author: TAGGART, J.

text:
    DOWER — MORTGAGES—PROCESS.
    [Wayne (5th) Circuit Court,
    February Term, 1908.]
    Craine, Taggart and Donahue, JJ.

      Susan Kaufman v. Henry B. Heckman.
    1. Wife of Mortgagor not Bound to Redeem on Foreclosure, whei® Dower Interest not Necessary to Satisfy Mortgage.
    The inchoate dower of a wife is not a lien upon the land of her-husband, but an interest in it, and when not necessary to satisfy a mortgage in which the wife joins to release such dower,, she is not hound to redeem the mortgage on foreclosure top. preserve her dower.
    2; On Foreclosure on Cross Petition in Suit to Marshal Liens,, Dower of Wife of Mortgagor not Barred unless Summons Issue® on Cross Petition.
    When in a suit by a judgment creditor to marshal liens a summons is issued and served on the wife of the judgment debtor who had joined with her husband in the execution of a mortgage, and the mortgagee who was made a party, by cross petition filed after his rule day for answer, asks foreclosure of his; mortgage and sale of mortgaged premises but no summons was. issued on the cross petition and served on such wife, the sale-of such premises under the cross petition does not bar thfe inchoate dower of the wife in the premises.
    [Syllabus approved by the court.]
    Appeal from common pleas court.

      W. L. Spooner, for plaintiff.

      Weygandt & Weiser, for defendant.

      Affirmed, no op., Heckman v. Kaufman, 82 O. S. 453.

   TAGGART, J.

The plaintiff filed her petition for dower, the avermentsof which are very brief. She avers that on or about April 19, 1S70, she was married to one, Thomas Kaufman, who, on or-about March 26, 1907, died leaving plaintiff as his widow, and that during coverture he was seized of the premises described in. the petition, and that defendant is the owner of said premises-

The defendant admits the marriage, admits the death, admits that he is the owner and in possession of the property; but denies that plaintiff is entitled to dower in the lands; and avers, that during the lifetime of the said Thomas Kaufman fee plaintiff was barred of dower in said lands. He then proceeds to say that on October 6, 1877, the plaintiff, with her husband, joined in a mortgage duly acknowledged, executed and delivered to one Daniel Hiner, and thereby conveyed to the said Daniel Hiner by said mortgage deed the lands in the petition described. That said mortgage was duly recorded in the ■office of the recorder in Wayne county, Ohio, on October 6, 1877. That said mortgage had written therein a condition of defeasance conditioned that the said Thomas Kaufman should pay and protect the said mortgagee, Daniel Hiner, from liability as in said 'deed stipulated, and upon failure to so do that said mortgage .should become absolute.

Defendant further avers that one Warren Aylesworth by the consideration of the court of common pleas of Wayne county, Ohio, duly recovered a judgment against the said ‘Thomas Kaufman, and caused an execution to be issued and the ¡same was levied upon the lands in the petition described.

That thereafter, to-wit, on November 20, 1877, said Warren Aylesworth filed his petition in the court of common pleas of Wayne county, Ohio, said Thomas Kaufman and plaintiff herein, together with other numerous persons were the defendants; the object, purpose and prayer of the petition of the said Warren Aylesworth being the marshaling of the various liens, either by judgment or otherwise, upon the lands of said Thomas Kaufman and subjecting them to sale in satisfaction of the liens thereon.

That in said cause the plaintiff herein was duly notified by service of summons of the pendency of such action and thereby had due notice of the claim of said Daniel Hiner by way of mortgage lien upon the lands in the petition described, and had due notice of the pendency of such action and that the sale necessarily affected her inchoate right of dower in and to said premises.

The, answer then proceeds to say that the said Daniel Timer was made a party defendant in said suit, and was duly served with process, requiring him to appear and answer therein .setting up his claim in and to the lands in question.

The defendant avers that thereafter in the proceedings in the 'court of common pleas there was a decree of foreclosure in said cause foreclosing the mortgage of said Hiner and forelosing the equity of redemption of said Thomas Kaufman and Susan Kaufman, and which decree further provided that unless the said Thomas Kaufman and Susan Kaufman should within one day from the entry of said decree pay or cause to be paid the amount found due said mortgagee, Hiner, the equity of redemption be foreclosed and the lands in the petition described should be sold by the sheriff of Wayne county, Ohio, in satisfaction thereof. That such sale was by the sheriff duly made, and that one, Zimmerman, became the purchaser of the lands in the petition described. He further avers that out of the proceeds of such sale, which included the interest of the plaintiff herein, the indebtedness to said Hiner on his said mortgage was ordered by the court to be paid, and the same was paid out of said proceeds. And that in consequence of that proceeding the plaintiff became and was barred of her inchoate right of dower.

To this answer a general demurrer is filed, and it is submitted upon this general demurrer. Now, briefly summarized, this case presents the following legal proposition. Thomas Kaufman was seized- of these lands, Susan Kaufman was his wife. Warren Aylesworth was a judgment creditor of Thomas Kaufman, and brought proceedings to marshal liens, but so far as this case is concerned it simply avers that it was brought to subject the lands of Thomas Kaufman to sale for the satisfaction of the liens that were upon them created by Thomas Kaufman. This petition does not aver that it was necessary, or brought to subject any interest which Mrs. Kaufman might have in this property. That is to say, the petition does not aver that a complete sale of the premises cannot be had, nor any averment in that petition that it was necessary to sell the entire estate for the satisfaction of these claims.

Therefore, the majority, of the court think the legal propositions involved are controlled by the case of Jewett v. Feldheiser, 68 Ohio St. 523 [67 N. E. Rep. 1072], and Southward v. Jamison, 66 Ohio St. 290 [64 N. E. Rep. 135]. The former case controls this case thus far: “The inchoate dower of the wife is not a lien upon the land of the husband, but is an interest in it.” Susan Kaufman had an inchoate right of dower in this land, an interest in the land.

As I have indicated, this answer simply states that this suit was brought by a judgment creditor to marshal liens, but there was no proper or sufficient averment in that petition that it was-brought for the purpose of affecting or barring by foreclosure the inchoate dower of the wife.

This case is very decisive as to the duty of the wife to redeem. It says that in cases of this kind a wife is not entitled to or required to redeem a mortgage so as to be entitled to dower.

In the further analysis of this answer we find that there-is no averment that we can construe as an averment that there-was a summons issued on that cross petition. There is an averment in this answer about which the court is somewhat'in doubt,, “that in such cause the said plaintiff herein was duly notified by service of summons of the pendency of said action and thereby -had due notice of the claim of said Daniel Hiner.” But in the argument of this case we understand counsel do not claim that this averment in the answer is broad enough to indicate-that a summons was issued on the cross petition of Hiner, and inform us that such was not the ease, and that Timer’s cross, petition was filed some fifteen days after rule day for answer to the petition. We think the true construction of this language is, that simply a summons was issued on the petition of Aylesworth. And it is then claimed that therefore Susan Kaufman had due notice of the claim of Daniel Hiner.

Southward v. Jamison, supra, page 290, says:

“So long as a cross petition in an action is strictly confined to ‘matters in question in the petition’ the summons issued on the petition would be sufficient notice to sustain a judgment rendered on the cross petition; but when the cross petition sets up matters which are not drawn ‘in question in the petition,’ and seeks affirmative relief against a codefendant, of a nature different from that sought in the petition, a summons to the party to be charged, issued on the petition, will not confer jurisdiction to render judgment on the cross petition, especially when the cross petition is filed after the defendant thereto is in default for answer to the petition, and a summons on the cross petition in such case is necessary.”
This action that is set up in the answer here, being simply for the marshaling of liens upon Thomas Kaufman’s land, the cross petition that was filed by Daniel Hiner would, so far as the husband was concerned, be “matters in question in the petition,” because the “matters in question in the petition” was the sale of the husband’s land. And the majority of the court do not believe that with that petition filed that the sale of the wife’s interest in that land would be matters germain, but on the contrary the matters that would be set out by Daniel Hiner in his cross petition averring the execution and delivery of this mortgage, and that they were in default thereof, and that he was entitled to forclosure and sale of these premises would not be brought in question by the averment in that petition, and would be of a nature different from that set out in the petition, but .that to bind her a summons on the cross petition would have to be issued and served; and that if a judgment was taken upon that cross petition while it might be a valid judgment against the husband, yet it would not be valid as against the wife, and consequently her inchoate right of dower would not be barred. As reflecting upon the opinion and belief 'of the majority of the court, and as to the sufficiency of this answer we call attention to the case of Spoors v. Coen, 44 Ohio St. 497, 502 [9 N. E. Rep. 132]:
“But a judgment rendered by a court of competent jurisdiction in a ease brought before it, however erroneously the jurisdiction may have been exercised, is one thing, and a judgment entered by a court of like jurisdiction in a case not before it, is another and a different thing. In the one case its judgment may be erroneous, in the other it is void. To bring a cause before a court, competent to adjudicate it, it is not only necessary that the parties should be in jus vocatio, cited or summoned in the manner required by the law of procedure, but a case must also be made, or stated, affecting the party against whom relief is asked. The power to hear and determine a cause is defined to be jurisdiction. Freeman, Judgments Sec. 118. And, to use the language of Ranney, J., in Sheldon v. Newton, 30 Ohio St. 494: ‘It is coram judice whenever a case is presented that brings this power into action.’ ‘But,’ he adds, ‘before this power can be affirmed to exist, it must be made to appear that the law has given the tribunal capacity to entertain the complaint against the 'person or thing sought to be charged or affected; that such complaint has actually been preferred: and that such person or thing has been properly brought before the tribunal to answer the charge therein contained.’ The italics are our own, to call attention to the clause applicable to the question in the case before us.”

We think that there was nothing in the case of Aylesworth against Kaufman which is sought to be set up in this answer which called upon Mrs. Kaufman to answer that petition, and unless there was a summons issued upon that cross petition that she would not be concluded by any judgment that was in the case. In the opinion of the majority of this court the demurrer to the answer will be sustained, and leave given to file an amended answer within sixty days, and exceptions.

Craine, J., concurs.

Donahue, J., dissents.


source: Caselaw Access Project

author: CRAINE, J.

license: Public Domain

text:
    DOWER — MORTGAGES—PROCESS.
    [Wayne (5th) Circuit Court,
    September Term, 1908.]
    Craine, Donahue and Taggart, JJ.

      Susan Kaufman v. Henry B. Heckman.
    1. Judgment Creditor of Husband Making Wipe Party without Seeking Relief and Mortgagee Foreclosing Mortgage without Making Her Party do not Affect Her Equities Therein.
    Where the judgment creditor of a husband brings an action to marshal liens and sell the real estate of the husband, summoning the wife, but seeking no relief against her; and a mortgagee is also made a party defendant, and flies a cross petition asking for a sale of the property, but issues no summons for the wife, who signed the mortgage, but who in no way enters her appearance, or participates in the proceeding; and a decree is entered ordering a sale of the property under the judgment creditor’s petition and the mortgagee’s cross petition, which is accordingly done, the wife’s equity of redemption is not .foreclosed, nor are her rights in the real estate extinguished.
    2. Wife’s Dower may be Set Off to Her ufon Husband’s Death after Sale of Property. ,
    Where, after the sale of the property, the husband dies and the mortgagee’s claim has been barred by the statute of limitation, the wife may, without redeeming, assert her right of dower in said property and have the same set off to her.
    [Syllabus by the court.]
    Appeal from common pleas court.

      M. L. Spooner, for plaintiff.

      Weiser é Boss and J. B. Taylor, for defendant.

      Affirmed, no op., Heckman v. Kaufman, 82 O. S. 453.

   CRAINE, J.

One Aylesworth, a judgment creditor of Thomas Kaufman, brought an action in the court of common pleas of Wayne county, Ohio, for the purpose of marshaling liens and selling the real estate of Thomas Kaufman, and in such proceeding made the plaintiff herein a party defendant and served her with summons, but asked no affirmative relief against her. One Hiner, a mortgagee, whose mortgage had been signed by Thomas Kaufman and the plaintiff, was made a party defendant in said proceeding, and filed a cross petition in which he asked that Thomas Kaufman’s and plaintiff’s equity of redemption be foreclosed, and that the property be sold under his cross petition; but said Hiner did not make the plaintiff a party to his cross petition, nor did-he have any summons served upon her, nor did she in any way enter her appearance in the case, or participate in said proceedings.

A decree was entered directing that the property be sold under the petition of Aylesworth and the cross petition of Hiner, which was accordingly done, and the purchaser put in possession of the property. Fifteen years having expired from the time the mortgage debt became due, and Thomas Kaufman having died, the plaintiff in this action brought suit in the court of common pleas against the defendant, Henry B. Heckman (who in the meantime had purchased the property), asking that her right of dower in the real estate be set off to her, and the court of common pleas having found in her favor, an appeal was taken to this court, where the case was presented on an agreed statement of facts, substantially as above set forth.

The defendant claims: first, that the plaintiff’s right of dower was barred by the original action in the court of common pleas, brought by Aylesworth against Kaufman, et al.; and second, that even if her right of dower was not so barred, her remedy is by redemption.

A majority of this court is of the opinion that the defendant is wrong in both propositions.

Whilst in the original case the plaintiff in this action was' served with a summons issued on the petition of Aylesworth, that summons simply notified her that Aylesworth had brought suit to sell the husband’s interest in the real estate. Aylesworth had no claim against her interest in the real estate, nor was he trying to sell the same; hence, so far-as that summons was concerned, there was nothing for her to answer to, and no cause for her appearance in court. Nothing in the record indicates that she even knew that Iiiner had filed a cross petition, or that he was claiming anything against her rights. The sole question in the case then is, was she bound to take notice of the cross petition of Hiner?

In Southward v. Jamison, 66 Ohio St. 290 [64 N. E. Rep. 1351], the first paragraph of the syllabus reads as follows:

‘ ‘ So long as a cross petition in an action is strictly confined to ‘matters in question in the petition,’ the summons issued on the petition would be sufficient notice to sustain a judgment rendered on the cross petition; but when the cross petition sets up matters which are not drawn ‘in question in the petition,’ and seeks affirmative relief against a codefendant, of a nature' different from that sought in the petition, a summons to the party to be charged, issued on the petition, will not confer jurisdiction to render judgment on the cross petition, especially when the cross petition is filed after the defendant thereto is in default for-answer to the petition, and a summons on the cross petition in such case is necessary.”

In the case at bar the cross petition was not confined “to matters in question in the petition”; but on the contrary the cross petition set up matter which was not drawn “in question in the petition” and sought affirmative relief against the plaintiff herein, Susan Kaufman, different in nature from that in the petition.

Another case is Jewett v. Feldheiser, 68 Ohio St. 523 [67 N. E. Rep. 1072], which we think fully supports our holding on this first proposition, which is worthy of careful examination; and on the two authorities above cited, as well as on principle, we think the rights of Susan Kaufman were not barred in the action under which the real estate was sold.

The defendant, however, contends that even if Susan Kaufman’s rights were not barred by the original action, still her right of dower can not be assigned to her; but that if she has any remedy, it is simply the right to redeem; in other words, she must pay off the mortgage debt before she can have her dower assigned.

The well-settled doctrine in this state is, that a mortgage is regarded in equity, as a security for the debt, and that the legal title to the mortgaged premises remains in the mortgagor until condition broken, and that after condition broken the legal title vests in the mortgagee. If the mortgagee gets the legal title by condition broken, and then gets the possession by ejectment or some other legal means, he then has the legal title and the possession, which vests an absolute estate in him; but for all that, he holds the legal title and possession as a security for the debt. In the case at bar, the conditions of the mortgage were broken, and by that act the legal title vested fin the mortgagee, and the real estate having been sold under the ■cross petition of the mortgagee, as well as the petition of Aylesworth, the purchaser of the property acquired both the legal title •and the right of possession of Thomas Kaufman; but he did not acquire the right of possession of Susan Kaufman by that purchase, because she had no possessory right, at that time, to acquire, and because she was not in court. Her right to possession first sprang into existence by the death of her husband, and since that time her right of possession has in no manner been acquired by the defendant.

We would accept the doctrine of the defendant, that her remedy 'is to redeem the property, were it not for the fact that, the mortgage debt has been barred by the statute of limitation, and hence there is nothing for her to redeem. The debt, for which her dower was pledged as security, having been eliminated by the statute of limitations, there is no occasion for holding her dower longer. The mortgage lien died with the debt.

Taggart, J., concurs.

Donahue, J., dissents from both propositions.


author: ALLREAD, J.

text:
    EVIDENCE — PRINCIPAL AND SURETY.
    [Franklin (2nd) Circuit,
    November 26, 1910.]
    Dustin, Allread and Rockel, JJ.
    Sumner Phosphate Co. v. Jarecki Chemical Co. and American Surety Co.
    1. Amendment of Answer Denied for Laches in Making Application.
    A surety company’s application to amend its answer admitting execution of the bond set forth in the petition and sued on, to deny the bond because ef alterations therein, comes too late upon trial nearly three years after answer filed during which period depositions were taken upon notice to the surety and the original bond éxhibited; especially since to interpolate the condition in the bond alleged to be altered would have the effect of making the bond and contract inconsistent.
    2. Failure of Payee to Notify Surety of Defaults of Principal as to Part of Contract Terms no Release as to Defaults Duly Noticed.
    Failure of the payee of a bond for performance of a contract to notify the surety of defaults by the principal as to part of the contract does not operate as a release of the surety, in absence of actual prejudice shown, as to defaults for which notice was duly given.
    3. Slight Deviations in Performance of Contract Terms not Affecting Period of Liability do not Release Surety.
    Slight deviations, as to amount and time of delivery of contract article, by reguest of payee of bond securing contract, not affecting the period of alleged liability, do not release surety.

      4. Admission or Evidence or Market Value.
    Admission of evidence of market value of subject of contract at other nearby points to be considered in absence of market value at stipulated place of delivery is not prejudicial to interests of surety on bond in action thereon.
    [Syllabus approved by the court.]
    Error to common pleas.

      Addison, Sinks and Babcock and Z). H. Sowers, for plaintiff in error.

      Arnold, Morton (& Irvine and M. B. Waite, for defendant In error-.

    Cited and commented npon the following authorities: Baird v. Telephone Co. 30 O. C. C. 107 (10 N. S. 163); Toledo, B. G. & So. Trac. Co. v. Sterling, 29 O. C. C. 227 (9 N. 5. 200); Conrad v. State, 75 Ohio St. 52, 78 [78 N. E. Rep. 957; 6 L. R. A. (N. S.)‘ 1154; 8 Am. Cas. 966]; State v. Barlow, 70 Ohio St. 363 [71 N. E. Rep. 726]; Baker v. Lawrence, 27 Ohio St. 418; Way v. Langley, 15 Ohio St. 392; Buck v. Waddle, 1 Ohio 357; Thayer v. Luce, 22 Ohio St. 62; Van Burén Co. v. American Surety Co. 137 la. 490 [lio N. W. Rep. 24; 126 Am. St. 290]; Lakeside Land Co. v. Surety Co. 105 Minn. 213 [117 N. W. Rep. 431] ; Monro v. Surety Co. 47 Wash. 488 [92 Pac. Rep. 280]; White v. Insurance Co. 95 Minn. 77 [103 N. W. Rep. 735, 884; 5 Ann. Cas. 83]; Bader v. Casualty Co. 102 Minn. 186 [112 N. W. Rep. 1065; 120 Am. St. Rep. 613]; American Surety Co. v. Paxily, 170 U. S. 133 [18 Snp. Ct. Rep. 552; 42 L. Ed. 977]; United States F. & G. Co. v. United States, 191 U. S. 416 [24 Snp. Ct. Rep. 142; 48 L. Ed. 242]; Washburn-Halligan Coffee Co. v. Insurance Co. 110 Iowa 423 [81 N. W. Rep. 707]; Peele v. Fund Society, 147 Ind. 543 [44 N. E. Rep. 661; 46 N. E. Rep. 990]; Wheaton v. Insurance Co. 76 Cal. 415 [18 Pac. Rep. 758; 9 Am. St. Rep. 216]; Franklin Fire Ins. Co. v. Ice Co. 36 Md. 102 [11 Am. Rep. 469]; New Orleans Ins. Assn. v. Matthews, 65 Miss. 301 [4 So. Rep. 62]; O’Brien v. Insurance Co. 52 Mich. 131 [17 N. W. Rep. 726]; Blake v. Insurance Co. 78 Mass. (12 Gray) 265]; Carson v. Insurance Co. 43 N. J. Law 300 [39 Am. Rep. 584]; Indiana Ins. Co. v. Cape,hart, 108 Ind. 270 [8 N. E.' Rep. 285]; Rohes v. Insurance Co. 51 Md. 512 [34 Am. Rep. 323]; Insurance Co. v. Staats, 102 Pa. St. 529; Insurance Co. v. Weiss, 106 Pa. St. 20; United States v. Fidelity <& Guar. Co. 178 Fed. Rep. 721; Lazelle v. Surety Co. 109 Pae. Rep. 195 (Wash.); Ovingion v. Indemnity Co. 36 Wash. 473 [78 Pae. Rep. 1021]; Ileffernan v. Fidelity & Guar. Co. 37 Wash. 477 [79 Pac. Rep. 1095] ; Denny v. Spurr, 38 Wash. 347 [80 Pae. Rep. 541]; Marlin v. Surely Co. 53 Wash. 290 [101 Pac. Rep. 876]; New Haven v. Brick Co. 78 Conn. 689 [63 Atl. Rep. 517]; Allantic Trust & Dep. Co. v. Latirinburg, 163 Fed. Rep. 690 [90 G. C. A. 274]; Lesher v. Fidelity & Guar. Co. 239 111. 502 [88 N. E. Rep. 208]; Aetna Indemnity Co. v. Waters, 110 Md. 673 [73 Atl. Rep. 712]; American Bond., Co. v. Investing Co. 150 Fed. Rep. 17 [80 C. C. A. 97; 9 L. R. A. (N. S.) 557] : National Surety Co. v. United States, 129 Fed. Rep. 70 [63 C. C. A. 512]; United States F. & G. Co. v. Woodson Co. (Comrs.) 145 Fed. Rep. 144 [76 C. C. A. 114] ; Schreiber v. Worm, 164 Ind. 7 [72 N. E. Rep. 852]; Henry v. Indemnity Co. 36 Wash. 553 [79 Pae.- Rep. 42]; Stetson v. Bank, 2 Ohio St. 167; Fuller v. Coats, 18 Ohio St. 343; Black v. Hill, 32 Ohio St. 313; Price v. Coblitz, 12 Circ. Dec. 34 (21 R. 732) ; Osburn v. State, 7 Ohio (ptv 1) 212; Reynolds v. Rogers, 5 Ohio 169; Whitman v. Keith, 18 Ohio St. 134, 149'; Kent v. State, 42 Ohio St. 426; 9 Cyc. 645, 776; 17 Cyc. 689; District of Columbia v. Iron Works, 181 IT. S. 453 [21 Sup. Ct. Rep.. 680; 45 L. Ed. 948] ; Jessup v. Dennison, 13 Dec. Re. 93 (2 Dis. 150) ; Contractors & Builders Supply Co. v. Cement Co. 26 O. C. C. 49 (4 N. S. 225), affirmed, no op., Contractors’ & Builders’ Supply Co. v. Cement Co. 72 Ohio St. 655; Roehm v. Horst, 178 U. S. 1 [20 Sup. Ct. Rep. 780; 44 L. Ed. 953]; 1 Sutherland, Damages See. 120; 3 Sutherland, Damages Sec. 651 (365) ; 1 Sedgwick, Damages Secs. 84-87; 2 Sedgwick, Damages Sec. 737; Lansamlet T. P. Co., Fix parte, L. R. 16 Eq. 155 ; Roper v. Johnson, L. R. 8 C. P. 167; Burckhardt v. Greene, 26 O. C. C. 315 (7 N. S. 515), affirmed, no op., Burckhardt v. Greene, 68 Ohio St. 711; Wrubel v. Muth, 5 Circ. Dec. 173 (11 R. 559) ; James v. Allen Go. 44 Ohio St. 226 [6 N. E. Rep. 246; 58 Am. St. Rep. 821]; Smith v. Lime Go. 57 Ohio St. 518 [49 N. E. Rep. 695]; Steinu v. Gas Co. 48 Ohio St. 325 [27 N. E. Rep. 545]; Postal Telegraph Gable Go. v. Cereal Go. 13-23 O. C. C. 516 (3 N. S. 259) ; St. Bernard■ (Vil.) v. Reig, 7 Gire. Dec. 539 (13 R. 540) ; Wright v. Bank, 110 N. Y. 237 [18 N. E. Rep. 79; 1 L. R. A. 289; 6 Am. St. Rep. 356].
   ALLREAD, J.

The Jarecki Chemical Company brought suit in the common pleas court against the Sumner Phosphate Company and the American Surety Company for damages for breach of contract for delivering of phosphate rock according to the terms of a written contract of the. Phosphate Company with the Jarecki Company upon which the American Surety Company became surety for due performance by the Phosphate Company.

The Jarecki Company obtained judgment against the .Phosphate Company for $12,000 and against the Surety Company for $10,000.

The Phosphate Company prosecutes error here to reverse this judgment and the Surety Company is made party and files a cross petition in error.

The errors complained of and argued here relate, more especially to the defense of the Surety Company.

. The Surety Company complains of the court’s refusal to permit it to amend its answer so as to deny its execution of the bond-sued on.

This question was made for the first time after the trial began. ,

The plaintiff in the opening of its ease offered the original bond in evidence. The bond showed upon its face evidence of an alteration. Condition four of the bond requiring the Jarecki Company to withhold 15 per cent of the value of all work performed and materials furnished until complete performance or expiration of time for filing liens, etc., was erased.

Upon inspection of the original bond and discovery of the alteration leave was sought on behalf of the Surety Company to amend its answer so as to deny the bond because of the alterations. This amendment was refused by the trial court because it came too late.

It is urged that the amendment was offered as soon as discovered and that terms might have been imposed but that an absolute refusal was an abuse of discretion.

This contention of counsel as a general proposition need not be controverted here.

The petition contained a copy of the bond with three conditions. These conditions were set out in the body of the petition. A demurrer was filed and argued by counsel for the Surety Company and overruled by the court.

Upon leave granted the Surety. Company filed an answer admitting the execution of a bond as set forth in the petition. The answer is sworn to by J. 'S. Mossgrove, the local agent who executed the bond.

The case stood upon this answer from November 26, 1906, to the trial in October, 1909.

In the meantime the case had been prepared for trial. Depositions had been taken and the original bond exhibited. The Surety Company had notice of the taking of the depositions and did not attend, relying upon counsel for the‘Phosphate Company who did attend.

Upon the application for leave to amend, counsel for the Surety Company stated that the local agent, J. S. Mossgrove, who verified the answer, would, if permitted, testify that the copy of the bond in his office contains the fourth condition and that the original bond -when executed contained the fourth condition and that the alteration in the bond was after delivery.

Now, upon the face of the bond it appears to have been executed upon the part of the Surety Company by W. D. Park “resident vice-president” and J. S. Mossgrove, “resident assistant secretary.”

"While Mr. Mossgrove assumes to speak positively as to-the alteration so far as the local office is concerned he does not do so as to general offices, nor does his proposed testimony show that the bond was in his control until final delivery. The fact remains that the fourth condition is inconsistent with the-contract which the bond purports to guarantee and with the application upon which it is based. The failure to pay in full each month would be a breach of the contract; while a payment in full would be a breach of the bond if the fourth condition remains. '

There is, therefore, a strong presumption of fact that the alteration was made before final delivery. Franklin v. Baker, 48 Ohio St. 296-303 [27 N. E. Rep. 550; 29 Am. St. Rep. 547].

And this presumption of fact is corroborated and strengthened by the admission of the original answer and long delay and is not met and overcome by the proposed testimony of J. S. Mossgrove for the reason that he does not show opportunity to know of the condition of the bond when finally delivered or to know whether the general • officers approved the alteration.

Upon this, state of the evidence given and offered the trial court did not abuse its discretion in its refusal to permit the amendment at that stage of the case.

It is contended that the failure of the Jareeki Company to notify the Surety Company of one or more defaults of the Phosphate Company in the full performance of the contract for preceding periods operates as a complete release of the Surety Company.

This question is raised by the demurrer to the petition,, by demurrer to the plaintiff’s evidence, upon motion for non-suit and upon the special ‘ and general charges of the court; The contention is based upon the first condition of the bond,, viz.:

“That in the event of any default on the part of the principal, in the performance of any of the terms, covenants', or conditions of said contract, written notice thereof with a verified statement of the particular facts showing such default and the date thereof, shall within ten days after such default be delivered to the Surety Company at its office in the city of Columbus, Ohio.”

The view of the court of common pleas as shown by charges; given and refused was, in substance, that a failure to give notice within the stipulated time of any particular default was effective as a Bar to liability for that default, but iu the absence of actual prejudice to the Surety Company did not relieve it from liability for future defaults for which notice is duly given.

This view is supported by the weight of authority and is in harmony with the scope and purpose of the bond.

Lakeside Land Co. v. Surety Co. 105 Minn. 213 [117 N. W. Rep. 431]; United States F. & G. Co. v. United States, 191 U. S. 416 [24 Sup. Ct. Rep. 142; 48 L. Ed. 242]; United States v. Fidelity & Guaranty Co. 178 Fed. Rep. 721; Lazelle v. Surety Co. 58 Wash. 589 [109 Pac. Rep. 195]; Van Buren Co. v. Surety Co. 137 Ia. 490 [115 N. W. Rep. 24; 126 Am. St. Rep. 290]; Aetna Indemnity Co. v. Waters, 110 Md. 673 [13 Atl. Rep. 712]; Henry v. Indemnity Co. 36 Wash. 553 [79 Pac. Rep. 42].

To hold as contended for here that notice is required for ■every trifling or inconsequential departure from the strict term3 of the contract guaranteed and that a failure to give such notice is a bar to all further liability upon the bond is too narrow and would amount to a practical destruction of the objects and purposes of the bond.

Counsel for plaintiff in error cite Home Ins. Co. v. Lindsey, 26 Ohio St. 348, but a careful examination of that case discloses that the holding of the court as to want of notice .applied to an existing loss — not future losses. The case might be made parallel if we assume that - an ^insured had one or more fires in the insured building of trifling results and then a complete loss. It would be unreasonable and absurd to hold in the ease assumed thát a mere failure to report the small fires would be a complete bar to recovery for the complete loss upon its being properly reported.

The same conclusions must also prevail as to slight deviations by request or order of the Jarecki Company as to amount and time of delivery during previous months where in no wise affecting the contract for the period of alleged liability.

"We find ho prejudicial error in admitting evidence of market values of phosphate rock at other nearby points to be considered in the absence of a market value place of delivery, nor in the charge of the thereto. at the stipulated court in respect

We find no prejudicial error in the charges given or special charges refused in respect to a complete breach of the contract.

The failure of the Phosphate Company to answer the letter of February 8, or to make any effort to comply with the contract up to the bringing of the suit and in view of the needs, of the Jareeki Company and of their proceedings to buy supplies is sufficient evidence of repudiation of the whole contract to uphold the verdict.

Some of the special charges requested by the plaintiff in. error might be considered good as general statements of the; law but were not sufficiently concrete or specific to meet the present case.

The subjects of the special charges were properly covered by the general charge.

We have examined the other exceptions complained of and find no prejudicial error in the record.

Affirmed.

Dustin and Rockel, JJ., concur.


author: OIFFEN, P. J.

text:
    MASTER AND SERVANT — STREET RAILWAYS.
    [Hamilton (1st) Circuit Court,
    December, 1909.]
    Giffen, Smith and. Swing, JJ.
    Cincinnati, Georgetown & Portsmouth Ry. v. George W. Martin.
    President oe Traction Company’s Verbal Order to Motorman, Transmitted through Station Agent does not Constitute Latter. Superior oe Motorman.
    A station agent, transmitting a verbal order of the president of a traction company, directing a motorman to assist in loading a heavy axle on his car, is not invested thereby with authority and control over such motorman, nor does it make the company liable for injuries sustained by the motorman and caused by the negligence of such agent while assisting as a volunteer in carry-tag out suph order.

      Error to common pleas.

      Frank Dinsmore, for plaintiff in error.

      8. O. Bayless and John B. DeWitt, for defendant in error.
    Th,e defendant in error, a motorman on the C., G. & P. line, sustained injuries for which he was awarded a judgment below of $1,000.
   OIFFEN, P. J.

Negligence is charged in the petition as follows:

“A few minutes before the schedule time for the leaving of said station of the ear of which the plaintiff was in charge as motorman the agent of said defendant in charge of said station and having in charge the business of said company, ordered and directed plaintiff to assist in loading upon his said passenger oar a heavy iron or steel bar or axle about four or five inches in diameter and seven or eight feet long and weighing five hundred pounds; that the plaintiff objected and protested against the loading of said iron bar upon the said passenger car, and demanded to know upon whose orders they were required to load said iron bar upon said car, and was informed by the said agent that Mr. Comstock, the president of said company, had ordered said agent to have the said iron bar placed upon said ■car by the motorman and other employes of said car; that in pursuance of the order and directions of the president of said railroad company, the plaintiff left his car for the purpose of assisting the said station agent and other employes of defendant to load said iron bar and freight upon said car, as directed by the president of the defendant company; that said bar of iron and freight was at the time loaded upon a two wheel truck on the platform or grounds of said station, near the said car upon which the same was intended to be loaded; that said station agent, at the time had hold of the handles of said truck waiting the assistance of the plaintiff; that while this plaintiff was stooping to take hold of said freight or bar of iron, to place it upon said car, the said agent. negligently and carelessly lifted the handles of said truck, or negligently permitted the said truck to be tipped forward over and against this plaintiff,” etc.

The first defense of the answer, excepting certain formal admissions, is a general denial. The second defense is that the station agent was a fellow-servant of plaintiff. By amendment to the answer defendant pleads contributory negligence.

The plaintiff by reply avers,

“That when plaintiff’s ear was at said station, or within the jurisdiction of said station, the said plaintiff as such motorman was subject to the orders,, control and direction of said station agent and his assistant and especially so when the said station agent or his assistant was endeavoring to have carried out and executed special and specific orders of the superior and executive officers of the defendant company. * * * Plaintiff further denies that it was his duty to assist the agent, or the assistant agent, in loading the particular shafting or axle at the time referred to, and avers that what he then did was done under the express orders of said agent, or assistant, which orders emanated from one of the chief or executive officers of defendant. ’ ’

The pleader in stating the cause of action lays stress upon the imperative order of the president to the plaintiff to undertake apparently dangerous work, without furnishing adequate protection; but there was nothing inherently dangerous in the iron axle except its weight; no defect in the truck, and no directions given as to the manner of doing the work.

The chief question in the case is whether the station agent was vested with authority and control over the plaintiff.

It will be observed from the petition that the plaintiff not only denied, but resisted, the authority of the station agent in this particular matter, until he was told that the order came from the president of the company, and that he attempted to do the work because of that order.

If the general authority and control of the station agent over the plaintiff, as shown by the rules and practice of the company, did not extend to this transaction, then there could be no other source except the special order of the president. This order was addressed directly to the motorman and other employes of the car, although delivered by the station agent. It contained no directions to such agent to take part in the work or to suggest the means of doing it.

The natural inference is that the president assumed the employes on the car could safely load the iron axle, especially as they were men of mature years, while the station agent was a boy of only seventeen years. It may be urged that because the latter exercised limited authority over the plaintiff when at the station, the power to control him in the execution of the order would be implied. That might be true if he had been directed to take part in the work, but the order on its face shows that he was not expected to assist, and the plaintiff avers that he was endeavoring to carry out the order of the president, whose authority he acknowledged, while at the same time denying the power of the agent to control him. Nor does the fact that the agent .voluntarily assisted in the work add to this authority, which must be derived from the company or its executive officers.

There is no substantial variance between the allegations and proof of this issue as set forth in the petition and reply, and we are of opinion that neither the pleadings nor the evidence show that the station agent was placed in authority and control over the plaintiff; but on the contrary that they were fellow-servants. The court therefore erred in overruling the motion of the defendant made at the conclusion of all the evidence to instruct the jury to return a verdict for defendant.

Judgment reversed and judgment for plaintiff in error.

Smith and Swing, JJ„ concur.


author: SMITH, J.

text:
    ERROR.
    [Hamilton (1st) Circuit Court,
    March, 1910.]
    Giffen, Smith and Swing, JJ.

      Michigan Mut. Life Ins. Co. v. Abner L. Whitaker, Admr.
    Third Verdict for Plaintiff will not be Set Aside on Weight of Evidence when Strengthened by Additional and Substantive Evidence.
    A circuit court on review will not set aside a verdict and judgment for a third time upon the weight of evidence, especially in a case in which the allegations of the petition áre such as to make it inevitable that the evidence should be conflicting and since at the ‘ last trial plaintiff strengthened his case by additional and substantive evidence.
    Error to common pleas court.

      Robert Ramsey, for plaintiff in error.

      Charles W. Baker, for defendant in error.

      Affirmed, no op., Michigan Mut. L. Ins. Co. v. Whitaker, 84 O. S. 476; reaffirmed, 84 O. S. 493.

   SMITH, J.

The error relied upon in the above case is that the verdict and judgment of the trial court is not sustained by sufficient evidence. This ease has been tried three times, at each trial a verdict and judgment being rendered for defendant in error.

The judges of the circuit courts of this and the second circuit have heretofore held that the verdicts obtained in the first and second trials of this cause were not sustained by sufficient evidence and reversed the judgments of the trial court, the opinion of said courts appearing in Michigan Mut. L. Ins. Co. v. Whitaker, 28 O. C. C. 688 (7.N. S. 1), and Michigan Mut. L. Ins. Co. v. Whitaker, 29 O. C. C. 362 (9 N. S. 126), respectively.

After the case had béen reversed by the judges of the circuit court of the second circuit and judgment entered in favor of the plaintiff in error, defendant in error prosecuted error to the Supreme Court, which court reversed said circuit court in entering judgment for plaintiff in error, and remanded the ease to the court of common pleas for a new trial. It is the result of this third trial that is now before the court for review.

In the second trial of the case while it appeared that all of the evidence which was offered was read to the jury from the bill of exceptions which had been taken upon the first trial, yet it did not appear that at this second trial all the evidence was offered which had been offered at the first trial. Whitaker v. Insurance Co. 77 Ohio St. 518.

In the present voluminous record bringing to this court the evidence offered at the third trial we find new and additional testimony therein on behalf of defendant in error that was not disclosed by the former records. The testimony of Dr. Haerr and Dr. C. C. Agin materially differs from that given by them at the former trials of the case, in regard to the soundness of the lungs of the decedent, as to whether or not he had valvular heart lesion; that a blow upon the spleen would cause it to become enlarged in a short time and thus affect the condition of the heart; with evidence also tending to show that at the time of the post-mortem held upon the deceased these various organs with the exception of the spleen were sound. .

There was also introduced evidence from another and new witness, Dr. J. B. Wilson, who testified that he had examined the deceased for admission to the lodge of Elks in this city and that he had found his lungs healthy, and that there was no valvular heart lesion.

In the opinion of the judges of the circuit co.urt of the second circuit in the case in which it entered judgment for plaintiff in error, the court said:

“Remanding the case in the former proceedings in error for another trial would then be for the purpose only to secure to the plaintiff below another opportunity to strengthen his case by additional testimony if he could, and not for the purpose of having again reviewed by this court the same testimony and record before it in the former proceedings.”

The record before us now presents the ease in a different light than in the former trials of the case, as the new and additional evidence introduced by defendant in error we think is substantial.

Under the allegations of the pleadings it is natural that the evidence would be conflicting, and in the trial of such a case where there has been three findings by a jury in favor of defendant in error’s claim, new evidence being introduced at the last hearing in his behalf, it would seem that a reviewing court might well hesitate to set aside the verdict thus returned upon the ground that the same is not sustained by sufficient evidence.

The court has had the evidence in this ease under consideration for some time, and is of the opinion that upon the record as now presented the finding of the jury should be sustained, and as there are no errors therein the judgment will be affirmed.

Giffen and Swing, JJ., concur.


author: PER CURIAM.

text:
    WILLS.
    [Richland (5th) Circuit Court,
    January 25, 1911.]
    Taggart, Yoorhees and Powell, JJ.
    Flora Leedy v. R. H. Cockley et al.
    1. Devisee Taking Possession of Property Willed to Her Held Es-topped to Contest Will.
    A daughter who has gone into possession of land devised to her by the will of her father, leased the same to a third person and has collected the rents and profits therefrom from the date of the probate of said will is estopped thereby to contest the validity of the will, though the petition therefor was filed within the time prescribed by Gen. Code 12087 for the contest of a will.
    :2. Devisee Receiving Rents and Profits of Land Devised to Her and Leasing Same with Knowledge of Condition of Estate, Etc., Bars Her Contest of Will,
    A daughter having received the rents and profits of certain land devised to her by the terms of the will of her father, she, after his death, having subjected said land to a lease to a third person, and with full knowledge of the condition of the estate and the terms of the will cannot raise the bar created by the estoppel of her conduct and file and maintain a petition to contest the validity of said will by and on the return of said rents and profits so collected to the executor, or by bringing the money into court. In such case the acceptance of the devise is an absolute bar to the contest of the validity of the will, and it is not error for the trial court to dismiss the action of the plaintiff in such a case.
    3. Legatee Having no Legal' Pecuniary Interest except Legacy Held Necessary Party to Contest of Will.
    A person who has no legal pecuniary interest in an estate in case of intestacy and who has only a remainderman’s interest by virtue of a will as legatee therein is a necessary party defendant in a proceeding to contest the validity of said will,, but has no such an interest under the provisions of Gen. Code 12079 as will permit or allow said person as such legatee to file and maintain an answer or cross petition to contest the validity of the will, or to join in the prayer of the petition to have. an issue made up and it is not error for the trial court to dismiss such cross petition of such person.
    4. Will Contest not Proceeding to Quiet Title.
    A will contest cannot take the place of a proceeding to quiet title under the statutes of Ohio.
    [Syllabus by the court.]
    Will Contest.

      G. H. Workman and W. S. Kerr, for plaintiff.

      O. M. Farter and A. A. Douglass, for defendant.
   PER CURIAM.

The plaintiff in error, Flora Leedy, files an amended petition in error, making Rollin H. Cockley executor and trustee of the will of Eliza J. Young, deceased, E. M. Hess, administrator de tonis non with the will annexed of the estate of David L. Young, deceased, Harry Leedy, Clyde Leedy, Jay Leedy, Mary Alice Leedy, Mrs. Elsie True, Romilda Leedy, Edwards and Levi Young, defendants in error.

By this petition in error she seeks to reverse the judgment of the court of common pleas in an action pending in that court wherein the parties herein were parties in that court. The defendants in error, Harry Leedy, Clyde Leedy, Jay Leedy, Mary Alice Leedy and Mrs. Elsie True, and Romilda Leedy Edwards, file a cross petition in error and seek the same relief. The defendants, Rollin H. Cockley, executor, etc., and Frank M. Hess, administrator, etc., file motions to strike from the files the cross-petition in error of the defendants, Harry Leedy, et al. The grounds of the motion are that the cross petition in error was not filed within four months from the rendition of the judgment in the court of common pleas; second, that the said Harry Leedy, et al, neither jointly nor severally have such an interest in the estate and will of D. L. Young as to entitle them either to file said cross petition or to maintain the same in this court; and third, because the said Harry Leedy, et al. neither jointly nor severally have such standing, as entitles them in law to test the validity'of the will. '

The matter in controversy had its origin in the court of common pleas by Levi Young and Flora Leedy, filing in that court a petition to contest the last mil and testament of David L. Young. Levi Young and Flora Leedy were children of David L. Young. The widow was Eliza Jane Young. The case proceeded with varying fortune, motions, applications for leave to file amended petitions, until July 19, 1909, when the plaintiffs herein got leave to file an amended petition within thirty days, and make Levi Young a party. Just why this action was taken, when Levi Young had been a party plaintiff in the case, is only explained by the entry of the court on that day, wherein it is recited in the journal entry that Levi Young had withdrawn as a plaintiff in the ease and that Flora Leedy is the only remaining plaintiff.

We call attention to this fa,ct as the question is made as to Levi Young being a party to the suit. He was a party at the outset and remained a party by his appearance in the case. This is further shown by the action of the court on March 5, 1910, wherein Levi Young prays that he may be permitted to withdraw his separate answer in the above entitled cause, filed in this court October 9, 1909, and refiled November 17, 1909, and the said answer of Levi Young is hereby withdrawn.

It would thus appear that, so far as Levi Young is concerned, from the filing of the petition February 1, 1908, down to March 15, 1910, Levi Young was at all times a party to this suit, first, by his own appearance as plaintiff in the case; and second, by his appearance in the action, filing answers and motions to withdraw the same.

The case finally resulted in a third .amended petition being filed herein in which Flora Leedy was plaintiff and the widow, Eliza J. Young, and the children of Flora, who were given an estate in remainder in certain real estate in the state of Iowa, were also made parties defendant, and Hess and Coekley and I.evi Young were defendants.

The plaintiff alleged that the paper writing which had been theretofore admitted to probate, purporting to be the last will and testament of David L. Young, deceased, was not the valid last will and testament of the said David L. Young,, and prayed that the issue be made up", and that it be declared not to be the valid last will and testament of the said David L. Young, deceased. <

The defendant Coekley, who was the executor and trustee of Eliza Young, who had deceased, filed an answer admitting the probating of the will and substantially admitting the relationship of the parties, and for a second defense setting out the fact that the plaintiff, by the terms of that will, was given the use for life of a certain farm situated in Dallas county, Iowa, of the value of between $16,000 and $20,000 and that immediately on the death of the testator, the plaintiff with full knowledge of the provisions of the will, entered into possession of the Iowa land, and has since been and is now in possession of the same, that her possession is by virtue of the said will, and that she has received the rents and profits of the same, and that, in consequence of the reception and retention of said property, plaintiff cannot now institute and maintain this action to question the validity of the will.

A similar answer was interposed by Hess.

Amended replies were filed to these answers, but it is only necessary to state that she claims that she did not enter into possession of the l^nds with full knowledge of all the facts concerning the condition of the estate, and that, in consequence of some representations, she simply accepted such issues and profits which she tenders into court “and relinquishes all her right to the future rents and issues of the farm, and each and every right and interest in said estate she had received or would in any way receive by virtue of the provisions of said pretended will. ’ ’

A jury was empaneled and, at the close of the evidence, the court withdrew the same from the consideration of the jury on the facts, and held and determined that the plaintiff could not maintain this action to contest the validity of the will, and ordered plaintiff’s third amended petition to be dismissed and rendered judgment against her for costs. To all of which plaintiff at the time excepted.

It then appears from the record that the plaintiff filed her motion for a new trial in this action; that the defendants, TIarry Leedy and others also filed a motion for a new trial, and that Levi Young filed a motion for a new trial. It is not necessary to consider the motion of Levi Young, for he is not a plaintiff in error in this case.

The questions that are made in this ease are: Was the court in error in its judgment in not submitting- this case to a jury under the facts as shown in this case ?

It appears from the record in this case that Flora Leedy did, in fact, upon the death of her father, D. L. Young, enter into the possession of the real estate devised to her, and has been in possession of the same at the time and during the times she has instituted and was attempting to carry on this suit; that not until answers were filed in the case alleging these facts, did she attempt to make restitution or dispossess herself of the rights so conferred upon her by this will. Now, we think it was too late. Had this been a money legacy, there are authorities that indicate that she might possibly have dispossessed herself of any benefit so bestowed upon her by the will, and made restitution, but in the ease at bar, it appears that she not only received the rents, issues and profits, but that she created a leasehold on the estate which was outstanding at the time she was attempting to maintain this suit.

It does not appear that she was misled as to the condition of this estate by any one authorized to represent matters concerning its status. There nowhere appears in this record that she did not have the means of knowing. True, it is said that there was no inventory filed until more than a year after the death of the testator, but nothing appears to indicate that she could not have informed herself fully as to her rights under the will, as to her rights as legatee and heir, to compel full disclosure as to the situation and condition of the estate, so that,. with the means at hand of ascertaining the condition of the estate, and perhaps with full information as to the condition of the estate, she went into possession of the benefits conferred upon her by the will of her father, and ive think that she cannot now be heard, after having taken this decisive step, to occupy a distinct and antagonistic position to that which she has taken.

This being so, so far as she is concerned, we think the court was 'right in holding that, under the facts as shown in the record, she could not institute and maintain an action to contest the will of her father.

But not only did the court dismiss this action as against Flora Leedy, but it dismissed it as against the cross petition of the defendants.

The cross petitioners in the court below were the children of Flora Leedy, the remainder men of the estate which was bestowed upon Flora Leedy for life, and at her death, upon Harry Leedy and the other cross petitioners in remainder.

Now, it is contended that these defendants, who are necessary parties to the contest of the will, had a right to file an answer and cross petition, or a cross petition in the case, seeking the same relief that the'plaintiff, Flora Leedy, was asking for. We are cited to R. S. 5858 (Gen. Code 12079) : “A person interested in a will or codicil admitted to probate in the probate court, or court of common pleas on appeal, may contest the validity thereof in a civil action in the court of common pleas in which such probate was had.”

E. S. 5859 (Gen. Code 12080) : “All the devisees, legatees, and heirs of the testator, and other interested persons, including the executor or administrator, must be made parties to the action. ’ ’

It is now contended that the terms of these sections are so wide as to include any person interested in a will, and then it is argued “surely devisees are interested in the will or codicil and, therefore, they could contest the same.”

, It was held by this court and afterward affirmed by the Supreme Court, that a creditor of an heir might contest a will, but we cannot see upon what basis or foundation these devisees who have the estate in remainder, could possibly be said to be interested in the will so that they might contest the same. They could not receive any advantage were they successful in the contest. They would simply deprive themselves of all ■ right or benefit that would accrue to them by virtue of the provisions of the will; and we do not conceive that a will contest can take the place of a proceeding to quiet title so that they could contest the will, and by a moot court proceeding secure a judgment that it was the valid last will and testament for the protection of their title. Time would ripen their title so that they could not be interfered with in their rights under the will.

We are clearly of the opinion'that they are not “persons interested in the will, who would be authorized to contest the will, and that, therefore, the court was right as against these persons filing the cross petition in the court below, holding that the contest should not proceed but be dismissed as to them.

It further appears, however, that they cannot secure a reversal of the judgment of the court below because they took no exception to the action of the court in dismissing the petition, and while they may have filed a motion for a new trial, yet exceptions must be entered at the time the action of the court was had.

So that we find no error in the action of the court in dismissing the proceedings in the court of common pleas as against the cross petitioners or any of them.

As to the motion that was filed in this court to dismiss the cross petition in error of these remainder men, we do not deem it necessary to pass on the same in the view that we take of this case. We think that the affirmance of the judgment of the court below is decisive of the rights of the parties, and the judgment of the court of common pleas is affirmed with costs and the cause remanded for execution.

Exceptions may be entered on behalf of the plaintiffs in error and the cross petitioners in error. Exceptions may be entered in behalf of the persons filing the motion to dismiss the cross petition in error.


author: WINCH, J.

text:
    'ASSESSMENTS — MUNICIPAL CORPORATIONS— TAXES.
    [Cuyahoga (8th) Circuit Court,
    May 31, 1910.]
    Henry, Marvin and Winch, JJ.

      J. C. Alexander, et al. v. Albert K. Spencer, Treas. Avery Stamping Co. v. Albert K. Spencer, Treas. Theodore M. Bates, et al. v. John I. Numm, Treas.
    City cannot Levy Taxes by Sewer Districts to Pay Cost of Improve, ments.
    A city cannot levy taxes by sewer districts to provide a sinking fund for sewer district bonds, issued since the municipal code of 1902 went into effect, for the.purpose of paying that portion of the cost of sewers constructed in certain districts and not assessed upon the property specially benefited, notwithstanding proceedings therefor were commenced in council before the present code went into effect and under a statute authorizing such levy.
    Appeal from Cuyahoga common pleas court.

      Ford, Snyder & Tilden and T. M. Bates, for plaintiffs:
    Cited and commented upon the following authorities: Heffner v. Toledo, 75 Ohio St. 413 [80 N. E. Rep. 8]; Hayes v. Cleveland, 55 Ohio St. 117 [44 N. E. Rep. 518]; State v. Bacom, 66 Ohio St. 491 [64 N. E. Rep. 427; 90 Am. St. Rep. 599] ; State v. Jorges, 66 Ohio St. 453 [64 N. E. Rep. 424; 90 Am. St. Rep. 592]; Platt v. Craig, 66 Ohio St. 75 [63 N. E. Rep. 594] ; Raymond v. Cleveland, 42 Ohio St. 523.

      Newton D. Baker, city solicitor, and Wilbur D. Wilkin, Asst., for defendants.

      Affirmed, no op., Spencer v. Alexander, 83 O. S. 492.

   WINCH, J.

These three cases were all tried together on an agreed statement of facts.

The question involved is whether the city can now levy taxes by sewer districts to provide a sinking fund for sewer district bonds issued since tbe new municipal code went into effect, May 4, 1903, for the purpose of-paying that portion of the cost of sewers constructed in certain districts not assessed upon the property specially benefited, the councilmanic proceedings for the improvements paid for by the bonds having been begun before said date.

The whole matter grows out of the repeal of original R. S. 2713 by the new municipal code. That section read as follows: “The levy to provide a sinking fund for the redemption, of bonds issued for sewerage purposes shall, where the corporation is divided into sewer districts, be upon the property of the district for which the bonds were issued.”

The levy here mentioned is strictly a tax, as distinguished, from a special assessment. It is a tax to pay a debt of the city.. That debt, it is true, was contracted for the benefit of a certain district of the city. Who shall pay it, the original district or the city at large?

The city urges that the levying of a tax to pay these bonds: is part of the original “proceeding” under which the improvements were begun to pay for which the bonds were issued, and claims that rights under repealed R. S. 2713 are saved to the city, by virtue not only of Gen. Code 26, but also of Sec. 211 of the Mun. Code (1536-910 R. S. not found in the Gen. Code) which reads in part as follows: “no rights or liabilities, either in favor of or against such corporation, existing at the time of the taking effect of this act, and no suit, prosechtion, or proceeding shall be in any manner affected by such change, but the same shall stand or proceed as if no such change had been made.”

The rule contended for has been held to apply in the case of special assessments. Raymond v. Cleveland, 42 Ohio St. 523, and other cases cited, by council but we have been unable to find a case where the same rule was applied to the levying of taxes. There is a decided distinction between the two kinds, of impositions. The levying of an assessment to pay for a street improvement is clearly a part of the proceedings, and is so treated in the municipal code. Notice is given to the owners of benefited property, and they, in a manner, take part in the proceedings. The whole assessment at once becomes a continuing lien, though it may be collected through a series of years. Not so with regard to the levying of taxes. That power is in the state to be exercised as the legislature directs within the rules laid down in- the constitution. So long as the constitutional limits are observed the taxpayer must submit and has no part in the matter and one legislature cannot bind another or make a bargain about the right to levy taxes, with a municipal corporation, or any' other agency.

Each year’s tax-levy is a new and distinct matter having no reference to any previous levy. We fail to see that, a tax levy is a part of any other proceeding; taxes are levied to pay old-debts, as bonds, notes, judgments, etc., and to furnish funds for -current expenses, but in no sense does the tax levy become a part of the proceeding -whereby the old debt was created or the -current expense is incurred.

Distinguishing these cases from assessment cases on the point that the levying of taxes is no part of the original street improvement “proceeding,” we hold that the plaintiffs are entitled to the injunctions prayed for.

Judgments for plaintiffs.


text:
    ASSESSMENTS — SIDEWALKS.
    [Hamilton (1st) Circuit Court,
    January 22, 1910.]
    GifCen, Smith, and Swing, JJ.
    Huddle v. Madisonville (Vil.) et al. Bramble et al. v. Madisonville (Vil.)
    1. Temporary Failuee to Make Intersecting Sidewalks Meet at Grade does not Invalidate Assessment.
    The fact that a sidewalk as constructed is some feet below the grade of the intersecting .street does not invalidate the assessment, where it appears that the grade of the sidewalk is at the proposed grade of the intersecting street, the improvement of which is in contemplation.

      2. Signing Petition fob Sidewalk Improvement Estops Signer from: Denting Assessment Therefor.
    Payment of an assessment for a sidewalk on one side of a corner lot does not relieve the owner from payment of the assessment for the walk on the other street,' where the later improvement is one for which he himself petitioned.
    Appeal from common pleas.

      S. W. Bell, for plaintiff, Huddle:
    Cited and commented upon the following authorities: Cincinnati v. Connor, 55 Ohio St. 82 [44 N. E. Rep. 582]; Cincinnati v. Sherike, 47 Ohio St. 217 [25 N. E. Rep. 169]; Meek v.. Collinwood (Vil.), 30 O. C. C. 63 .(10 N. S. 9) ; Cincinnati v. Cincinnati & Spring Grove Ave. Co. 26 Ohio St. 345; McGlynn, v. Toledo, 12 Circ. Dee. 15 (22 R. 34); Minor v. Hamilton (Bd. of Cont.) 13 Circ. Dee. 16 (20 R. 5) ; Hays v. Cincinnati, 62 Ohio St. 116 [56 N. E. Rep. 658i]; Monroe v. Cleveland, 29 0-C. C. 633 (9 N. S. 523) ; Birdseye v. Clyde, 61 Ohio St. 27 [55 N. E. Rep. 169] ; Lewis v. Taylor, 61 Ohio St. 471 [56 N. E. Rep. 194; 76 Am. St. Rep. 428]; Tone v. Columbus, 39 Ohio St-281 [48 Am. Rep. 438'] ; Hildebrand v. Toledo, 27 O. C. C. 427 (6 N. S. 450) ; Carlisle'v. Cincinnati, 29 O. C. C. 81 (8 N. S. 46).

      W. W. Clippinger, for plaintiff, Bramble.

      Harry W. Vordenberg, for defendants.
   SMITH, J.

The court is of the opinion that all steps taken by the defendant, the village of Madisonville, looking toward the improvement of Home avenue by the construction of sidewalks? were legal, and that the assessment of the cost thereof is valid.. The grading for said improvement was necessary, and the assessment was uniform, as required by law.

We think, in addition, that plaintiff is estopped from questioning said assessment by reason of his petition asking for the construction of the improvement, in which he waived all defenses as to defects in proceedings, charges, etc., incurred thereby, and consequently agreed to pay for the same by the front footage upon the lots abounding and abutting upon Home avenue.

It is also clear from the evidence that the assessment levied does not exceed the special benefits to the property; and this is true of the property at the corner of Bramble and .Home avenues, for while at present the sidewalk at the junction of these streets is some feet below the surface of Bramble avenue, yet, as the sidewalk is constructed to meet the grade of Bramble avenue when improved, which improvement is now in contemplation, the inconvenience in the use of the sidewalks at this point is merely temporary, and can in no way be construed as .being detrimental to the property. The only correct method to pursue in the construction of the sidewalks was to have them meet at grade at Home and Bramble avenues.

As to the corner lot at Clason and Home avenues, while it is urged that said lot should be relieved from the assessment for the reason that 'it has already been .passed for the walk on 'Clason avenue, yet what has been said in regard to the petition for the improvement applies to this property also. The owner of this lot asked for the construction of the sidewalk, and he is thereby estopped from objecting to the assessment, for otherwise the village could well have declined to construct the same, having knowledge of the prior assessment, and but for the petition would not have made the improvement.

'The petitions will be dismissed.

Giffen and Swing, JJ., concur.


author: McCARTY, J.

text:
    MUNICIPAL CORPORATIONS — STREETS.
    [Tuscarawas (5th) Circuit Court,
    December Term, 1905.]
    Donahue, McCarty and Taggart, JJ.

      Newcomerstown (Vil.) v. Sheldon Dickenson.
    Damases from City may be Recovered for Unnecessary Destruction of Shade Trees in Street.
    The council of a municipality has no right to destroy shade trees growing in the street unless it is necessary to do so for the purpose of using the ground for street purposes and an abutting owner who is injured by such unnecessary destruction caused by the city may recover damages from the city.
    [Syllabus approved by the court.]
    Error to common pleas court.

      Affirmed, no op., Newcomerstown v. Dickerson, 77 O. S. 597.

   McCARTY, J.

This case presents simply the question as to whether the town council of the village of Newcomerstown had the right to pass a resolution, or resolution's, and ordinance by which they would cut down and remove some shade trees. Mr. Dickenson had some valuable maple shade trees in front of his lot. Now, it was pretty near at the street, yet they were inside the curbing and they caused at one time an ordinance to be passed to remove all trees, and without any notice to him except he got notice about the time they were commencing to cut them down, that they were to remove his trees. "Well, he had three large maple trees in his lot where the street pavement came out and went around and took those inside and they proceeded to cut them down, and the action was brought for damages for that. And they set up a defense to it, among other things, that they ought not to have been taken down, and three or four of those defenses were demurred to, and overruled and exceptions taken, and so the whole matter is before us on error whether the court below did right, first, in holding that demurrer to those grounds of defense ought not to have been sustained, and as to whether the verdict is sustained by proper weight of evidence so as to entitle the plaintiff to recover. We have carefully gone over this thing and have reached the conclusion that, the town council did not have any right to cut down those shade trees unless it was necessary to take them out for the purpose of using the ground for street purposes. Do not have any right to take down and remove shade trees. Some people place-a great deal more stress on shade trees than they do upon anything else. Some people nourish them and cherish them and live under them and prefer to have them allowed to remain and they object when anybody interferes," and whenever it is unnecessary to take them away for any other purpose than for the purpose of streets they are violating a right that they do not have any right to do.

A motion was made for a new trial in this ease, and a judgment for the two or three hundred dollars, do not remember exactly what the amount was, was not very much, but the motion was overruled and exception taken, and then came here to us on a petition in error. We find no error in this proceeding and therefore hold that the judgment should be affirmed with costs and exceptions taken and will have the usual time to prepare a bill of exceptions.

Donahue and Taggart, JJ., concur.