text:
    (Sixth Circuit, Ottawa County, O. Circuit Court,
    June Term, 1894.)
    Before Bentley, Scribner and Haynes, JJ.
    MARY D. LEA v. HORACE WELSH AND OTHERS.

      Assignment of mortgage not entered of record — Cancellation by-original mortgagee — Rights of subsequent purchaser of land without notice. —
    Where a mortgage is assigned, .but such assignment is not entered of record, and the original mortgagee appearing on the record as the holder of the mortgage and representing himself as such, has the same cancelled of record, a subsequent bona fide purchaser of the land without notice takes the land free from the lien of such mortgage.
    Appeal from Court of Common Pleas of Lucas county.
   Haynes, J.

This case comes into this court by appeal from the judgment of the common pleas court. The petition was filed by Mary D. Lea in the January term, 1893, in the court of common pleas, in which she sets up that she is the owner of a note and mortgage, and that there is due to her from Horace Welsh the sum of $1,000.00 and interest on a note dated “Port Clinton, Ohio, June 6, 1886. Three years after date I promise to pay to the order of Geo. E. St. John, $1,000.00 at Sandusky, Ohio. Value received, with interest-payable annually. ” On the back of the note was the following indorsement: “Interest paid June 26, 1888.” “Interest paid June 26, 1889.” Interest paid June 26, 1890.”' “Interestpaid June 26, 1892.” “Payment guaranteed, Geo. E. St John.”

She also sets up that at the time the note was made a. mortgage was executed by Horace Welsh on certain property in Ottawa county to secure the payment of that note. That-the mortgage was recorded on the 26th day of June, 1886, and that after said mortgage was so executed and was recorded, St. John sold, transferred and signed said, note and mortgage to her for a good and valuable consideration.”

The assignment of the mortgage reads: “I hereby assign the within mortgage to Mary D. Lea. Geo. St. John. ” She further alleges that the note has not been paid, and the mortgage has become absolute.

The defendant, John Roper, filed an answer in which he sets up that on the 30th day of March, A. D., 1889,he bought the property of Welsh, paying a full consideration therefor, upon a release of the mortgage by St. John, who appeared by record to be the legal owner thereof, and without any knowledge of the right of the plaintiff. The note being dated on the 26th of June, 1886, and payable three years-after date, would fall due June 26, 1889.

Dora, his wife, files an answer claiming she has an interest in the premises, also setting up substantially the same-facts as her husband sets up in his answer.

Issue was taken by a reply denying substantially the facts and allegations of the answers.

The issue tried here arises upon the pleadings above set-forth and was heard upon testimony. The testimony shows, in substance, that in 1883 a mortgage had been made by Welsh, who was the owner of the property, to Geo.E. St. John, for $1,000.00, payable in three years, which had been sold to a Mrs. Curran and by her sold to the-plaintiff. That about the time that note matured, St. John went to Mrs. Lea, at Sandusky, and said that Mr. Welsh de-. sired to get an extension of time, and proposed t-o give a new mortgage and note. He had already drawn a note and mortgage, and had the same executed by Welsh, drawn payable to himself, dated June 26, 1886, and had the mortgage recorded, and had the mortgage and note with him; and thereupon she concluded to take the new note and mortgage, and thereupon it was transfered to her at that time by St. John, who indorsed upon the mortgage, “Port Clinton, Ohio, June 26, 1886. For value received I hereby assign the within mortgage, to Mary D. Lea,” and upon the note he wrote “Geo. E. St. Joha, ” and guaranteed the payment in writing upon the note. Some controversy is made there, perhaps not very important and not much dwelt upon, as to whether St. John became the agent of Mrs. Lea in any manner. St. John states that he had agreed to collect the interest on the note, and that he had collected them from Welsh, for two or three years, and transmitted the same to Mrs. Lea. Mrs. Lea denies that she authorized him, in any manner or form, or agreed to have him collect interest for her; that St. John told her he was acting for Mr. Welsh in the matter, and that he would see her paid. It seems the endorsements were made on the note sometimes by St. John and sometimes by Mrs. Lea. No entry was ever made on the records in the office of the Recorder at Port Clinton of the assignment of the mortgage to Mrs. Lea.

Welsh testified that he supposed St. John held the note, and made his payments of interest to him. Now, that matter ran along to March 8, 1889. The note and mortgage of Welsh was then not due; it would not become due until June, 1889; at that time Welsh sold this property to defendant, Roper, for the sum of $2,200 cash, and received the money in payment for it. The circumstances attending the transaction are substantially these: Mr. Roper was desirous of buying a piece of property; he had accumulated some little money, having worked for Lockwood, who lives in this or Erie county, and hearing of this place he went to look at it, and thereupon entered into an agreement with Welsh to buy it of him for $2,200. Welsh told him that there were two mortgages on the property held by Geo. E. St. John, of Port Clinton. Rgp$ JJj

They came to town and called upon St. John, who said he was willing to receive the money on the mortgages. St. John drew a deed and delivered it to Mr. Welsh. Roper then went to the office of the Recorder and had a search made of the records to see if the title was good, the following week. They came to Port Clinton again, and the parties (Mr. and Mrs. Roper, Mr. Welsh and Geo. E. St. John), all went to the Recorder’s office together, and the Recorder then told Mr. Roper that the title was good, producing the abstract; that there were two mortgages to Mr. St. John (being the mortgages before spoken of), and thereupon the transaction was concluded by the payment of the $2,200 in money by Roper to Welsh, and the canceling of the mortgages by St. John upon the record in the presence of the Recorder, and a delivery of a portion cf the money by Welsh,$l,500,to St. John at that time, in payment of these mortgages;' the balance nelonged to Welsh. In all this transaction nothing was said about Mrs. Lea, or any intimation that she owned the mortgages; in fact, St. John said that he was the owner of the mortgages. He said one mortgage was there, the one owned by Mrs. Hitchcock; and that the other mortgage was at Sandusky, in his box there, but he would get it in a few days and deliver it. This he failed to do, and when his attention was called to it a few days after, he told Roper • that it was none of his business, that it was Welsh’s. Subsequently Roper spoke to him again asking for the mortgage, but he said it was burned. Welsh also testifies that he spoke to him a few days afterward, and he said that the mortgage was burned, and that he could not deliver it. No record was made by St. John of the transfer of this mortgage, and the witnesses testify (Welsh, Roper and Mrs. Roper) that they had no knowledge whatever that Mrs. Lea had or owned the mortgage, and that the statement was made to them that St. John owned the mortgage; and there is no evidence whatever to show that the Ropers had any knowledge whatever, or notice, that Mrs. Lea had or held the note and mortgage, or had any interest in the same.

The case has been very thoroughly argued on both sides. We have endeavored, so far as we could, to give it a full consideration. The questions involved are important, as well as the amount, to the respective parties. The question here is whether, as against the defendants Mr. and Mrs. Roper, Mrs. Lea is entitled to enforce the lien of this mortgage. That she is the owner of the mortgage in good faith, having paid a good consideration for it, there is no dispute; that she never received a dollar of money upon the principal is also true. The defendant, Roper, depends very largely upon the case of the executors of Wm. Swartz v. Leist, found in the 18th Ohio St.,, page 419. He claims that the entering of satisfaction of this mortgage upon the record of the mortgage by St. John, who was the mortgagee, the payment of the-purchase money afterward by Roper, and the execution of the deed to him without any notice of the right of Mrs. Lea, places him in the category of a bona fide purchaser of this land, free from the lien of the mortgage, which he claims, was in the hands of Mrs. Lea simply an equitable lien.

Now, first, in regard to the title of Mrs. Lea. The note was indorsed to her and the mortgage was assigned to her, but that assignment was not in any manner or'form acknowledged or witnessed, as required by the statutes of the state ■of Ohio for the conveyance of an interest in real estate. It is claimed by counsel for Mrs. Lea that she has the legal right to the note and the legal title to the mortgage. We understand that, by the statutes of Ohio, when a party wishes to make (in the state of Ohio) a conveyance of real •estate, or any interest in real estate, under the statutes of frauds that conveyance must be in writing; that under the general statutes in relation to conveyances that that instrument must be signed and acknowledged in the presence of two witnesses and duly acknowledged, etc., and that is necessary to the legal conveyance of lands. If a deed should be made out lacking this necessary signing and conveying, it might be held as a contract to convey, and be enforced in a court of equity. We understand, under the course of decisions in Ohio, and the statutes also, that when a note is made payable to order, and duly indorsed, in writing, by the payee to a third party,'that that transfers the legal title in that note to the indorsee. We understand that as the law stood at the time of the assignment of this mortgage to Mrs. Lea, when a mortgage is assigned in writing to a party, but simply assigned by the mortgagee but not witnessed or acknowledged, that that amounts to an assignment of a mortgagee’s interest in equity, but does not convey the legal title of the mortgagee in the real estate. We understand that when the note is assigned in the manner I have stated, and it is secured by a mortgage, that that in equity conveys to the party who receives the note an interest in the mortgage equal to the amount of the note that he can enforce' in equity, upon foreclosure of the mortgage, both as against the mortgagee and mortgagor; that the assignment in writing of the mortgage not witnessed or acknowledged, only conveys to him the same right, that is to say, that he has the ■same right to foreclose the mortgage and enforce his lien to the amount of the note, both as against the mortgagee and .as against the mortgagor; we understand further, under the laws of the state of Ohio, that if the party desires to obtain an interest in the real estate and to hold strictly the real title of the mortgagee in the real estate, that the assignment, as the law stood in 1886, must be acknowledged and witnessed in the manner provided in the statute for deeds.

Now let us look at the case of Swartz v. Leist. In that case there had been executed to one Peter Little a mortgage to secure certain notes, among others a note of $200, payable to Little; and after that note became due, Little transferred that note to Swartz, sold it to him, and retained possession of the mortgage; that he conveyed the other notes to other parties, and that afterwards, and within a short time afterwards, he, wrongfully and without the knowledge of Swartz, and before the maturing of the same note which he held, entered, on the margin of the record of the mortgage, a release, in the following terms:

“Received of William Hurd full satisfaction of the consideration of the within mortgage. Therefore the mortgage is forever nul and void and of no effect.

Nov. 10, 1855. Peter Little. ”

This deed was recorded the 10th day of November, 1855, “J. H. Barker, Recorder, Marion county.” And then, on the 17th, that being seven days after, the mortgagor sold and conveyed “by deed duly recorded,” to Peter Leist said mortgaged premises.

Afterwards Swartz brought a suit for the purpose of enforcing his mortgage against the premises, that is the executors, Swartz having in the mean time died. An answer was filed by Leist, settingup the facts, and to that a demurrer was filed in the District Court, which was overruled and judgment rendered in favor of the defendant Leist, as a bona fide purchaser of the property, and to reverse that judgment error was prosecuted in the Supreme Court. In the opinion delivered by Judge Scott, it was held that the judgment of the District Court should be affirmed, and that Leist held the property, discharged of the lien of Swartz’s note and mortgage, which Little had originally taken.

In that decison the Court say: “That the question in this case is whether the rights of Swartz were such that they can be asserted against a bona fide purchaser from the mort gagor, w’ho, without notice of the lien claimed by Swartz, has parted with his money, relying upon a statutory discharge of the mortgage, which he found executed by the mortgagee and properly entered upon the record. The rights of Swartz were, as we have said, purely equitable. No title to or estate in the mortgaged premises had been conveyed to him. A legal title to the lands cannot, either at common law or under our statutes, pass by the sale and delivery of a promissory note. The legal title to the conditional estate, granted by the mortgage, remained in the mortgagee as fully after the transfer of the note as before. True, he may have held it as a trustee, in part, for the benefit of Swartz. But a trust of this kind, not apparent on the face of the mortgage deed, evidenced by no record and unknown to the world, cannot affect the rights of bona fide purchasers who, in ignorance of its existence, confide in the acts of the mortgagee falling within the apparent scope of his powers as the legal owner of the mortgage. As against such parties the discharge must operate to cancel the record of the mortgage, and thereby extinguish its lien.

“The equities of a bona fide purchaser in such a case are certainly as strong as those which arise from a latent trust; and when they are accompanied by the legal title, must for that reason prevail.”

And they then proceed to discuss the statute of March 12 1886 which provides for the release of mortgages. It reads:

“That the the mortgagee of any property within this state who shall ha to received payment of the money due to him and secured by the mortgage, and shall have entered or may hereafter enter satisfaction or a receipt for the same either on the mortgage, or on the record of the mortgage, such satisfaction or receipt so recorded shall operate and be taken to release the said mortgage to whoever may be entitled to a release. ”

That statute was amended in 1888 — Ohio Laws of 1888 page 284, but the effect of that statute we are not called upon to consider in this case. See also Laws of Ohio 1891, page 357.

It is contended here by counsel for the plaintiff that the determinaton in that case is in conflict with the principles laid down by the Supreme Court in the case of Holliger v. Bates, 43 Ohio St., 437.

In that case Holliger brought an action against Bates to quiet hs title to 'certain lands, and Bates set up for an answer that in March 1878 a man by the name of Rolli “Had executed and delivered to one John Zwald two promissory notes for the sum of $117.50 each with interest. And to secure t-he payment of the same he executed a mortgage deed on the premises to Zwald which was entered for record the same day. That about April 1; 1878, Zwald, for a valuable consideration, indorsed the notes and delivered the same together with the mortgage to him,Bates,and that he is still the owner of the notes and mortgage, whereby he is entitled to a lien on the premises. ‘He also avers that the notes are still outstanding and wholly unpaid and the mortgage in is full force and unsatisfied.

.In reply to that Holliger sets up the fact that there were two mortgages; that the prior one was held by him,Holliger, and that in a suit in the court of common pleas, Tuscarawas county “wherein he was plaintiff and John Zwald, Catherine Zwald, William Rolli and Oliver Knisely were defendants, to foreclose that prior mortgage, to which said suit Zwald and his wife had been made parties, a decree had been entered for the sale of the premises, which at the sale of the same had been purchased in by him. He files his bill to quiet his title on the ground that that mortgage was no longer a lien on the premises. The opinion is delivered by Judge Johnson and it must be admitted, on some points as to the law, his statements seem to differ somewhat from the opinion delivered by Judge Scott in the case of Swartz v. Leist.

Now, in the Holliger case, it will be seen that the important question was the validity of certain proceedings to foreclose a mortgage, and the question whether the judgment in the case was a bar to the claim of Bates. It was contended, of course, by the plaintiff Holliger, that it was a bar, for the reason that he had made the party who was the mortgagee upon the record, and, ostensibly, the owner of the mortgage, a party to the suR-, and that Batps’ title was by indorsement of the notes by Zwald, and also by delivery of the notes, but without any indorsement of the mortgage. I will read what Judge Johnson says:

“It will be seen by the statement of facts, that Zwald’s mortgage and notes became effective March 1,1878; that one Avas due October 1,1878, and one October 1,1880,and that long before due they became the property of Bates by purchase from themortgagee, Zwald, by indorsement and delivery of the notes, and by delivery of the mortgage without such indorsement,so that Bates thereby became the legal owner and holder of the notes by purchase for a valuable consideration before due, and the sole and absolute OAvner of the mortgage to secure the same by delivery without Avritten assignment of the same. ”

Noav the court says that Bates became the legal owner of the notes and became the OAvner of the mortgage. ' (Again reading):

“The reply of Holliger admits these facts, and seeks to avoid their legal effect by setting up that he had a prior mortgage on the same premises, on which he commenced an action October 1, 1878, one year before the first note held, by Bates became due, and two years before the second, which mortgage was executed by Rolli, and was entered for record the day of its date, etc.

“The answer of Bates shows that Bates purchased from Zwald, and thereby secured and acquired an interest in the premises as mortgagee, and, by the well settled rule in .Ohio, was entitled to institute proceedings to foreclose his own mortgage when the notes became due, and, by making the prior mortgagee a party, to foreclose that also; and a sale made under such a decree, if the mortgagee was also a party, would confer the complete title upon the purchaser. ” Now, as we have observed, that was a suit brought to foreclose a mortgage, and the question is whether all the necessary parties had been brought into that suit. There is no rule better estalished than this, that in judicial proceedings all persons who have an interest in the matter or in the suject matter, must be made parties to the suit, or their rights are not cut off. That Bates held an equitable interest in the mortgage there can be no question under Ohio decisions.

The Court, in speaking of that equity, say:

“It is a misnomer to call Bates’ equity secret. It vras of record as the law required, and was notice to all the world of the outstanding notes yet due and presumptively unpaid. ” The claim made by counsel in argument is, that the equity of Mrs. Lea, being an open equity, the defendant, Roper, was bound to take notice of it at the time he took the deed. But we understand the Swartz v. Leist case to proceed on a different theory. The basis of that decision is that while Swartz had an equity, he had omitted to put the evidence of it upon the record or give notice to the mortgagor.

That Leist had purchased upon faith of a discharge by the mortgagee who had apparently, and in fact, had a legal title to the mortgage; that he took a deed of the land, and that his equities were equal to the equities of Swartz, and that being clothed, with the legal title, his claim prevailed.

The equity of Swartz in that case was as open as the equity of Mrs. Lea in this case, yet the equity did not prevail. It will be observed that the Court, in deciding the Holliger case, make no reference to the -Swartz case. It is not to be supposed the Court intended to overrule the Swartz case without eo much as referring to it, and while the language of one case may seem diverse from the other in some respects, yet it should be remembered that in the one case they discuss questions of law arising upon a different state of facts, and that in the Swartz case they are giving effect to an old principle, the equity arising between two persons, one of whom has an equity and the other an equal equity clothed with a legal title.

Now how stands the case as compared with Swartz v. Leist?

Roper, desiring to buy this land, went to the party who had the legal title to it at that time, bought the land, paid his money and took a warranty deed for it, and went into possession. He was told, when he went to the Recorder’s office, that there were two mortgages on the land belonging to Mr. St. John, of Port Clinton, and as he wanted his land free from incumbrances, it was agreed before concluding the sale that he was given the legal title with the mortgages canceled by the man who had the apparent right to release the title, he holding the legal title to the mortgage. Now, upon this being done, the sale is concluded. Unquestionably, if St. John had gone the day before to the Court House and entered upon the records the cancellation of that mortgage, and Roper then came and purchased and paid for that land, he would be within the exact terms of the case of Swartz v. Leist; there is no question about that, and we are unable to see any difference in law in regard to his rights under the facts as set forth in the record of this case and those of Swartz v. Leist.

We have considered all the points made by counsel for plaintiff. We are of the opinion that upon the facts and the law of the case, judgment should be given for defendant, Roper.


source: Caselaw Access Project

author: Haynes, J.

license: Public Domain

text:
    (Sixth Circuit—Lucas County. Ohio, Cir. Court
    Sept. Term, 1894.)
    Before Haynes, Scribner and King, JJ.
    SAMUEL MONTGOMERY v. THE STATE OF OHIO.

      Bill of Exceptions — Affidavits used in hearing the motion for new trial can only be brought before the reviewing court by being made part of the bill of exceptions.
    Error to the Court of Common Pleas of Lucas county.
   Haynes, J.

A petition in error was filed in this court to reverse the judgment of the court of common pleas, in the conviction upon the indictment that was returned by the grand jury against Samuel Montgomery for alleged assault and battery upon one Hannan (Feitz). A motion for a new trial was filed, on the ground that the verdict is not sustained by sufficient evidence, on the ground of newly discovered evidence material to the defendant which he could not with reasonable diligence have discovered and produced at the trial, and that the verdict is contrary to law. On this second ground of the motion the affidavit was filed of Mrs. J. A. McCune, setting out certain matters which were denied by Mrs. Feitz. Two affidavits were filed and submitted, but the court overruled the motion on that point, as well as on the others. That is urged upon the part of counsel, in the argument of this case, as a ground for a new trial, which cannot be considered by this court, for the reason that the evidence is not properly before us. A rather common error is, that after a motion of that kind is filed, and affidavits have been filed, that the affidavits come up with the papers in the case and as part of the record. We have had, on other occasions, in other counties, to pass upon the question. The only way these affidavits can properly be brought before the court is by bill of exceptions, otherwise they become no part of the record. It is sufficient to say that if they had been before us, we have simply an affidavit upon one side and an affidavit denying upon the other, and w'e are not disposed to hold that the court erred in refusing a new trial upon this.

L. M. Murphy, for defendant in error.

Chas. E. Sumner, Assistant Prosecuting Attorney, for State.

The judgment of the Court below must be affirmed.


author: Bentley, J.

text:
    (Sixth Circuit—Lucas County, Ohio, Circuit Court
    Sep. Term, 1894.)

    Before Bentley, Haynes and Scribner, JJ
    ELLEN COUGHLIN v. THE CITY OF TOLEDO.

      Action for balance of indebtedness and accounting — Information obtainable by interrogatories lo petition — Not appealable.

    An action brought on a certificate of indebtedness issued by a city to a property owner for land appropriated for opening a, street to be paid by the city from the assessments on abutting property for-said improvements, asking that the city should account for the proceeds of such assessments, and for judgment for the amount due on such certificate, is not appealable. It is an action for money only and the information asked of the city could have been obtained by filing interrogatories with the petition.
    Appeal from the Court of Common Pleas of Lucas county.
   Bentley, J.

In this case there is a motion to dismiss the appeal which was attempted to be made by the plaintiff below from the judgment of the court of common pleas.

It appears by the petition in the case that the city began an action to condemn certain property for the purpose of improving a certain street in the city, and the plaintiff in this case, Ellen A. Coughlin, was the owner of certain property sought to be thus appropriated, and in the inquiry under the statute had in the probate court, she was awarded a certain sum as damages, and a judgment in that condemnation case was rendered in her favor by the probate court.

Afterwards the city passed an ordinance, not having funds in the treasury to pay these damages awarded in the condemnation proceedings, by which ordinance it was provided that certificates of indebtedness should be issued by the city, bearing interest, and that they should be delivered to parties in whose favor these condemnation judgments were rendered, and that they should be taken in payment of the special assessment levied for the improvement, for which these certificates are issued, after the city shall have been reimbursed for its expenses, as provided by the ordinance. It is provided in the ordinance that the assessments for this improvement should be made and collected, and that the expenses to which the city should be put, by reason of the improvement, should be first paid out of such collections, and that then these certificates of indebtedness should pay for the property condemned; that is, said judgments should be paid out of the balance of such collections pro rata.

It does not appear affirmatively in the petition, except by inference, that the property thus condemned was actually taken and entered upon by the city or put to the use specified. The plaintiff says that “on the 10th of July, 1886, the said defendant then being desirous of acquiring title to said property so appropriated for said public street, and then being without money to pay therefor within the time required by law and take possession of the funds so appropriated, proceedd to induce this plaintiff to take a certificate of indebtedness, known as certificate number 21, for the sum of $---, of which the following is a true and correct copy, with all credits, payments and endorsements thereon. Then follows the certificate of indebtedness which contains the provisions specified in the ordinance under which it was issued. The petition sets forth that certain payments have been made to her upon that certificate, but the same has not been paid in full. And she further says in the petition that “she then and there took said certificate only to hold until such time as the city, by the exercise of due care and diligence, should make valid assessments which it was bound to make to make for said improvement, and collect the same and pay this plaintiff the amount due her therefor. Plaintiff says that at the time of making said improvement, or at the time when the assessment was made, or ought to have been made, said city of Toledo, through its proper officers, had the right and authority to make a valid and legal assessment, etc., upon the lots and lands abutting on said street so improved, and that the said city had the right also to levy and assess the same upon the general tax duplicate of all real and personal property. The plaintiff says that the defendant has collected more than a sufficient amount to reimburse itself for the cost and expense of said improvement, but that she has no means of ascertaining whether or not the whole cost and expense, including the amount due this plaintiff, has been assessed and collected by the defendant, or not, and it has been in consequece of the negligence and indifference, and in disregard of the rights of this plaintiff and others in this behalf.”

Then she alleges the passing of the ordinance which provided that all money collected by said city on any assessment made for the purpose of said certificates, shall be paid out and applied pro rata on each and all certificates so issued to said property owners for lots and lands so taken, and she says that said defendant has, in fact, collected large sums of money by which the terms of said ordinance providing for the issuing of said certificates, ought to have been paid and applied pro rata thereon, but that said defendant has wholly disregarded said provision in said ordinance.

She avers that she has, for upwards of two years, last past, repeatedly requested and demanded payment of her certificate from the city, which has been refused. She says she is still the owner of this certificate, and that there is now due and payable upon said certificate of indebtedness the sum of $797.07, which the plaintiff claims.

The prayer of the petition is: “Wherefore said plaintiff asks that said defendant be required to set forth the amount of assessments which it may heretofore have made for the expense of opening said Wabash street, for the payment of awards on real estate appropriated therefor, and for the payment of certificates of indebtedness issued therefor, and that the court will take account thereof and that the defendant may also be required to set forth the several amounts, to whom the same was paid, upon what certificate, and the number and amount of said certificates and to whom they were issued. And the plaintiff further asks that she might recover a judgment against the said defendant in the sum of $797.07, which plaintiff claims, with interest thereon - at six per cent, per annum from the 21st of June, 1890.”

An answer was filed by the city,and the case went to trial, and a certain judgment was rendered in the court of common pleas.

The plaintiff below, as .1 say, attempted to appeal the case to this court, and the question is whether this is an appeal-able case under the statute. It will be seen that the petition counts, for the most part,for a recovery upon the certificate of indebtedness. She says that she “was induced to take it,” and there is no charge but that she did accept it, and the certificate of indebtedness provided plainly upon its fact that it should be received in a certain way and for a certain purpose. She says that having received it, she obtained certain payments upon it, and that she is still the owner and holder of it, and that because the city has not complied with the terms of it and the ordinance under which it was issued, she has not been paid, and she asks judgment against the city for a definite sum, adding by interlineation in the petition at the close of it, that “there is due her upon said certificate of indebtedness and upon said judgment the sum of $797.07.”

The case might be considered under two aspects, namely, it might be claimed that that judgment was never satisfied; that it was a debt created against the city -which had never been paid, and that it ought to be paid ; that the acceptance of this certificate of indebtedness ivas only a sort of temporary arrangement, as it were, and that the judgment, so far as the certificate is unpaid,' should be considered unpaid.

The other phase of the matter which might be claimed to be the true one to be considered, would be that the claim of the plaintiff was wholly upon the certificate of indebtedness and the failure of the city to comply with its terms.

Noiv, in either aspect of the case, what was the nature of the issue presented to the court of common pleas, and what the proper remedy? In case the fact should be inferred'that the land had been taken and not paid for by the city, the judgment would have been properly a judgment for so much money,and the action would be an action at law. If, on the other hand, it should be considered that the real cause of utie plaintiff ivas upon the certificate of indebtedness, what would be the proper judgment?

The prayer of the petition is for a money judgment for a certain and definite amount. If the petition is true, what judgment could have been rendered properly in favor of the plaintiff, other than a judgment for money? It is sought to sustain this appeal partially upon the ground, at least, that the petitioner ivas unaware of the amount collected, and in support of her claims upon the certificate of indebtedness it would be necessary for her to ascertain the whole amount collected from the assessments, so that a court of equity could make the distribution provided for in the ordinance; that is, so that the plaintiff should have her pro rata share of the collections; but in that we do not see the foundation of a case necessarily in equity. After all that is done it would simply show that the plaintiff, under the terms of this certificate and ordinance, would be entitled to a certain sum of money. That would simply be the means of ascertaining the amount of money .for which the court should render judgment.

Now, this matter is supposed to be a public proceeding. There is no special reason indicated in the petition why it was impossible for the plaintiff to ascertain the amount of these collections. The public records would afford the facts necessary to determine the exact amount due the paintiff upon pro rata distribution of the collections to the holders of the certificates. But even if it should appear that she could not ascertain that without application to the city itself, the code has provided that a party may annex to his or her petition interrogatories which should be answered by the defendant, and the Supreme Court, in the case of Chapman v. Lee, has held that that provision of the code does away with the old action for a discovery, and the necessity for any such interrogatories attached to a pleading, does not necessarily make an action equitable in its nature; and we think that whether considered as an action upon the original judgment for the value of that land, or under the obligation specified in the certificate of indebtedness and in the ordinance, the claim of the plaintiff was manifestly and plainly a claim for money, and a judgment for so much money would have been, if the plaintiff prevailed, the proper final judgment in the matter; and this being so, of course, the case is not an appealable one, and the motion to dismiss the appeal must prevail.


text:
    (Sixth Circuit—Lucas, Co., O, Circuit Court,
    Sept. Term, 1894.)
    Before Haynes, Scribner and King, JJ.
    THE TOLEDO & OHIO CENTRAL RY. CO. v. MARTIN JANESKI.

      Personal injury through defective appliances — Allegations in petition-sufficient to malee certain evidence of defects admissible.

    1. The allegations in a pleading that the party complained against negligently committed the particular act which led to the injury whose redress is sought, furnishes the predicate for the proof of all such incidental facts and circumstances, both of omission and commission,- as fairly tend to establish the negligence of the primary fact complained of. ■ ,

      Same — Claims of negligence not alleged in petition not to be con-, sidered by jury.

    2. Where the evidence is properly received upon the issues made'by the pleadings, or is admitted against the objections of the defendant, it is,error for the court, by its instructions, to allow the jury to pass upon other claims of negligence not alleged in the petition.
    Error to the Court of Common Pleas of Lucas county.
   Haynes, J.

This is a case in which a petition in error was filed for the purpose of reversing the judgment of the court of common pleas for certain errors alleged to have occurred at the time and during the'trial. The amended petition on which the case was tried, shows that the plaintiff claims that he was in the employ of the Toledo & Ohio Central Railway CompanjT; that'he was at work at Toledo, arid in the regular course of his business was employed in shoveling coal at the docks owned, operated, controlled and managed by the railroad company at the terminus on said railroad; that while he was so employed,and without fault or negligence on his part, and after he had filled a bucket of said defendant with about one ton of coal, and was standing upon its car from which he had filled said bucket, (it will be observed that he is speaking cf the bucket that he himself filled), and when it was raised by the derrick and engine of said defendant, and when about ten feet above and over him, a spring which held the bale of said bucket in its proper place, by reason of the imperfect, defective and worn-out condition thereof, gave way and dumped the contents of said bucket upon the head and body of plaintiff, injuring his head, spine and brain and crushing and burying him thereunder, breaking one of his ribs and otherwise severely and permanently injuring him, and all caused by and through the gross carelessness and negligence of said defendant in using said coal bucket with its defective, rotten, worn-out and imperfect spring, all of which said defendant had due and'legal notice.

There are two allegations here in regard to negligence; one is quite a general one, that is,“by reason of the carelessness and negligence of said defendant in using and operating said bucket.” And the second is, that when the bucket was raised by the derrick ten feet above and over him, the plaintiff below, that by reason of the imperfect, defective and worn-out condition of a certain spring, the contents were dumped upon the plaintiff below, and he was injured.

The answer admits that the plaintiff below was in the employ of the defendant below, but denies all other allegationsof the petition. It further sets up and avers that the buckets used at that time were such as were generally used in handling coal under the same circumstances, by various companies; that they were safe and good, as safe as those that were in general use by railway companies, and in substance that they were of the best make and character that the market afforded; and that they were not out of repair, but were in good repair, and kept so at the time of the alleged injury.. The answer closes with the statement that if there was any injury, it was caused by the carelessness of the plaintiff himself, which is denied by the reply .of the plaintiff.

Now, there are three questions argued here before us, and one point is in regard to the admission of certain testimony or evidence that the catch itself was worn; the second was that the court erred in stating as to the manner of handling the bucket; and the third was that the court erred jp its charge to the jury and in certain charges that were submitted to the jury by the court, which, it is claimed by the plaintiff in error, were not issues that were made by the pleadings filed in the case.

As to that question, the defendant in error placed upon the stand its general foreman of the road who had charge not only of the equipment of that particular yard, but perhaps along the whole line, and he has testified in regard to the use of these buckets. The counsel for the plaintiff asks this question of the witness: “What do you call a machine?” Answer, “A derrick.” Question, “How many buckets and how many men?” Answer, “Six buckets and about ten or twelve shovelers. Of course, there are other men connected with this — hookers and trimmers. ” Mr. Hamilton: “I am trying to get at how many times this catch was going into this notch, and this latch into this notch; can you give us some idea about it by which we can figure?” Answer “Yes, sir.” Question, “I suppose, as a matter of course, these edges get worn out a little, don’t they?” Answer"Oh, yes, sir.” Question, “I was going to ask you, Mr. Cook, if the constant use of this latch, here, sliding over this catch, didn’t have a tendency to wear off the square edge of these corners and round them off a little?” Objected to on the ground that there is no allegation in the petition as to’ the wearing. Mr. Hamilton: “We are entitled to know all about this matter to see whether they furnished springs that, under all the circumstances of their use, would hold the latch certainly in its place.” Court to Mr. Hamilton: “Do you allege in your petition that the office for the spring was to keep the bucket upright?” Mr. Farquharscn: “Tokeep the bale in its place?” Mr. Smith: “It is, there was a defective, worn-out spring. ” The court to Mr. Smith: “I think if you had intended to require a more minute specification as to what the defect was, you should have required it by motion.” Mr. Smith: “I couldn’t make it more specific.” Mr. Hamilton: “We want to know how it operated. ” The court: “I think we shall have to hear the testimony. In the narrower sense, the spring could only be that mechanism which changes the motion; but in the broader sense, we think it would be the operation performed by the spring, including the place in which it w'ent and how it was there secured, as well as the fitness of the location into which this spring went.” Mr. Smith: “I wish to note an exception to the interpretation of the petition as given by .the court in the presence of the jury.”

.-Now, it will be seen from the allegations of the amended -petition which I read, that the only allegation in regard to the spring is, that the spring itself was defective, weak, and the word “rotten” was used in regard to the iron. There was no specific allegation in regard to the edges of the catch. It may be proper here, in order to show the connection of this testimony, to state that the testimony shows that the coal is thrown or shoveled into an iron bucket holding about a ton; that attached to this bucket is a bail, and that the bail is attached to the bucket at a point below the center of gravity, nearer the bottom of the bucket than the top.; that in using the bucket, which is hooked onto by a certain apparatus connected with the derrick, it is swung from the position where it is filled, around to the boat and there dumped; that in using the derrick, it is made in this form for the purpose of having the bucket empty itself when the occasion comes and the proper steps are taken to have it. In holding the bucket in an upright position while it is being swung aroand in place, there is attached to the inside of the bail what is called a latch, a piece of iron some twelve inches long and two and one-half inches wide and with a considerable thickness, and this is riveted to the bail. Back of that, between the latch and the bail itself, is a steel spring about eleven or twelve inches long, which is also attached to the bail, the purpose-of which is to throw the latch forward and to keep it forward in position. On the rim of the bucket at the top are placed two pieces of iron, one about twelve inches long or a little longer, and opening until it comes to a certain point, and the other of the same kind opening until it comes to this notch, the effect of which is to make a catch at that point. When the bucket is loaded the bail is brought up to its position 'to be hooked on to the attachment from the derrick; then the spring, as it comes forward, forces this latch into the catch,and that holds the bucket in an upright position until it comes over the boat where it is to be emptied. By means of a rope attached to this latch, this latch is pulled back, and the bucket dumps itself; then, the bottom being heavier, it is. so adjusted that it is expected to come back to its upright position when emptied.

Now, as I have said, the allegation being that this spring was worn and weak, the question is .whether the court was right in permitting the counsel to ask-the question which was asked in regard to the edges of this latch,., whether they were not worn round so that the spring would slippakqasily. We think that that question was decided by the rules ofxl^w laid down in the case of Davis v. Guarnieri, in the 45 Ohio St. 485. I will simply read the rule that was laid down the court in delivering the opinion in the case:

“The contention of counsel presupposes that no act of negligence can be proved except it be alleged in the petition. This position is untenable. The allegation in a pleading that the party complained against negligently committed the particular act which led to the injury whose redress is sought, furnishes the predicate for the proof of all such incidental facts and circumstances, both of omission and commission, as fairly tend to establish the negligence of the primary fact complained of.”

Now, the primary fact complained of here in regard to this injury — the fact of negligence, is, that the spring'had become -weak, and that it was easily displaced from the latch, or thrown out of the latch, and it seems to us, under this rule, that that fairly admitted testimony to be given which would show that the latch itself had become rounded by continued and general use; and that therefore it was within the rule as laid down in that case.

There was another objection that was made by the counsel, and that was in regard to the statement of the court to the jury, in stating the issues of the case — in regard to the manner of handling the bucket. It will be seen that he is making a statement now as to matters alleged in the petition : “That plaintiff alleges that, by reason of this spring which held the bail in position and thus prevented the bucket from dumping until it got to the place where it ought to dump— that by reason of the defect in this spring, while this bucket was full of coal and when it had been lifted above the head of the plaintiff some ten feet — by reason of the defect in the spring of the bucket, by reason of the defective management, and by reason of the carelessness of defendant, the bucket turned over and let out, and permitted to fall upon the plaintiff the contents of the bucket, to-wit, a ton of coal.”

We think the court was justified in making that statement by reason of the charges which I have already read in the amended petition, to-wit, that when he had filled said bucket, by reason of the carelessness and negligence of said defendant in using and operating said bucket, when it is raised by a derrick, etc.

Now, there is a general allegation, that by reason of the carelessness and negligence of said defendant in using and operating said bucket, that the injury occurred, in connection with the weak spring. We think it is sufficiently susstained; that is, this allegation; at any rate, if there was any objection, it would be required to make it more definite and certain, as a matter of course; but for the purpose of making that allegation, we think the statement is sufficient.

We come now to a more important question in the case, and that is upon the charge of the court. In order to properly discuss that, it will be necessary to state some of the facts in the case as appear by the record before us.

The plaintiff, in order to sustain the issues on his part, first called as a witness Frank Boguci, who proceeded to testify in regard to the accident; that he was at work with Janeski; that he was filling a bucket — not this bucket in controversy — but another bucket,with coal; that the bucket was placed along side of the car; that he was upon the car, and Janiski was also upon the ear, Janeski appearing to stand on the end of the car, on the outside of a box car which held the coal. The car was about thirty feet long and at the other end of the car another bucket was being filled which was the bucket in controversy here. That was being filled by a couple of men, and when they had filled it, the hooker, the person who hooked the apparatus to the bucket, Valentine Tcmczalc by name,hitched the rope to the bucket ■ and thereupon the engineer, who was stationed upon the dock near the derrick, and whose duty it was, by means of a steam engine that was in operation there, to raise this bucket or these buckets and transfer them, by means of this derrick, around to the boat, raised the bucket up about ten or twelve feet and commeced to swing it around to the boat; that in swinging it he passed it around towards the end of the car on which Janeski and Boguci were at work; that when it came over or reached a point where it was over the head of Janeski, a little jerk was heard, made by the engineer in moving the apparatus in some way; that at the same instant the bucket was overturned, and a, ton of coal came down upon Janeski, producing the injury that he complains of.

In further giving the evidence for the purpose of establishing the negligence of the defendant below in that matter, the witness was asked in regard to the spring, and he testifies that there was a spike or nail placed behind the spring on the bale on this particular car. He testified that he had seen it placed there about two weeks before by this manTomczak, who stated that, in his opinion, the accident was caused by the weakness of that spring, by its giving way at the time this little jerk was heard upon the bucket. But beyond the •simple fact that he claimed that he had seen, prior to that time, a nail behind this spring, he testifies of no fact whatever in regard to the matter. It was just a mere matter of opinion.

The testimony of this witness is followed by the testimony of Janeski himself, who testified in regard to the bucket striking him; that he had no knowledge in regard to the spring being unsafe. Tomczak was called by the plaintiff, who also testified in regard to the movement of this bucket, and while he has no recollection of seeing a nail behind the spring at the time, he testifies that when the bucket started forward to go, in its movements towards the boat, that the latch was in its proper place, and it was all right, so far as the latch was concerned. He does, however, express the opinion that the weakness of the spring was probably the cause of the bucket tipping, but that he has no knowledge. He does not deny in terms, or admit, that he ever put a nail behind the spring.

Now, that is all the testimony upon the part of the plaintiff in regard to the spring and the nail behind it. Both Boguci and Janeski were inquired of as to whether they had before that time seen these buckets turned, any of them, and they both testify that they had seen buckets turn prior to that time, and that was followed, then, by the testimony of the defendant, who called Thomas R. Cook, as I have already stated, who was the general foreman of the company and its motive power; also the engineer on the dock, and a man by the name of Smith, who was the immediate foreman of the dock yard, and John H. Murphy, who was the blacksmith, and who had charge of the work there, and who made repairs upon these various buckets.

The effect of the testimony of these witnesses is this, and they all agree upon this — that they examined this bucket immediately after this accident, and Campbell, the engineer, says that he immediately swung the bucket forward and set it down upon the dock allowing the apparatus to remain attached to it. Cook was there, or immediately came there, and Smith, who was near by, came, and Murphy, the blacksmith, was in the immediate neighborh'ood and came there, .all in a period of perhaps some ten or fifteen minutes. Cook testified that when he got there he examined it, and there was a nail or spike behind the spring, firmly fixed in place. In that he corroborated the testimony of Janeski. Campbell, Smith and Murphy, who helped to examine it at the time, did not see the nail; but they all made an examination in regard to the bucket by handling the bale back and forth and in various ways at that particular place as to the condition of the spring and of the catch, and they say that it was in good condition, and all right. They testify that they immediately put that bucket at work again,and so carried on work with it, and it continued on all the time doing work, and that it operated all right. As suggested by the counsel for the defendant in error, they did not attempt to swing the bucket around with a load in it; their examination was all confined to such a one as they might make at the point where the bucket was then placed, to-wit: while it was then upon the dock and attached to the derrick apparatus at that point. They also testified to the fact that in using these buckets they sometimes failed to turn over, and that without any reason that was discoverable by the parties themselves; that is, by these witnesses.

Campbell testified that in moving this machine, as he moved it in the ordinary course, having raised it up to a point ten feet high as it swung around, he moved the handle or the lever of the apparatus attached to the engine, the effect and purpose of which was to stop the bucket from being raised any- higher; that as he turned this spring, the effect of it would be, in place of raising it, to let the bucket drop a little — perhaps five or six inches, and that would give a little drop and jerk to it, and he supposed that the bucket was turned at that time, because it was insecurely latched at the time it started from its place; that it had been going along well enough until this jerk came upon it; but the testimony shows that they sometimes turn without any known cause. The testimony of Smith is that he examined those daily.

The testimony of Murphy is that he had them all fixed up in the spring, and examined them from time to time, and watched them daily, being at or about somewhere in the neighborhood of fifty or sixty in use at that time, and were using them in unloading cars.

Now, that is the testimony that was laid before the jury, at least so far as the question of negligence is concerned, at the time the case was concluded. Upon the conclusion of the case, the court proceeded to state the issues that were made, and having stated the issues, he says:

“Now, as bearing upon the issues here, we have been asked to give you the following instructions on the part of counsel for the plaintiff.

Thereupon the court read and gave to the jury the following instructions asked by the plaintiff, some four in number.

“And we also give you the following requests presented by counsel for the defendant.”

Thereupon the court read and gave to the jury in charge the following requests presented by defendant through its counsel, to-wit, some fourteen in number.

The court followed that by stating briefly the definition in law of negligence, “that the measure of negligence was the measure of care ivhich persons of ordinary prudence were accustomed to exercise in similar cases.” Then having charged the jury that the plaintiff was bound to exercise care as well as the defendant, etc., the case was submitted to the julT-

The four requests that were given on behalf of the plaintiff, and which were excepted -to by the defendant at the time, were these:

“1. It ivas the duty of the defendant to -use ordinary and reasonable care in providing and maintaining for the plaintiff a safe place to do his work,and to provide safe machinery with which to work, and keep the same in repair, and in the performance of such duty, must use usual and ordinary care; and if, in consequence of the failure by the defendant to use such usual and ordinary care, the plaintiff was injured, and the plaintiff did not contribute to such injury by his own lack of ordinary care and caution, he is entitled to recover in this action.

“2. It was the duty of the defendant to exercise due and ■ reasonable care, to provide a suitable place in which, and suitable appliances with which the employe, himself being •in the exercise of due care, could perform his duty, without being exposed to unnecessary dangers.”

”3. If the jury find that the defendant was injured while in the performance of his duty, in consequence of the overturning of a bucket of coal upon him, and they further find that the plaintiff was working at a place rendered unsafe by the carrying of a bucket filled with coal over his head, the appliances for which were unsafe, in consequence of their being out of repair, and the fact of their being so out of repair was known to the defendant, the plaintiff is entitled to recover, if such overturning of the bucket was caused by such unsafe appliances, unless he was guilty of contributory negligence on his own part, o knew the danger he was in, and voluntarily assumed the same.”

”4. If there was danger while carrying the coal from the cars to the vessel by means of buckets transferred by a derrick, and such buckets were likely to be moved over the head of the plaintiff while employed in his work, and there was danger of a bucket overturning and dumping the coal on the plaintiff while at work, and such danger and the risk therefrom was not one of the ordinary risks of his employment, but was of a special nature, and the plaintiff was hot cognizant thereof, or by ordinary care would not become cognizant thereof, and the danger and risk was not patent, it was the duty of the defendant company to notify its employes of such risk and danger; and if, by exposure of such special risk, he was injured, the plaintiff is entitled to recover, if the employer was cognizant of the risk, or ought to have been cognizant thereof.”

It will be perceived that in the Fourth pararaph, nothing is said about the imperfect machinery; it says, “ * * * By means of buckets transferred by a derrick, and such buckets were likely to be moved over the head of the plaintiff while employed in his work, and there w'as danger of a bucket overturning and dumping the coal on the plaintiff while at work, and such danger and the risk therefrom was not one of the ordinary risks of his employment,’’etc.

Now, it is clear that the court has submitted to the jury in these charges, the question whether this was a safe place for this company to place this man at work; whether they were or were not guilty of negligence in putting him in the place where tley did put him to work. We are unable to find, and there is no allegation of that kind in the pleadings; that is clear, definite and certain; and we are unable to find'anything in the evidence of the case that shows that any issue was made before the jury, or that any testimony was offered upon the one side, and rebutted on the other, whereby that issue was made in the evidence without objection on the part of the defendant. The testimony that was offered to the jury was testimony that would naturally arise, and properly, upon the issue. That was tendered by the plaintiff, and the defendant excepted to it, to-wit, that the spring upon this bucket was defective, and that by reason of the defective spring the bucket overturned and the plaintiff below was injured.

Under this charge the jury may well have gone on and decided the question upon that issue, or • rather upon any other issue in the case. The plaintiff is certainly entitled on the pleadings to have the case stated upon which he intends to rest, and if the plaintiff states acts of negligence by reason of which he claims he has been injured by the act of the defendant, the defendant has a right to join issue upon that, and go to trial. If also there should be testimony introduced that was .outside the issues that were tendered by the pleadings, and the defendant without objection should permit the evidence to be introduced and join issue in that way, practically join issue orally before the jury, then the party would be estopped from raising the question upon error. But that does not occur here. There is no time or place at which the testimony could be objected to; there is no ground of objection to it. The testimony was upon that issue, but when the court comes to charge the jury, he presented another issue, an additional issue to them to which he invites their attention and upon which he allows them to pass.

Now, we are constrained to the conclusion that in doing that the court erred, and erred to the injury and detriment of the plaintiff in error. We have read and appreciate the case in the 15 Ohio St., as well as this case I have already-cited in the 45 Ohio St. In the case in the 15 Ohio St., they follow the same line that I have already stated, and for the reasons that I have stated that practically can he made applicable to this case.

Doyle, Scott & Le-wis, for Plaintiff in Error.

A. Farquharson, and Hamilton & Ford, for Defendant in Error.

The question as to whether the verdict is not sustained by the evidence, the questions arising upon the evidence wiil not be discussed by us. The case must go back for another trial, and in regard to the merits of the case, upon the facts themselves, we shall express no opinion here. For the reasons I have stated, we are constrained to send the case back for a new trial.


text:
    (Sixth Circuit—Lucas County, Ohio, Circuit Court,
    Sept. Term, 1894)
    Before Bentley, Scribner and Haynes, JJ.
    THE LAKE SHORE & MICHIGAN SOUTHERN RAILWAY CO. v. FRANK P. GAGEN.

      Personal injury of helper inB. B. yard through negligence of conductor of freight train in sioitehing cars — ■Conflicting evidence — Loss of fingers — Verdict for S'jr>00 considered not excessive.

    Error to the Court of Common Pleas of Lucas County.
   Bentley, J.

In the switching of cars near Air Line Junction, while Mr. Gagen was in the employ of the L. S. & M. S. R’y Co., as helper in the yard, in April, 1892, he received injuries whereby he lost three lingers of his hand, and upon the trial of the case in the court of common pleas he recovered a verdict of $2,500, for which judgment was rendered against the company. The company had the evidence preserved by bill of exceptions, and presents it here to sustain its petition in error, the company claiming that the verdict is not sustained by sufficient evidence. I will not recite in detail the circumstances as shown by the testimony, but simply attempt to present the controversy between the plaintiff in error and the defendant in error. This injury occurred in the night. There are, at the place in question, several railway tracks of this company, running, substantially, east and west. The most southerly track in question was what is called the south bound main track; next to that and substantially parallel with it was a side track called No. 1'; parallel with that and north of it was No. 2, and then followed No. 8 and No. 4, in order. There was a leading track at the westerly end of these side tracks, connecting with the main track, and these tracks were so arranged and connected that cars could be shifted from the main track upon these various side tracks, and agaiix from these side tracks to the main track, or they could be shifted from one side track to another by using this leading track at the westerly end of the side tracks.

> On the night in question, a train of several freight cars was there, and an engine, in charge of a conductor, Mr, Holtz, ancl he, with these helpers and the engineer in charge of the engine, was shifting freight cars upon these various tracks. That is, for the most part, he was takiixg cars from the train, and setting some of them in on the south bound main track, and some of them on No. 1, axid some of them on track No. 8, and some on track No. 4.

The mode of doing it was this: The engine would back the cars,and some one would call a slack,so that a pin could be drawn; the conductor would draw the pin and disconnect certain cars from the train at the rear eixd of the train, and then the exigine xvonld be given amotion backwards after the piix was thus drawn, and when a certain speed had been reached, the engine, with all the cars still attched to it, would stop, and the cars which had been detached were allowed to run on and were switched to the proper track. This was called “cutting cars.” It was the duty of the conductor, as I have said, to pull the piix and to determine what cars should be cut off, and then when he was about to make the cut and send those cars back, he would call out aloud in the hearing of the switch tenders, and also in the hearing of his helpers and switchmen what track they should be let down upon; if upon the main track, he would call out aloud, “main track.” Then the person in charge of the switch would make the proper disposition of the switch,and let the cars run in on the south bo.aid main track, and the helper, who was to attend to that, would either mount them and ride them down and apply the brakes and stop them at the proper place, and then get down and couple them on to the cars already on that track, or, if he did not mount these cars and ride them down, he would walk down and attend to the coupling of these cars to other cars already on the track.

There were two helpers on this occasion; one was the plaintiff below, Mr. Gagen, who was attending more partióularly to the cars that should be thus set in upon the south bound main track, or upon the track next to it, side track No. 1. Another helper was performing the duty for the most part upon tracks No. 3 and No. 4. It was practically the duty of the conductor, it would seem from some of the testimony, just before he made the cut, to look out and see-where the helper was who was to attend to that particular cut, so that he would know he was in position to take care ob it.

At one time a part of these cars were cut down upon the south bound main track, the most southerly track I have mentioned. Mr. Gager was to take care of that, and he did. not follow it down, and having his lantern, he went up near enough to see or notice that there was no link in that moving car, where the link ought tobe; therefore, he could not couple it to the car which it was approaching. He says that thereupon he immediately went to the pile of links, a point he knew of, which was just across the track, track No. 1,about eight or ten feet from the place where he was to make this coupling, got a link and took it in his right hand and prepared to put it in its proper place. In order to follow the chronological order, I should have said that when he noticed that this link wras not in the draw bar, he simply let the cars go together;, then they bounded back about eighteen inches and stood there, as he says. It was while that space was open and-immediately afer the cars came to a rest, that he went for the link. He says he only had to go the distance I have mentioned to get the link, and that he immediately came back with it in his right hand,and proceeded to put it in its proper place, while he ivas thus engaged and just as he had. got the link entered, and before he had made the coupling and set the pin, another car struck this car which he had followed dowm, a car that had been cut from the train and sent down upon it, making what is called a “double cut,” and that car striking against the car into which he was inserting the link, drove that car against the originally stationary car which he was coupling it to, and he being unprepared for it, caught his hand between the draw bars and his fingers were cut off by the collision.

He charges that the sending of this last car down so that it would strike this car when he ivas in that position was negligence on the part of the conductor, his superior in the service. There is no question that he lost his fingers while he was in between those cars, either coupling them, or putting in the link.

There is no question in the case that the conductor let a car down upon the south bound main track against this car and caused the collision which caused the injury. But the issue of fact that is made in the case is this: The conductor says that he first sent this car down and Mi\Gagen was to attend to it, but for some reason, the conductor does not know whether it was for lack of a link, or what, but for some reason, Gagen failed to make that connection at that time and gave it up; that it was usual for helpers when, for any reason they failed to make the coupling, when the cars ran down in that way, to let it go and afterwards to have the engine hitched to the car and then make the coupling, but to let it go for the time being and attend to the other cuts as they should be made from time to time. The 'conductor says that Mr. Gagen having failed to make the coupling at that time on the south bound main track, and having given jt up, a cut was made upon track No. 1 next to it, and that he saw Mr. Gagen going down to attend to this coupling to be made on track No. 1. He says that he saw him go behind a box car that was going down track No. 1, with his lantern, in order to attend to it, and so supposing that he was upon track No. 1 attending to that cut, and before he had seen him emerge from back of the box car at all, he made this other cut and sent another car down upon this south bound main track, which, in fact, did the mischief.

Now, it is claimed that instead of the plaintiff being injured as he says he was, by reason of a double cut, that is, one cut upon the south bound main track, then another cut upon the same track, in fact, the two cuts upon the south bound main track did not follow each other successively; but that there was a cut upon No. 1, intermediate, and that probably Mr. Gagen was injured by his leaving the coupling on track No. 1, which he ought to have been attending to, and his having for some reason or other gone back to the south bound main track to effect a coupling there of this first car to the cars that stood upon the south bound main track.

The other helper testifies in the case, and he says that the last two cuts that were made were sent down by the conductor upon the same track. He gave a deposition formerly, in which he stated that these two cuts were upon track No. 1 —he supposed it was track No. 1, upon which Mr. Gagen \yas injured. He now says that he cannot tell whether it was upon track No. 1, or the south bound main track, but it was one or the other, and whichever one it was, the two cuts were upon the same track.

Now, with this aspect of the testimony, the case was given to the jury. If, as the plaintiff below testifies, and as is indicated by Mr. Igraham, the other helper, there was a double cut; that is, if a car was sent down upon the main track while the man was there attending to that coupling, and the conductor sent another one right down upon the same track and drove the cars together and injured him, unquestionably that would have been negligence on the part of the conductor, and the company would be liable for it. The conductor, as I say, denies that, and says that there was an intervening cut upon the other track,and he supposed the man was off on the other track, as he had reason to believe that he was on track No. 1, where he ought to have been, and that therefore it was not negligence, and the company not responsible. Thus the facts which, it is claimed, determine the question of the liability of the company were in dispute, but the testimony before the jury was such that it might have determined that the plaintiff was right in his testimony as to the facts, and if he was, there was negligence beyond a question. If he was not. and the facts were as the conductor testified, there would be more of a quesiton, but even then a chance for argument. It may not be perfectly clear even under the circumstances detailed by the conductor, that he had performed his full duty with care, considering his act of switching a car when he did not know his helper was — switching one car before the helper that he had expected to attend to it had come out from the other cut.

It seems very clear, with the conflict of testimony, that our duty is to affirm the judgment, and we think that the jury were warranted in finding as they did, and having found for the plaintiff, we are to suppose that .they may have found the facts to be as the plaintiff claims they were, corroborated as he was, to some extent, by the other helper, althoug his testimony may have been somewhat impaired by the statement he had made in a former deposition regarding these various cuts. Something has been said regarding the amount of the verdict of $2,500 — that it was too large — that the court ought to have set it aside on the ground of its excessive character; but we do not see our way clear to do this, and the judgment will be affirmed.


text:
    (Sixth Circuit—Huron Co. Ohio, Circuit Court,
    Nov. Term—1894.)
    Before Bentley Scribner and Haynes, JJ.
    J. W. MALONEY v. ELIZABETH MALONEY.
    Estoppel—
    Where in an action for divorce and alimony by the wife the petition states that plaintiff had an interest in some land, and it appears that the land had been conveyed to her by her husband without valuable consideration, and the husband in his answer alleges that the whole title to the land which bad belonged to him, had been by him conveyed to her, and the court based its finding and judgment in regard to such land on these allegations, the husband will ■be estopped from suing nine years later to enforce an alleged agreement for a reconveyance of such land by the wife to himself.

      Motion for new trial, when necessary—
    The court below having held in such action that the question as to the title of this land was res adjudicata, to bring this question before a reviewing court, a motion for a new trial should have been made in the court below, and it would be improper for the appellate court otherwise to interfere with the judgment belowj
    Error to the Court of Common Pleas of Huron County.
   Bentley, J.

The plaintiff, in his petition filed February 7, 1891, in the court of common pleas, sets up, in substance, that he was once the owner of a certain two acres of land in this county; and he claims still to be at least the equitable owner of the property. He says that while he was the owner of it, his wife, Elizabeth Maloney, the defendant in error here, brought an action against him for divorce and alimony.

In this petition he charges that the defendant, Elizabeth Maloney, caused him to be incarcerated in jail, under a criminal charge made by her,but which was false, and that while he was thus incarcerated, upon a groundless charge, she procured a deed to be made by him to a third party and by that third party to herself, of this land in question. That this was at least one of the purposes of her action in having him incarcerated; and that while he was in great distress and subject to anxiety and the disabilities of his position, this deed was obtained by her from him, by duress, and that it was without any consideration. He says that soon after he was .discharged, having made this deed, he demanded of her a reconveyance, and notified her that the deed was wrongful, and that it should be of no effect, and demanded a reconveyance of his life estate in the property which was then and since has been the home of the plaintiff. His petition proceeds: “And thereafter, during the month of November, 1881, for the purpose of rectifying the wrong done to the plaintiff, as aforesaid, the defendant consented to, and did convey said propert}7, by deed to Lizzie Dullaghan, as trustee, and said Lizzie Dullaghan thereupon duly executed and delivered a deed of said premises to this plaintiff, thereby reconveying the same to him. But the plaintiff says that before said deed so executed and delivered had been recorded, and while it was yet in his possession, the same was wrongfully, and without the plaintiff’s knowledge, removed and taken away from his possession by persons and means unknown to the plaintiff; and he has not since been able to get possession of the same, although he has made diligent efforts to do so. Plaintiff further says that defendant now refuses to re-execute the deed aforesaid, and claims to own and hold said property, and has since rented said property, and caused it to be taken from the possession of the plaintiff, and he is now unable to get possession of the same although he has frequently demanded such possession. Plaintiff says that the marital relation heretofore existing between said parties has been legally dissolved, and they are not now husband and wife. Wherefore the plaintiff prays that his rights in such premises be established and declared by the court; and that the same be decreed to him; that saidlast mentioned deed be ordered re-executed; that he be given possession of said premises, and for such other and different relief as shall be found just and equitable.”

That is, he says, that in 1881 the legal title of these premises was conveyed to him; that some time afterwards. — it does not appear when — the deed by which the title was re-conveyed to him, before being recorded, was taken from his possession by some person unknown to him. He does not charge the defendant with abstracting the deed; he does not put her in the wrong in tne matter of taking the deed, except that she refused to re-convey to him — refused to re-execute the deed, and says that she has rented the property, and that he is no longer in possession of it.

That is, the petition would indicate that the legal title of these premises was, in fact, in him; that he has lost his deed, and he wants the person who conveyed to him by the deed, to re-execute it, that person not being charged with any wrong except that she ignores the deed and holds possession of the premises. This occurred in 1881.

The defendant answered in this case, setting up various defenses, tending to show that she had a right in the premises; and for a third defense she alleges that, on the 21st of Febri ary, 1890, she began an action for divorce and alimony against the present plaintiff m error, who was then her husband, in the court of common pleas of Erie county, alleging certain reasons for the granting of a divorce and alimony, and in that petition in the divorce case, she made allegations as to certain personal'property that the defendant had, and alleged also (among other things), that she was the owner in her own right of an interest in the real estate described in plaintiff’s petition in this case; to which divorce and alimony petition plaintiff answered, alleging that on the 10th day of March, 1881, he deeded to one Hiram Hosford, and Hiram Hosford deeded to defendant, said premises; and making no claim whatever that said premises had ever been deeded back to him, or that he was the owner or held the legal title to the same; that said statements and allegations contained in said petition and answer were material to the issues in said case, and were considered and taken into account by the court in the making up of and rendition of its judgment upon the final hearing of said action for divorce upon its merits; by reason of which plaintiff, in this action, is estopped from claiming any right, title or interest in or to said real estate described in his petition.

In reply to her answer he says: “That except the fact that said defendant filed her petition for divorce, he denies all and singular the statements and allegations contained in the first, second and third pretended defenses in said answer contained.

“By way of answer and reply to the so called ‘fourth defense’ and cross-petition in said answer,he denies that at the trial of said divorce proceedings in the common pleas court of Erie county, Ohio, this plaintiff claimed or admitted that said defendant was the owner of the premises in the petition described. ”

A portion of the answer that I have read was inserted by interlineation, and after filing his original reply, the plaintiff filed a reply to the amendment to defendant’s answer (made by interlineation), which reads as follows:

“Reaffirming all and singular the allegations and statements contained in the original reply to additional allegations inserted into defendant’s answer by interlineation, says: That at the time of the trial referred to in said defendant’s answer, the court of common pleas, upon finding that the property in question was real estate; that it was situated in the county of Huron, and not in Erie county; that fraud is charged in its procurement by said Elizabeth Maloney from J. W. Maloney, and that the pleadings were likely to be amended, raising all of said questions, the said court, by Judge DeWitt, its presiding judge, thereupon expressly dismissed from said proceeding all matters relating to said land in the courts of Huron county, Ohio, at the same time stating that all matters as to said land he would leave to be settled by the courts of Huron county. By inadvertance, no record was made of said finding and order, but the court proceeded to find upon all other issues, except only the one above referred to.”

The record of the trial of thi3 case in the court of common pleas may be said to be somewhat out of the usual order of things. The journal entry, showing what was done, is as follows:

“October term, towit, December 16, 1893. This cause coming on to be heard on the question of res judicata, was submitted to the court on the pleadings and evidence, and on consideration thereof, the court find on the issue submitted for the defendant. It is therefore adjudged and decreed that the defendant recover her costs herein expended, taxed at $--, and that the plaintiff’s petition be dismissed, to all of which finding and order and judgments the plaintiff then and there excepted. And the plaintiff thereupon gave notice of appeal and the bond for appeal was thereupon fixed at $200. ”

The next entry is this:

“October Term, towit, February 6, 1894. Now comes the plaintiff, and presents to the court his certain bill of exceptions herein, which, being found by the court to be true, is allowed, singed and sealed, and on motion is hereby made part of the record of this case. ”

It will be observed that in the journal entry there is no mention of the filing of a motion for a new trial, or any disposition of a motion for a new trial. It has been held at various times by the Supreme Court of Ohio and succinctly in the case of Everett, Weddell & Co. v. Sumner 32 Ohio St. 562, that there are no exception to the rule which requires the making and overruling of amotion fora new trial in the trial court, in order to afford any basis for the allowance of a bill of exceptions, bringing upon the record all of the testimony in the case with reference to disturbing the judgment of the court of common pleas upon the effect and weight of the evidence itself. Hoes this present that sort of a case, where a motion,for a new trial is necessary to present the question sought to be made here? There was no motion for a new trial. The counsel proceeding upon the idea, I suppose, that the question of res adjudicata being alone presented to the court of common pleas, it was simply called upon to construe the effect of the record, and that to review it does not require an examination of all of the evidence, nor the overruling, of a motion for a new trial.

Now, what is already presented by the bill of exceptions in this case is this: The defendant presented in evidence the record and proceedings in the divorce and alimony case in the court of common pleas of Erie county. -It contained no adjudication .whatever regarding this land. Thereupon the parties introduced evidence upon the one side and upon the other — one party introducing evidence tending to show that the judge of the court of common pleas of Erie county,in disposing of the case, had said that as the pleadings showed that this land in question was already the property of Mrs. Maloney, no adjudication or order regarding thafwas necessaiy, and therefore none was made. The other party introduced evidence tending to show that what the court of common pleas said was, that, as there was a controversy regarding this matter, he had no jurisdiction of the land's because they were situated in Huron county, and therefore would take no jurisdiction in the matter, or attempt to settle anything regarding it.

Assuming now that the bill of exceptions is properly here, as we think it is, (the case having been commenced prior to the change of the statute, regarding the time when bills of exceptions should be allowed), taking the bill of exceptions as it is, it shows that the court of common pleas of Erie county, in fact, made no order touching this real estate. Not only is the record silent upon it, but, taking the testimony of either party, there was, in fact, no adjudication of the title to this real estate.

We think that the real matter presented by the pleadings touching that case in Erie county, is not the res adjudicata, but the question of estoppel by conduct. In that case, the plaintiff, in Erie county, in her divorce and alimony suit, had alleged that she was the owner of an interest in the land described. J. W. Maloney, the husband, filed an answer in that case, and instead of denying that, set up affirmatively that the whole title had been conveyed to her through the interposition of one Hosford to whom she had deeded it. So that as he allowed the pleadings to stand, they presented the claim upon the part of the plaintiff in that action that she owned “an interest” in these two acres, and the statement on the part of the defendant in that action that the whole title was in her, with no suggestion whatever that the title had been or ought to be taken away from her in any way, except that he stated in his answer in that case that the deed had been made without consideration; but his said answer also stated affirmatively why the deed was made, and the facts thus alleged in his answer show that there was, in fact, a consideration.

In that case, the court of common pleas, under the statute, had the right to consider any property that the husband might have owned in determining what it should do in awarding alimony. Rut- the husband himself answered in the case, and alleged that the title to that, real estate that she was then asking for as alimony, was already deeded to her, and the whole case went off upon that basis.

Now, some eight or nine years after that, he files this proceeding in this case. When this case was presented to the court of common pleas upon the trial, its conclusions depended upon the evidence that should be brought before the court. One part of the evidence was the record of the court of Erie county, and the other evidence was in the form of testimony delivered orally by witnesses.

There was a conflict in that testimony. The court of common pleas in this case was called upon to determine whether or not this man was estopped from porceeding in this action and obtaining again the evidences of title of this real estate, or interfering with the title.

After the court had taken that evidence and all the testimony into consideration, it came to a certain conclusion. The real gist of the claim here is, that the court of common pleas erred in determining upon the probative force of the evidence which was thus introduced before it; that after reading this record from Erie county and hearing this proof, it was the duty of the court of common pleas to come to a different conclusion as to the final fact that ivas thereby proven. It found, as appears by the record, that the matter was res adjudicata; at least, found against this claim of the plaintiff. In fact, if we were to consider it, we should think it made a case of estoppel, technically, rather than res adjudicata. But, however that may be, for a reviewing court to pass upon the question, it was necessary that a motion for a new trial be filed, and upon the overruling of that motion, a bill of exceptions might have brouught all of this evidence upon the record, and we might have considered it.

Andrews Bros., for Plaintiff in Error.

J. JR. JMJeKnight, for Defendant in Error.

Now, the bill of exceptions recites that what is embodied in it was all the evidence introduced, by either party in that action, and that at the close of it, the court having considered the evidence, dismissed the whole proceeding. We think it presents a case where it would be improper for this court to interfere with the judgment of the court of common pleas. Not only is it a case that we could not rightfully consider for want of a motion for a new trial, and the overruling of the motion, etc.: but even if that were not so, and if we could consider it as if it were properly here, we think it presents a very strong case of estoppel, which would lead to the same result, the dismissing of the action; therefore the judgment of the court of common pleas will be affirmed.