicial error, the judgment will be affirmed.

Chittenden, J., and Kinkade, J., concur.


author: Houck, J.

text:
    ASSESSMENT FOR. COST OF SEWER IN EXCESS OF ORIGINAL PLANS.
    Court of Appeals for Licking County.
    Isaac N. Wilson et al v. City of Newark.
    Decided, March Term, 1917.

      Sewers—Injunction Against Collection of Assessment for-?—Where Constructed to Perform a Double Purpose at Some Time in :the Future.

    Where a sewer is constructed for both drainage ana sanitary purposes, but its use as a sanitary sewer must be postponed, an action lies by: an abutting owner for injunction against collection.of. so. much of the assessment as represents -the increased cost in adapting the sewer to sa.nita.ry purposes .until .such .time as it is open for usé for that purpose, if such use is not delayed for an unreasonable period-in the instant case two years.

      Phil. B. Smythe, for plaintiffs. .

      Ralph Norpell, City Solicitor, and Martin & Martin, contra.
   Houck, J.

This is an appeal case, and was heard to this court upon the evidence. The plaintiffs pray for an injunction perpetually enjoining the defendant from collecting certain assessments levied on the properties of each of the plaintiffs herein by reason of the construction of a certain sewer in the street running along the properties of the plaintiffs.

It is claimed by the plaintiffs that in the construction of the sewer in question it was done at a cost in excess of that provided in the plans and specifications, and that thereby the defendant is estopped from collecting said assessments. It is not claimed by counsel for plaintiffs that there was any irregularity in the proceedings of the defendant as to the plans and specifications or construction of said sewer. The evidence in this case clearly shows that the sewer is not only a drainage sewer, but is a sanitary sewer, and that it was constructed by the defendant with these two objects in view. In other words, the sewer in question is what may be termed a combination sewer, and may be used, for drainage, sanitary and possibly other purposes. We further find from the evidence, that the plaintiffs have been and are substantially benefited by the. construction of this sewer, if permitted to use it not only for drainage but for sanitary purposes. The evidence clearly establishes-the fact that the cost of constructing, the. sewer, in question for drainage purposes would he .about.seventy per.cent, of the.assessments sought to be levied on the properties1.of plaintiffs for such construction,-and"that thirty per cent, of said assessments would be for sanitary purposes.' We do not think it equitable, as between the parties hereto, that the plaintiffs should be compelled to pay -the entire cost of the sewer in question, or be required to pay the full amount of such assessments, until they are permitted-to use it for all.of the purposes for which it was constructed.

In view of the facts, as clearly established by the evidence in this case, and the law applicable to those facts, we are of the opinion that, a permanent injunction should be allowed as to 30 per cent, of the assessments levied upon the properties of each and all of the plaintiffs, and a permanent injunction refused as to 70 per cent, of such assessments, and in casé defendant furnishes an outlet for sanitary sewer within two years from April 1, 1917, the- 30 per cent, to become effective, otherwise th.e injunction as to the 30 per cent: to stand. Defendant to pay costs.

. Decree and ■ judgment accordingly.

Allread, J., concurs.


text:
    ERROR. TO CONVICTION OF ILLEGAL SALE OF LIQUOR.
    Court of Appeals for Wood County.
    Philip Moorey v. State of Ohio.
    Decided, May 7, 1917.

      Intoxicating Liquors—Petition in Error Must be Filed by Leave in Court of Appeals—Where Review is Sought of Conviction of Sale of Liquor in Dry Territory—Construction of the Words “When a Reviewing Court is Not in Session.”

    1. By virtue of the requirements of Section 13246, G. C., one who has • been convicted before a mayor for a violation of the law pro- . hibiting the sale of intoxicating liquors in a city, which judgment has been affirmed by the common pleas court, before filing a petition in error in the court of appeals must obtain leave of that court after good cause shown therefor and within the time limited in said section. '
    2. In computing the time within which the same must be filed the language of the statute "when a reviewing court is not in session” means, not in session in the county in which the litigation is pending, unless the court has fixed some other county of the appellate ■ district for the hearing of such cases, and-the court of appeals is not to be' deemed in session in the county in which the litigation is pending simply because the term of court therein has been formally held open.
    3. If an examination of the entire record of a case coming within that statute clearly discloses that the judgments of the lower courts are right, leave to file a petition in error will be refused.

      Edward Beverstoclc and A. B. Campbell, for plaintiff in error.

      William B. James, City Solicitor, contra;
   Richards, J.

Error to the court of common pleas.

Philip Moorey was convicted before S. W. Bowman, mayor of the city of Bowling Green, on a charge of selling and furnishing intoxicating liquor to one John Goodman, in violation of Section 13232, General Code, known as the Beal local option law, and sentenced to pay a fine of $200. He prosecuted error to the court of common pleas where the judgment of conviction was affirmed on December 27, 1916.

•- On the day the judgment was affirmed he filed a petition in error in the court of appeals to secure a reversal thereof, hut this petition in error was filed without leave being granted therefor, as required by Section 13246, General Code. On the 23d -day of April, 1917, the plaintiff in error, through his counsel, notified the defendant in error that he would apply to the court of appeals at the court house in the city of Bowling Green on Monday, April 30, 1917, at nine o’clock A. m., or as soon thereafter as counsel could be heard, for leave to refile the petition in error for the reason that the same had been filed without leave of court.

The state strenuously resists the application for leave to file ■a petition in error, or to refile the one which has already been filed, basing the objection on the ground that the right to file the same is barred by the terms of the statute last cited, and on the -further ground that, even if the application is within time, the conviction ánd the affirmance thereof were required by the evidence and, therefore, that no good cause has been shown for granting the application.

The court, when these matters came on for hearing, informed •counsel that it would hear the application for leave to file or '-•réfile the petition in error and at the same time would hear arguments upon the merits of the case and determine the whole ' controversy at one time.

■ By reason of the provisions of Section 13246, General Code, no authority existed for filing a petition in error until the court of’ appeals, after good cause shown therefor, had granted leave to file the same. We will, however, treat the application as one for leave to file a petition in error. The statute cited provides that such petition in error must be filed on or before thirty days after the judgment complained of, and that when the reviewing feourt is not in session within the time provided for, the motion for leave to file a petition in error and the petition in error may be filed with and heard by such reviewing court within ten days after it is in session. It is under this latter clause that plaintiff in error claims he is in time with this application.

‘The court of appeals began its regular session in Wood county on Monday, October-16,1916, continuing -in session in the city of Bowling Green throughout that week, and was not in session in Woo.d county from that time until April 30, 1917. The October term'of-court was, however, kept' open for the transaction of suehffurther business as might properly come before the court; Such-business being-transacted, by consent of . counsel, in Lucas county: where’ the court of. appeals during the greater portion of that time was in session.

The language of the statute, “when a reviewing court is not •in session;” means not in session in the county in which the litigation is pending, unless the court has fixed some other county of the appellate district for the hearing of such cases, and. the court is not in session, within the meaning of the statute, simply because the term of court has been formally held open’for-the purposes already stated. This view is confircped by the fact that the statute uses the expression “thirty court days,” •and certainly days when the court was engaged in the transaction of official business in Lucas county or elsewhere could not be counted as court days in' Wood county, the court not having fixed any county other than Wood for the hearing of cases ■pending therein.. The next term of the court of appeals in Wood county began on April 30, 1917, and the plaintiff -in- error makes this application on the first day of the term and is within the ■limitation prescribed- by statute in so doing.

The ease having been argued not only upon the application for'leave to file a petition in error, but upon the merits, we have read the entire record with a view to ascertaining whether the conviction was justified by the evidence. The bill pf exceptions contains at least the usual conflict found in cases of this character. It would be of no advantage to review this evidence. Suffice it to say that, after a careful examination, we are clearly of opinion that there was sufficient evidence to justify the mayor in finding the defendant guilty. Having reached this conclusion, it would be futile to permit the filing of the petition in error and then immediately enter a judgment of affirmance, and for these reasons we have determined that no good cause has been shown for granting leave to file the petition in error, and .the application for such leave will therefore be refused. .

Chittenden, J., and Kinkade, J., concur.


text:
    LIABILITY FOR. DAMAGE TO PROPERTY FROM THE ACCIDENTAL EXPLOSION OF DYNAMITE.
    Court of Appeals for Ottawa County.
    The American Gypsum Company v. Lake Shore & Michigan Southern Railway Company.

    Decided, April 27, 1917.

      Explosive Substances—Accidental Explosion of Dynamite—In an Enterprise Where it is Used Regularly—Liability Must be Based on Evidence of Negligence—Measure of Damages to Property Injured—Use as Evidence of Answers to Interrogatories—Interest on Judgment—Charge of Court.

    1. A company engaged in mining gypsum in which business it uses large quantities of dynamite is not liable for damages caused by the explosion of a quantity sufficient for its use for the day while being prepared for such use in a thaw house, in the absence of evidence of negligence.
    2. It is error in such case to refuse to instruct the jury that if the explosion was the result of pure accident and without fault on ' the part of anybody the verdict must he for the defendant.
    3. The measure of damages where railroad cars are injured by an explosion is not the amount expended in repairs, but the difference between the value of the cars immediately before the damage and their value immediately thereafter.
    4. By virtue of the provisions of Section 11350, G. C., a party answering interrogatories annexed to a pleading may introduce his own answers in evidence, so far as they are responsive to the questions propounded, and contain competent testimony on the issues joined.
    5. In cases where a verdict is returned but judgment is not rendered thereon until a subsequent term of court, the judgment should provide for interest from the first day of the term at which the verdict was returned, unless the action was brought during that term, in which event the judgment should draw interest from the date the verdict was returned.

      True & Crmvford, for plaintiff in error.

      Graves, Stahl <& Duff, contra.

      Motion to require the Court of Appeals to certify its record in this case overruled by the Supreme Court, July 3, 1917.

   Richards, J.

Error to the court of common pleas-.

The American Gypsum Company is engaged in the mining of gypsum and the preparation, storage and shipment of gypsum products in this county, and was defendant in the court of common pleas in an action 'brought to recover damages for the destruction and injury of certain cars owned by and in the custody of the Lake Shore & Michigan Southern Railway Company. These cars, on March 22, 1911, were on a side-track extending along and over the property of the gypsum company and were on that date damaged by an explosion of dynamite situated in a small shanty called a thaw house, owned and used by the gypsum company.

The trial resulted in a verdict and judgment in favor of the railroad company in the amount of $964.67, and to reverse the judgment so rendered this proceeding in error is brought in this court.

The record discloses that in the manufacture of gypsum products the gypsum company uses large quantities of dynamite, purchasing the same by the car-load containing some eighteen thousand pounds, and that the explosive so purchased is stored in a magazine on the premises of the company located approximately two thousand feet from the thaw house, which thaw house is near the track of the railroad company. The storage magazine itself did not explode, but the damage was caused from an explosion in this small structure used for thawing the dynamite. 'The evidence is not clear as to whether any other structures were in the immediate vicinity of the place where this thaw house was erected.

The testimony indicates that dynamite freezes at a temperature of forty, to fifty, degrees Fahrenheit, and the practice of the company was to remove from the magazine to the thaw house a box of dynamite containing fifty pounds, so that the same might be thawed and made ready for use by the company during the day or night that it was so removed. The company used in its business two shifts of workmen, and this dynamite had been removed a few hours before the explosion and placed in this building for the purpose indicated. In the morning the practice was to bring in what dynamite was necessary for use during the day shift, and then again in the evening another quantity was brought in sufficient for use by the night shift. The thaw house was about six feet by eight and approximately six feet in height, It had galvanized siding and the roof was made of roof boards covered also with galvanized siding. Inside this building was, a steam radiator used for the purpose of thawing the dynamite, the steam pipe coming from the boiler house two hundred feet distant. In front of the radiator was a wire cloth extending from the floor to the ceiling so as to prevent any dynamite coming in contact with the radiator. The practice was that after the dynamite had become sufficiently thawed it was carried away by the shot firers to the mine and there used.

So far as the record discloses, the cause of the explosion was unknown, and the vital question arising is whether liability exists on the part of the gypsum company under the circumstances stated and in the absence of negligence.

All the dynamite used by the company was shipped in over the tracks and along the siding of the railroad company and from there hauled to the storehouse from which it was removed as needed in the operation of the company’s business to the thaw house and from thence to the mine.

'The trial judge charged the jury following the lines indicated by the language of the Supreme Court in Bradford Glycerine Co. v. St. Marys Woolen Mfg. Co., 60 O. S., 560, that “the person who for his own purpose brings on his lands and collects and keeps there anything likely to do mischief, which includes nitroglycerine or dynamite, if it escapes or explodes, must keep it there at his peril, and when he does so he is prima facie answerable for all the damage that is the natural result of the explosion.” He further stated to the jury in that connection that the defendant could excuse itself only 'by showing that the explosion was due to the plaintiff’s fault, and that it has used ordinary care in the handling and use of the dangerous matter¿ or the act of God. Of course, the latter part of the charge mentioned is clearly wrong in that if it appeared that the explosion was due to plaintiff’s fault, the defendant need not in addition show that it used ordinary care in the handling and use of the. dynamite.

This criticism, however, does not dispose of the vital question involved in this case, and that is, whether the rule of liability for the explosion of nitroglycerine announced in the decision of the Supreme Court to which reference has been made is applicable to the explosion of dynamite under the facts shown in this record. In the Bradford Glycerine Company case there were at the storage magazine, including the quantity being placed therein, more than seven hundred and fifty quarts of nitroglycerine, and the building was used, as its name indicates, for a place storage. In the case now under consideration the explosive was dynamite, the evidence showing the explosive ingredient in which is nitroglycerine, and that the strength of the dynamite used by this company was only twenty per cent. It further appears that in the manufacture of dynamite when carefully and properly prepared, it is much less liable to explode from accidental causes than is nitroglycerine, which is in a liquid form while the dynamite is a solid. Furthermore, the amount of the explosive was only fifty pounds or a little more, and if we compute only the weight of the explosive ingredient it would be a little more than ten pounds; and the evidence introduced tends to show that the amount of explosive in the thaw house at any one time was only that which would be reasonably sufficient for use in the operation of the mines for a portion of one day and for the reasonable conduct of the defendant’s business. The record discloses that, although the company in the conduct of its business at this place has used over one hundred cars of dynamite of eighteen thousand pounds each, it has never heretofore had an accidental explosion.

Under these circumstances, and after a painstaking investigation of the authorities, this court is not able to apply to this case a rule that would hold the gypsum company liable without evidence showing negligence on its part. The Supreme Court said in the Bradford Glycerine Company case, already cited, that nitroglycerine was recognized as a constant menace to the property in its vicinity. The evidence in the ease we have under consideration would scarcely authorize the conclusion as to dynamite. At any rate it would go no further than raise a question for submission to the jury, under proper instructions, whether the practices of the company in thawing and handling of the dynamite were such as to constitute a constant menace to property.

'The question was under consideration by the Supreme Court in Louden v. Cincinnati et al, 90 O. S., 144, which was a case to recover damages resulting from the use of explosives in blasting. In that ease the Supreme Court, speaking through Donahue, J., use this language:

“The question presented is whether the owner of property may make use of high explosives on his own premises in the accomplishment of a lawful purpose, provided he uses due care, notwithstanding the necessary, natural or probable result thereof is to injure or destroy adjacent property.”

The rule indicated by the question propounded is an aid in determining whether the use of dynamite in the case at bar, in the exercise of due care, was such as to necessarily, naturally or probably result in the destruction or injury of adjacent property, and to be a constant menace thereto. It surely can not be stated, as a matter of law, that the handling of dynamite, under the circumstances disclosed, would come within the condemnation of the court as indicated in the two cases cited, but rather that its handling, as disclosed by the evidence, would raise a question of fact to be determined by the jury. In view of the very general use of dynamite as a commercial product, we are unable to apply, under all the circumstances, the rule announced by the Supreme Court in the Bradford case as applicable to nitroglycerine. One of the purposes in the manufacture of dynamite is to render the nitroglycerine used therein safer to handle, as well as more convenient, and in the. accomplishment of that purpose various percentages of nitroglycerine are used in dynamite; but -it will not do to say that because nitroglycerine in its liquid form is highly i dangerous and a constant menace to adjacent property, that all grades of dynamite, no matter hGw small the percentage of nitroglycerine therein, come within the language used by the Supreme Court in the ease to which reference has been made. One of the prime objects for manufacturing dynamite is to provide a less dangerous explosive than nitroglycerine, and to further that purpose nitroglycerine is mixed with some solid and absorbent inert substance such as sawdust, wood fiber, charcoal or a silicious earth, as is stated in the Encyclopedia Britannica. In defining the qualities of dynamite the Century Dictionary says that “The object of the mixture is to diminish the sensitiveness of nitroglycerine to slight shock, and so to facilitate its carriage without impairing its explosive quality.”

In a case where the evidence is such as is contained in the record .under review it must be left to the jury, under appropriate instructions, as to the liability of the company, and in determining this question the location and method of construction of the thaw house, the quantity of dynamite placed therein, the means employed to accomplish the thawing, and all other facts and circumstances bearing on the question of care or the want thereof by the company should be considered.

The most recent and exhaustive discussion which we have seen of the questions involved in this case may be found in 11 Ruling Case Law, beginning at page 651. An interesting case, fully annotated, shedding light on these questions is Henderson v. Sullivan, 16 L. R. A. (N. S.), 691, 159 Fed., 46. A ease involving a kindred question was carefully considered -by the Supreme Court of Alabama and is entitled Whaley v. Sloss-Sheffield Steel & Iron Co., 51 Southern, 419, 164 Ala., 216.

See also Barnes v. Zettlemoyer, 25 Texas Civil Appeals, 468, 62 S. W., 111; Derry Coal & Coke Co. v. Kerbaugh, 222 Pa. St., 448, 71 Atl., 915; Mayer v. Brudno, 16 C.C.(N.S.), 102.

In view of these authorities the language of the trial judge on the subject of liability constitutes prejudicial error.

On this same subject the gypsum company asked the trial judge to instruct the jury before argument, that if they found the explosion was the result of pure accident and without fault on the part of anybody, the verdict must be for the defendant. The court refused to so instruct the jury and in so doing committed prejudicial error.

The evidence introduced on the subject of damages related solely to the amount paid for repairs on the cars. The true measure of damages would not necessarily be the amount paid for repairs, but would be tbe difference between the value of the ears immediately before the damage and their value immediately thereafter. The reasonable cost of repairs may often shed light upon the extent of the damage and thus be competent evidence, but it is only competent as tending to show the difference in value of the cars before and after the explosion. It is manifest that in some cases ears after being thoroughly repaired might be less valuable or they might be more valuable than before they suffered damage, and this clearly shows that the reasonable value of the repairs may not indicate the actual damage. The charge of the court does not touch the subject of damages, but on a retrial of the case the rule indicated, that the true measure of damages is the difference in the value of the cars before and after the explosion, should be adopted.

The answer filed by the gypsum company contains various interrogatories to be answered by the railroad company. These interrogatories were answered in writing by that company under oath, and the paper containing the answers filed in court. On the trial of the case the railroad company offered in evidence its own answers to the interrogatories, and these were received, over the objection and exception of the gypsum company, except as to number two, which answer involves a conclusion. The General Code provides in Section 11350 that such answers, so far as they contain competent testimony on the issues, may be used by either party. The plain language of this section authorized the railroad company to introduce these answers as a part of the testimony in the case, in so far as the answers did not go beyond the interrogatories propounded. In the judgment of this court the answers were properly received except the latter portion of the answer to interrogatory number four, which answer contains matter not called for by any interrogatory.

The verdict was returned at one term of court and the judgment thereon not rendered until a later term, the trial court refusing to provide in the judgment as rendered that interest should be computed from the first day of the term at which the verdict was returned. This constitutes error to the prejudice of the railroad company, which has filed a cross-petition in error in this case. In cases where judgment is not rendered at the same term as the verdict is returned, the judgment creditor is not, by the delay of the court in rendering judgment, to be deprived of his right to interest and the judgment should, therefore, provide for interest from the first day of the term at which the verdict was returned, unless the action was brought during that term, in which event interest would be computed from the return of the verdict.

The petition filed in the common pleas court claims interest from the date of the damage to plaintiff’s property. In a case resulting in damage to personal property where the plaintiff is found entitled to recover, he is also entitled to interest to be computed from the date he suffers the damage. In personal injury cases, as this court has heretofore announced, interest is not properly allowed as such, but even in cases of that kind the lapse of time may be taken into consideration in assessing the damages to be awarded.

The judgment will be reversed and the cause remanded for new trial.

Chittenden, J., and Kinkade, J., concur. .


author: Farr, J.

text:
    APPLICATION OF THE STATUTE OF LIMITATIONS TO A JUDGMENT IN FORECLOSURE.
    Court of Appeals for Portage County.
    Mary J. Weenick et al v. M. C. Sluts.
    Decided, September 21, 1917.

      Foreclosure—Decree for, Has Attributes of a Judgment—Action Maintainable Within Twenty-One Years.

    Where in an action to foreclose a mortgage a decree is entered ordering that the mortgage be foreclosed, liens marshaled, priorities fixed, the amount due determined, the mortgage premises sold, the proceeds applied to payment of the indebtedness and execution awarded . for the balance due, such decree is in effect and has all the attributes of a judgment upon which, action may he maintained at any time within twenty-one years from the date it became dormant.

      A. S. Cole, for plaintiff in error.

      W. E. Holden and H. B. Loomis, contra.
   Farr, J.

This is an error proceeding prosecuted in this court from the judgment of the court of common pleas of this county.

On or about the-day of-A. D. 1894, Ranson H. Clark, as plaintiff, filed his petition in the Court of Common Pleas of Portage County against Mary J. Purring-ton, now Weeniek, and others for the foreclosure of a certain mortgage. On October 10, 1894, a decree was duly entered finding the amount of $1,441.44 due; a sale of the mortgaged premises was ordered, sale made, the proceeds applied to the payment of said claim, leaving a balance of $684.56, unpaid, and execution as at law was awarded for said balance, which execution was issued on October 13, 1896, and returned wholly unsatisfied; on September 9, 1897, said balance of $684.56 was by Ranson IT. Clark duly assigned to M. C. Sluts, the defendant in error here, who on August 3, 1916, filed a petition in the court below for revivor of judgment under favor of Section 11645, General Code. To this petition an answer was filed raising the issue of the bar of the statute of limitations of both ten and fifteen years under favor of Sections 11227 and 11221, General Code, and denying that any judgment had been rendered in said original action in foreclosure. In said action for revivor, a judgment was entered for plaintiff from which error is prosecuted in this court.

The prayer of the petition for foreclosure reads as follows:

“This plaintiff therefore prays that his said mortgage may be foreclosed, that the liens on said realty may be marshalled and adjusted and his .declared prior, superior and paramount to all other liens and claims; that the amount due him may be determined and a decree entered therefor; that said realty may ■be ordered sold, free from the claims and liens of all parties herein and the proceeds applied on this decree; and that he may have such other and further order, judgment and decree as equity permits and such complete, general and alternative relief as the nature of his case requires against each of defendants including execution for any balance remaining unpaid after exhausting the property.”

The decree entered on October 10, 1894, found the amount due, directed the foreclosure of the mortgage lien and in conclusion awarded execution as follows:

“It is further ordered that the plaintiff have execution as at law against the goods and chattels, land and tenements of the said Isabella M. Bullock Snyder and Mary J. Purrington for any balance remaining unpaid on this decree after exhausting the property.”

It is urged by plaintiff in error that the above entry in said foreclosure proceeding was not, in effect, a judgment, but only a decree in equity and was therefore barred by the statute of limitations in ten years by the provisions of Section 11227, General Code, or at most in fifteen years by the terms of Section 11221, General Code, and that it was not subject to the limitation of twenty-one years as to judgments under favor of Section 11648, General Code.

Was said decree in effect a judgment as defined by Section 115»2, General Code, which provides in part as follows:

“Section 11582. A judgment is the final determination of the rights of the parties in an action.” * * *

The prayer of the petition in foreclosure was that the mortgage be foreclosed, the liens marshalled, their priority fixed, the amount due determined and a decree entered therefor, the mortgaged premises sold, the proceeds applied to the payment of the mortgage indebtedness and such other and further order, judgment and decree as equity permits and such complete general and alternative relief as the nature of the case required including execution for any balance remaining unpaid after exhausting the property; all of which was granted and said decree also provided that plaintiff have execution as at law for any balance remaining unpaid. This was a full and complete determintion of the rights of the- parties and it was final. What else was there to determine or to be done in said proceeding between thel parties ? Tbeir rights and all of them were fixed and finally settled so far as that action was concerned, except execution be issued. It is urged, however, that said decree was not in effect a judgment in view of the holding in Doyle v. West, 60 Ohio St., 438, the first and second paragraphs of the syllabus of which read as follows:

“1. In a suit to foreclose a mortgage, there was a finding of the amount due and the usual order of sale, if not paid in a certain time named. There was no prayer for a judgment, and none was rendered, and no order for an execution for any balance that might remain after applying the proceeds. A sale was made and, after applying the proceeds, a balance of $102.21 remained. Held, That an action can be maintained on the finding for the recovery of this balance as a debt, evidenced by record.

“2. The statute of limitations was raised by demurrer; and it appearing from the petition that more than seventeen years had elapsed from the application of the proceeds, and no intermediate payments having been made. Held, That under our statute of limitations, the action is barred.”

The facts in the foregoing case are very similar to those in the case at bar. Like the instant case it was an action to foreclose a mortgage lien, but no judgment was sought and none rendered; there was no award of execution' for any balance remaining unsatisfied. Therefore there remained nothing further for the court to do, and this is one distinguishing feature in the ease at bar, and so was the case of Doyle v. West, supra, distinguished in the latter case of Graham v. Simon, 76 Ohio St., 77, the syllabus of which reads as follows:

“An action upon a judgment of a court of this state may be brought at any time within twenty-one years. Tyler’s Executors v. Winslow, 15 Ohio St., 364, followed; Doyle v. West, 60 Ohio St., 438, distinguished.”

It will be observed that in the case of Graham v. Simon, supra, the court elects to follow the early case of Tyler’s Excrs. v. Winslow, 15 Ohio St., 364, which had long been the controlling authority in this jurisdiction and in distinguishing said case of Doyle v. West, Shauck, C. J., observes in Graham, v. Simon, supra, page 81, as follows:

“In the suit to foreclose no personal judgment had been sought in the petition, nor was any rendered, nor was there even an award of execution for the satisfaction of any balance which might remain unpaid after applying the proceeds of sale.”

It is then further observed that the action in the case of Doyle v. West was for the recovery of a balance of the amount which the court had found to be the indebtedness, the finding having been made as the predicate of the decree of foreclosure to subject the mortgaged property, and then it is stated:

“And not affording to the creditor any executory remedy against the general property of the debtor.”

But such is not the case at bar, because the court awarded) an executory remedy by way of execution, and this clearly dis-\ tinguishes the instant case from that of the above case of Doyle v. West. It is true that in the above case of Graham v. Simon, the action was based upon a judgment and there was no dispute as to the form and which carried with it the executory remedy; likewise in the case at bar the same remedy was awarded, giving it at once the force and effect of a judgment and distinguishing it from the case of Doyle v. West. Therefore, the decree entered, in the case at bar had all the attributes of a judgment. It found the amount due and supplied as above observed the executory remedy to satisfy the same. It is conceded that if said decree is in fact a judgment that the execution issued on October 13, 1896, saved it from the operation of the statute of limitations of twenty-one years as provided in said Section 11648, General Code.

It must be held, therefore, in view of the foregoing that said decree was in effect and in fact a judgment, and that the present action to revive the same is not barred by the statute of limitations, and the judgment of the court below is affirmed.

Pollock, J., and Metcalfe, J., concur.'


author: Bichards, J.

text:
    GOOD FAITH ON THE PART OF PRINCIPAL TOWARD THE SURETY FOR. HIS AGENT.
    Court of Appeals for Lucas County.
    Horatio N. Jex and Adelaide M. Jex v. Jewel Tea Co., Inc.
    Decided, June 27, 1917.

      Surety for Agent—Where the Guaranty is Continuing—Not Liable for Embezzelments of Which the Employer Had Knowledge.

    An employer who holds a continuing guaranty signed hy sureties to secure the faithful performance of the duties of his agent, and acquires knowledge that his agent is embezzling funds collected for the employer and conceals the information from the sureties, can not hold them liable on the guaranty for funds received and misappropriated hy the agent after the employer had knowledge of his guilty conduct.

      L. M. Murphy and A. J. Groll, for plaintiffs in error.

      Smith, Baker, Effler & Allen, contra.
   Bichards, J.

Error to the court of common pleas.

The plaintiffs in error became sureties in 1910 on a bond in the amount of five hundred dollars given to guaranty the faithful performance of the duties of one "Walter Frank Dieterle who was an employe of the Jewel Tea Company. Among the duties which devolved upon the employe was the collection of money from customers, aggregating twenty-five to seventy-five dollars per day, and making a daily report of such collections and turning in the funds so received by him.

The employe having converted to his own use and.embezzled large sums of money aggregating more than sixteen hundred dollars, an action was brought against the sureties on the bond to recover the amount thereof. On the trial of the case in the court of common pleas a verdict was directed for the plaintiff, at the close of all the evidence, for the amount of the bond. Error is prosecuted to this court, the errors relied on being the introduction of incompetent evidence and the action of the court in directing the verdict.

One of the exhibits which was offered in evidence was manifestly not admissible, but no exception was taken to its admission and the action of the court, therefore, can not be relied on as error in this court.

The important question for determination in this case is whether the trial court was authorized to direct a verdict in favor of the plaintiff. Evidence was offered tending to show that in 1910 or 1911 the agent Dieterle had received and appropriated to his own use from two hundred and fifty to three hundred dollars of his employer’s money. Captain Jex, one of the bondsmen, had no knowledge whatever of this condition of affairs, but it was known to the employer. The amount of that defalcation was subsequently made good by the employe, Dieterle. The evidence tends to show that in 1912 Dieterle again misappropriated funds of his employer, but on this occasion the facts were communicated to Captain Jex but were not known to the company. In the years 1913 and 1915 the amounts embezzled increased very largely and late in the year 1915 the employer, becoming aware of the situation, caused the arrest of Dieterle and he was tried and convicted of embezzlement. It notified the two sureties of the defalcation in 1915 and subsequently 'brought this action on the bond.

It is urged by the sureties as a defense that the company fraudulently concealed the information which it had as' to the defalcations of Dieterle, and that by reason of such action of the employer the sureties are released from the indemnifying bond. The evidence contained in the bill of exceptions is not very clear nor explicit as to precisely the time when these various defalcations occurred, nor as to the precise amounts thereof, except that it appears that the amount which he had misappropriated and which remained unpaid in November, 1915, was $1,-645. ;

The sureties on the indemnifying bond were entitled to the exercise of the utmost good faith on ,the part of the employer of Dieterle, and if such good faith was not exercised we apprehend the true rule of law is that the sureties-would be discharged,'

The law applicable to such cases is stated in 2 Brandt on Surety-ship and Guaranty (2d Ed.), Sections 423 and 424, to be that where there is a continuing guaranty for the honesty of a servant, if a master discovers that the servant has been guilty of dishonesty in the course of the service and continues him in such service without the knowledge of the guarantor, the guarantor is released from the liability to make good any loss which may arise from the dishonesty of the servant during the subsequent service, and the employer is held to impliedly stipulate that he will not knowingly retain the employe in his service after a breach of the guaranty justifying his discharge and if he does do so, without the knowledge or consent of the surety, the surety will be exonerated. The learned author states in the first section cited that if the dishonesty had existed before the surety became bound and the master had concealed it, the surety would not have been liable, and that the cases are the same in principle.

'To the same effect is Estate of Michael Rapp v. Phoenix Insurance Co., 113 Ill., 390; Delbridge et al v. Lake, H. P. & C. B. & L. Assn., 82 Ill. App. Court Rep., 388; Roberts et al v. Donovan et al, 70 Cal., 108.

The ease of Watertown Fire Insurance Co. v. Simmons et al, 131 Mass., 85, has been thought by some authorities to lay down a different rule, but a careful examination of that ease will show that the court held that, however irregular or negligent the agent had been, he was not guilty of any defalcation or other dishonest or fraudulent conduct, and by reason thereof no duty rested on the creditor to use active diligence to protect the sureties, and that they were not discharged. A fair implication to be drawn from the opinion of the court in the case just cited leads to the conclusion that the Massachusetts court would have held, if they had found that the agent was guilty of fraudulent or criminal conduct and that this fact was known to the employer and concealed by it from the sureties, that the sureties would have been discharged.

It has been held in Ohio in Dinsmore, Trustee, v. Tidball, 34 O. S., 411, that if an employer obtain security for the faithful performance of the duties of an agent, knowing at the time that such agent is a defaulter, and fail to disclose the fact to the surety, thereby inducing the surety to execute the bond of indemnity, then such employer can not recover of the surety.

See, also, Smith v. Josselyn, 40 O. S., 409. In this latter ease the trial court had directed a verdict for the plaintiff against the sureties after there had been some evidence tending to show that the agent had been guilty of culpable carelessness while in the employment of the plaintiff and before the giving of the bond sued upon, and that the plaintiff had knowledge of this conduct and had failed to communicate the same to the sureties. The Supreme Court held under these circumstances that these were matters of fact which- should have been left to the jury to be determined. While these Ohio cases arose where the fraudulent or criminal conduct occurred before the giving of the bond, the case is the same in principle as if the fraudulent or criminal conduct occurred thereafter, providing the facts were known to the employer and concealed from the surety.

In view of the fact that the judgment must be reversed and the case remanded for a retrial, we will follow our usual practice and not go into a review of the evidence but content ourselves with stating that sufficient evidence was introduced to require a submission of the case to the jury for its determination.

The judgment will be reversed and the case remanded for new trial.

Chittenden, J., and Kinkade, J., concur.


text:
    DEFENSE OF FRAUDULENT REPRESENTATIONS IN INDUCING EXECUTION OF LEASE.
    Court of Appeals for Lucas County.
    The Nasby Building Company v. The Walbridge Building Company.
    Decided, June 19, 1916.

      Lease—Election of Lessor to Demand Payment of Accrued Rent—Not Waiver of Right to Insist on Forfeiture and Recovery of Possession—Defenses—Application of the Statute o fLimitations Thereto.

    1. Where a lease has been forfeited for non-payment of rent, the lessor does not waive his right to enforce the forfeiture hy filing a cross-petition setting up his claims under a mortgage, nor hy demanding judgment for accrued rent, nor by procuring the appointment of a receiver in the foreclosure action, who collects the rents and holds them subject to the order of the .court.
    2. Statutes of limitation have no application to defenses not involving set-off or counter-claim.

      Rowell, Roberts <& Duncan and Geer & Lane, for plaintiff in error.

      Tracy, Chapman & Welles, contra.
   Richards, J.

In the court of common pleas the Equitable Life Assurance Society commenced an action for the foreclosure of á mortgage of one hundred and thirty-seven thousand dollars executed by the Walbridge Building Company. Among the defendants was a corporation known as the Nasby Building Company, which latter company had become the lessee of the premises involved, known as the Nasby Building in the city of Toledo, for a period of ninety-nine years from the 1st day of January, 1909. 'The Walbridge Building Company filed a cross-petition setting up, among other things, that the lessee, the Nasby Building Company, had obligated itself to make the payments provided for in the mortgage already mentioned, and in addition had agreed to pay to the Walbridge Building Company the sum of thirteen thousand dollars by an unsecured obligation, and had agreed to pay also in installments certain rent for the premises. The Walbridge Building Company further averred that the Nasby Building Company was in default on making sundry of these payments upon the mortgage and on the rent, and was also in default in failing to make the payment of the thirteen thousand dollars indebtedness. A receiver was appointed in the court of common pleas who took charge of and has been collecting the rent on the premises. Thereafter the Walbridge Building Company filed an amended and supplemental cross-petition making many of the same averments which were contained in its original cross-petition, and certain other averments in addition thereto showing that it was entitled to the possession of the premises in controversy, and praying that the lease and all the rights and interest of the Nasby Building Company under the same be declared forfeited and possession awarded to the cross-petitioner. To this last pleading the Nasby Building Company filed an answer admitting substantially all of the material averments contained in the amended and supplemental cross-petition, and denying other averments, and concluding its pleading by allegations of fraudulent representations on the part of the Walbridge Building Company which induced the Nasby Building Company to enter into the lease made in December, 1908. The Nasby Building Company avers that by reason of these fraudulent representations it has been damaged in the sum of one hundred and twenty-five thousand dollars for which amount it asks a finding and judgment against the Walbridge Building Company.

Numerous motions and demurrers were made and disposed of in the court of common pleas and thereupon the Walbridge Building Company moved for judgment in its favor against the Nasby Building Company upon the pleadings, which motion was, on consideration, granted by the trial court and a judgment rendered excluding the Nasby Building Company from the possession of the real estate in controversy and awarding the same to the Walbridge Building Company “free and clear of any and all claims of said, the Nasby Building Company, on account of any of the matters and things set forth in the pleadings heretofore filed herein.” 'To this judgment the Nasby Building Company prosecutes error.

It is insisted that the judgment of the trial court is wrong for the reason that the Walbridge Building Company, having in its original cross-petition elected to demand payment of the rent which had accrued, and having procured the appointment of a receiver who had taken possession of the property, had thereby waived the right to insist on a forfeiture of the lease and to recover possession of the premises by reason of default in making the payments ‘ stipulated therein. We can not accede to this contention. This branch of the ease is within the principles announced by Judge Hoadly in the case of Campbell v. McElevey, 2 Disney, 574, and does not fall within the terms of Owen v. Hickman, 2 Disney, 471. The receiver is simply collecting the rent and holding the same subject to the order of the court.

Counsel further insist that the cross-petitioner is not entitled to recover the premises because of failure to make demand and give proper notice to justify a forfeiture of the lease. It is a sufficient answer to this contention that the lease itself waives these requirements, and those provisions we hold to be valid.

The most important question in this case is the one raised as to the application of the statute of limitations to the contention made by the Nasby Building Company that the lease was induced by means of fraudulent representations of the Walbridge Building Company. Those representations, whatever they were, appear to have been made in December, 1908. 'The petition for the foreclosure of the mortgage in this case was filed in April of 1915, and the amended and supplemental cross-petition of the Walbridge Building Company was filed on August 21, 1915. The Walbridge Building Company by reply set up the statute of limitations of four years, and insists that any claim made on account of fraudulent representations is barred by that statute. The court of common pleas sustained this contention and for that reason entered the judgment already stated. It will be noted from the pleading filed by the Nasby Building Company that it does not ask for the cancellation or rescission of the lease by reason of the claimed fraudulent representations, but asks only for damages resulting to it by reason of such claimed fraud. The principle of law that defenses are held not to be barred by the statute of limitations is one which is well established by the authorities and is founded on reason. 'The rule is succinctly stated in 17 R. C. L., 745, and in 25 Cyc., 1063, and is applied in Hart v. Church, 126 Calif., 471; Butter v. Carpenter, 163 Mo., 597; Williamson v. Brown, 195 Mo., 313 and Pinkham v. Pinkham et al, 60 Neb., 600, 611. Manifestly the purpose of the statute of limitations is, as has been well said, to bar actions and not to suppress or deny matters of defense whether equitable or legal. The lease provides not only for the payment, but it contains appropriate provisions for the payment of the mortgage indebtedness held by the Equitable' Life Assurance Society, and the allegations of the pleadings show that the defendant has violated its obligation in that regard as well as its obligation to pay the rent to the Walbridge Building Company and to pay to the latter company the unsecured indebtedness of thirteen thousand dollars. In view of the fact that the Nasby Building Company does not claim a rescission or cancellation of the lease on account of the alleged fraud, but seeks only to recoup damages by reason thereof, if the judgment in the court of common pleas had proceeded only to the extent of adjudging that the Walbridge Building Company was entitled to the possession of the premises, it would be free from prejudicial error; but it goes much farther than simply to adjudge the possession of the premises to that company, and decides that that company shall hold the premises free and clear of all claims of the Nasby Building Company on account of the matters averred in the pleadings. We have already seen that as to some of these claims, the claim for damages set up by the Nacy Building Company is purely defensive and is not barred by the statute of limitations. ,

The judgment will be reversed and the cause remanded for further proceedings according to law.

Chittenden, J., and Kinkade, J., concur.