text:
    (First Circuit — Hamilton Co., O., Circuit Court
    Febr. Term, 1885.)
    Befobe Judges Cox, Smith and Swing.
    Jennings, Ford & Co. v. Calvin Haynes.

      JSvidence — Competency of— Waiver.

    Error to the Common Pleas Court of Hamilton County.

      Paxton & Warrington, for plaintiffs in error.

      Wallace Burch, and Hancock & Knowlton, for defendant in error.
   Smith, J.

1. Their being evidence tending to show that Jennings, Ford & Co. expressly referred Haynes, the plaintiff, to Alex. Ford for information as to a claim which Haynes was asserting against the firm, and which they were disputing, and agreed to pay it if Alex. Ford said it was right and would not pay it himself, held, that what Alex. Ford said in answer to such inquiry as to the matter so referred to him, was admissible as evidence against Jennings, Ford & Co. (1 Green-leaf on Ev., Sec. 182).

2. Where a question was put to a witness as to what Ford said in answer to such inquiry, and it was objected to by Jennings, Ford & Co. before it was answered, the court properly overruled the objection. If any answer shown to have been made by Ford was incompetent, the defendant should have moved to exclude the incompetent parts, and on failure to do so, cannot afterwards claim it to be incompetent.

3. Where the question is, whether the plaintiff was acting in the employment of the defendants in the purchase of hogs, and has introduced telegrams to himself from the defendants, instructing him to buy divers lots of hogs for them at various times, and defendants offered to introduce other telegrams of like tenor and effect from themselves to other persons, not in . their employ, but in the employ of another, of which plaintiff had no knowledge, held, they were properly excluded.

Judginent affirmed.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    (First Circuit — Hamilton Co., O., Circuit Court
    Febr. Term, 1885.)
    Before Judges Cox, Smith and Swing.
    McKemy v. Goodall, Ex’r; Thompson v. Same.

      Practice — Petition on Account consisting of one or more Items.

    1. A petition on an account in the short form, authorized by sec. 5086 of the revised statutes, is good as against a general demurrer, when the account attached to the petition consists of one or more items which are the proper subject of a book account, and of other cash items, which are not, ordinarily, the subjects of such an account. — And that in such a case, the proper practice for the defendant, if he objects to such cash items as not the proper subject of such an account, is to demur to the particular items, or to move to strike them out, and to answer as to the others.
    2. In such a petition, on such an account, if it be alleged that the cash items therein were made the subject of such account with the assent, or by the agreement of the defendant’s testator, it is not open to objection by demurrer or motion, on the ground that the said cash items are not the proper subject of book account.
    8. A petition alleging that the defendant, as executor, was indebted to the plaintiff, in a certain sum for money loaned to the defendant’s . testator in his life-time at his request, and for money had and received by him, and an account is attached to the petition as an exhibit, consisting of two items of cash, of large amounts, loaned by plaintiff to the testator, and of an item of cash advanced to another person at his request, states a good cause of action, and though the petition might be open to objection, on the ground that several causes of action are set up in one count, held, that the court could not, on motion filed by the defendant, properly strike from the petition the allegations as to the loan of money and money had and received, and then dismiss the action at plaintiff’s costs against his exception.
    Error to the Court of Common Pleas of Hamilton County.
   Smith, J.

The two cases of J. C. McKemy against Wm. Goodall, Ex’r of the will of W"m. A. Beatty, deceased, and of F. B. Thompson against the same defendant, were argued together, and though they do not really involve the same questions, they are somewhat similar, and we will dispose of them together.

J. C. McKemy brought his action in the common pleas court against the defendant, to recover a balance of $1,759, alleged to be due him from the defendant as executor, on an account, a copy of which was attached to the petition, and this paper purports to be an account between the plaintiff, an attorney at law, and. Beatty, commencing Nov. 30, 1880, and closing July 11, 1881. There are 19 items on the debit side of the account — one of them is a charge of $500 for attorney fees — the other eighteen are cash items, ranging in amount from $5 to $385, and these cash items aggregate $2,023.75. The credits given are six in number — one for $12.25 is for corn furnished him, and the other five for cash paid, and ranging in amount from $10 to $650, and the cash items aggregating $848.24.

To this petition a general demurrer was interposed by the defendant, which was sustained by the court. Leave to amend the petition was granted, and an amended petition filed, containing the same allegations as the original, and this additional one, viz., “ that the several items of cash in said exhibit A, were entered in said account and made the subject of book account, with the knowledge and assent of said decedent, William A. Beatty.”

This additional averment was by the court, on motion of the defendant, stricken from the amended petition; and the defendant then moving for judgment on the pleadings, the petition and amended petition were by the court dismissed at the costs of the plaintiff — to all of which rulings the defendant excepted, and filed his petition in error to reverse said judgment, claiming that there was error in each of said rulings.

The questions thus presented for our decision are these: First — Whether a petition in the short form, authorized by sec. 5086, of the revised statutes, on an account like that in this case, is good as against a general demurrer — and, if not, whether the additional averment to which I have alluded, makes it so.

The reason for the law which allows this short mode of pleading on an account, is manifest. If each item on the debit side of a running account is to be made the subject of a separate cause of action, it would be too expensive and burdensome to be borne. The statute, therefore, very properly, in a case in which there is a series of dealings between parties ordinarily made the subject of a book account, allows the account to be treated as if all of the matters embraced in it were had under a single arrangement. If it is manifest on the face of the account itself, or when it is taken in connection with the statements of the pleading to which it is attached, that all of the items are such as aré not the proper subjects of a book account, we think a demurrer thereto would be properly sustained. If, however, but a part of the items were open to this objection, we tkink that a demurrer to the whole petition would not lie, and that the proper practice would be to demur to such items, or to move to strike them out.

It is claimed, however, by the counsel for plaintiff in error, that this is not a question of pleading, but one of evidence; and that the proper and only time to determine whether an item of the account is of that character, is when proof is offered in regard to it — that the court cannot, as a matter of law, say on a simple inspection of an account, whether any of the items are objectionable on this ground.

We admit the correctness of the doctrine claimed, that what are the proper subjects of a book account is to be determined by the facts of the particular case, and may well vary with the nature of the dealings between the parties, and any arrangement or custom that may have existed between them, as to their mode of dealing with each other, and the keeping of their accounts — yet the law being undisputed, that, as a rule, large items of cash are not usually evidenced in this way, and therefore in general, not proper subjects of such accounts, we think if the action of the court is properly invoked on the pleadings in the case, that the law must so be held, and that unless it is apparent from the examination of the account itself, or from the averments of the pleading, that under the circumstances of that particular case, such items are proper subjects of account, they should be held to be improper and stricken out. Of course it may be difficult to determine from an inspection of the account alone, what, for instance, are large items of cash, and, therefore, objectionable in an account. But it is a judgment which has to be exercised at some stage of the case if the question is raised, and perhaps it may as well be done before the trial on the pleadings, as afterwards when the proof is offered. And, therefore, we think, that if the propriety of the items does not sufficiently appear on the account itself, it should be supplemented by statements in the pleadings which show that- they are proper.

We think the views which we have expressed are in accordance with the statements of Judge Swan in his work on Pleadings and Precedents, page 183. He says: “ The account mentioned in this section (5086) is such as usually forms the items of charges in accounts, and occurring under such circumstances as to be the proper subject of book accounts.” * * * The items and the nature of the dealings must have been such, that if regularly charged, they would have been the proper subject of book account — if they are not, the defendant may demur, or move to strike them out. If some are proper and some not, the defendant should answer as to the former, and may demur to the latter, for each item becomes for this purpose an allegation of an indebtedness by sale and delivery or otherwise, according to the nature of the claim. After verdict, however, the court will presume that the improper items were charged to account by the agreement of the parties.”

Our conclusions then are : 1. That in this case the petition was founded on an account, one item at least of which, on each side, was the proper subject of a book account, and that the demurrer to the petition should not have been sustained. But as an amended petition was filed which contained all the allegations of the original, and others in addition, the plaintiff can not now avail himself of that error.

2. That the amended petition on its face showed that the cash items of the account were proper in that case, and therefore that the action of the court in striking therefrom the additional allegations as to the assent of the testator to that item, being charged on that account, and in then dismissing the case, was erroneous, and that for this reason the judgment would be reversed with costs, and the case remanded to the common pleas court for execution as to costs, and to be further proceeded with, as provided by law.

In the case of Thompson against the same defendant, the original petition alleged that the defendant, as executor of the will of Beatty, was indebted to the plaintiff on an account, a copy of which was attached, in the sum of $936.50. From the annexed account it appeared that it contained but three items of charges, and no credits. One was for cash loaned Beatty, Oct. 10, 1882, $500. One for cash advanced Mrs. Schnider at the request of Beatty on the same day, $19.25, and the third was for cash loaned Beatty, Oct. 29, 1882, $400.

Afterwards the plaintiff voluntarily, on leave, filed an amended petition, alleging that the defendant as executor was indebted to him in the sum of $936, for money loaned to said Beatty, and had and received by him in his life-time, at his request, and then followed this language: A statement of said claim is hereto attached maked exhibit A,” which exhibit is a substantial copy of that attached to the original petition.

A motion was thereupon made by the defendant to strike from the amended petition the words, “for money loaned to said Beatty, and had and received by said Beatty in his lifetime,” on the ground that they were irrelevant, and a departure from the original petition, which motion was sustained by the court, and the petition and action dismissed with costs, to which judgment the plaintiff excepted.

We are of the opinion that the amended petition was not intended as a^pleading under sec. 5086. It is more in the nature of a claim for recovery on the common counts for money loaned and had and received, with a bill of particulars as to the amounts and times of the transactions. And we think that such a petition, stating a loan of money by a plaintiff to a defendant at|his request, and that it is due and unpaid, or fhat defendant is indebted to him therefor, clearly states a good cause of action, and in the language of Judge Swan in the same work quoted before, page 177, is beyond the reach of objection by^motion or demurrer, and such we understand to be the conclusions of Judge Nash and- Mr. Bates in their respective works¡jon Pleadings.

These allegations are made in this case by the amended petition, and though it may be open to the objection (not being founded on an account) that it states several distinct causes of action in one count, no objection of this kind was made. We do not think the language inserted in the amended petition, andj stricken out by the court, was irrelevant, for when inserted it made that good which might have been defective before. Nor was it a departure from the original claim sued on. The plaintiff simply seeks in a different manner to recover on precisely the same demand. We think the words in question should not have been stricken out and judgment rendered for the defendant, and the game judgment will be rendered in this as in the McKemy case.

Stallo, Kittredge and Wilhy, for plaintiffs in error.

McDougall & Longmrth, for defendants in error.


text:
    (First Circuit — Hamilton Co., O., Circuit Court
    Febr. Term, 1885.)
    Before Judges Cox, Smith and Swing.
    Sophia Windhorst v. Wm. Wilhelms, Adm’r, with the Will annexed of Catharine Wilhelms, dec’d.
    1. An action to compel the return of an insurance policy, assigned under duress, is not triable by jury.
    2. An insurance policy on the endowment plan, on the life of the wife for the benefit of her husband if she should die within fifteen years and he be then living, or if both dead, to go to their children, and if she survive after fifteen years the amount to be paid her absolutely; and the husband dies before the wife and before the fifteen years expire, the wife then obtains before the expiration of the fifteen years, such an interest on the policy as is the subject of assignment or transfer by her.
    3. Where a motion for a new trial was filed, the overruling of the same must appear on the journal of the court and on the transcript of the entries, unless it appears that the motion was filed several days before entry of judgment. — [Ed.]
    Error to the Superior Court of Cincinnati.
   Smith, J.

1. The original action was one brought to compel the return to the plaintiff of a policy of insurance on her life, of which she claimed to be the owner, and which she says was wrongfully detained from her by the defendant, who asserted a claim to it by assignment from her, which she asserted was obtained by duress and without consideration, and the prayer of the petition was that the defendant be compelled to transfer to her, in writing, free from any pretended claim of his upon it. This was not an action for the recovery of money or of specific personal property, in the meaning of section 5180 of the revised statutes, and a trial by jury was properly refused in the superior court.

2. A promise by tbe holder of a note, made during coverture by a woman and her husband since deceased, to forbear proceedings to collect the same against her and the estate of her deceased husband, is a good consideration for an assignment of an insurance policy as collateral to the debt, though the estate of the husband is insolvent, and there may be a question as to whether the woman was liable on the note.

3. Where the policy of insurance so assigned is one on the endowment plan on the life of an assignor, then a married woman, for the sole benefit of her husband if she should die within 15 years and he be living at her death, and if not, the policy to be paid to their children, but if she should survive for 15 years, then the amount to be paid to her absolutely; and the husband dies before the wife, she has before the expiration of the 15 years such an interest in the policy as is the subject of assignment and transfer, unless the law places policies of insurance of this character on a different footing from other property or rights in action. The statute of this state, in force at the issuing and during the running of this policy, provided for the insurance by the husband of his own life for the benefit of his wife, and the proceeds to be free from the claims of his creditors to a certain amount, and for the insurance by a wife with her separate means of the life of her husband for her own benefit, free of the claims of his creditors —and on statutes substantially similar, the courts'of New York have held such policies non-assignable before maturity, on the ground that it was the object of the law to make provision for the family of the insured. This policy is not of either class, and we think, does not come under the terms of the statute, and the doctrine of the New York cases is not followed by the courts of some of the other states, and should not be followed in this case. (See Bliss on Life. Insurance, sec. 341, andy>os£).

The policy having become absolute in favor of the plaintiff by her living beyond the term of fifteen years, her assignee is entitled to the proceeds of it as.a security for his debt, according to the terms of the assignment.

4. Where the tanscript of the journal entries, filed with a petition in error, shows a motion for a new trial duly filed, on the ground that the finding is against the evidence, and never disposed of by the court, but a bill of exceptions taken purporting to contain all the evidence, and a certificate by the trial judge that a motion for a new trial was filed and overruled, this will not take the place of the journal entry. Such overruling to be effectual must appear on the journal of the court, and can be shown only by a transcript therefrom ; R. S., sec. 4962. The office of a bill of exceptions is to bring upon the record what otherwise could not properly appear there, and it cannot take the place of the journal entry. (26 O. S., 463; 27 O. S., 597). Another case is cited in 3 Dig., 474. In such case the petition in error to reverse the judgment should be stricken from the docket, on the ground that the original action is still pending in the trial court. But if it appear that the motion, according to the transcript, was filed several days before the judgment was in fact entered, the reviewing court may treat the filing of the motion for a new trial as a nullity. Affirmed with costs.

Logan & Slattery, for plaintiff in error.

W. A. Hides & H. B. Turrill, for defendant in error.


text:
    (First Circuit — Hamilton Co., O., Circuit Court
    Febr. Term, 1885.)
    Before Judges Cox, Smith and Swing.
    John Geller v. Barbara Puchta.

      Mechanic’s Lien — Filing Copy of Account — Interpleader—Proper Parties.

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

1. The motion of plaintiff to dismiss the appeal, on the ground that it was not authorized by the defendant, was properly .overruled on the evidence, which shows that'it was appealed at her instance, though she did not sign the bond.

2. Geller sued Puchta before a justice of the peace, to recover money had and received. On an appeal, he filed a petition alleging that the defendant had contracted with Belmont & Overbecke to build a house for her; that the plaintiff had furnished Bélmont & Overbecke labor and material used in said building under a contract with them; that there was due him, April 11, 1884, therefor $130; that not being paid on August 11th, 1884, he furnished the defendant a sworn and itemized statement of his account, and that defendant then detained and still detains of the amount due or to become due to B. & O. more than sufficient to pay his claim; that his account against B. & O. was not disputed by them within ten days thereafter, and that they have therefore under section 3199, R. S., assented to the correctness of the account, but on demand they refuse to pay; that the money being due from her to B. & 0., he demanded payment of her, which was refused. No copy of such account is stated to have been filed in the recorder’s office, and there is no allegation that B. & O. were notified hy defendant of the filing of such account within five days, both of which are required by the statute, sections 3195 and 3199, R. S.

Before answer to this petition, the defendant filed an affidavit under section 5016, R. S., that Belmont & Overbecke, without collusion with her, claimed the money, and that she was willing to pay or dispose of it as the court should order. Belmont & Overbecke were notified to appear and maintain or relinquish their claim. They appeared and were made defendants, and Puchta, having paid the money into court, was dismissed from the action. In this there was no error. The action was one founded on contract, viz., for money had and received, and though provided for by statute, was dependent on the contract between the owner and the head contractor. (Braen on Mechanic’s Liens, sec. 58.)

The same course might have been adopted by the defendant before the justice of the peace, by virtue of section 6705, revised statutes, which provides that the provisions of the code of procedure in courts of common pleas, which are in their nature applicable to the proceedings before justices, and in respect to which no special provision is made in the justice’s act, shall be applicable to proceedings before justices of the peace. But if this be not so, still the courts of common pleas, on appeal, may allow such procedure, on proper terms as to costs.

In this case, as Belmont & Overbecke, the head contractors, had not been notified of the filing of the claim, they were proper parties to an action brought by Geller to enforce his lien acquired on the fund by the service of notice. The head contractors not having expressly or impliedly assented to the correctness of the claim of Geller, his lien on the fund was only for the amount actually due him from them, or for his pro rata share of it, under the provisions of the statute. And the amount of his claim against them, and therefore against the defendant, as the foundation of his lien on the fund, might well be determined in the action brought by him to subject it to his claim. And the action of the court of common pleas in bringing the parties before the court to have the whole controversy settled, was right. Affirmed with costs.

S. M. Johnston, for plaintiff in error.

Qlement Bates, for defendant in error.


text:
    (First Circuit — Hamilton Co., O., Circuit Court
    Febr. Term, 1885.)
    Before Judges Cox, Smith and Swing.
    Henry M. Cist, Adm’r of Wm. Finnell, Dec’d, v. Samuel Beresford, Sheriff.

      Execution — Order of Sale — Death of Party-Plaintiff or Defendant — Abatement of Action — Ptevival.
    When a personal judgment, or a decree for the sale of specific real estate, is taken, and the plaintiff dies before the sheriff or other officer levies the writ ofjjexecution, or seizes and appraises the specific real estate under the order of sale, the action must be revived in the name of the personal representative of such plaintiff, before the writ or order of sale can be executed.
    On petition for writ of mandamus.
   Smith, J.

On January 31st, 1871, Finnell obtained in the court of common pleas a decree against P. M. Kennedy and wife, that they were indebted to him in the sum of $596, and that he had a lien for its payment on certain real estate, and adjudged that unless they did pay in three days, an order issue to the sheriff, commanding him to appraise, advertise and sell the réal estate as on execution at law, and make due return of his proceedings. The case was then left off of the trial docket, and has since remained off in accordance with sec. 5132.

Judge J. A. Jordan and Henry M. Cist, for plaintiff.

McDougall & Longworth and Moulton, Johnson & Levy, contra.

Finnell died November 1, 1876, and Cist was appointed administrator of his estate soon thereafter. The action has never been revived in his name, nor the death of the plaintiff suggested on the record. On February 2, 1885, the clerk, on the application of the administrator, issued an order of sale on the decree, and the sheriff appraised the property and advertised it for sale. On February 9th, 1885, the common pleas court, on motion of the defendant, made an order that the order of sale be recalled. The sheriff, though he still holds the order of sale, refuses further to proceed under it, and the court is asked to require him by a writ of mandamus to proceed and sell the real estate. On demurrer to the petition, showing these facts, the court held :

That it is the law of Ohio, that where an execution (which includes an order of sale on a decree) comes into the hands of a sheriff to be executed, and he either levies the execution or appraises the specific property under the order of sale, and then either the plaintiff or defendant dies, the officer can proceed fully to execute the command of the writ, and for this purpose, if necessary, an alias or pluries writ may issue and be executed, and this on the ground that an execution is an entire thing, and cannot be superseded after it is begun. 1 O., 467; 2 O., 287; 5 O., 221; 24 O. S., 542 ; 24 O. S., 445; 16 O., 563. But the effect of a simple decree of this kind is not the same. And if the plaintiff or the defendant die before the issue of an order of sale, the action abates and must be revived in the name of the personal representative of a deceased plaintiff, before an order of sale can properly issue. 35 O. S., 430.


author: Swing, J.

text:
    (First Circuit — Hamilton Co., O., Circuit Court
    Febr. Term, 1885.)
    Before Judges Cox, Smith and Swing.
    The Pittsburgh, Cincinnati & St. Louis Railway Company v. Joseph Peters.

      Duty of Person Crossing Sailroad Track — Contributory Negligence.

    1. Generally, a person who is about to cross a railroad track, must use bis senses to ascertain whether a train is approaching the crossing, and if he fails to do so, and suffers injury in crossing the track, he is guilty of contributory negligence.
    2. Abstractly, under some circumstances a person is excused from using his senses to ascertain whether a train is approaching, but to render this rule applicable to any particular case, the facts and circumstances which excuse the plaintiff must be put in evidence.
    3. Where there is contributory negligence, the plaintiff can not recover, although his negligence is slighter in degree than that of the defendants.
    Error to the Court of Common Pleas of Hamilton County.
   Swing, J.

The plaintiff, Joseph Peters, was injured in September, 1877, at Delta Station, in the eastern part of Cincinnati, by collision with a locomotive of the railway company.

The testimony introduced by Peters showed that about seven o’clock in the evening of September 6th, 1877, he was talking with some friends, on the south side of Eastern Avenue, opposite Delta Station, when a train from the city, going east, arrived at the depot and came to a halt. Peters, desiring to see a friend whom he expected to come on the train, started to go across to the station. The station being on the north side of the track, he was obliged to go north-eastwardly, going around in front of the locomotive of the eastbound train, and he testified that, before he started to go across, he looked to see if a train was approaching from the east. There is a double track at that point, and he crossed the south track to a point between the two tracks, and walked westwardly a number of steps before turning to cross to the north side of the north track. He then stepped upon the track to go across, without looking again, and was struck by a locomotive of a train going west to the city.

There was testimony tending to show that the train was going at a considerable rate of speed, that it failed to give the proper signals, and that the engineer was not giving proper attention to the movement of his train.

There was evidence tending to show that the engines of two dummies, standing at the station on the narrow-guage track, were making'smoke and noise, and that the locomotive of the east-bound train was making smoke.

The court charged the jury that the plaintiff would not be negligent if he did not look and listen before attempting to cross the track, if a man of ordinary prudence would have omitted to do so. The court also charged the jury that, even though the plaintiff were guilty of some negligence, the defendant would he liable, if guilty of a greater degree of negligence. The plaintiff had a verdict for $3,500, upon which judgment was entered.

This court held :

First — That upon the plaintiff’s own showing, he was guilty of contributory negligence, which precluded a recovery; that it is the duty of one about to cross a railway track to use his senses to ascertain whether a train is approaching; and that when he attempts to cross without making such use of his senses, and suffers injury thereby, he cannot recover against the railroad company, notwithstanding its negligence.

Second — That it was error to charge the jury that the plaintiff could recover if he were guilty of a slighter degree of negligence than the defendant.

Third — That the charge of the court to the effect that a person about to cross a railway track may, under some circumstances, be excused from using his senses to ascertain whether a train be approaching, was correct as an abstract proposition of law, but that to render it applicable to any particular case, the circumstances relied upon to show an excuse for the ■plaintiff’s failure, must be put in evidence by him, and that in the present case no excuse was shown for’the omission upon his part, and it was error to give this statement of the law to the jury in this case. The fact that the dummy engines were making noise and smoke, if such were the fact, so far from furnishing an excuse for the omission, increased the necessity for the exercise of the care ordinarily required. It is because railroad crossings are dangerous that it is the duty of persons approaching them and about to cross, to be careful. Any circumstance which increases the danger of the crossing, increases the duty of vigilance to avoid injury.

Ramsey, Maxwell & Matthews, for plaintiff in error.

D. Them Wright, for defendant in error.

Judgment reversed.


text:
    (First Circuit — Hamilton Co., O., Circuit Court
    Febr. Term, 1885.)
    Befobe Judges Cox, Smith and Swing.
    The Pittsburgh, Cincinnati & St. Louis Railway Co. v. George Zepperlein.
    Master and servant — Regulations of R. R. Co. governing safety of employes — Physician’s bills in estimating damages, when not claimed in petition, and no proof is offered as to value — Burden of proof as to want of negligence on the part of plaintiff in certain cases.
    Error to the Court of Common Pleas of Hamilton County.
   Smith, J.

Zepperlein sued the defendant to recover damages for a personal injury. His petition alleged (substantially) that on August 14, 1882, he was in the employ of the Louisville & Nashville Railroad Co., as a car inspector, at Cincinnati, and that as such his duties called him to examine the tracks and wheels of cars, and to do this he had to go under them. That on the day named, he was so engaged at a place where his employment called him, and where it was„hds duty to be, and while there the defendant negligently pushed a train of cars against the one he was inspecting, whereby, without fault on his part, he was seriously injured and put to great loss and damages, and in the sum of $10,000. The answer of defendant denied all of these allegations.

The evidence showed that plaintiff was in the employ of the Louisville & Nashville R. R. Co., as alleged in his petition, and not in that of the defendant. That at the time of the accident he was engaged in inspecting cars for his company, and was under the middle one of seven, which stood on the high track leading to the Newport bridge, and where the public had no right to be, such high track being in what is known as the yard of said defendant company, and being a part of the main track on which the trains of the Louisville & Nashville Co. run. That plaintiff was accustomed to inspect cars at that point, with the knowledge and permission of the agents of the defendant. While so engaged, a train of cars was rapidly backed by the servants of the defendant company against those plaintiff was inspecting, and the wheel of the one he was inspecting crushed his leg. The only negligence charged was in the management of the train.

The court substantially charged the jury that it was the duty of the defendant to make regulations to prevent injury to persons who might be about the tracks in the yard of the company, on business or otherwise, and that a failure to do this was negligence for which plaintiff' might recover.

Held, that this was erroneous. That aside from the question that no such negligence was charged in the petition, while the law is that it is the duty of a railroad company to make such regulations or provisions, for the safety of its employes as will afford them reasonable protection against the dangers incident to the performance of their respective duties,” as held in the Lavalley case, 36 O. S., 226, there is no such absolute duty as to strangers, or even licensees. And that even as to employes, if there was no rule or regulation looking to their protection, yet if such reasonable provision was made at the time, in any particular case, the company could not be considered negligent for failing to have such a rule, in case an injury resulted.

2. The court charged the jury that if they found for the plaintiff, in estimating his damages they should consider his doctor’s bill.” There was no allegation in the petition that any such expenses were incurred — there was proof offered showing that two surgeons had attended upon him for several weeks after his injury, but there was no. evidence as to the value of those services.

Held, that under the pleadings and evidence such charge ought not to have been given. That evidence as to the value of the services was not admissible under the petition as it stood, and there was nothing in the evidence on which to base such charge.

Ramsey, Maxwell & Matthews, for plaintiff in error.

Champion and Williams, for defendant in error.

3. The court refused to give the following special charge to the jury as requested by defendant’s counsel, viz : “If the plaintiff in making out his case, puts in evidence testimony, the whole of which raises a presumption t-hat he was negligent, the burden is put upon him to remove that by further proof.” —The charge asked for was correct, and there being nothing equivalent to it in the charge of the court, as given to the jury, it was error to refuse it.

Judgment reversed and cause remanded for a new trial.


text:
    (First Circuit — Clermont Co., O., Circuit Court
    April Term, 1885.)
    Before Judges Cox, Smith and Swing.
    Elrod v. Bass.

      Right of Life-Tenant and Remainder-man to Partition — Practice.
    Error to the Court of Common Pleas of Clermont County.
   Smith, J.

In this case, Elrod, the plaintiff, claimed to be the owner of a life-estate in two separate tracts of land in Clermont county, Ohio. His mother, Cynthia Elrod, had been the owner of said life-estate, and executed to her son a deed therefor. He also claimed to be the owner of an undivided interest in remainder (say one-fifth), in each of the two tracts, and he filed his petition for the partition thereof, making the other parties claiming an interest defendants.

One of them filed an answer, denying that the plaintiff was the owner of the life-estate therein, and denying further that the plaintiff was entitled to have partition thereof. The court on the hearing found that the plaintiff was the owner of the life-estate in both tracts.

It further appeared from the allegations of the petition, and this was not denied, that one Frazier, in his life-time, was the owner of the first tract in the petition described, and that by his will he devised the same to said Cynthia Elrod for her lifetime, and on her death to her heirs. She is still living and is about 65 years of age.

It was also alleged in the petition, and was admitted to be true, that-Elrod, father of the petitioner, was in his lifetime the owner of the second tract, and by his will devised the same to his wife, the said Cynthia Elrod, and on her death it was to go to his heirs in fee-simple. But it was further provided in his will, that as two of his children (naming them) had each received from him an advancement of the sum of $1,300, that at the death of his wife the land was to be so divided that each of the other children should receive $1,300 in value of said land, before the two, who had received an advancement, should receive anything, and then, if any of the land remained, it was to be equally divided among all of his heirs. Argument was had on the construction of such devises and as to the proper practice in an action for partition, brought by a life-tenant and the owner of an undivided interest in remainder in the property. On this state of facts the court held :

1. That if there be an outstanding life-estate on the whole of a particular tract of land, held by a person who is not an owner of any reversionary interest or estate in remainder in said premises, an action for the partition thereof can not be maintained by any owner of any interest in reversion or remainder therein. Tabler v. Wiseman, 2 O. S., 207.

2. But if one of the remainder-men, or a reversioner, is also the owner of the life-estate in the whole premises, he may maintain such an action, and if his interest' therein can be set off to him without injury to the value of the residue of the estate, it may be done. This may be necessary to enable such owner of the life-estate and an interest in remainder, properly to enjoy and improve his share of the estate. But (unless by the consent of the other owners of the remainder) there ought not to be a partition of the residue among them, for the reason that, if it should be done, they could acquire thereby no present right to the possession of their shares so set off, and the value of such shares, on account of depreciation of the buildings or improvements thereon, or for other reasons, may greatly change before the termination of the outstanding life-estate. Nor ought there to be a sale of the premises, subject to said life-estate, if it cannot be so divided without such consent; for in such case the owner of the life-estate manifestly would have a great advantage over the other parties in interest, or persons proposing to be purchasers thereof. If the owner of the life-estate agrees to the sale of the premises free of his life-estate therein, and consents to take the value thereof in money, to be fixed and ascertained by the court, we are of the opinion that such sale may be had, if it appear to the court that it will not be to the prejudice of the other parties in interest. 2 O. S., 208; 11 Ohio, 390.

Frazier & Roudebush, for plaintiff in error.

Townley & Woodlief, for defendant in error.

3. The petitioner here, however, is not entitled to a partition of the first described tract, for the reason that Cynthia Elrod, whose heirs are to take the estate at her death, is still living, and therefore it is uncertain, and cannot possibly be now ascertained, who will be the heirs of said Cynthia Elrod, or what the shares of each of her heirs will be.

4. Nor is he now entitled to the partition of the said second tract against the objection of any one of the remainder-men, for the reason that, by the will of the testator, the division thereof among his heirs, and the settlement of the advancements made to two of his heirs, was to be made and determined after the death of the said Cynthia Elrod, and the application now made for.the partition thereof is premature.


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    (First Circuit — Butler Co., O., Circuit Court
    April Term, 1885.)
    Befobe Judges Cox, Smith and Swing.
    Curtis v. Selby.

      Homestead Law — Effect of Section 5435, Revised Statutes, on Debts which accrued prior to its Passage in 1869.
    Appeal from Court of Common Pleas of Butler County.
   Smith, J.

In 1868 Curtis made a loan to Peter Selby, and to secure it, Selby, a married man, executed a mortgage on a tract of land, then and now occupied by him and his wife as a family homestead. Mrs. Selby was not a party to this mortgage. About ten years ago a petition was filed to foreclose the mortgage, and a decree taken, which lay without execution until 1880. Mrs. Selby became a party to the suit when an order of sale was issued, to assert her homestead right. The question presented for decision is, whether she is entitled to a homestead in the land of the value of $1,000, the amount named in section 5435, or to one of the value of $500, as was provided by the law in force at the time the debt was contracted.

The law which took effect July 4, 1850, exempted from sale on execution on any judgment or decree, rendered on any cause of action accruing after the taking effect of this act, the family homestead, not exceeding $500 in value.

On April 9, 1869 (after this debt was contracted), the law was amended, raising the exemption to $1,000, but expressly providing as before, that it should only apply to judgments or decrees rendered on any cause of action accruing after the taking effect of the act.

Section 5435 of the revised statutes, of 1880, provides for the exemption from sale on judgment or order of sale, of a family homestead not exceeding $1,000 in value, and contains no express provision limiting its application to judgments or decrees on causes of action, accruing after the passage of the act, or after that of April 9th, 1869. It was argued by the counsel of Mrs Selby, that under this section she was entitled to a homestead of the value of $1,000, though the debt was contracted in 1868, on the ground that the amount of the exemption was to be determined by the provisions of the law in force when it was demanded, and that if the statute does give her in this case the $1,000, it cannot beheld unconstitutional on the ground that it impairs the validity of contracts.

Reid: That the manifest intent of the legislature, at least until the revision of the statutes, was, that the value of a homestead exemption was to be determined by the law in force at the time the debt was contracted. And this wholesome and eminently just rule ought not to be departed from by the courts, unless it is clear that the legislature has so provided. That such could not have been the intention in the enactment of section 5435, and that the reason, why this provision, inserted in the formér statutes (as to its applying only to debts contracted after a certain time), was not inserted in it, is, that in view of the terms of section 79, revised statutes, it was wholly unnecessary to do so.

Doty & Todhunter, for plaintiff.

Thos. Millihin, for Mrs. Selby.

That in accordance with the decision of the court in Bode, Adm’x., v, Welch, 29 O. S., 21, section 5435 “must be read as though section 79 was appended to it as a saving clause.” That, thus read, it is clear that section 5435, as carried into the revised statutes, and amending the former homestead laws, can in no manner affect pending actions, or prosecutions, or proceedings, and this action was actually pending at the time of such revision: And if it is a statute affecting the remedy only, as is claimed, it does not provide that it shall affect pending actions. Mrs. Selby is therefore entitled to a homestead in this land as against the claim of the plaintiff, of the value of $500, the amount fixed by the law in force at the time the debt was contracted, and no more.


author: Cox, J.

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    (First Circuit — Hamilton Co., O., Circuit Court
    Febr. Term, 1885.)
    Befobe Judges Cox, Smith and Swing.
    Pittsburgh, Cincinnati & St. Louis R. R. Co. v. Blakemore & Kinsey.

      Contract of Shipment — Bill of Lading — Verbal Agreement — Variation.
    Error to the Court of Common Pleas of Hamilton County.
   Cox, J.

In the court below, Blakemore & Kinsey brought suit against the P., C. & St. L. R. R. Co., charging that, on the third day of October, 1881, said road was a common carrier from Yellow Springs, Ohio, to Fredericksburg, Va., and that on that day one Little shipped to the order of plaintiffs, by the defendant, a lot of wheat, the property of plaintiffs, to Fredericksburg, Virginia, a portion of which defendant failed to deliver.

In a second count a similar shipment was averred. On the 17th of October, defendant answered, admitting that it was a corporation and a common carrier at the dates charged, but setting up a written contract in the form of a bill of lading, by which it obligated itself to deliver the wheat 'to the end of its road at Pittsburgh, Pa., and then in good condition to a connecting road, and averring that it had delivered it in good condition to the connecting line at Pittsburg, Pa. To this answer there was no reply denying the same.

Testimony was offered by plaintiffs to prove that the agent of plaintiffs, at Cincinnati, had, on the 27th of September, made a verbal contract with the agent of defendant for a through rate, at 22J cents per hundred, from Yellow Springs, Ohio, to Fredericksburg, Va., and that said contract was made by defendant’s agent after consultation with the authorities constituted by agreement among the connecting roads, and that in accordance with that agreement he had instructed the agent of defendant at Yellow Springs to ship the wheat at the agreed rate. The testimony was objected to by defendant on the ground that it was a variation from the allegations of the petition, as it was a verbal contract reade several days before the shipment. The court overruled the objection, and that is assigned as ground of error.

The petition was not upon a special contract, but was founded on the common law liability of defendant, that, being a common carrier and receiving freight to be transported to a given point, it was the duty of defendant to carry safely to the point of destination, and failing to do so was liable for the damages that may have occurred. We are of opinion that the testimony was proper, and the court did not err in receiving it.

The defendant offered in evidence a bill of lading, issued to Little at Yellow Springs, which was delivered to him after the wheat was placed in the cars, and in terms provided for carrying the wheat at 22J cents per hundred, as fixed by the agent at Cincinnati, but limiting the responsibility of the carrier to a delivery to a connecting line at Pittsburgh, the end of the line, which bill of lading was received by Little without reading, and by him sent to plaintiffs at Cincinnati, who, without reading the terms, endorsed it and forwarded it with draft on Fichler & Co., to a bank at Fredericksburg, Va., for collection.

The court charged the jury properly that defendant could not thus limit its liability to carry safely to Fredericksburg, Va., unless the terms of the contract were known and assented to by the shipper, and unless said assent was proven, plaintiffs were entitled to recover.

Ramsey, Mcmnell & Matthews, for plaintiff in error.

8. M. Johnson, for defendants in error.

The defendant asked the court to charge the jury, that if the terms of this bill of lading were known and assented to by plaintiffs, then they could not recover, unless they proved that defendant had not safely transported the wheat to the end ot its line at Pittsburgh, and safely delivered it to the connecting line. This charge, we think, the court properly refused.

The plaintiffs having averred an obligation on the part of defendant to safely carry to Fredericksburg, Va., were bound to prove that it was not so carried before they could recover. But the defendant having set up a different contract, by which it had agreed to carry only to Pittsburgh, and had done so, and thus was not liable on the oTaim made by plaintiffs, was bound to prove that that contract was known and assented to by plaintiffs, and that defendant had fully performed it, otherwise it was no defense to plaintiffs’ action.

The j ury having returned a verdict for plaintiffs, the court refused to grant a new trial, and entered judgment on the verdict. In this there was no error. Judgment affirmed.

Smith and Swing, JJ., concurred.


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    (First Circuit — Hamilton Co., O., Circuit Court
    Febr. Term, 1885.)
    Before Judges Cox, Smith and Swing.
    Kate Haley v. Samuel Krug, Adm’r of the Estate of John Freytag, dec’d.
    Where a claim against an estate is allowed by an administrator thereof, and the verified account is left with him, and the estate is after-wards declared probably insolvent, and no commissioners of insolvency appointed, the claim should be reported to the court as a valid one, without a new presentation and allowance thereof, unless the holder of such claim is duly notified by the administrator that it is disputed or rejected by him.
    Error to the Court of Common Pleas of Hamilton County.
   Smith, J.

Krug was the administrator of the estate of Freytag, dec’d. The plaintiff had a claim of $83 against the estate, which he presented, duly verified, to the administrator for allowance, who did allow it as a valid claim against the estate, and some time thereafter paid her $13 thereon; and the account was left by her with the administrator.

After this, the administrator represented to the probate court that the estate was probably insolvent, and at the same time filed, with his sworn statement, a list of the claims which had been allowed by him as valid claims against the estate, and among these, was that of the plaintiff in error. Thereupon the court declared the estate to be probably insolvent. No commissioners were appointed, and. the administrator was ordered to proceed according to law. He gave notice to the creditors to present their claims, as provided for in the statute. After the expiration of six months, he returned to the court a list of claims allowed by him, that of the plaintiff not being included. And the court having settled the account of the administrator, directed him to distribute the balance thus found in his hands, among the creditors whose claims had been allowed.

Before the estate was finally settled, the plaintiff caused a citation to issue against the administrator, to require him to pay her a dividend on her claim, and on a hearing thereof the probate court ordered him to do so. From this order the administrator appealed to the common pleas, and a hearing was there had, and on the evidence the court found against the plaintiff in error. A bill of exceptions containing all the evidence was taken, and the petition in error in this case filed.

From the bill of exceptions, in addition to the facts already stated, it appears that the plaintiff below testified that within two months after the estate was declared insolvent, she called upon the administrator with reference to her claim, and that he then again allowed it, and promised to make a payment thereon in a short time. The administrator testified that he did not recollect of ever seeing the plaintiff after the estate was declared insolvent, until after the six months had expired and he had made return of the claims allowed by him, and did not think he had seen her as she stated. He further testified that he knew that the claim was a just and valid one, and no claim was made by him that he had ever notified her, after the estate was declared insolvent, that she must again present her claim or that it would not be allowed. On this state of facts the court

Held: That it was the duty of the administrator, under these circumstances, with the account in his possession, which had been' allowed by him, and the justice and validity of which he still acknowledged and admitted, to return said claim to the probate court as a valid claim against the insolvent estate, and that the same was entitled to share in the dividend declared. That if it be admitted that the administrator, acting either as administrator or as commissioner, had a right to retract or revoke an allowance of a claim theretofore made by him, yet good faith would require him to notify the claimant of such revocation, and if that was not done, she had a right to stand on the original allowance.

In Judge Swan’s Manual for Executors and Administrators, which to a great degree has regulated the conduct of such trustees in this state for more than forty years, and which is admitted to be good authority, the law is stated thus, on page 242, 6th ed., chap. 28: “Claims presented to the executor or administrator, and allowed by'him before the estate is declared by the court probably insolvent, need not be again presented; but will be listed and reported to the court, in like manner as if presented and allowed afterwards.” And again on page 210: “ If no commissioners are appointed by the court to audit claims, then the executor or administrator will continue to receive and allow claims, as hereinafter mentioned: ‘ And the claims allowed by the executor or administrator, before the estate was declared insolvent, and remaining unpaid, will, of course, be allowed in his report to the court of the amount of claims upon which a dividend of the assets is to be struck.’ ”

Such has been the uniform practice, so far as the members of this court are advised; and it is a rule so just and equitable in its nature, and a violation of it, in practice, without notice to those whose claims have been allowed by the administrator or executor, would work so much injury to such innocent parties, that we think that an administrator in such a case should be held to be estopped from saying that the claim should not be paid for the reason that it was not a second time presented for allowance.

W. T. Porter, for plaintiff in error.

F. Bruner, for defendant in error.

The judgment of the court of common pleas is reversed and that of the probate court affirmed.


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    (First Circuit — Hamilton Co., O., Circuit Court
    Febr. Term, 1885.)
    Before Judges Cox, Smith and Swing.
    Laura J. Nichols v. Benjamin F. Balser.
    Practice in partition proceedings — Effect of a report signed by three commissioners and filed in court, and the name of one improperly erased therefrom — Where all the commissioners act, the report need not be unanimous, but the action of a majority is binding and valid.
    Motion by defendant to confirm partition.
   Smith, J.

In an action for the partition of real estate between the plaintiff and the defendant, three commissioners were appointed to make such partition. By the agreement of the parties and the order of the court, the share of the defendant was to be set off upon the east side of the tract. The commissioners having been duly sworn, met on the ground at the time appointed, and proceeded to the discharge of their duties. They fully agreed upon the value of the land, upon either side of the tract, and the manner in which it should be divided, and caused a survey to be made accordingly, and after it was finished, the quantity and location of the land to be set off to each, according to the valuation thereof, as made by them, was ascertained, and a report thereof was drawn up showing such partition and the quantity given to each, which report was duly signed by all of the commissioners, and delivered to one of them to be returned to the court. Before the report thus signed, and the survey made part thereof, were filed in the court, one of the commissioners came to the conclusion that one of the parties had not received enough land'by the partition, and asked the other commissioners to change the same, or to allow him to erase his name from the report as signed.

The other commissioners, believing that the partition as made was just and equitable, declined to alter it, and being of the opinion that it was then too late for the commissioner to withdraw his name from the report, refused to allow that to be done, but suggested that he file a minority report, stating that he disagreed with the report as made, and asking that his name be stricken from the report as signed by the three commissioners, which he did, and both reports were filed with the court.

After this was done, the third commissioner obtained the original report from the clerk, and without the leave of the court, or of any person authorized to grant such leave, erased his signature therefrom. On this state of fact it was

Held: 1. That after the partition was made, and the report thereof so signed by all the ■ commissioners and delivered to one of them to be transmitted to the court, the functions of the commissioners, as such, were fully performed, and that one of them (at least without the consent of one or both of the others) could not change the action, and the report having been filed with the court, and the name of one of these commissioners having been improperly and without any authority erased therefrom, it stands in law as the report and action of all.

2. But if there should be any doubt as to this, according to the authorities, the action of a majority of the commissioners in such a case is sufficient and binding upon the parties, and the report need not be signed by all.

In Freeman on Co-tenancy and Partition, sec. 523, the rule is stated thus :

“ The report of the commissioners need not be unanimous.” * * “ The true rule is, that where three or more persons are charged with a judicial, or quasi judicial function, under an authority, derived, not from the parties in interest merely, but from a law or statute of the state, though all must hear and deliberate together, a majority majr decide.” He cites the following cases, which freely confirm the doctrine, viz: Townsend v. Hazard, 9 R. I., 442; Underhill v. Jackson, 1 Barb. Ch., 73; Schuyler v. Marsh, 37 Barb., 350; Kane v. Parker, 4 Wis., 123.

A. G. Collins and Wm. Disney, for plaintiff.

S. F. Hunt, for defendant.

In 5 Ohio, 489, the supreme court held, that the report of a majority of the commissioners appointed by the court of common pleas to appraise land, condemned for public uses, would bind the minority ; and justified their decision on the ground that the power conferred was of a public nature.

It appearing to the court from the evidence submitted that the partition as made was a fair and equitable one, it is approved and confirmed.


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    (First Circuit — Clinton Co., O., Circuit Court
    May Term, 1885.)
    Before Judges Cox, Smith and Swing.
    Jas. H. Harrison v. The Incorporated Village of Sabina.
    1. In proceedings by a municipal corporation to appropriate private property for a street, under section 2237, K. S., a mortgagee, whose mortgage is duly recorded, is an “ owner ” within the meaning of that act, and entitled to notice of the pendency of such proceeding.
    2. If any of the property so mortgaged be appropriated without notice to the mortgagee, he may maintain an action against the municipal corporation to recover damages for the same.
    Error to the Court of Common Pleas of Clinton County.
   Cox, J.

In the court below, James H. Harrison brought an action to recover damages from the incorporated village of Sabina, for injuries sustained by him in converting and taking possession by said village of certain real estate therein, on which he held two mortgages. He averred that the mortgages were given to him by D. H. Harrison — one in April, 1872, and the other in July, 1876 — and each, on being given, was duly recorded in the recorder’s office of Clinton county; that said mortgages became absolute by the non-payment of the debt, and he began a suit to foreclose the same, and afterwards, on the 15th of July, 1878, purchased the property at judicial sale, and a deed was duly made to him. That there was a loss to him of $2,000 on his debt; that to secure himself he was compelled to purchase the property. That after said purchase and deed to him, the village entered on said property, tore down his wood-house and fencing, and cut a street fifty feet in width through the entire length of two lots, and ten feet off the entire length of another, and has appropriated the same to itself. To this petition the defendant answers, setting up that one D. H. Harrison was the owner of the property in November, 1877. That proceedings were then instituted in the village council to appropriate the property for the purpose of a street, and that subsequent proceedings ymre instituted in November, 1877, in the probate court of said county, to condemn the same, and that D. H. Harrison, the mortgagor and owner of the fee, was duly notified and appeared, and was awarded damages by the jury, and that, therefore, plaintiff was barred of any remedy. Plaintiff replied denying all knowledge of such proceedings, or notice to himself, and denying that D. H. Harrison was the owner of the premises.

On the trial below, plaintiff introduced testimony showing the existence of the facts he claimed, and the purchase and-possession of the premises by himself prior to the taking possession in fact by said village.

The defendant offered in evidence the proceedings of council and probate court, to which plaintiff objected, for the reason that he was not a party to the same, but the court overruled the objection, and received the testimony, and rendered judgment dismissing the action of the plaintiff.

This petition in error is filed to reverse that judgment. It is claimed by plaintiff that the court erred in admitting the record of council and the probate court in said condemnation proceedings, that the judgment is against the law and evidence, and that it should have been for plaintiff. It is claimed by defendant that the record was properly received, and that the judgment in its favor was right, because D. H. Harrison, in whom was the legal title, and who was, in the language of the law, the owner of the premises, was made a party, and that, therefore, the proceedings are a bar to the plaintiff, who at the time of their institution, held only the interest of a mortgagee therein.

‘ This question raises the constitutionality and construction of section 2237, of the revised statutes of this state, giving authority to municipal corporations to appropriate private property for public purposes. The statute provides that notice of the time and place of application (to appropriate) shall be given personally, in the ordinary manner of serving legal process, to all the owners, or agents of the owners, of the. property sought to be appropriated, etc.

It is to be noticed that the provisions differ very substantially from the proceedings required by the statute in condemnation of property by other corporations.

By section 6416, and following sections of the revised statutes, the corporation seeking to appropriate- private property, if unable to agree with the owner, may file a petition with the probate judge, describing the property, the interest and use to which it is sought to be appropriated, giving the name of the owner of each tract, if known, and if not known, a statement of that fact, the names of all persons having or claiming an interest, legal or equitable, in the property, as far as can be ascertained ; and by section 6418, on precipe being filed, the probate judge is directed to issue summons, “ for the owner ” named in the petition, and having an interest. If the person having an interest is unknown, or resides beyond the state, service may be made by publication. And by section 6422, “ the owners of each separate parcel, right or interest, shall be entitled to a separate trial by jury.”

By section 6453, “ the provisions of this chapter shall not apply to proceedings by state, county, township, district or municipal authorities to appropriate private property.” So that, under the municipal corporations, the only person required to be notified, is the “owner” of the property; why the provisions of the general corporation act, so eminently just to protect the interest of every person, should not have been extended to municipal corporations, is not easily understood in the light of the constitutional provision protecting private property from being taken for public use. By the constitution, art. 1, section 19, private property shall ever be held inviolate, but subservient to the public welfare, but shall not be taken for the purpose of making and repairing of roads, unless compensation shall be made to the owner in money, and such compensation shall be assessed by a jury.

By section 16, all courts shall be open, and every person for an injury done him on his land, goods, person or reputation, shall have remedy by due course of law. By section 5, art. 13, “ no right-of-way shall be appropriated to the use of any corporation until full compensation therefor be first made in money, or first secured by a deposit of money to the owner, irrespective of benefit, which compensation shall be ascertained by a jury of twelve men in a court of record, as shall be prescribed by law.”

These sections of th.e fundamental law protect all private property from being taken for public use, except by proceedings in a court of record, by due course of law, and compensation assessed by a jury of twelve men, as shall be prescribed ' by law. The constitution does not execute itself. Before proceedings to appropriate can be had, the legislature must pass suitable laws establishing courts of record. Due course of law means that such course of law shall be enacted as- will require, that he whose property is about to be taken, shall have notice of the time and place of hearing, what is sought to be appropriated, and an opportunity to be heard in his own behalf. Any law which seeks to deprive him of his property without such proceedings, is in direct opposition to the letter and spirit of the constitution'. McArthur v. Kelly, 5 Ohio, 140; Foote v. Cincinnati, 11 Ohio, 408; 4 O. S., 167; 21 O. S., 667. Grants of power, being in derogation of common right, are to be strictly construed, particularly when the power claimed is a delegation of the sovereign power of eminent domain. Currier v. M. & C. R. R. Co., 11 O. S., 228.

Before a corporation can demand a judgment of condemnation, it must show that the power has heen conferred upon it by a valid law, and that it has substantially complied with the conditions which the law has annexed to the exercise of the power. Atkinson v. Marietta R. R. Co., 15 O. S., 21; 5 id., 276.

It is claimed, however, that this plaintiff did not come within the meaning of section 2237, in that he was not the owner ” of the property when proceedings to condemn were instituted; that the legal title was in another. That to come within the section he must have been the absolute owner.

And that whatever other rights he may have had, less than that, were not provided for by the law, and he was not entitled to notice. If this narrow construction of the law be the true one, then we have no hesitation in saying that it is unconstitutional, in so far as it affects the right and interest of persons, other than the absolute owner.

But it is the duty of the court, not to declare a law unconstitutional if by any reasonable interpretation its constitutionality can be sustained. We think the law can be sustained by a fair and reasonable interpretation. In considering this, first: What is private property which the law protects against unlawful appropriation ? and second: Who is an owner, and what may he own ?

Property is defined to be the right and interest which a man has in lands and chattels to the exclusion of others. Bouvier’s Law Dictionary, title Property, and cases cited.

This right extends to real estate and personal property of whatever kind; the evidence of a man’s rights, the deeds, bills of sale, promissory notes and the like, are equally protected with his lands and chattels, or rights and franchises of any kind; and the certificate of registry, and right to vote, may be properly included in this category. Cooley Const. Limitations, 358 and note; 6 Cold., 243; 5 Nev., 369.

Who is an owner? He who has dominion of a thing real or personal, corporeal or incorporeal, which he has a right to enjoy and do with as he pleases. Bouv. Law Dict.

Although there can be but one absolute owner of a thing, there may be a qualified ownership of the same thing by many. A bailor has general ownership; a bailee a qualified or special ownership. He who has the fee is an absolute owner, but a lessee, a tenant for life, a dowress in possession, have all been held to come under the head of owner. Each has rights, which the law will protect and will not permit to be taken away upon mere notice to the owner of the fee. 1 O. S., 101. The plaintiff in this case is in this sense an owner. He had the conveyance of the estate by way of a pledge for the security of the debt.

The condition of that mortgage was broken before the proceedings to condemn were instituted.

He was entitled to possession, and that right carries with it the right to sue in tresspass for an injury to the land. The possession of the mortgagor is not adverse, as the injury to the freehold is beyond the matter of possession of the mortgagor. And whoever be the wrongdoer, he is amenable to the mortgagee for a violation of his rights. Jones on Mortgages, 721; 10 Cush. (Mass.), 99; 2 Me., 387.

When a mortgage is recorded, whoever purchases or deals with the mortgagor in regard to the land, does so subject to the rights of the mortgagee, and no proceeding at law to sell, or dispose of it, can affect the rights of the mortgagee, if he be not a party.

Neither can the power of eminent domain in the state affect him, unless he is a party to the proceedings, and these proceedings be in due course of law.

This has been established in many cases, and so far as we can ascertain, is denied in but one state — Connecticut.

It is laid down in Jones on Mortgages, section 681a, 3rd ed.: “ If land, subject to mortgage, be taken in the exercise of the right of eminent domain, as for instance the right-of-way of a street, or for the location of a railroad track, the mortgagee should be made a party to the proceedings for the taking of the land, and the damages awarded should be paid to him; otherwise he may recover the same by action against the person or corporation entering upon the land,” and the authorities cited in the note are from New Jersey, Maine, Rhode Island, Minnesota, Wisconsin, Mississippi, and Illinois. The rule was formerly different in Massachusetts, and the compensation assessed to the mortgagor without regard to the mortgagee, as was decided in many cases. But in 1881 this inequitable rule was changed by chapter 110, whereby the damages are assessed to the mortgagor to the extent of his interest, and the balanee to the mortgagee. And in Connecticut, where the old Massachusetts rule is held, the court says, 22 Conn., 504: “However reasonable we may believe it to be that a mortgagee should, by a timely notice, have an opportunity of protecting his rights, yet as the law has not permitted it, we cannot require it.”

We are of the opinion, therefore, that the proceedings of condemnation were improperly received in evidence, this plaintiff not having been a party to the same, and that upon the evidence judgment should have been rendered in his favor. The judgment of the common pleas will, therefore, be reversed.

Walker, Slone & Mills, for plaintiff in error.

Morton, for defendant in error.

Smith and Swing, JJ., concurred.


text:
    (First Circuit — Hamilton Co., O., Circuit Court
    Febr. Term, 1885.)
    Before Judges Cox, Smith and Swing.
    Arcade Hotel Co. v. Edward Wiatt.

      Proper Party Plaintiff — Action by Trustee in his own Name.

    Wiatt recovered judgment by action in bis own name against the Arcade Hotel Company, for the loss of money placed by him, while its guest, in the custody of the latter for safe-keeping. It appeared subsequently that the money was not Wiatt’s, but was held by him in trust for others. In an action by the Arcade Hotel Company, to set aside the judgment on the ground that Wiatt was not a real party in interest, nor a proper party plaintiff under the code, held, that he was a proper party to bring the action for the recovery of the money.
    1. If he held possession of the money upon an express trust for the benefit of others, he could, under section 4995, R. S., bring an action in his own name without joining the others, and it would not be necessary for him to prove the existence of the trust by an instrument in writing. 24 O. S., 623; 5 O. S., 194.
    2.£The contract of bailment being made by "Wiatt with the Arcade Hotel Company, he could bring the action in his own name as the person with whom a contract was made for the benefit of the real owners.
    Error to the Superior Court of Cincinnati. (13 W. L. B., 250.)
   Cox, J.

This is a petition in error to reverse a judgment of the superior court of Cincinnati. In that court the plaintiff in error filed its petition to set aside a judgment theretofore rendered against it, in favor of Edward Wiatt, in an action wherein Wiatt set forth that, being a guest at the hotel of the plaintiff, he had deposited with plaintiff the sum of twenty-one-hundred and ninety-five dollars for safe-keeping, and that on demand plaintiff refused to deliver it to him. That the suit was brought in the name of Wiatt as the real party entitled to sue. But that after judgment was rendered therein, an action was brought against Wiatt, the plaintiff herein, by one of his creditors, seeking to have part of said judgment appropriated to the satisfaction of his judgment, and in that case Wiatt filed his answer, setting np that “the amount due him from the Arcade Hotel Company is, for money lost from this defendant’s possession while a guest of said hotel, and by its negligence; said money was in the possession of the defendant as trustee and not in his own right; said money was the property of one Mart Simonton and one M. T. Lytle, and the liability of said hotel was prosecuted in the name of this defendant lor the benefit of said parties, after first paying attorney’s fees; and this defendant has no personal interest in such recovery whatever.” And plaintiff says that one of the points at issue in the original cause wras the ownership of the money and bank notes which Wiatt alleged to have deposited with the hotel company, and that in said action he testified that he was the owner, and made no disclosure that Simonton and Lytle had any interest therein, nor was plaintiff aware of that fact until after the term of judgment had expired, and that it could not, with reasonable diligence, have ascertained it. That the statement made by Wiatt in his original petition, that he was the owner of the money, was untrue, and that he was not entitled to prosecute said suit in his own name; and plaintiff prays that the judgment entered in case 38,028 may be set aside, and a new trial granted for these reasons.

To this petition Wiatt filed a general demurrer, which was sustained by the court, and the case dismissed at plaintiff’s costs.

The error assigned is that the court erred in sustaining the demurrer and in not overruling the same.

It was claimed by plaintiff in error that Wiatt was not the real party in interest, as required by section 4993, revised code, nor was he a proper plaintiff under secs. 4994 and 4995.

If by real party is meant one who is the sole and exclusive owner and controller of the subject matter of the action, it cannot be contended that Wiatt was the proper party to maintain the action.

The ground upon which it is claimed to set aside the judgment is, that it now appears from his statement that he held the money alleged to have been deposited by him with the hotel company, simply as a trustee for other persons, and that without disclosing that capacity, he brought suit in his own name.

If he held possession of the money upon an express trust for the benefit of any other person, there is no doubt that he could, under section 4995, bring an action in his own name without joining such other person. It is claimed by plaintiff that to constitute an express trust, there must be an instrument in writing declaring the trust. But this is not required in this state. The authorities are numerous that an express trust can be created by parol. “ A deed absolute on its face may be shown in fact to be a trust, by parol.” Matthis v. Leaman, 24 O. S., 628; 5 O. S., 194.

But what is the meaning of this term in section 4995, “ trustee of an express trust ? ” Our code is adopted from that of New York, and there it is thus defined : “ A trustee of an express trust is a pérson with whom or in whose name a contract is made for the benefit of another.” In adopting that code, we have inserted not only “ the trustee of an express trust ” as a party who may sue, but also designated as another, “a person with whom or in whose name the contract is made for the benefit of another.” So that, if no express trust be created either in writing or by parol, if a contract be made with one person or in the name of a person for the benefit of another, the person with whom the contract is so made, or in whose name it is made, may bring the suit.

Now it is sought to set aside this judgment, because the plaintiff only claims that he held the money deposited in trust for other parties. If it were necessary to put his right of action on this ground, we think it would be sufficient. But he claims, that, having the money in his possession in trust for others, he, being the guest of the hotel company, deposited it with its officers to be returned to him, not as his own property, but as property held for the benefit of others, and the contract of bailment must be interpreted as a contract made by the hotel company with Wiatt for the benefit of the real owners of the money, and if such proof had been made in the original case, it would come clearly. within section 4995, authorizing Wiatt to bring suit in his own name for the recovery of the money, if not repaid him on demand, according to the contract of bailment.

It is admitted by plaintiff that Wiatt might have brought an action of replevin, because in that action he would only have to allege.and prove a right of possession.

Authorities are cited to show that when an agent has lost or deposited money or other property, an action to recover the same may be brought in the name of the principal. There is no doubt of this proposition, and when the agent, or party, or possessor, brings his suit, the real owner is the real party to this extent, that any offset or claim in the .funds which the defendant may have, may be worked out against him through the agent. But this right of the- principal to sue is for him to assert, and not for a third person.

The general rule is well stated by Bayley, Judge, in Sargeant v. Morris, 3 Barnewall and Ald., 277, as follows : “Now, I take the rule to be this : if an agent acts for me and on my behalf, but in'hisown name, then, inasmuch as he is the person with whom the contract is made, it is no answer to an action in his name, to say, that he is merely an agent, unless you can show, also, that he is prohibited from carrying on that action by the person in whose behalf the contract was made. In such case, however, you may bring your action, either in the name of the party by whom the contract was made, or of the party for whom the contract was made.”

Our code is substantially the adoption of this principle.

In Nixon v. Nixon, 21 O. S., 114, where a party contracted to deliver from fifty to one hundred hogs, and, on bringing suit to recover for the value, it appeared that he only owned thirty-nine of them, the rest belonging to other parties, the court say : “ If the plaintiff had the right to tender the hogs on the contract, so that by accepting them the defendant would have acquired a good title, the fact that the plaintiff was the absolute owner of only a part of them, the remainder having been furnished to him by third persons for such delivery, would neither constitute a defense or demand for damages.”

Perry & Jenney. for plaintiff in error.

And in Davis v. Harness, 38 O. S., 397, which was a similar case, but for delivery of corn, of which the plaintiff was the ojvner of only a part, but sold it with his own by consent of the other owners, the court says: “A party entering into a contract in his own name may sue or be sued upon it, whether he be, in fact, agent or principal.” The same principle is also held in Gard v. Neff, 39 O. S., 607.

The judgment of the superior court, we think, was right, and it will, therefore, be affirmed.

Smith and Swing, JJ., concurred.


text:
    (First Circuit — Hamilton Co., O., Circuit Court
    Febr. Term, 1885.)
    Before Judges Cox, Smith and Swing.
    John B. Mannix, Assignee of John B. Purcell, v. W. H. Elder and Others.

      Petition to vacate Judgment by Assignee of Archbishop Purcell, after Term, on the Ground, that Purcell was dead at the Time Judgment was entered and no Revivor had as to his Successor— Irregularity — Parties Plaintiff and Defendant by submitting to Jurisdiction of Court, bound by its Proceedings.

    Petition to vacate judgment, at former term rendered by District Court.
   Smith, J.

On the 11th day of March, 1879, John B. Purcell, the Roman Catholic Archbishop of the diocese of Cincinnati, assigned to John B. Mannix all of his individual property for the benefit of his creditors, expressly excluding from the conveyance all property held by him in trust for others.

In 1880, Mannix, assignee, filed in the court of common pleas of this county his petition, under sec. 6351, of the revised statutes, ragainst Purcell and other persons asserting liens on the real estate described therein, and asking for its sale for the payment of the debts of his assignor, as property that passed to him by the deed of assignment. The petition further Alleged that Archbishop Purcell claimed that he held such property only as trustee for others, and not in his own right.

Afterwards various persons, corporations and congregations of churches, were allowed by the court to become parties defendants, and they filed their several answers, averring that they were the beneficial owners of the property described in their answers, and that Archbishop Purcell-only held the title in trust for them.

On the issue thus made, the case was fully tried in the district court, into which it went by appeal. Several months were occupied in the hearing of the evidence and the argument of counsel, and the case was finally submitted to the court at the May term thereof, 1888, and the court, desiring further time for its consideration, it was retained for that purpose until the November term, 1883.

On the 4th day of July, 1883, after such submission to the court, Archbishop Purcell died, and by virtue of the provisions of his will, and the steps taken under it, William H. Elder, his successor in the archbishopric, also became his successor as trustee and holder of the legal title to the lands described in the petition of the plaintiff, unless they had passed to Mannix by the deed of assignment. No suggestion of the death of Purcell was entered of record, nor was the action revived as against Elder, though the fact of the death of Archbishop Purcell was known to the court, to counsel and to all of the parties. On the 3d day of December, 1883 (at the October term), the district court caused the judgment to be entered as of that day, finding that as to a part of the property Archbishop Purcell held it simply as a trustee, and that Man-nix as his assignee had no interest therein, while as to other parcels it was held that the assignee had an interest therein subject to sale.

On the --- day of December, 1884, Mannix filed in the district court his petition under the provisions of chap. 6, tit. 1, div. 4, revised statutes, providing for “ new trials and other relief after judgment after the term at which judgment was entered” (section 5354), asking the court for vacation of this judgment, on the ground that Purcell was dead at the time it was entered, and that no revivor of the action had been had. To this petition he made Elder, and all of the other original parties, defendants.

Bishop Elder filed his answer thereto, submitting himself to the jurisdiction of the court, and consented that an order should be made confirming the original judgment, and making the same binding upon him and upon all parties. And similar answers were filed by the other defendants claiming to be cestui que trusts.

The district court, not having had time to dispose of the question thus raised before it ceased to exist, the case comes to the circuit court, as its successor, for decision.

Held: 1. That John B. Purcell in his life-time was a proper and necessary party to this original petition of the assignee for the sale of the real estate, as it appeared from the petition that he was asserting a title in opposition to that of his assignee; and that when it appeared to the court who the persons claiming to be the cestui que trusts were, that they should have been made parties defendant, as was done in this case.

2. On the death of Purcell before the rendition of the decree in the district court, it was necessary that the action be revived against the person claiming to be his successor in the trust, before the entry óf the judgment, and'that it was irregular and erroneous not to do so; with this exception to the rule, that where a case is fully submitted to a court for decision and held under advisement, the court may legally and properly, even at a future term, and though one or more of the necessary parties to the action may have died after such submission, cause its judgment to be entered by a nunc pro time order, as of the day and term that it was submitted to the court.

8. That this course last named not having been pursued in this case, but the judgment having been entered as of the day it was decided, and after the death of Purcell, and without any revivor, the same was irregular and erroneous, and not binding upon Elder as the successor of Purcell in the trust, if such existed. And as the estoppel of the judgment ought to be mutual and binding upon all the parties to the controversy, the judgment as to Man nix also was irregular and erroneous, and he can take advantage of it.

Geo. Hoadly and E. W. Kittredge, for Mannix, assignee.

T. D. Lincoln apd Wm. M. Ramsey, for Elder, and various defendants.

Judge Yaple, and Oliver & Benedict, for other defendants.

4. That when a party under such circumstances seeks a vacation or modification of a judgment, by the filing of a petition or motion under the provisions of the chapter referred to, or is made a party defendant to such proceeding, and submits himself to the jurisdiction of the court, the proceeding being simply ancillary to the original action, and in effect a continuation of it, such party is bound by any action the court may properly take in such proceeding, relating to the proceedings or merits of the action. Marsden v. Soper, 11 O. S., 503; Doty v. Knox Co. Bank, 16 O. S., 133; Watson v. Paine, 25 O. S., 346.

And the. defendant, Elder, having in this proceeding consented that the court should confirm the original judgment and make it binding upon him, it is authorized so to do; and when done, the only objection that the plaintiff in this proceeding makes to such judgment, is removed, and the error becomes an immaterial one, and the provisions of section 5115, of revised statutes, “ that the court in every stage of an action must disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party, and no judgment shall be reversed or affected by reason of such error or defect,” apply to .this case.

5. The district court, of which this court is the successor, having practically passed upon the question raised in this case, and held, against the protest and exception of plaintiff, that the judgment could legally be entered, as was done, and would be binding upon the parties, though we are of a different opinion as to this; yet we think we ought not to make a different ruling in the same case, especially in view of the other reasons assigned, which in our opinion show that the error will be cured by a judgment in this case, which will bind the defendant, Elder, and, as a consequence, be binding upon all of the other parties thereto.

The prayer to vacate the judgment is therefore denied, and a judgment will be entered confirming the original judgment, and making it binding upon Elder.


author: Judge Smith

text:
    (First Circuit — Clermont Co., O., Circuit Court
    April Term, 1885.)
    Before Judges Cox, Smith and Bradbury. (Judge Bradbury, of the Fourth Circuit, taking the place of Judge Swing.)
    Myers v. Croswell.

      Statute of Frauds — Effect of taking Possession of one of several distinct Parcels of Land claimed under one Contract.

    Error to the Court of Common Pleas of Clermont County.
   Croswell brought an action in th'e court of common pleas against Myers, to recover damages for the breach of a parol contract. The plaintiff, in his petition, alleged that in September, 1882, the defendant verbally leased to him, for the purpose of cultivation in wheat, corn and tobacco, four several parcels of land, of a few acres each (neither of which adjoined any of the other), for one year, from March 1st, 1883, at which time the plaintiff was to have possession of three of the parcels, but as to the fourth, the plaintiff was to have immediate possession of it, to sow wheat thereon, and possession thereof was accordingly taken at once. The plaintiff was to render to the defendant as rent the one-half of the produce raised on each of the four tracts. At the time of the making of the contract, one of the parcels was in the possession of a third person, who was entitled to and did hold possession thereof until March 1st, 1883.

On said day the plaintiff demanded of the defendant possession of the three tracts of which he had no actual possession, but it was refused.

The defendant by his answer first denied the making of the contract sued on, and secondly, he alleged that if any such contract was made, it was within the statute of frauds.

At the trial of the case in the common pleas, the court charged the jury that the taking possession of the parcel of land to be cultivated in wheat in September, 1882, in pursuance of the contract, was equivalent to taking possession of all the tracts, and took the contract as to the whole out of the statute of frauds, to which charge the defendant, Myers, excepted, and now prosecutes this petition in error to reverse the judgment rendered in favor of plaintiff, Croswell.

Mr. Young, of Georgetown, for plaintiff in error.

Frazier ¿c Boudebush, for defendant in error.

The majority of the circuit court, Judge Bradbury announcing the decision, held, that the judgment should be affirmed. That, although there was great doubt on the authorities, whether the rule announced by the trial judge was correct, yet there were some that seemed to sustain that view. And the court, not being satisfied that the law was otherwise, ought not to reverse the judgment.

Judge Smith

(dissenting) was of the opinion that the taking possession of the wheat land in Sept., 1882, did not take the contract as to other parcels out of the operation of the statute of frauds. That the taking possession of land under a parol contract only had this effect when done by the consent of the lessor, and when such possession so taken is exclusive of that of any other person; that in this case the admitted fact was that a third person had the actual and legal possession of one of the parcels at the time the plaintiff took possession of the wheat land, and continued in the possession thereof until March 1st, 1883, and consequently,- as defendant had not the right, in September, 1882, to put the plaintiff into possession of that parcel, that the taking possession by the plaintiff of the wheat land could not in law operate as a taking possession of the other parcels.