text:
    RAILROADS.
    [Cuyahoga (8th) Circuit Court,
    December 17, 1909.]
    Marvin, Winch and Henry, JJ.

      Nicola Cerri Admr. v. Erie Ry.
    Pedestrian at Railway Crossing to Look Both Ways at Each Track.
    A pedestrian crossing several railroad tracks at a street crossing should look both ways just before going upon each track, if there is time so to do.
    Error.

      H. F. Payer and J. V. Z otter elli, for plaintiff in error.

      Gushing & Siddall, for defendant in error.

       Affirmed, no op., Cerri v. Milvale Goshen Coal Co., 85 Ohio St. 444.

   WINCH, J.

This was an action for wrongful death. Beagio Sidoti was billed at the Broadway crossing of the Erie By. in Cleveland. At that point Broadway runs substantially north and south and the tracks of the railroad company run east and west. There are five tracks at this point. Proceeding from the south, as Sidoti did, the first track is a switch, or coal spur, the next a siding, then, comes the east-bound main track, next the westbound main track and last a switch or siding. Gates are maintained at this crossing, operated from a tower on the east side of Broadway, north of the tracks. These gates, one south of the tracks and the other north of the tracks, are hinged on the east side of the street; when let down they extend over to the west side across the street.

Just before this fatality occurred the gates were down and Sidoti stood on the west sidewalk of Broadway with other persons, waiting for a train going west on the fourth track from him, to cross the street. Immediately to the west of him on the first switch were two box ears which obstructed his view in that direction.

Following the west bound freight train on the fourth track was a caboose, traveling west by gravity and about one hundred and fifty feet behind the freight train.

There is evidence tending to show that before this caboose crossed the street and while it was in full view of Sidoti, the gate was raised, Sidoti started north and then the gate was again lowered behind him. At least, such is the claim of the plaintiff in error.

Sidoti was killed by a train coming from the west. His administrator claimed that this train was on the second track, or siding; the company claimed that it was on the third, or eastbound main track. There being a conflict in the evidence on this point, the court submitted the case to the jury charging however, among other things, as follows:

“And here I say to you, that plaintiff claims that decedent was injured by the engine while it was running on the switch track or long siding, while defendant claims that the engine was running on the east-bound main track. If you find that the engine that struck Sidoti was running on the east-bound main track as claimed by the defendant, the plaintiff could not recover, as I say to you that it is undisputed from the evidence that the space between the coal spur track and the east-bound main track (eighteen or nineteen feet), is such that if the decedent had exercised ordinary care for his own protection, in other words, if the decedent had looked and listened, he would have seen this engine in time to have avoided being struck by it, and not to have seen it and avoided it would be such negligence as to bar recovery in this case.”

The jury brought in a verdict for the defendant and so we have it settled for the purposes of this ease, that the train which killed Sidoti was on the third track. As stated by the court, the distance between the first track and the third track was eighteen or nineteen feet. It is claimed, however, that the distance between the north side or overhang of the box ear on the first track and the south side, or overhang of the engine on the third track, was only fifteen feet. While traveling this distance Sidoti had a clear and unobstructed view of the train approaching from the west and could have seen it in ample time to avoid the accident, if he had looked. He may not have heard it because of the rumble of the west-bound freight on the fourth track.

The sole question, however, for review in this case is whether, under the circumstances, Sidoti was negligent in not looking to the west that the court was warranted in finding, as a matter of law, that he thereby contributed to his own injury, and that there could be no recovery.

The case of Cleveland, C. C. & I. Ry. v. Schneider, 45 Ohio St. 678 [17 N. E. 321], is relied upon for a reversal of this case. The third paragraph of the syllabus of that case is as follows:

“When gatemen are maintained at such crossings, it is their duty to observe the tracks and know when, on account of trains or engines thereon it becomes dangerous for persons to cross, and when it is so, to close the gates and keep them closed to prevent persons from going upon the tracks so long as the danger continues; and when the tracks are clear, or persons may cross without danger from passing cars and locomotives, then to open the gates and keep them open to enable persons to cross, so long as it is safe for them to do so, but no longer. Persons approaching the crossing or about to cross have a right to presume, in the absence of knowledge to the contrary, that the gate-men are properly, discharging their duties, and it is not negligence on their part to act on the presumption that they are not exposed to dangers which can arise only from a disregard by the gatemen of their duties. Hence an open gate with the gate-man in charge is notice of a clear track and safe crossing, and in the absence of other circumstances, when the gates are open and the gateman present, it is not negligence in persons approaehing the crossing with teams to drive at a trot, or to pass on to the tracks through the open gates without stopping to listen, though the view of the tracks on either side of the crossing is obstructed; nor in such case is their failure, when at a distance of twenty-five feet from the track, to look for locomotives one hundred and fifty feet or more from the crossing, negligence, though they could have been seen. ’ ’

It will be noticed that Cleveland, C. C. & I. Ry. v. Schneider, supra, formulates the law for persons driving teams across railroad crossings, and holds that it is not negligencé for persons approaching the crossing with teams to drive at a trot, or pass onto the tracks through the open gates without stopping to listen ; nor in such case is their failure, when at a distance of twenty-five feet from the track, to look for locomotives one hundred and fifty feet or more from the crossing, negligence, though they could have been seen.

We apprehend that this rule is applicable only to persons with teams or other motive power, more or less difficult to control. A pedestrian can stop short in his tracks; not so with horses on a trot.

At least, if the same rule is to be applied to pedestrians — it is proper that the court which finally settles the law should say so, for the syllabus of the Schneider case very carefully limits it to persons with teams, and we can not overlook that fact.

There is another reason why the Schneider case does not rule this case. It is there held that, “Persons approaching the crossing or about to cross have the right to presume, in the absence of knowledge to the contrary, that the gatemen are properly discharging their duties,” and again: “Hence an open gate with the gateman in charge is notice of a clear track and safe crossing, in the absence of other cvrcumstmces.”

What were the circumstances here?

The brief of counsel for plaintiff in error says: ‘ ‘ The almost undisputed testimony is that his (Sidoti’s) attention- was drawn toward a caboose that was approaching Broadway on the westerly bound main track.” Then he saw that it was approaching when the gate went up and knew that the gateman was not properly discharging his duty; he had knowledge to the contrary.' In the light of this circumstance the open gate was not notice of a clear track and safe crossing. Such being the case, he went into a dangerous place, not only without invitation, but in the face of one known danger, and neglected to look for the other danger “just before going upon the track,” which is the time to look. New York, Chicago & St. L. Ry. v. Kistler, 66 Ohio St. 326 [64 N. E. 130]. This means that where there is more than one track, one should look both ways just before going upon each track, if there is time so to do. ‘ ‘ The train has the right of way on each track.” This is so because the person can stop within a few feet, and the train can not. Sidoti could not see to the west before he crossed the first track, because of the box cars on it. Had he looked before he crossed the second track he would have seen the train in ample time to avoid it. That was the first time he was called upon to look; for it was the first time he could see in that direction; the approaching train was upon the third track. He was then struck because he did not look to the west.

There seems no explanation of this accident, but his own negligence.

Judgment affirmed.

Marvin and Henry, JJ., concur.


source: Caselaw Access Project

author: WINCH, J.

license: Public Domain

text:
    CONTEMPTS — CORPORATION—INJUNCTION.
    [Cuyahoga (8th) Circuit Court,
    December 17, 1909.]
    Marvin, Winch and Henry, JJ.

      S. A. Grossner v. State of Ohio.
    1. Presumption that Final Judgment not Rendered when Supplemental Petition Filed.
    When a supplemental petition is filed in a case and judgment rendered upon it, it will be presumed that final judgment had not been rendered on the original petition and the case disposed of so as to preclude further judgment in the case, unless the record affirmatively shows the contrary.

      2. Injunction Bond Given by Corporation Signed by Attorney not) Officer not Invalid if Proper Sureties Have Signed.
    An injunction bond is not invalid because given by a corporation, the name of which is signed to tbe bond by its attorney of record, not an officer of the corporation, provided proper sureties have signed the bond as provided by law.
    3. Confinement in Jail for Ten Days Excessive for Violation of Injunction.
    Confinement in jail for ten days as punishment for violating an order of injunction is excessive punishment not authorized by Sec. 5581 R. S. (Secs. 11887 G. C. et seq.)
    Error.

      Francis J. Wing, Herman Preusser and Simon A. Grossner, for plaintiff in error.

      M. P. Mooney, for defendant in error.

      Affirmed, no op., Grossner v. State, 86 Ohio St. 312.

   WINCH, J.

Plaintiff in error was found guilty of contempt of court in violating an order of injunction issued by the common pleas court of Cuyahoga county. That he violated the order is. conceded, but he justifies on the ground that the order was of no validity, for two reasons, first, because the court had no authority to issue it; and, second, because no proper undertaking was given by the party obtaining it.

The record before us discloses that the order violated was made on a supplemental petition filed October 16, 1909, in cause of No. 111093, in the common pleas court and sought to temporarily restrain Mr. Grossner from prosecuting forty-nine suits against the Citizens Savings & Trust Co. pending before a justice of the peace, based upon its liability as garnishee in certain actions against forty-nine persons in which Grossner had obtaned judgments which are alleged to be invalid. This supplemental petition further prays that upon final hearing the plaintiff may be granted the relief prayed for in its original petition. The supplemental petition alleges that said forty-nine suits were brought after the filing of the original petition which asked for relief against other similar suits theretofore begun.

It is claimed by Grossner that the court had no jurisdiction to grant a restraining order upon this supplemental petition, because the original case had. long since been disposed of by a final deeree entered on .January 18, 1909. This decree is set forth in the bill of exceptions, as well as the order of injunction which was violated and these two orders are the only evidence in the record as to the case in which they were entered.

There is no copy of the docket entries, no pleadings (indeed it is shown in evidence that all the original pleadings have been lost), no copy of the record of the case, if one was ever made; all we have from which to determine whether the order of January 16 was intended as a final disposition of the case,is the order itself, and we have no evidence as to whether that order was ever attacked by motion for new trial during the term, petition to vacate it after the term, or proceedings for its review in a higher court.

Two recitals in said January decree are called to our attention as fixing its character as a final judgment disposing of the entire case. The opening words of the decree are as follows:

“This cause having been duly advanced for hearing upon the docket j of the court, came on for hearing upon the petition of the plaintiff and the answer of the defendant and the evidence, and was argued by counsel.”

It may be conceded .that the final judgment in a case would read about like this, but does it follow that an interlocutory order of injunction could not possibly open with these words? We think not.

The pleadings may have been sworn to absolutely and so have been used as affidavits. The fact, as recited, that the cause was advanced, is very , strong evidence that the whole cause as distinguished from an application for a restraining order only, was heard, but it is not conclusive that the entire case, after hearing, was finally disposed of. It is common knowledge that upon final hearing of an equity case something develops in the evidence which induces the trial judge to grant partial relief, but retain the cause for further consideration of some of the matters in issue. In this case it seems that the court saw fit to temporarily enjoin the further prosecution of the justice cases, but did not, adjudicate the validity of the causes of action therein set up. An adjudication of that kind necessarily would have been a final disposition of the entire matter. In the absence of such an adjudication it must be presumed that the court intended to consider that matter later, if it became necessary so to do, or to abide and adopt the decision in the test case which is mentioned in the decree.

"With this in mind the language of the decree “without determining any issue made or raised in this case and without prejudice to the rights of the parties hereto to try and all of said issues,” in said .test case, becomes plain and must be held as meaning that the decree is not intended as a final one.

It is also claimed that the bond ordered to be given in ,the January decree shows that said decree was a final one. The. conditions of said bond are specified, while the statute, Sec. 5576 E. S. (Sec. 11882 G. 0.), uses the general language “to secure to the party enjoined the damages he may sustain if it be finally decided that the injunction ought not to have been granted. ’ ’ As we read the decree we think the jbond ordered to be given is as comprehensive as it would have been had the general words of the statute been used instead of the specification, of the damages likely to be sustained.

It is true that the bond is even broader and such as might be ordered in a final decree, but this fact is not eon elusive of the question here made, for, in addition to the express words used in the decree reserving issues to be tried, it lacks one of the most characteristic elements of a final judgment and that is an adjudication as to costs. The January decree gives no judgment for or against either party as to costs; it is silent on,the subject. The cause was therefore unfinished.

Section 1319 E. S. (See..3026 G. C.). “On the rendition of judgment, in any case, the costs of the party recovering together with his debt or damages, shall be carried into his judgment.” See also. Secs. 5348 and 5351 E. S. (Secs. 11848 and 11851 G. C.)

Having concluded that the January decree was not intended as a final disposition of the cause, it follows that the case was still pending when the supplemental.petition was filed and that the court had authority in the original case and without eausing the supplemental petition to be filed as a new ease, to make the order which Grossner violated. This conclusion is strengthened by the presumption in favor of, the latter order which is expressed by the maxim, “omnia praesumuntur rite act a.”

The next question in the case is whether Grossner had a right to disregard the order made in October because of insufficiency of the bond filed by the plaintiff in the case.

The plaintiff was a corporation and its name was signed to the bond by its attorney of record in the case, and no authority, specific or general, from the corporation’s board of directors authorizing its attorney to sign its name to such bonds, was shown. The bond was, however, executed by sufficient surety approved by the clerk of the court.

Conceding that the authority of the attorney of record in the case did not authorize him, in the absence of a showing that his client could not be reached, to,sign the corporation’s name to the bond, we still think the bond was sufficient as a literal compliance with the statute, Sec. 5576 R. S. (Sec. 11882 G. C.), which only requires the plaintiff to give an undertaking, executed by sufficient' surety and does not specifically require the plaintiff to execute the,bond. The authorities upon this subject are found in the ease of Johnson v. Johnson, 31 Ohio St. 131. We believe that case was decided upon the wording of a similar statute relating to , appeal bonds, and not upon the suggestion contained in the opinion that the appellant would be bound by any judgment that might be rendered-in the appellate court without obligating himself by an undertaking to be so bound. We realize that such is not the case with an injunction bond; there can be no recovery against a plaintiff in injunction for damages sustained by the wrongful suing out of an injunction, except upon an injunction bond. But the bond executed by the surety in this ease is so worded as to' make him liable for his promise, whether his principal signed it or not. It reads:

“We bind ourselves to the said defendant in the sum of two hundred dollars that the said plaintiff, the Citizens Savings & Trust Company shall pay to the said defendant the damages he may sustain by reason of the restraining order in this action, if it be finally decided that the said restraining order ought not to have been granted.”

This is an original promise upon the faith of which the order of injunction went into effect, and it is unnecessary to determine whether it savors of suretyship or guaxantyship.

We suggest further that the plaintiff in this case may be liable on said bond under the rules not only of estoppel but of ratification.

The evidence in the ease warranting the application of either or both of said doctrines we do not find it necessary to set forth, as we rest the sufficiency of said bond upon the wording of the statute requiring it to be given.

Finding the bond sufficient, the plaintiff in error was without excuse in violating the order of injunction. He was clearly in contempt of court when he disregarded the order. The only point made as to any inequities in this trial upon the contempt charges, is as to the sentence. The court ordered a confinement in jail for ten days as punishment for violating the order, to be followed by confinement until the order was complied with. Clearly this was excessive punishment not authorized by the statute, Sec. 5581 (11887).

For error in the sentence alone, the judgment is reversed and the cause remanded for re-sentence according to law.

It follows that the judgment in the habeas corpus ease must also be reversed, and judgment rendered for the applicant.

Marvin and Henry, JJ., concur.


text:
    BRIDGES — TAXES.
    [Cuyahoga (8th) Circuit Court,
    January 17, 1910.]
    Marvin, Winch and Henry, JJ.

      State ex rel John A. Cline v. Robert C. Wright, Aud.
    Act Relating to Taxes for Bridge Purposes Unconstitutional.
    That part of Sec. 2824 R. S. (See Sec. 5635 G. C.), which provides “that in all cities of the second grade of the first class, and all cities of the second class, one-half of the proportion of said bridge fund collected (under a levy by the county commissioners) upon the property within said cities, in all cases where the city council shall demand it, shall be paid into the city treasury, and shall be expended by such city for the purpose of building repairing bridges,” is unconstitutional._

      Error.

      W. D. Meals and John A. Cline, for plaintiff in error.

      Newton B. Baker, for defendant in error.

       Affirmed, no op., State v. Wright, 84 Ohio St. 448.

   WINCH, J.

In this case we hold that the clause of See. 2824, Rev. Stat. which provides, “that in all cities of the second grade of the first class, and all cities of the second class, one-half of the proportion of said bridge fund collected (under a levy by the county commissioners) upon the property within said cities, in all cases where the city council shall demand it, shall be paid into the city treasury, and shall be expended by such city for the purpose of building and repairing bridges,” is unconstitutional. We do not base this conclusion solely upon the claim that this legislation is in contravention of the constitutional requirement that laws of a general nature shall have uniform operation throughout the state, for we appreciate the fact that there is some force in the suggestion that by general law, both cities and counties are authorized to levy and collect taxes for bridge purposes and expend them in building and repairing bridges, and that a division of funds so raised, or transfer thereof, from one authority to another, may be merely a local matter (though the petition shows no facts which differentiate Cleveland from other cities in the state in that respect) but we are clearly of the opinion that the authority conferred by this special act upon certain cities to demand and to receive one-half of the bridge fund is a conferring of corporate powers, and so is inhibited by Art. 13, Sec. 1 of the constitution which provides that: “The general assembly shall pass no special act conferring corporate powers.”

Judgment reversed.

■Henry, J., concurs.

Marvin, J., not sitting.


text:
    JUSTICE OF THE PEACE.
    [Cuyahoga (8th) Circuit Court,
    January 24, 1910.]
    Marvin, Winch and Henry, JJ.
    State, ex rel M. J. Penty v. A. H. Hansen.
    Justice of the Peace in New Township Holds until Successor Elected at First Township Election.
    A justice of the peace elected in a new township at a special election held on a day fixed by the common pleas court, pursuant to Sec. 566 R. S. (Sec. 1712 G-. C.), holds office until the election of a successor at the first general township election thereafter held.

      Mathews <& Orgill, for relator.

   WINCH, J.

Relator by his application, in this case represents that he was duly elected to the office of justice of the peace in and for the township of Corlett, Cuyahoga county, Ohio, at the November election, 1909, and has qualified by giving bond which has been approved, and has received his commission as such justice of the peace and recorded the same with the clerk. He further represents that the defendant is unlawfully holding said office and excluding the -relator therefrom.

It appears that the township of Corlett was duly created as a new township May 4, 1907, whereupon, pursuant to Sec. 566 R. S. (Sec. 1712 G. C.) of the statutes, the common pleas court of Cuyahoga county determined that there should be one justice of the peace for said township, and fixed May 25, 1907, as the day for his election. Upon said day the defendant was duly elected justice ■ of the peace for Corlett township, and the question in this ease is, for how long a term was he elected ? '

The statutes regulating such matters are somewhat indefinite and inconsistent, because after the amendment of the constitution in November, 1905, changing the term of office of a justice of the peace from three years to such even number of years not exceeding four years as may be prescribed by the general assembly, the latter failed to amend all of the sections of the statutes bearing upon this matter, but did amend Secs. 567 and 1442 R. S. (Sees. 1714 and 3268 G. C. et seq.) in such manner as to provide that justices of the peace should be chosen for a term of four years the first Monday in November in the odd numbered years, and that their terms of office should commence on the first day of January next after their election. No change was made in Sec. 566, and in order that the general scheme of elections as outlined by the constitutional amendment and the amendments of the statutes which the general assembly did make pursuant thereto may be carried out, so that township and municipal officers, including justices of the peace, shall be elected only at the November election in the odd numbered years, we are required to hold, as we do, that Sec. 566, which authorizes a special election to be held on a day to be fixed by the common pleas court, simply provides for the election of a justice of the peace to hold office until one can be elected at the first general township election thereafter held.

So interpreting the statute it would seem that defendant’s term would have expired on January 1, 1908, and that at the November election in 1907, a justice of the peace should have been elected in Corlett township to hold office for four years from January 1, 1908. No such election was held, however, until the November election, 1909, at which time the relator was duly elected, and we hold that his term began on January 1, 1910, and will continue for four years.

It follows that the relief prayed for by the relator should be granted.

Judgment of ouster of the defendant and induction into office of the relator.

Marvin and Henry, JJ., concur.


text:
    JUDGMENTS AND DECREES.
    [Cuyahoga (8th) Circuit Court,
    February 7, 1910.]
    Marvin, Winch and Henry, JJ.
    Charles W. Wrentmore v. E. E. Wrentmore.
    Correction of Judgment'to Conform to Actual Judgment by Nunc ProTunc Entry after Term.
    A court has power after the term, by a nunc pro tunc entry, or otherwise, to amend and modify its judgments or decrees, or the entries thereof, so as to correct clerical errors and mate the entries conform to the judgments and decrees actually rendered.
    Error.

      Burrows cfe Mason, for plaintiff in error.

      C. L. Gates, for defendant in error.
   WINCH, J.

This is a proceeding to reverse a judgment of the common pleas court entered at the September term, 1909, correcting the entry of a. judgment made by said court at the July term, 1907.

The judgment complained of recites:

‘ ‘ This action came on to be heard upon the motion of plaintiff to correct the journal entry heretofore placed upon the journals of this court in said action, so that it may conform with the actual judgment by the court, and was submitted to the court upon the evidence, and the court being fully advised in the premises, finds that statements of fact contained in said motion are true. It is therefore ordered, adjudged and decreed that said journal entry heretofore placed on the journals of this court, be corrected so as to conform with the actual judgment rendered by the court by adding thereto the following, ’ ’ etc.

The bill of exceptions shows that the evidence offered in support of the motion was the motion itself used as an affidavit and the trial judge’s recollection.

It may be assumed that the law of the ease is fairly stated by counsel for plaintiff in error in his brief, as follows:

“A court has no power after the term, by a nunc pro tunc entry, or otherwise, to amend or modify its judgments or decrees or the entries thereof, except to correct clerical errors and make the entries conform to the judgments and decrees actually rendered, and except when under the express authority of Section 5354 of the 'Eevised Statutes of Ohio.”

As there is no claim that this motion was under the express authority of said See. 5354 E. S. (Sec. 11631 G-. 0.), the only point to be examined is whether its purpose was to correct a clerical error and make the original entry conform to the judgment actually rendered.

The motion is as follows:

“The said plaintiff respectfully represents to the court that at the trial of'the above entitled action the court heard and determined certain matters in dispute between the parties, but did not hear or determine the rights and liabilities of the parties in reference to the inventory of the chattel property of the co-partnership formerly existing between plaintiff and defendant, nor the rights and liabilities of the parties in and to the chattels covered by said inventory, but all questions in regard to the same were reserved to be determined by the parties themselves.
“Said plaintiff further represents that the journal entry placed upon the journal of the court contains no entry whatever in reference to the said inventory and the goods and chattels of the co-partnership covered thereby or the rights and liabilities of the respective parties in reference to the same, but that by intendment of law said journal entry is res adjudicata as to the «aid inventory and goods and chattels covered by the same and the rights and liabilities of the parties in reference thereto; that said journal entry fails to truly and correctly state the judgment of the court in said above entitled action, in that it, by legal effect finally adjudicates and determines the rights and liabilities of the parties arising from and growing out of said inventory and the chattels covered by the same, although, as a matter of fact, the court did not hear, adjudicate or determine any of the said rights and liabilities of the parties.
“Wherefore said plaintiff moves the court to correct said journal entry so as to conform with the actual judgment rendered by the court, and for such further order in the premises as may be proper. ’ ’

It seems to state specifically enough that the court did not hear or determine the rights and liabilities of the parties as to certain matters, and that said matters were reserved to be determined by the parties themselves.

It further states that the journal entry fails to truly and correctly state the judgment of the court.

The recollection of the judge was to the same effect.

The prayer of the motion was that the court correct said journal entry so as to conform with the actual judgment rendered by the court.

The judgment rendered on the motion is that the entry “be corrected so as to conform with the actual judgment rendered by the court,” and sets forth what that was.

We think the trial judge having found the fact to be that the entry originally made did not conform to the judgment he had actually rendered, had full authority to correct it so to show the actual judgment rendered, and that he acted upon proper evidence. Jacks v. Adamson, 56 Ohio St., 397. [47 N. E. 48; 60 Am. St. 749.]

Judgment affirmed.

Marvin and Henry, JJ., concur.


text:
    DEEDS — ESTOPPEL.
    [Cuyahoga (8th) Circuit Court,
    February 7, 1910.]
    Marvin, Winch and Henry, JJ.
    Ernest Becker v. Edla F. Shade et al.
    Grantor Estopped to Ask that Invalid Deeds be Set Aside.
    In an action to set aside deeds because of their invalidity under the law, relief will be denied the plaintiff when it appears that he has not been wronged or defrauded; that he actively brought about the very situation of which he complains; that he took no prompt steps to notify the defendants of the defect in their title; but stood by while they expended money on the property and made no offer to place the defendants in statu quo.
    Error.

      F. C. Hartman, for plaintiff in error.

      J. N. Nall/y, H. B. Grotty, Louis B. Spanner, Fred Bruml and James Hossack, for defendants in error.
   WINCH, J.

This is an action to set aside two deeds because of their invalidity under the law of Ohio.

The defendants are charged with no fraud; at least so far as the evidence shows, they were innocent purchasers who paid full value for the property; but plaintiff demands his property back, and claims that he is entitled to receive it, solely upon the ground that said deeds were ineffectual to pass the title to the property.

We are inclined to think that a fraud would be perpetrated upon the defendants, if we should grant the relief prayed for by the plaintiff.

It seems that in the latter part of 1908, the plaintiff, desirous of disposing of some vacant lots he owned upon Broadway, in the city of Cleveland, which were encumbered for all they were worth, and contemplating a trip to Europe, signed a blank form of quit-claim deed, which contained no description, grantee’s name or consideration, and acknowledged the same before a notary, who, however, did not at the time certify to the acknowledgment. This deed was left with an agent with instructions to trade off the Broadway property as best he could, and to fill in the blanks in the deed, when he got a customer. The agent traded the property with defendant, Edla F. Shade, for some improved property on Holyoke avenue, the latter being deeded to plaintiff’s daughter to hold for him, and produced the quitclaim deed in question which meanwhile had been filled in and signed and acknowledged by plaintiff’s wife. Mrs. Shade’s husband demanded a warranty deed of the premises, and this was furnished, the plaintiff’s wife signing his name to it and procuring two witnesses and a notary’s certificate of acknowledgment to it; how she managed to do this, we do not know. The Shades had no knowledge that plaintiff was in Europe and supposed both deeds to be genuine and valid. They both appeared to be perfectly regular upon their face.

That these deeds were invalid is clear, and so we stated upon the hearing, but we heard the evidence of the defendants as to their claim that plaintiff should be estopped from asserting their invalidity.

We have no doubt, however, that plaintiff fully believed that he could convey a good title by the quit-claim deed he signed, and intended it to have that effect, and we believe that he instructed his wife to sign his name to any papers that might be needed to transfer said property, and perhaps believed that she could so give good title thereto.

It is apparent from the evidence that plaintiff never knew or supposed the deeds in question were invalid, until the Broadway property had been improved, and he then found it to his interest to upset the transactions.

Both these deeds were dated November 19, 1908. Plaintiff returned from Europe December 19, 1908, and at once was informed of the transaction by his wife. He investigated the transaction, inspected the Holyoke property, and in January, 1909, told his agent that he hadn’t got much of a bargain, but that the other side hadn’t got any better. His agent told him that Shade was willing to trade back, and this was a fact, but he permitted the agent to collect the rents of the Holyoke property, collected rents himself and notified the tenants that he was their landlord, promising them repairs.

In February, Edla F. Shade contracted to sell the Broadway property to defendant. Blanche Epstein, and the transaction was soon concluded by a deed. Mrs. Epstein paid off mortgages and other liens on the property, mortgaged it to defendant, the Ohio Savings & Loan Co., to secure a building loan, and commenced the creation of a block on the premises.

Plaintiff knew of the erection of the building, at one time visiting the premises and telling Mr. Epstein, then present, that he had more nerve than plaintiff had to improve that property. When said building was nearly completed plaintiff began this suit, offering to deed back the Holyoke property, but tendering no deed until after the conclusion of the hearing in this case.

While plaintiff, perhaps in May, sent notice to Mr. Shade, husband of Edla F. Shade, of his claims, he never notified Mrs. Shade or the defendant, Mrs. Epstein, of his claim.

Plaintiff has never tendered to defendants their expenditures in removing certain liens from the Broadway property.

If the foregoing statement of the facts of. the case seems incomplete to plaintiff’s counsel, it is because we have disregarded plaintiff’s own. testimony because of our lack of belief in his veracity.

There appear to be three reasons why plaintiff should not recover in this case:

He has not been wronged or defrauded; he actively brought about the very situation of which he now complains.

He did not promptly take steps to notify defendants of the defect in their title, but stood by while they expended money upon the property; indeed, if such imperfectly executed deeds can be ratified, he did ratify and confirm them.

He has not offered to put defendants in statu quo. The tender of a deed was not sufficient.

Petition is dismissed.

Marvin and Henry, JJ., concur.


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    ATTACHMENT AND GARNISHMENT.
    [Cuyahoga (8th) Circuit Court,
    May 7, 1910.]
    Marvin, Winch and Henry, JJ.

      Citizens Savings & Trust Co. v. S. A. Grossner.
    1. Attachment for Services Rendered Non-resident.
    Attachment will lie in an action for services rendered a nonresident.
    2. Sufficient Service on Garnishee to Sustain Attachment.
    Service upon a garnishee requiring it to answer whether it has in its hands, either individually or as receiver money belonging to the debtor, is sufficient to sustain an attachment.
    3. Sufficient to Show Possession in Garnishee of Funds Belonging to Debtor.
    In an action against a garnishee it is sufficient to show that at the time service was had upon him he had in his possession property belonging to the debtor.
    Error.

      M. P. Mooney and M. B. & H. H. Johnson, for plaintiff in error.

      Herman Preusser, for defendant in error.

      Affirmed, no op., Citizens Savings & Trust Co. v. Grossner, 83 Ohio St. 443.

   WINCH, J.

This was an action brought by Grossner against the bank for failure to answer as garnishee in an action against one Eckhoff. It is conceded that the bank has in its hands funds belonging to Eckhoff, sufficient to pay the judgment against him, but certain technical objections are raised as reasons why it should not respond. We shall examine them in their order.

The first point is that the justice’s record does not show that the action against Eckhoff was one in which an attachment is authorized by the statutes.

' The statute authorizes an attachment- against a non-resident of the county, when the claim is for a debt or demand arising upon contract. The record shows that the defendant was a nonresident and that the action was for services rendered.

We can imagine no action to recover the value of services which does not arise upon a contract, express or implied.

It is said that the bank was never properly served with the order of attachment because it is described in the affidavit therefor as the Citizens Savings & Trust Company, individually, or as receiver, as garnishee. The record shows that the bank was served. The purpose was to require the bank to answer whether it had in its hands, either individually or as a receiver, funds belonging to Eckhoff. There is no alternative naming of a defendant, so that it is doubtful what defendant was required to answer, as in cases cited; the proper defendant was named and served, and was required to answer in both capacities.

It is claimed that the judgment against Eckhoff, a non-resident, was void, because the justice did not first find that there were funds in the hands of the garnishee belonging to him before he continued the case for service by publication. The record does show, however, that the justice after judgment found this fact, and this we think sufficient. Indeed, it is sufficient, in an action against the garnishee, if the fact be that at the time of service upon him he have in his possession property belonging to the defendant. Root & McBride Bros. v. Davis, 51 Ohio St. 29 [36 N. E. 669; 23 L. R. A. 445.]

We.find no merit in the claim that the docket of the justice fails to show how much money the bank was ordered to pay and that the order to pay several upon the bank, directed it to pay the money to one named as special constable, whose authority as such was not shown.

The order to pay was, in effect, a letter or notice which came to the bank’s hands as a demand that it hold Eekhoff’s funds for the payment of Grossner’s judgment against him. The bank did not see fit to comply with said order, but now, in this suit, being formally called upon to respond, and it appearing clearly that Grossner has a valid judgment against Eckhoff and that the bank has in its hands sufficient funds to pay it, we see no good reason why it should refuse to do so.

Judgment affirmed.

Marvin and Henry, JJ., concur.


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    PARTITION.
    [Lorain (8th) Circuit Court,
    April 29, 1910.]
    Marvin, Winch and Henry, JJ.
    Clifford S. Terrell v. Electa Leonard et al.
    1. Commissioners in Partition not Disqualified because of Decided Views of Property Value.
    Commissioners in partition are not disqualified to act because they have decided views of the value of the land to be aparted and have previously expressed such view, provided they are otherwise disinterested, as required by the statute.
    2. Before Partition Set Aside Commissioners' Discretion Should Show Plainly Abused.
    Commissioners in partition are by law required to make a division of the land in an equitable manner, and before their award will be set aside, it must appear clearly that the discretion thus vested in them has been plainly abused, or that they have made a manifest mistake.

      Error.

      D. J. <& D. F. Nye and F. M. Stevens, for plaintiff in error.

      Stroup & Fauver, for defendants in error.
   WINCH, J.

This was an action to partition abont twenty acres of land of peculiar shape, being only 144 feet wide and over a mile long, lying on both sides of the Cleveland road a few miles east of Elyria. The plaintiff, Clifford S. Terrell, owned five-sevenths, and his sister, Electa Leonard, one-seventh, and his brother, Edwin Terrell, one-seventh. About two acres of the land lies south of the road from which it rises to the well-known fertile ridge which makes such beautiful sites along this road. On this piece is the old farm house and some outbuildings. The eighteen acres north of the road drops off sharply from it to a lower level which is somewhat wet and wooded at the northern end. Clifford owns the adjoining farms on both sides of this entire strip, both north and south of the road. On the north piece is a barn half on this land and half on Clifford’s adjoining land, another barn and a shed connecting the two barns. All the buildings on both pieces were built many years ago.

The commissioners first appointed found the land divisible by metes and bounds, and set off to Clifford as his five-sevenths, all the land lying north of the road. To Eleeta they set off half an acre south of the road on which is the old farm house, and to Edwin they gave the balance of the land south of the road.

There was some informality in the return of the commissioners ; they made a slight mistake in the description of one of the pieces, which the court very properly might have corrected, but he saw fit to set aside the return, appoint the same commissioners again, over the objection of the plaintiff, and they brought in the same report a second time.

The plaintiff complains of the reappointment of the same commissioners, claiming they were not, on the second view ‘ ‘ disinterested,” as required by the statutes, and he also says that the division made by them is inequitable and unjust; that it gives him too little and his sister, Electa, too much. Edwin, as well as Electa, seems to be satisfied with the report. Clifford claims that the property is not divisible by metes and bounds, but should be sold and the proceeds divided.

We find no trouble in the claim that the commissioners were not disinterested. That they had decided views as to what division should be made of the property, obtained from their first investigation of it, is doubtless true, but that they had any interest in it of their own, is absurd, as shown by the record, which, contains their cross-examination. It is in this latter sense that the law says they shall be disinterested. Ordinarily the best commissioners are. those who have decided views, an intimate knowledge of the property and experience as to real estate values, and, with regard to farm lands, a thorough knowledge of the uses to which such land can be put. These commissioners were considered not only disinterested but judicious, by all parties, when they were first appointed, and the only question now before us is whether they have made such return that the plaintiff has a right to complain of it on its merits.

As to the values put by the witnesses in the court below upon the several parcels into which the farm was divided by the commissioners and the improvements upon them, they vary so and run to such extremes that they are almost irreconcilable. The witnesses seem to reflect the views of the parties who called them and to strive to sustain their contentions in a partisan manner.

The trial judge, in a careful manner, showing thorough knowledge of real estate values, has made an effort to sustain the division made by the commissioners by the money values given by certain of the witnesses whose testimony he considered of most weight.

His opinion on this subject while not entirely convincing, is not lightly to be disregarded, for he had the advantage of seeing the witnesses. One thing, however, is clear, if a division by metes and bounds is to be made, the commissioners have made the only one of which the land is susceptible. The division made by them gives Electa somewhat more than one-seventh of the property, when valued in dollars; and it gives Edwin considerable less than one-seventh, so valued. The exceptor, Clifford, plaintiff in error, gets about his share, five-sevenths, even if the land is not to be considered with reference to the fact that he owns on. both sides of it and also owns half of the barn.

Edwin has a clear right to have this division set aside, for the share set off to him is manifestly below the value of one-seventh of the whole, but he is not complaining. Taking his share with his sister’s it leaves Clifford receiving very nearly his due, even when the land is considered without reference to its surroundings. Which is the better brother is easy to determine.

The contention of Clifford that the land, by reason of its peculiar shape, should not be divided at all, but should be sold, we think would be sound, if it were not surrounded by his land. He would be the only person who could realize its full value by making it a part of the farms he already owns. No one else could bid as much for this farm as he can., and he owns so much, five-sevenths of it, that a sale of the farm would give him a decided advantage and might result inequitably to Electa and Edwin.

We are thus in that position with regard to this case that courts are frequently in: no matter what is done one party or the other will suffer some loss unjustly.

The division by metes and bounds made by the commissioners gives Clifford some few dollars less than his full five-sevenths in value of the farm, if considered by itself without reference to his ownership of the adjacent farms; a sale of the farm and division of the proceeds would give Clifford an undue advantage as a bidder by reason of that very ownership.

We determine the matter, therefore, in favor of the weaker party, in favor of the owner of only one-seventh. This conclusion, we believe, is warranted by the law.

Section 12031 G. C. provides:

“In making such partitions the commissioners must view and examine the estate, and, on their oaths set it apart in such lots as will be most advantageous and equitable, having due regard to the improvements, situation and quality of the different parts.”

We believe the division made by the commissioners in this case is, under all the circumstances, the one most advantageous and equitable that could possibly be made, and that they gave no more than due regard to the improvements, situation and quality of the different parts. Although the commissioners are merely ministerial officers, assisting the sheriff to execute an order directed to him, still it seems that they are to make the division in an equitable manner.

We are unable to say that they have abused the very large powers that are given them by the use of this word in the law directing how they shall perform their duties.

Judgment affirmed.

Marvin and Henry, JJ., concur.


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    LANDLORD AND TENANT.
    [Cuyahoga (8th) Circuit Court,
    May 9, 1910.]
    Marvin, Winch and Henry, JJ.
    Standard Brewing Co. v. Agnes Tomash et al.
    Tardy Notice of Desire to Renew Lease.
    A stipulation in a lease terminating December 31, 1909, for its renewal for three years, “provided said party of the second part shall demand such renewal at least five days before the expiration of his lease,” is not complied with by a letter written December 27, 1909, and received by the landlord December 29,1909.
    Error.

      Sanders & Sanders, for plaintiff in error.

      Caldwell & Younger, for defendants in error.
   WINCH, J.

Plaintiff in error was tenant of defendants in error, under a written lease for one year beginning January 1, 3909, and ending December 31, 1909. Said lease contained a stipulation for its renewal for three years more, “provided said party of the second part shall demand such renewal at least five days before the expiration of his lease. ’ ’

December 27,1909, the brewing company wrote a letter to its landlord demanding such renewal; this letter was received by them December 29, but they declined to grant the renewal, served notice upon the tenant to quit the premises, and brought proceedings in forcible detainer before a justice of the peace, who decided in favor of the landlord.

Thereupon the ease was carried to the common pleas court on error, and the judgment of restitution affirmed.

The case is here on error to review both judgments.

The trial before the justice was on an agreed statement of facts, and the only point for our consideration is whether the demand for a renewal made by the tenant was in time, plaintiff in error claiming that the clause quoted from the lease is a continuing offer from the landlord, which is good and may be accepted until revoked by him within the five days stipulated; in other words, that the offer being open, a bargain is consummated by its acceptance and notice thereof to the other party, before he communicates the withdrawal of his offer.

We do not construe this stipulation as such continuing offer. Taking the plain meaning of its terms, it is an offer good until December 26, 1909, terminating then according to its own limitation. On December 27 there was no offer outstanding for acceptance. Manifestly the offer was intended to terminate December 26, so that the landlord might have five full days in which to secure another tenant, if the brewing company up to that time had failed to offer itself, having had first chance, as such tenant.

The option had expired when the letter was written, and the justice rightly decided the case, and the common pleas court very properly affirmed his judgment, and is .now in turn affirmed by this court.

Marvin and Henry, JJ., concur.


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    EXEMPTIONS — MANDAMUS.
    [Cuyahoga (8th) Circuit Court,
    May 31, 1910.]
    Marvin, Winch and Henry, JJ.
    State ex rel Minnie Dreher, v. A. J. Hirstius, Sheriff
    Mandamus not Proper Remedy to Enforce Homestead Rights.
    Mandamus is not the proper remedy by which to require the sheriff to set off a homstead in lands under an order of sale in his hands.
    Error.

      Toland & Pearson, for plaintiff in error.

      Myers & Green, for defendant in error.
   WINCH, J.

This was an action in mandamus to compel the sheriff to set off a homestead to the relator in certain premises under an order of sale in his hands. The case was originally begun in the common pleas court and is here on appeal. There appear to be three reasons why the relief prayed for should not be granted.

First. It is not at all clear that the mortgagee defendant did not desire the sale. In this respect the case differs from that of Bernsee v. Hamilton, 3 Circ. Dec. 550 (6 R. 487).

Second. The relator has “a plain and adequate remedy in the ordinary course of the law.” She can object to the confirmation of the sale or otherwise bring the matter to the attention of the court in the original case, and have its determination reviewed on error.

Third. Pending the appeal the sheriff sold the property and distributed the fund.

“If it is apparent that the writ if granted, can not be enforced by the court, relief will be withheld, since the courts are averse to exercising their extraordinary jurisdiction in cases where their authority can not be vindicated by the enforcement of process.” High on Extraordinary Remedies, Sec. 14.

Writ refused and petition dismissed.

Marvin and Henry, JJ., concur.


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    CRIMINAL LAW — VARIANCE.
    [Cuyahoga (8th) Circuit Court,
    June 10, 1910.]
    Marvin, Winch and Henry, JJ.
    Jacob Goldberg v. State.
    Variance in Number of House Fatal in Prostitution Case.
    When an indictment alleges that the accused induced a female person under eighteen years of age to enter a house of ill-fame for the purpose of prostitution, and described the house as No. 501 Hamilton avenue, in the city of Cleveland, and the only proof is that he induced her to enter No. 415 Hamilton avenue in the city of Cleveland, the variance between the allegation and the proof is fatal.
    Error.

      Francis J. Wing and Max Goodman, for plaintiff in error.

      John A. Cline and G. C. Hansen, for defendant in error.
   WINCH, J.

Plaintiff was convicted under Sec. 7023 R. S. (Sec. 13027 G. C.), of the crime of inducing, decoying and procuring one Gussie Cohen, a female person under the age of eighteen years, to enter a house of ill-fame, for the purpose of prostitution. The indictment alleges that ‘1 said house of ill-fame was then and there kept by one Jane Doe, whose real name is to the grand jurors unknown, which house was then and there located on Hamilton avenue in the city of Cleveland, and was then and there known as being No. 501 Hamilton avenue in the city of Cleveland.”

The evidence adduced at the trial was that she was induced to enter a house of ill-fame kept by one Maud Osborn at No. 415 Hamilton avenue, and that 415 is a different place from 501. This variance between the indictment and the proof is claimed to be reversible error. It is said that the accused was prejudiced in two material respects by this variance:

First. He was not enabled by the charge in the indictment to properly prepare his defense, for being notified to defend himself against the charge that he had induced the girl to enter a house of prostitution kept by some woman whose name the grand jurors did not know, at 501 Hamilton avenue, and being prepared to show that the girl was never in said house he was confronted with proof that she was in some other house elsewhere on the street.

Second. It is claimed that the record of conviction in this ease of having induced the girl to enter No. 501 Hamilton avenue can not be used by him, or pleaded in bar, should he hereafter be indicted for inducing her to enter No. 415 Hamilton avenue, although he induced her to enter but one house.

On the other hand, the prosecuting attorney claims that the variance is as to an immaterial matter, and that the question was left to the jury whether in using the number 501 the grand jury intended to describe No. 415.

That the grand jury described the number they intended to describe is plain from the evidence.

It is perhaps correct to say that the grand jury need not have described the house further than to say that it was a house of ill-fame on Hamilton avenue in the city of Cleveland, Cuyahoga county, Ohio, for the statute makes it a crime to induce a female person under eighteen years of age to enter “any house of ill-fame” for the purpose of seduction or prostitution.

This case is so much like the case of Moore v. State, 12 Ohio St. 387, that we are unable to make any distinction between the two cases. The syllabus of that case is as follows;

“Where an indictment for selling spirituous liquors to be drank where sold, avers that the sale was made at a particular place, by way of local description and not as mere venue, the proof must correspond with the allegation.
“Wh.ere such indictment alleges the sale to have been made at the grocery of M in the township of A, and the only proof is of sale at the grocery of M in the township of G, the variance between the allegation and the proof is fatal to the prosecution. ’ ’

In the opinion it is pointed out that it was not necessary that the indictment should state the precise locality of the act of sale, for the statute itself provided that it should not be necessary to describe the place where the liquor was sold, and Roseoe’s Criminal Evidence, -112, is cited to the proposition that where the name of the place is mentioned not as matter of venue but of local description, it must be proved as laid, although it need not have been stated. The court further says: “the cases are numerous, requiring proof of averment descriptive of the offense, which were unnecessarily inserted in. the indictment.” So here, it being alleged that the accused induced the girl to enter a house of ill-fame at 501 Hamilton avenue, it was necessary for the state to prove that that was the house she was induced to enter, and proof that she was induced to enter some other house fails to make the ease.

We are constrained to reverse the judgments in this case upon the authority of the ease cited. See also Griffin v. State, 14 Ohio St. 55.

We are not reluctant to reverse this case, because the reading of the evidence creates a reasonable doubt in my mind at least, as to the defendant’s guilt, and although we are loathe to set aside the verdict of a jury in a criminal case, still we feel that there must have been circumstances at the trial, perhaps the infamy of the offense alone, which caused the jury to disregard the instructions of the court that they must be satisfied beyond a reasonable doubt that the accused was guilty as charged in the indictment.

Other numerous errors are alleged to have occurred at the trial, but we find none prejudicial to the rights of the accused, except the variance mentioned, for which alone the judgment is reversed.

Marvin and Henry, JJ., concur.


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    COVENANTS — ESTOPPEL.
    [Cuyahoga (8th) Circuit Court,
    May 31, 1910.]
    Marvin, Winch and Henry, JJ.
    Minerva J. Parmenter et al v. Frank E. Mueller et al.
    1. Conflicting Building Restrictions Reconciled to Express Parties' Intentions.
    Conflicting building restrictions in a deed must be reconciled ac- ■ cording to the manifest intention of the parties.
    2. Party Induced to Delay Bringing Action by Adversary not Estoppel.
    Laches or estoppel can not be claimed against a plaintiff who has been induced to delay bringing suit by the conduct of the defendant.
    Error.

      White, Johnson <& Garmon, for plaintiff in error.

      A. C. K. Schoeneman, for defendant in error.
   WINCH, J.

We construe the restrictions Contained in the deed from Charles L. F. Wieber and wife to Nellie F. Wright as prohibiting the erection of any building or structure of any kind excepting porches or bay windows on sub-lot No! 9 within forty feet from the Belle avenue street line for a period of twenty-five years from the date of said deed. This restriction is specified and not to be overcome by the other restriction in said deed “that the dwelling-house shall be erected or placed so as to leave not less than fifteen feet of clear space on the westerly side of the lots,” which was the form of restriction used by the maker of the subdivision in deeds to lots fronting on Clifton boulevard, and carelessly inserted in this deed.

We apprehend that these two lots, 9 and 10, were sold as one parcel of land and that it was not intended that the westerly fifteen feet of lot 10 should not be built upon, so that defendants’ contention that lot 9 would become valueless if the forty feet restriction should be enforced is of no avail to them.

Upon the question of estoppel, we find the defendants did not act in good faith.

Not only were they advised from the time they purchased the property that it was subject to the restriction contained in the Wright deed, but the improvements on Belle avenue showed them the general building line. When they built the house on the rear of the lot they were told that all buildings on Belle avenue had to be back forty feet from Belle avenue and when they started the building on the corner the neighbors questioned them and showed such interest in their operations that they should have foreseen the bringing of this suit. But defendants were not candid. To all questions as to where they were going to build they said that they knew the restrictions and were going to live up to them. To no one who inquired did they say that they claimed a right to build within fifteen feet of Belle avenue.

Had they been acting in good faith they would have notified the inquiring neighbors that they claimed the right to build closer than forty feet to Belle avenue and would do so, unless enjoined by the courts. Such conduct would have got the case into court before they had proceeded very far with their building. We think their own conduct produced the slight delay which ensued, before the suit was brought.

Judgment for plaintiffs.

Marvin and Henry, JJ., concur.


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    CRIMINAL LAW.
    [Cuyahoga (8th) Circuit Court,
    1910.]
    Henry, Marvin and Winch, JJ.
    Roy Cole v. State of Ohio.
    Conviction Clearly Established by Accused’s Evidence not Reversed for Inadvertent Error in Charge to Jury.
    • When it is manifest from the record, by the defendant’s own testimony, that he was clearly guilty of the offense charged in the indictment, a judgment of conviction will not be reversed for error in the charge due to an unintentional mistake in the use of language by the trial judge, apparent to everybody, jury and all alike, it being certain that a new trial would result only in another conviction.
    Error.

      Transferred from Licking (5th) Circuit.

   WINCH, J.

Plaintiff in error was convicted at the September term, A. D. 1909, of the Licking county common pleas court, of pocket picking.

It is conceded by his counsel that he took a gold watch, a railroad ticket, divers letters and one half pint bottle of whiskey from the person of one James Adams.

His defense was that though he took the property, he was so drunk that he did not know what he was doing, and so could have no intention to steal.

The judge properly charged the jury that one of the essential elements of the crime of pocket picking is the taking of property from the person of another, without force and violence, and without putting him in fear, but with the intent to steal the same.

It is said, however, that the judge improperly charged the jury as to the defense of intoxication, and this is the main ground of error relied upon by counsel for plaintiff in error, though it is also claimed that the verdict of the jury is contrary to the weight of the evidence on the question of intoxication.

As to the evidence:

It is clear that both Adams and Cole were drunk on the night the offense was committed. Adams was asleep on a bench in the waiting room of the Baltimore & 0. depot at Newark. Cole had been drinking ever since eight o’clock in the evening and came into the waiting room sometime between 11 o’clock p. m. and midnight, according to the witnesses, Annie Gallagher and Adolph Amthes, and between midnight and one o’clock in the morning according to his own story. He walked up to the sleeping man, shook him and not awakening him, went through his pockets, abstracting the articles mentioned in the indictment.

Cole says that he remembers nothing after midnight and was dopy, but his own story contradicts him in this respect.

Let us consider a few things he said when upon the stand, as shown by the record.

Being asked if he remembered being in company with a colored man that night, he says: “I remember it quite well, quite distinctly. I met him in Jerry Baker’s place directly across the street from our place, that evening, about eight o ’clock. I had been drinking more or less ever since Labor Day. I had been drinking in a moderate way, but was still in a condition to transact business.”

Then he stated, that there was a German band at Baker’s place and a colored man seemed to have it in tow. “I stayed there until the band left. They played two or three short pieces^ We went down along the canal, the north bank of the canal and to the Dave Pigg property. Jake Steinkemper was engaged in business there. The German band played several pieces there. I remember quite distinctly of buying a drink there. This man had been very friendly to me — the man who formerly ran the place. The next stop was at the Klondike. I don’t know how long I was there. It was about eleven o’clock I am sure. We had drinks there. The next place was George Fessler’s. We had drinks there. We didn’t stay very long there, only until they closed up, the ordinance requiring'them to close at 12 o’clock. We ran around some after that, and the next thing I remember was being arrested at 6 or 7 o ’clock in the morning at Gus Kern’s place.”

When asked about two tickets to Zanesville he had, he says: “I bought them from the night ticket man, Mr. Kelly, bought them myself and paid for them.” And when asked, “Do you remember going to the Baltimore & 0. station with two men, one of them a colored man, he answers: “I remember this colored man being there, because I went with him, but as to the other people I did not pay particular attention to them.” And on cross-examination, he says that it must have been between 12 and 1 o’clock that he was at the depot; that several young fellows were there.

“There was a young man who formerly worked at Kuster’s named Michael Burke for one and another man named Bacon who formerly worked there, and Steve Ulrich, who was the bartender at Fessler’s, he was not along; he closed up his place, he was not along; and this colored fellow that they called ‘Doc.’ I remember being at Fessler’s until they closed, and that when they closed, Ulrich, the bartender at Fessler’s, said he liked to have company and he talked with us, and he said he would have to close. I think I do remember the conversation with him. I remember in a general way he invited us very kindly to go out.”

And on redirect examination he says:

“WeE my memory is not so poor but what I can remember some of those circumstances. I remember that this train was two and one-half hours late, and it was about three o’clock.”

We think it clear from this record that Cole was so drunk thatTTe was reckless of the consequences of his act, but not so drank that he did not know what he was doing, and upon the evidence we are satisfied beyond a reasonable doubt that Cole took the property of Adams with the intention of stealing it.

Now as to the charge: Complaint is made as to the following part of the charge (page 111, bill of exceptions) :

“The defendant claims that he was intoxicated at the time, and, on that subject, I charge you: that while drunkenness is not an excuse from crime, yet, if the defendant was so drunk as to destroy his reasoning powers, and thus not know what he was doing, that is a fact that may be considered by you, together with all the other facts and circumstances in the ease for the purpose of determining the intention of the defendant at the time.
“Did the defendant intend to steal and take from the person of James Adams the property described in the indictment ?
“Intention is a condition of the mind, and is difficult of actual proof. It is a question of fact for you.to determine, from all the evidence and circumstances in the ease.”

It is claimed by counsel for plaintiff in error that the- trial judge should have said “that is a fact to be considered by you” instead of that is a fact that may be considered by you.

We think he might well claim more and urge that the charge should have been, “if the defendant was so drunk as to destroy his reasoning powers and thus not know what he was doing, then you must acquit him,” for such is the law.

We do not think that the charge, as worded, is as bad as the one given in the case of Cline v. State, 43 Ohio St. 332 [1 N. E. 22] which the court characterizes as virtually saying that proof of intoxication'could not be considered with respect to the felony charged in the second count of the indictment, for here the court says that it may be considered. The error lies in failing to indicate the weight to be given to the consideration' of the drunkenness, should the jury find that the defendant was so drunk as to destroy his reasoning powers. It is probable that the charge, taken as a whole; is not misleading, and that the counsel for plaintiff in error should have requested the judge tp charge more fully upon the subject of drunkenness, and to state specifically that if the defendant was so drunk that he did not know what he was doing, the jury should acquit him, under the ruling in the case of Columbus R. v. Ritter, 67 Ohio St. 53 [65 N. E. 613]. But we do not care to rest our conclusions in this ease upon that proposition. It is so manifest from the record, by the defendant’s own testimony, that he knew what he was doing when he took the property, that it would be idle to grant him a new trial for some manifest slip in the charge, and unintentional mistake in the use of language by the trial judge, apparent to everybody, the jury and all alike, it being certain that a new trial would result only in another conviction.

It was held in the case of McHugh v. State, 42 Ohio St. 154, that:

“A judgment will not be reversed merely because the record shows error to which exception was taken.
“The error to be ground of reversal must be prejudical to the rights of the party complaining. And this is the rule in criminal as well as civil cases.”

That was a capital case and there are other authorities in Ohio to the same effect.

Applying that suggestion to the case at bar the judgment is affirmed.

Marvin and Henry, JJ., concur.


text:
    CBIMXNAL LAW.
    [Cuyahoga (8th) Circuit Court,
    June 28, 1910.]
    Henry, Marvin and Winch, JJ.
    Belfiore Santo v. State of Ohio.
    1. Modification of Sentence in Felony Case during Term in Discretion of Court.
    When a court, in passing sentence for a felony or a misdemeanor, has acted under a misapprehension of the facts necessary and ■ proper to he known in fixing the amount of the penalty, it may, in the exercise of judicial discretion and in furtherance of justice, at the same term, and before the original sentence has gone into operation or any action has been had upon it, revise and increase or diminish such sentence within the limits authorized by law.
    2. Journal Evidence of Sentence.
    The journal is the proper evidence of the sentence actually imposed in a criminal case, and it can not be contradicted by a bill of exceptions.
    Error.

      J. V. Z&tfarelli and B. D. Nicola, for plaintiff in error.

      John A. CUne and Ezra 8. Brudno, for defendant in error.
   WINCH, J.

The plaintiff in error on February 8, 1910, pleaded guilty to the charge of rape on Mary Brown, a female person of the age of thirteen years, with her consent, and on the same day was duly sentenced to the penitentiary at hard labor for a period of one year. On March 1, 1910, before he was taken to the penitentiary, on motion of the prosecuting attorney, the sentence of one year was set aside and the defendant was sentenced to five years in the penitentiary at hard labor..

The question for our consideration is, had the court power to set aside the sentence of one year and sentence the defendant to five years, against his objection? We do not consider this an open question. In the case of Lee v. State, 32 Ohio St. 113, it was held:

“Where a court, in passing sentence for a misdemeanor, has acted under a misapprehension of the facts necessary and proper to be known in fixing the amount of the penalty, it may, in the exercise of judicial discretion and in furtherance of justice, at the same term, and before the original sentence has gone into operation or any action has been had upon it, revise and increase or diminish such sentence within the county authorized by law.”

The bill of exceptions shows all the evidence heard by the trial judge upon the motion to set aside the sentence, and for re-sentencing, and shows that he was under a misapprehension of the facts that were necessary and proper to be known in fixing the amount of the penalty, and that therefore he was justified in acting as he did.

Our attention is called, however, to the fact that the syllabus of the Lee case limits the application of the doctrine therein stated to cases of misdemeanor. We do not consider this important in view of the authorities cited in the opinion of said case, whch apply alike to felonies and misdemeanors. See also 12 Cye., 783, and cases cited, and 15 Century Digest, Title Criminal Law, Sec. 2531.

Whatever distinction may be made in England in the application of this rule, between misdemeanors and felonies, has not been adopted in this country.

But, it is said, that after the first sentence and before the modification thereof, plaintiff in error served part of his sentence. This is important, for, if true, the judge was powerless to make any change in the sentence. We find the point, however, not well taken. The certificate of journal entries in. the case shows the sentence of February 8, 1910, to be as.follows:

“It is therefore considered by the court and it is the judgment and the sentence of the law, that the defendant, Belfiore Santo, be taken from the bar of this court to the. jail of this county, and thence by the sheriff of this county to the penitentiary of the state of Ohio, and that he be imprisoned at hard labor, for and during the term of one year, and that he pay the costs of this prosecution, for which execution is hereby awarded. It is, however, no part of this sentence that said defendant be kept in solitary confinement for any period of time in the cells of said penitentiary. ’ ’

The bill of exceptions shows that pursuant thereto, the defendant was taken to jail, but had not yet been taken by the sheriff to the state penitentiary at the time the court re-sentenced him.

The point is attempted to be raised by a statement in, the bill of exceptions as follows:

“ Jaunary 20, 1910. Indictment.
“January 21,1910. • To court. Defendant pleads not guilty.
“February 8,1910. Motion to quash filed by defendant.
“February 8,1910. B. D. Nichols appointed to defend. Defendant changes plea to guilty of rape.
“Whereupon the defendant was immediately brought before the court for sentence, and the court sentenced the defendant as follows:
“ ‘It is the judgment of the law and the sentence of the court that you be taken hence to the jail of the county, there to be held for the period of thirty days, that then you shall be taken to the Ohio penitentiary and held at hard labor for the period of one year, and pay the costs of prosecution. ’
“Thereupon the defendant was taken to said jail, in pursu-1 anee of the above sentence.”

It may be possible that the trial judge used the language attributed to him in the bill of exceptions, apparently making a part of the sentence imprisonment in the county jail for thirty days. But that is not important; for it is certain that the record of his action found in the journal does not so state. He may have recognized his mistake or reconsidered his action before the sentence was journalized', and so have corrected it to read ’as the journal shows. At any rate, the journal is the only evidence we are at liberty to consider with regard to the sentence actually imposed, and it can not be contradicted by anything contained in the bill of exceptions. It is apparent that the original sentence had not gone into operation or any action been had upon it before it was modified.

Judgment affirmed.

Henry and Marvin, JJ., concur.


text:
    EXECUTORS AND ADMINISTRATORS.
    [Cuyahoga (8th) Circuit Court,
    December 28, 1910.]
    Henry, Marvin and Winch, JJ.
    William Hoehn v. Christine Hoehn et al.
    Burden of Proof as to Source of Funds Invested by Widow, Adminis* tratrix of Deceased Consort.
    Proof that a widow, administratrix of her husband’s estate, as such received assets of greater value than the property of which she herself subsequently died seized, makes a prima facie ease that she invested part of the assets of her husband’s estate in the real property standing in her name at her death. This case must be met by evidence of equal weight or countervailing force, and it is therefore incumbent upon the defendants who claim as her heirs, to introduce some evidence tending to show that she bought said real estate with her own means.
    Error.
   WINCH, J.

The judgment complained of in this case is reversed for the reasons stated on the hearing.

It is contrary to the weight of the evidence.

The plaintiff by showing, as he did, that the widow of John Hoehn, Sr., who was the administratrix of his estate, received, as such, assets of greater value than the property she subsequently died seized of, made a prima facie case that the widow invested part of the assets of said estate in the real property which plaintiff desires partition of. It was then necessary for the defendants to meet this prima facie case by evidence of equal weight or countervailing form, and to introduce some evidence tending to show that she bought the real property in question with her own means. This they failed to do. •

The case of plaintiff is strengthened by the terms of John Hoehn, Sr.’s, will, which authorizes his executor (the administratrix succeeded to his powers) “to safely invest all monies.” The presumption is that she acted lawfully and pursuant to this power.

Upon the hearing of this case, our attention is called to another case, No. 4648, pending between the same parties in this court on appeal, involving the partition of other land between the parties.

The question of advancements from John Hoehn, Sr., to two of his sons, one of them being plaintiff in error in this case, is involved in that case. This question is just as vital to one case as to the other, and should be finally settled in an equitable manner, but in the present condition of these two cases we fear a miscarriage of justice on this point. We therefore suggest that after the error case is remanded to the common pleas court, judgment be again entered therein, pro forma, if desired, and then that it be immediately appealed to this court.

If such course is pursued, after both cases are here on appeal, we will consolidate the two cases and then try out all the issues between the parties, with the hope that at the next term of this court all the litigation between the parties may be determined and put in proper shape for review by the Supreme Court, if desired.

Case No. 4648 will be continued.

Judgment in case No. 4627 reversed because not sustained by sufficient evidence.

Henry and Marvin, JJ., concur.


author: WILDMAN, J.

text:
    CHARGE TO JURY — NEGLIGENCE.
    [Lucas (6th) Circuit Court,
    June 12, 1909.]
    Parker, Wildman and Kinkade, JJ.
    B. A. Stevens Co. v. Henry Blum.
    Instructions that no Presumption of Negligence Arises against Either Party and Burden is on Plaintiff to Remove Presumption of Contrir butory Negligence, Inconsistent.
    An instruction that, if the testimony introduced by the plaintiff raises in your minds a presumption that he was guilty of contributory negligence the burden is upon him to remove it, and the further instruction that no presumption of negligence arises against either party are inconsistent and prejudicial.
    Error.

      Ralph S. Holbrook, for plaintiff in error.

      Smith & Baker, for defendant in error.
   WILDMAN, J.

This is ;.j personal injury ease which was tried in the court below, in f. suit brought by Henry Blum against the company named, rjid verdict was obtained by him for about the sum of $900. He' had previously obtained a judgment, which hád been set arhde. Several claims are made of error in the trial below as to the introduction of evidence and the charge of the court, and in the giving and refusing of certain requests before argument. The ones to which I wish to address my attention, however, especially, and that seem worthy of consideration are those growing out of the instructions given by the court to the jury in its general charge. We think that there is error in the general charge as disclosed on page 22 of the bill of exceptions, and that that error was prejudicial to the defendant, the plaintiff in error. The court properly instructed the jury, as shown near the top of this page, that "the burden of proving contributory negligence on the part of the plaintiff is upon the defendant, with the qualification that if the testimony introduced by the plaintiff as to the circumstances under which the injury was received raises a presumption in your minds that he was guilty of contributory negligence, then the burden is upon the plaintiff to remove this presumption.” And having said this and given certain other instructions, not strictly relative to them, he says: “I say to you that no presumption of negligence arises against either party to this action.” The jury may well have understood these two instructions as being in effect, “while at law a presumption of negligence on the part of the plaintiff must be shown by the defendant, unless the evidence offered by the plaintiff raises the presumption, in which case it is essential that plaintiff remove it, it is the opinion of this court, and the court says to you, that no such presumption does arise from the plaintiff’s evidence.” I do not think, of course, that the court intended to convey that idea. The trial judge, and probably any lawyer or any judge, would understand the true meaning. Any person familiar with the law and having read the records or having read the evidence, would understand the court as instructing the jury that “at law no presumption arises, in the first instance against either party, but it may arise under the circumstances which I have stated as disclosed by the- plaintiff’s evidence, and then it is incumbent upon the plaintiff t¿ remove it.” But the trouble with it is that the jury is not made up’of lawyers, and we have to take into account the probability of thx* misleading. of the jury by an instruction which is not so clear tut that they may have been misled by it. We think in this instance they would be very likely to be in the way I have mentioned. ''We think the charge of the court is erroneous also in its definitions of the term “proximate cause” and “preponderance of the evidence.” I will not stop to read them, but content myself with saying that the judgment of the court below will be reversed' for these errors that I have mentioned in the charge, first in the instruction “I say to you that no presumption of negligence arises against either party in this action,” taken in connection with the. other language which he gave; and, second, in his definitions of the term “preponderance of the evidence” and “proximate cause.” The judgment will be remanded to the court below for a new trial.

Parker and Kinkade, JJ., concur.


text:
    BUILDINGS — NUISANCES.
    [Cuyahoga (8th) Circuit Court,
    June 28, 1910.]
    Marvin, Winch and Henry, JJ.
    Second Church of Christ, Scientist, Bd. of Tr. v. George H. Tipling.
    Violation of Building Code Creates no Civil Liability to Adjacent Proprietor as for Nuisance.
    The violation of a municipal building code by one proprietor of lands therein, not being a nuisance, does not create a civil liability in favor of his neighbor who claims he is being injured thereby.
    Appeal.

      C. W. Dille and William Howell, for plaintiff.

      Albert Lawrence, for defendant.
   WINCH, J.

These two eases have been consolidated; they are separate appeals of the same ease, or purport so to be.

The plaintiff prays for a mandatory injunction requiring the defendant either to remove his four-story brick apartment house to a distance of six feet from the north line of his lot, where it adjoins plaintiff’s property, or to cause all openings in the northerly wall of said building to be closed, so as to comply with the building code of the city of Cleveland.

It appears that the defendant has erected his building up to his north line, under a permit regularly issued by the building inspector of the city; that he was granted the permit because of a' condition in the deed from plaintiff to defendant binding the plaintiff to keep the southerly ten feet of its own land, adjacent to defendants land, “free from buildings of any description whatever.”

There is a general allegation in the amended petition that plaintiff “has no adequate remedy in the premises in the ordinary course of the law, and that it will be permanently and irreparably injured and damaged by the acts and threatened acts of the defendant.” There is no allegation of special damage.

Upon the hearing evidence was introduced as to an increase in fire insurance rates occasioned to the plaintiff by reason of defendant building up to his line instead of six feet away from it. We find as a fact, however, that the rates have not been increased.

Other evidence was introduced to show a diminution in the value of plaintiff’s property, on the theory, that it can not make use of much of its property for building purposes as it otherwise might, if defendant had not built up to his line. In other words, the building code requiring, as is claimed, that there be a twelve foot space between such buildings with side windows, plaintiff will have to keep twelve feet away from its south line, if it ever desires to build on the south and west part of its property hereafter, being two feet more than the ten foot strip originally covenanted not to build upon.

The building code is so indefinite that we are not at all sure that such would be the result. We are inclined to believe that when the time comes the building inspector can not require plaintiff to keep more than six feet from its south line, which is the north line of defendant’s land and building.

Be that as it may it is immaterial, for the covenant calls for ten feet, the judge who tried the case below came to the conclusion that the building code was inapplicable in this case, and dismissed the petition. We think he was right in his conclusions, but will not restate them or the facts of the case, preferring to base our judgment upon other considerations, which lead to a more general rule of law.

It is certain that were it not for the building code, which it is claimed has been violated, no injunction should be granted in this case, first, because the building of defendant is not a nuisance, per se, and second, because no irreparable damage which can not be compensated at law, is shown to exist. Both these propositions are very fully covered and the reasons therefor clearly stated in the ease of Rhodes v. Dunbar, 57 Pa. St. 274. The following sentences will be found in the syllabus of the case:

“Courts will restrain erection of building intended for use that will be a nuisance per se.
“Mere diminution in value of property, without irreparable mischief, is not ground for equitable relief by injunction.
“That erection of building will increase rates of insurance upon neighboring buildings is not ground for injunction to restrain such erection.”

In the opinion it is pointed out that not mere diminution in property values will authorize an injunction, but there must be some direct damage.

“Grant that the species of property in question is extra hazardous; is subject to fires; this on the authority of all the eases, would not render it a nuisance. It does not necessarily affect health, comfort, or the ordinary uses and enjoyment of property in the neighborhood.”

The eases relied upon by counsel for plaintiff seem to ignore this fundamental jurisdictional requirement in injunction cases, and to assume that because the plaintiff’s property is damaged in value, injunction will lie.

See First National Bank v. Sarles, 129 Ind., 201 [28 N. E. 434; 13 L. R. A. 481; 28 Am. St. 185], where what is said on this subject is mere obiter, for a demurrer to the petition was sustained on another proposition; at any rate the petition did at least allege that the erection of the building would work special injury. The case of O’Bryan v. Highland Apartment Co., 128 Ky. 282 [108 S. W. 257; 15 L. R. A. (N. S.) 419], cites and relies upon the Indiana case, as also the case of Griswold v. Brega, 160 Ill. 490 [43 N. E. 864; 52 Am. St. 350]. In the Illinois case the commissioner of public buildings was a party and it was held that a city and its officers may be enjoined, at the suit of neighboring property owners, from granting a permit to remove a wooden building into a block upon a written consent of property owners, which consent was obtained by fraud, and was in part revoked in writing when the bill was filed. The court on page 495 says:

“But without considering whether or not the doctrine of the Indiana case is in accord with the weight of authority, we must hold that the bill in this case was properly brought to restrain appellants from seeking to obtain, and the city authorities from issuing, the permit upon this fraudulent petition.”

With this conclusion we agree.

Again, it would seem that the plaintiff must show that the injury he is about to- suffer is different in kind and not merely greater in degree than that of the general public. McClosky v. Kreling, 76 Cal. 511, 513 [18 Pac. 433]. Increase in fire hazard, which is the only thing here involved, is common to the whole city from the erection of every new building; the property adjacent is only more subject to it.

This rule is adhered to in Ohio in street vacation cases; see Kinnear Mfg. Co. v. Beatty, 65 Ohio St. 264 [62 N. E. 341; 87 Am. St. 600].

Notwithstanding it is conceded that the building of defendant is not a nuisance, per se, still it was urged on the hearing by counsel for plaintiff that the building code makes it a nuisance ■ and that the plaintiff is damaged by it as by a nuisance.

This position is untenable. It has been repeatedly held that "the fact that a particular use of property is declared a nuisance by an ordinance of the city does not make that use of the property a nuisance, unless it is in fact so, and common within the common law, or statutory idea of a nuisance.” Wood on Nuisances, Section 740.

This court is committed to that doctrine. Deming v. Cleveland, 12 Circ. Dec. 198 (22 R. 1).

So also it is held that a city can not by ordinance create a civil liability in favor of persons injured by reason of the noncompliances of others therewith (Wood, Nuisances, Secs. 741 and 742). A leading case upon the subject, frequently cited in text books and digests, is Chambers v. Ohio Life Ins. Co. 1 Disney, 327, opinion by Judge Gholson. On page 336 he says:

‘ ‘ Something has been said in relation to the ordinances of the city, as applicable to this subject. It is sufficient to say that, as any liability in a civil action, these ordinances have no controlling application. The city has no authority by an ordinance, to authorize a nuisance, so as to protect a party from liability for it in a civil action, nor to subject a party to liability, in a civil action, for an act from which, but for the ordinance, no liability would arise. No such power is conferred on the municipal authority of a city; it belongs to the general legislation of the state. The city has power to prohibit nuisances, and may declare an act to be a nuisance, and impose a penalty. He who does the act may incur the penalty; but it would not follow that such an act, if not in itself injurious, and a wrong to a private citizen, could be made the ground of a liability in a civil action. ’ ’

The same principle is recognized in Van Dyke v. Cincinnati, 1 Disney, 532; Meek v. Pennslyvania Co. 38 Ohio St. 632; Rose v. King, 49 Ohio St. 213, 224, 225 [30 N. E. 267; 15 L. R. A. 160]. Jacobs v. Fuller & Hutsinpiller Co., 67 Ohio St. 70, 75 and 76 [65 N. E. 617].

That the legislature itself could not lay a burden upon one man’s land for the benefit of his neighbor’s property is pointed out in the case of the Alma Coal Co. v. Cozad, 79 Ohio St. 348 [87 N. E. 172; 20 L. R. A. (N. S.) 1092],

“The act of April 18, 1904 (97 O. L., 138), may not be so construed and administered as to charge an owner of lands which are, and are to remain, unenclosed, with any part of the expense of constructing and maintaining a line fence for the sole benefit of the adjoining proprietor.”

Many other cases in this state and other states might be cited to the same effect.

We therefore conclude that a violation of the building code of the city of Cleveland by one proprietor of lands therein, does not create a civil liability in favor of his neighbor who claims to be injured thereby.

We prefer to place our decision upon this principle rather than upon a consideration of the peculiar facts in this case, which are so fully and ably covered by the learned judge who presided at the first trial of this case in the common pleas court.

Petition dismissed and judgment for defendant.

Marvin and Henry, JJ., concur.


text:
    JUDGMENTS.
    [Cuyahoga (8th) Circuit Court,
    June 28, 1910.]
    Marvin, Winch and Henry, JJ.
    White Sewing Machine Co. v. Ida Brede.
    Refusal to Vacate Judgment during Term for Negligence of Counsel not Abuse of Discretion. ■
    The vacation of a judgment during term is within the discretion of the court and it is not an abuse of such discretion to refuse to vacate a judgment when the only ground for vacation is that counsel were negligent in attending to the trial of the case.
    Error.

      M. B. & H. H. Johnson, for plaintiff in' error.
    Hidyi, Klein & Harris, for defendant in error.
   WINCH, J.

We have here the review of the action of the common pleas court in overruling a motion of plaintiff in error filed November 1, 1909, to vacate a judgment of that court in favor of Mrs. Brede and against the company, rendered September 20, 1909, which recites that “the parties come, waive a jury and submit this cause to the court on the pleadings and evidence; on consideration thereof, the court find for the plaintiff and assess her damages in the sum of sixty-five dollars ($65),” etc.

It is conceded that this motion was addressed to the sound discretion of the court, but it is said that the court abused its discretion.

According to the bill of exceptions the only evidence heard on the motion was the affidavit of one William W. Chase and the exhibit attached thereto.

That affidavit undertakes to contradict the journal on the point that the parties came and waived a jury, but the contradiction is argumentative and of little weight, seeming to rest upon the affiant’s statement that no notice of the hearing was given the company, but no affidavit of the regular counsel of the company is filed.

This ex parte statement must necessarily be based largely upon hearsay evidence.

It further appears from the affidavit that Chase had charge of the ease when it began in a justice court, and saw to it that a transcript for appeal was filed in the common pleas court, after judgment had been rendered by the magistrate against the company.

The affiant then states that it was his custom to notify the company’s attorney’s, M. B. & H. H. Johnson, to take care of eases appealed to the common pleas court, and that he was under the impression that he had done so in this case, but thinks that through some oversight or some miscarriage of the mail, said firm of lawyers never received the notice. .

If Chase failed to notify the Johnsons, his negligence is no ground for vacating the judgment; if he did notify them and through some oversight they failed to attend to the case, their negligence is no ground for vacating the judgment.

In the absence of a statement from Chase that he did mail notice to the Johnsons and a statement from them that they never received such notice, the proof is too uncertain to entitle anybody to affirm relief. The trial court was left to guess how the inattention to the case came about and whose fault it was. He refused to guess on the subject and left the judgment standing.

This was his duty, in the absence of prepondering evidence for the company, and his judgment is affirmed.

Marvin and Henry, JJ., concur.