text:
    CONTEMPT IN FAILING TO PAY ALIMONY.
    Court of Appeals for Hamilton County.
    In re J. Harry Whallon.
    Decided, May 3, 1915.

      Jurisdiction — Deprivation of a Court of a Part of Its Jurisdiction— Does Not Affect Its Inherent Power to Enforce a Valid Deoree Theretofore Rendered — Imprisonment for Failure to Pay Alimony Not Imprisonment for Delt.

    1. The legislative act, taking away from the court of insolvency of Hamilton county its jurisdiction in the matter of divorce and alimony, did not deprive that court of jurisdiction in a proceeding for contempt in failing to pay a judgment for alimony, pronounced prior to the passage of said act.
    2' Imprisonment for contempt in failing to pay a judgment for alimony in gross is not violative of any constitutional right of the person so imprisoned.
    3. An order of commitment for contempt imports verity and, in the absence of any showing to the contrary in the record, such an or- . der is supported by the presumption that the court heard evidence, and, found that the defendant was able to pay the amount adjudged against him, before the order for his commitment for failure to pay was entered.

      W. A. Rinckhoff, for respondent. •

      C. S. Sparks, for Whallon.
   Gorman, J.

This is a proceeding in error to reverse a judgment of the common pleas court discharging J. Harry Whallon from the custody of the sheriff of Hamilton county, who held him in the county jail under a judgment and commitment of the insolvency court of Hamilton county.

On December 23, 1913, the insolvency court of Hamilton county in an action for divorce and alimony brought by Ella J. Whallon against her husband, J. Harry Whallon, then pending in said court, decreed a divorce to said Ella J. Whallon on account of the aggressions of her husband, and awarded her in gross the sum of $175 as and for alimony and attorneys' fees, and rendered judgment in her favor for said sum.

The order and judgment of the court as to the payment of the alimony not having been complied with, a rule was issued on the motion of the wife, directing the husband, J. Harry Whallon, to show cause in said insolvency court on or before March 6, 1915, at 10 o 'clock a. m., why attachment for contempt -should not issue against him for disobedience of the said order directing him to pay said sum of $175. Whallon was thereupon brought into court, charges of contempt filed against him, and he was found guilty of contempt of court for failing to pay the sum of $150, the balance unpaid of said judgment for alimony. He was thereupon committed to the jail of Plamilton county until said sum should be paid, or until the further order of the court, or until discharged by operation of law.

Thereupon, on March 16, 1915, said Whallon sued out a writ of habeas corpus in the common pleas court, and that court found that he was illegally restrained of his liberty, and discharged him from custody.

The case is now here on error to reverse that judgment.

The ground upon which the court of common pleas held the detention of Whallon to be illegal, was that the insolvency court of Hamilton county had no jurisdiction to commit said (Whallon, because by the act of the General Assembly passed February 6, 1914 (104 O. L., 179-180), that court was deprived of jurisdiction in actions for divorce and alimony after December 31, 1914, and the order of the insolvency court in committing said Whallon for failure to pay alimony having been made after December 31, 1914, in an action for divorce and alimony, the same was null and void for want of -jurisdiction to make the order.

At the time the decree for alimony was rendered, December 23, 1913, the Court of Insolvency of Hamilton County undoubtedly had jurisdiction to hear and determine actions for divorce and alimony under the delegation of power and authority contained in Section 1637, Sub. 9, so that the decree awarding Mrs. Whallon alimony was a valid, binding judgment and order, and enforcible against J. Harry Whallon either by execution or by attachment and commitment for failure to obey the same.

Did the insolvency court by the amendment of said Section 1637, Sub. 9, on February 6, 1914, lose jurisdiction after December 31, 1914, to enforce its judgments, orders and decrees made prior to that date? We think it did not, but that every court has inherent power and authority to enforce its decrees if it had jurisdiction to make the order or decree. The General Assembly is without authority to abridge or- deprive a court of power and authority to enforce its valid decrees, orders and judgments by contempt proceedings or such other proceedings as are necessary to establish its authority and respect as a court. It may create or abolish courts having jurisdiction inferior to the Supreme Court, and it may limit or enlarge their jurisdiction and powers; but so long as the court continues to exist as a court, it can not be deprived of its inherent power to enforce its decrees, orders and judgments. If this power should-be taken from a court, then it would cease to be a court and would lose the respect and dignity with which the people have clothed it.

“The power to enforce its decrees and orders arose upon the creation of the court because it was implied in the very conception of the court.”

■ It was well said by Judge Shauek in the case of Hale v. State, 55 O. S., 210, at page 213:

“The difference between the jurisdiction of courts and their inherent powers is too important to be overlooked. In constitutional governments their jurisdiction is conferred by the provisions of the constitutions and of statutes enacted in the exercise of legislative authority. That, however, is not true with respect to such powers as are necessary to the orderly and efficient exercise of jurisdiction. Such powers, both from their nature and their ancient exercise, must be regarded as inherent. They do not depend upon express constitutional grant, nor in any sense upon the legislative will. The power to maintain order, to secure the attendance of witnesses to the end that the rights of parties may be ascertained, and to enforce process to the end that effect may be given to judgments, must inhere in every court or .the purpose of its creation fails. Without such power no other could be exercised.”

See also: Republica v. Oswald, 1 Dallas (Pa.), 343.

Numerous authorities might be cited to establish the elementary proposition that all courts have inherent power to enforce their decrees, orders and judgments, but we think it sufficient to cite only a few of them. Am. & Eng. Ency. of Law, 2d Ed., Vol. 8, 28, 29; same, Vol. 7, p. 30; State v. Rorew & Hart, 24 W. Va., 416; Little v. State, 90 Ind., 338; People v. Wilson, 64 Ill., 195.

This power to enforce the decrees and orders of a court, even by contempt proceedings if necessary, the Legislature can not take away, because it can be exercised regardless of the consent of the Legislature. If power distinguished from jurisdiction exists independently of legislative action, it will continue to exist notwithstanding legislation.

The insolvency court of Hamilton county still lives. It has not been abolished, nor have its powers to enforce its valid orders been abridged or curtailed. The order requiring Whallon to pay to his wife this sum of money is a valid subsisting order, and the court had ample power to compel Whallon to obey it.

What might be the status of a decree or judgment granting a divorce or alimony since January 1, 1915, we do not decide, as that question is not presented to us by the record in this case. The jurisdiction of that court to hear and determine divorce and alimony actions since December 31, 1914, is not raised by the record.

The second question involved in this case is the power or authority to punish as for a contempt of court the refusal to'pay a judgment for alimony in gross. Is this a judgment for a debt, which can only be enforced by execution and levy on property, and which can not be enforced by imprisonment in contempt proceedings? We think that this question has been decided adversely to the contention of counsel for J. Harry

Whallon in the eases of Cook v. Cook, 66 O. S., 566, and Luebbering v. State, 19 C. C., 658.

In the ease of Cook v. Cook, the second, paragraph of fne syllabus reads as follows:

“A final money decree for alimony is not a debt within the purview of the constitutional inhibition against imprisonment for debt, but is such an order as that, under favor of Section 5610, R. S. (12137, O. C.), punishment as for a contempt may follow wilful failure to comply with it.”

In the case of Luebbering v. State, 19 C. C., 658, the circuit court of this county-held that the court has power to imprison for failure to pay a judgment-in gross awarded as alimony.

It may therefore be said to be fairly established in this state that imprisonment for contempt in failing to pay a judgment for alimony in gross, is not violative of any constituí' mal right of the person duly imprisoned on such a charge o! contempt for failure to obey the order.

Thirdly, it is claimed that the record fails to show thai Vv hallon was able to pay the alimony at the time the court of iusolveney ordered him committed, and that the fact should appear in the record that he is able to pay, before any valid c<-mintment can be made.

The order of commitment for contempt imports verity, and it will be presumed that the court heard the evidence and found the defendant was able to pay the amount adjudged agains! him. Galley v. Galley, 13 C.C.(N.S.), 522. It was inuimbent upon the defendant Whallon to establish his inability to pay, ¡ tid in the absence of a bill of exceptions containing tlv evidc ice, if any was offered, the presumption will be that 1 ie defendant failed to establish his inability to pay. Galley v. Galley, 13 C.C. (N.S.), 522.

Furthermore, the failure of the record to disclose ability to pay, on the part of Whallon, can not be raised in this habeas .corpus proceeding. This question would have to be raised in error proceedings. If the court had jurisdiction of the person of Whallon and of the subject-matter — contempt of court — then any and all errors claimed to exist in the record must be taken advantage of by error proceedings, and not in a collator a: attack. Effinger v. State, 11 C. C., 389; Bailey on Habeas Corpus, Vol. I, pp. 284-288.

Habeas corpus can not be employed to review errors of tbe court. Am. & Eng. Ency. of Law, 2d Ed., Vol. 15, p. 172; State v. Haslip, Wright’s R., 500.

If the court has jurisdiction of a cause and proceeds irregularly or in an erroneous manner, the remedy is not habeas corpus, but proceedings in error. Lillibridge v. Stewart, 7 C.C.(N.S.), 452.

So far as we are advised by the record in this case Whallon was able to pay. We have a right to presume that the court of insolvency so found before ordering him committed; but if the court did not so find, then error proceedings is the proper remedy to employ to raise the question.

Being satisfied that the court of insolvency had jurisdiction of-the person of Whallon, and of the subject-matter — contempt— we conclude that the court of common pleas erred in discharging J. Harry Whallon from custody, and the judgment of that court is reversed.

Jones (E. H.), J., and Jones (Oliver B.), J., concur.


source: Caselaw Access Project

author: Houck, J.

license: Public Domain

text:
    UNCERTAINTY AS TO THE MEANING OF A WILL WRITTEN IN A FOREIGN LANGUAGE.
    Court of Appeals for Stark County.
    Mary Helen Walker v. Frances Burtscher et al.

    Decided, February Term, 1916.

      Wills — Construction of, Not Attempted — Where the Testator’s Intention is so Involved in Obscurity that it Can Only be Guessed at by the Court.

    A court will not speculate as to tbe intention of a testator whose will was written in a foreign language and tbe scholars who were called as witnesses did not agree in their translations, but in such a case the provisions of the law for distribution of the property of a decedent will be applied.

      Welty & Burt, for plaintiff.

      J. IF. Crane and T. C. Davis, contra.

      Motion to require the Court of Appeals to certify its record in this case overruled by the Supreme Court, June 30, 1916.

   Houck, J.

This case is before us on appeal from the Common Pleas Court of Stark County, Ohio. The action is one in partition, and the parties hereto base their respective claims to the real ‘estate in question on the construction placed on the last will and testament of Joseph Wagner, Sr. The petition alleges:

“Mary Helen Walker, the plaintiff herein, for a cause of action says that she is a daughter and devisee of Joseph Wagner, Jr., deceased; that he was a son and legal heir of Joseph Wagner, Sr., also deceased. That by the will of the latter a life estate was given and devised to Maria Wagner, now deceased, wife of Joseph Wagner, Sr., as shown by the record of said will in Will Record D, at page 532, in the records of the probate court of said county, of the following described lands and tenements, to-wit: being lots Nos. 335 and 1368 in the city of Massillon, Ohio; that the remainder after the said life estate in said lands and tenements was not given or devised to any person or persons whatsoever by said will, and was never during the life of said Joseph Wagner, Sr., by him granted or disposed of, but was at his death owned by him. Plaintiff says that said Joseph Wagner, Jr., was one of five children of said Joseph Wagner, Sr., to-wit: Frances Wagner Burtscher, Mary Wagner Grass, Lilian Wagner Ritter, Emma Wagner Neher, defendants herein, and Joseph Wagner, Jr. That each of said five children was upon the death of said Joseph Wagner, Sr., entitled to the undivided one-fifth interest in fee simple in the said remainder of said property. That said Joseph Wagner, Jr., at his death was possessed of and by his last will and testament gave, devised and bequeathed his said undivided one-fifth interest in said estate to Mary Wagner, his wife, now Mrs. Mary F. Timmel, defendant herein, Annie Josephine Blandón Wagner, defendant herein, and Mary Helen Walker, plaintiff herein, or to their survivors, to be divided among them in equal shares. That after the said will of Joseph Wagner, Jr., was executed, and after his death, his son, Edward Joseph John Wagner, also a defendant herein, was born and is now living. That said will was duly admitted to probate in the Probate Court of Stark County on the 4th day of November, 1904, and that said defendant Mary F. Timmel, as widow of Joseph Wagner, Jr., elected to take her share of testator’s property Tinder the terms of said will in lien of dower therein. That Joseph Wagner, Jr., has been dead more than one year, and that there are no debts or claims against said .estate. Plaintiff says that as a daughter and one of the devisees of Joseph Wagner, Jr., as aforesaid, she has a legal right to and is seized in fee simple of the undivided two forty-fiths part of said lands and tenements above described, and that the defendants, Frances Burtscher, Mary Grass, Lillian Ritter and Emma Neher are the owners in fee simple of the undivided one-fifth part of said property each; that said Joseph Wagner, Jr., had children living at the time he made and executed his said fast will, and that the defendant Edward Joseph Wagner was born thereafter, as aforesaid, and is now a minor, and that said after-born son of said Joseph Wagner, Jr., said Edward Joseph John Wagner, is the owner of and is seized in fee simple of the undivided one-fifteenth part of said property. That since the death of said life tenant, Maria Wagner, said property has been in the exclusive possession and enjoyment of the defendants, Frances Burtscher, Mary Grass, Lilian Ritter and Emma Neher, to the exclusion of plaintiff and the other said tenants in common. Wherefore plaintiff prays that she may have her interest set off to her in severalty; that an accounting be made of rents and profits of said estate from the time of the death of said Maria Wagner until partition be made, and for such other and further relief as is proper and right.”

The defendants, Frances Burtscher, Mary Grass, Lilian Ritter, Emma Neher, Jacob Burtscher and Henry Neher, in their amended answer, after admitting certain allegations of the petition, deny each and all other statements contained therein, which puts in issue the claim that plaintiff has an interest in the real estate described in the petition and is entitled to rents and profits therefrom, and denies that she is entitled to partition.

Upon the issues raised by these pleadings the cause was submitted to this court on the evidence. It is the claim of plaintiff that under the provisions of the last will and testament of Joseph Wagner, Sr., deceased, his widow, Maria Wagner, took only a life estate, and at her death the real estate vested in the heirs of Joseph Wagner, Sr. The defendants contend that Maria Wagner, the widow, took a conditional fee, and that by reason of her not re-marrying, at her death the fee simple title vested in her, and that' she had a right to dispose of the same by will. The will of Joseph Wagner, Sr., was written in German and copied in that language in the Will Records of Stark'county, Ohio. The original will, since the commencement of this litigation, has been mislaid or. lost, and therefore we have not had • the benefit that might be derived from an examination of the paper writing itself. The plaintiff and defendants presented German scholars as witnesses, who translated into English the language used in the recorded will of Joseph Wagner, Sr., but we are free to say that no two of them seem to agree, and when the court attempted to reconcile them it also was at sea. In the construction of wills the testator’s meaning and intention in the language used is to be found and ascertained, if possible, , and this courts strain to discover. We have done so in this case, .but it availeth not. We have no positive and fixed rules in the interpretation of wills; hence, the imperfections of the human language, as ordinarily used; the obscure and often inconsistent expressions of intention as sometimes penned by the scrivener who draws the will; the utter inability of the human mind to anticipate future events and happenings — -all these fully appear in the case at bar. The court can not tell what was in the mind of Joseph Wagner, Sr., at the time the scrivener penned his will for him, save and except from the language used therein, and it is not for a court by mere conjecture to determine what his will should be, and all that must be determined by giving to the language used by him that fair meaning, and interpretation which the words and sentences warrant. We have no hesitancy in saying that from the different translations made by the witnesses, and the language used by Joseph Wagner, Sr., in the paper writing in question, we are fully satisfied that it can not take effect as a will by reason of the uncertain and indefinite character of - the language used and the provisions contained therein. We think that the case of Cope v. Cope (45 Ohio State, pages 469 and 470) is decisive of the case at bar. The learned judge in the opinion says:

“Without pursuing the matter further, we think sufficient has been said to indicate the obscurity in which each item of this will, when considered in connection with its other parts, is involved, and that no construction can be given it as a whole for which more can be claimed than that it is a clever guess at the probable intention of the testator; but this is not enough to warrant any particular construction claimed for a will, for (as observed by Mr. Jarman) conjecture is not permitted to supply what the testator ha^ failed to indicate, and if after every endeavor the judicial expositor finds himself unable in regard to any particular fact to penetrate through the obscurity in which the testator has involved his intentions, the failure of the intended disposition is the inevitable consequence. To the validity of every disposition, as well of personal as real estate, it is requisite 'that there be a definite subject and object, and uncertainty on either of these particulars is fatal. # * * And though the privilege of making a will is one highly respected by law, yet as the law itself makes a just and equitable disposition of the property of an intestate among the natural objects of his bounty, it should prevail over the provisions of any attempted disposition that are so obscure that'the general scheme and purpose of the testator can not be ascertained with any reasonable certainty.”

It therefore necessarily follows from what we have already said that the plaintiff is entitled to a decree in partition; also the defendants, Frances Burtscher, Mary Grass, Lilian Ritter and Emma Neher, must account for the rents and profits derived from the real estate in question since the death of Maria Wagner. And this case is remanded to the court of common pleas for execution. Judgment accordingly. •

Shields, Jj and Powell, J., concur.


author: Gorman, J.

text:
    OMISSION OF HOUSE NUMBER IN NOTICE OF SHERIFF’S SALE.
    Court of Appeals for Hamilton County.
    Joseph Griefenkamp v. Robert J. Cresap, William G. Meyer and the Durrell Realty Company.
    Decided, May 25, 1915.

      Judicial Sales — Sheriff’s Sale Invalidated — By Omission to Give the Number of the House in Notice of Sale — Section 11678.
    Failure to give the house number in the notice of a judicial sale of improved property located within a municipality where house numbers have been assigned is an irregularity which invalidates the sale.

      C. W. Balter, for plaintiff.

      W. G. Burrell, W. G. Meyer and T. If. Schmuclt, contra.
   Gorman, J.

This case is here on appeal from a decree of the common pleas court.

We are of the opinion that a decree should be entered in this court such as the one entered in the court of common pleas, upon the reasoning of the trial judge in the opinion announced by him; and for the further reason that the sale made under the proceedings to sell for the tax lien, was not in conformity with the provisions of Section 11678, which was in force at the time of the sale, 1905, and among other things provides:

“All notices and advertisements for the sale of lands and tenements located in a city or village in this state, made by virtue of proceedings in a court of .record therein in addition to a description of such lands and .tenements, shall contain the street number or the building or buildings erected on the lands, or the ’street number of the lots offered for sale. If no such number exists then the notice or advertisement must contain the name of the street or road upon which such lands or tenements are located, together with the names of the streets or roads immediately north and south, or east and west of such lands and tenements, that cross or intersect the street or road upon which they are located.”

The advertisement made by the sheriff, in the case in which the premises were sold by him, No. 131768 court of common pleas, omitted entirely to give the house number upon the east twenty-five feet of lot No. 80, which was one of 'the lots sold in said proceedings and bought in by William O. Meyer. While it is true that the parties may have mistakenly believed that a vacant lot was being sold, nevertheless, as a matter of fact it was not a vacant'lot, but there was a substantial house thereon, and the failure to comply with this statute was such .an irregularity as would invalidate the same and warrant the court in setting it aside.

The defendant, William O. Meyer, under the provisions of Section 5767, General Code, is entitled to have refunded to him the amount of the purchase money with interest thereon, together with the taxes subsequently paid by him, and interest on the same from the dates of payment. This, we understand, is what the court below decree to him.

Jones (E. IT.), J., and Jones (Oliver B.), J., concur.


author: TIouck, J.

text:
    JURISDICTION IN THE MATTER. OF SUSPENDED SENTENCES.
    Court of Appeals for Stark County.
    In re Application of Leonard Pontius for a Writ of Habeas Corpus.
    Decided, November 29, 1916.

      Habeas Corpus — For a Ptisoner Placed on Probation and Afterwards Re-incarcerated — Judge Without Power to Set Aside a Suspended Sentence After the Period for Which Sentence Was Pronounced.

    A judge has no authority to set aside a sentence which he has theretofore'suspended, if the period covered by the sentence as originally pronounced has expired.

      Amerman Mills, for Pontius.

      Clarence A. Fisher, Herbert Himlcer and Walter S. Buff, contra.
   TIouck, J.

Error to the Court of Common Pleas of Stark County.

Leonard Pontius, the plaintiff in error, who had been committed to the Canton workhouse by the police court of said city, filed a petition in the Court of Common Pleas of Stark County, Ohio, for a writ of habeas corpus, which having been denied, error was prosecuted thereto. The agreed facts are as follows: Leonard Pontius was convicted of a violation of an ordinance of the city of Canton, Ohio, providing for the punishment of persons found guilty of disorderly conduct. Said conviction was had before the police court of said city on the 27th day of May, 1916, and on that day Pontius was sentenced to the Canton workhouse for a period of thirty days, the same being suspended conditionally upon his good behavior. The longest period for which the accused could have been sentenced by said police court, under said ordinance, was thirty days.

The judge of said police court, on the third day of August, 1916, set aside the order suspending said sentence, and ordered and directed that the same be enforced, and pursuant thereto the petitioner was committed to the workhouse.

At the hearing on habeas corpus it was the claim of counsel for Pontius that the police court was without jurisdiction to put into execution a suspended sentence, after a period of time had expired longer than the length of time that the 'petitioner could have been sentenced for the offense charged.

The aim and purpose of the writ of habeas corpus is the speedy release, by judicial decree, of persons who are illegally and unlawfully restrained of their liberty. While a writ of habeas corpus is in the nature of a writ of error, to the extent that it brings before the reviewing court the legality as to the right and by what authority the accused is confined, it is also well settled that the writ will not be allowed to take the place of proceedings in error.

The power of courts and judges in habeas corpus is clearly defined by statute. The power to discharge is limited to eases where the imprisonment is found to be without authority of law. This can not be extended or enlarged simply to meet a seeming case where an injustice may or may not have been done. The real test,must be, Is the petitioner lawfully restrained of his liberty?

Section 12177 of the General Code provides that when the judge is satisfied that the petitioner is unlawfully imprisoned or detained, he shall forthwith discharge him from confinement.

Section 12165 of the General Code provides:

“If it appears that the person alleged to be restrained of his liberty is in custody of an officer, under process issued by a court or magistrate, or by virtue of the judgment or order of a court of record, and the court or magistrate had jurisdiction to issue the process, render the judgment, or make th'e order, the writ shall not be allowed.”

If the police court had authority to issue the process and order the petitioner committed to the workhouse sixty-eight days after the sentence of thirty days had been imposed and suspended, then the judgment of the common pleas court must be affirmed; otherwise it should be reversed. The question is, did the police court have jurisdiction over the person of the petitioner and of the subject-matter of the controversy at the time it set aside the order suspending the sentence and issued the order and process committing Pontius to the workhouse? If the court was without jurisdiction to do this, then the petitioner is unlawfully deprived of his liberty, and should be discharged.

This question must -be determined by the proper construction to be placed upon Section 13714 of the General Code, which is as follows:

“Upon such revocation and termination, the court or magistrate may pronounce judgment at any time after the suspension within the longest period for which the defendant might have been sentenced, whereupon the judgment shall be in full force and effect, and the person shall be delivered over to the proper officer to serve his sentence.”

We think this section of the statute is clear, plain and unambiguous; and by its provisions the police court was given authority to revoke or set aside the order of suspension, and enforce the execution of the sentence in question at any time within the thirty days after its ■ suspension, which thirty-day period was the longest time that the police court, under the ordinance, could sentence the petitioner. After this thirty-day period the court was without júrisdiction in the premises.

The police judge was humane, and wanted, if possible, to bring about a reformation of the accused, and therefore acted well his part and suspended the sentence for thirty days — the longest period given by law. We commend the court for it, and it is to be regretted that the accused did not profit thereby. When the court suspended the sentence for thirty days the accused was placed upon his good behavior, and the court took the chance of his reforming within the thirty-day period, and if at the end of that period he had not done so, the court thereafter was without jurisdiction in the premises.

The court had authority and jurisdiction, in this case, to enforce the execution of the sentence any time within the said thirty days, but not thereafter. During this thirty-day period the petitioner was, in law, imprisoned. Imprisonment is not confined to the act of putting .a man in prison; it may take place without actual application of any physical agencies of restraint, such as locks or bars; it may be and can be by verbal compulsion. Any restraint of one’s personal liberty is sufficient to constitute imprisonment, and any detention of a person by another, against his will, is imprisonment as contemplated by law, and if it be without right is unlawful.

We hold that an order setting aside the suspension of the sentence in the case at bar might legally have been made any time within the thirty-day period, and process issued by the police court committing the petitioner to the workhouse, but after the thirty7day period the police court was without jurisdiction to act in the premises.

Upon a careful examination of the record before us we have reached the conclusion that there is error in the record to the prejudice of the plaintiff in error, for the reasons hereinbefore' set forth, and therefore the judgment of the common pleas court is reversed, and judgment entered for the plaintiff in error. And there being no disputed questions of fact in this case, the court coming now to render the judgment that the court below should have rendered, it is ordered and adjudged by the court that the writ of habeas corpus be allowed, as prayed for by the petitioner below, the plaintiff in error here, and that said petitioner be discharged from his imprisonment, and be released from the custody of the superintendent of the Canton, Ohio, workhouse, at the costs of the respondent, and this cause is remanded to the common pleas court with instructions to- carry into execution the judgment of this court.

Shields, J., and Powell, J., concur.


author: Houck;, J.

text:
    DEVISE NOT RENDERED INEFFECTIVE BY IMPERFECT DEEDS COVERING SAME PROPERTY.
    Court of Appeals for Morrow County.
    T. B. Mateer, as Executor of the Estate of Elmer E. Price, Deceased, et al, v. Daisy D. Croft et al.
    Decided, December 27, 1915.

      Wills — Ambiguities Latent and Patent — Where Intention of Testator is Clear — Devise Not Defeated by Execution of Deeds Covering Same Lands, Imperfectly Executed and Not Delivered.

    A specific devise of lands to the widow of the testator for life, with the remainder over to designated beneficiary, is not defeated on the ground of ambiguity by reason of the execution by the testator of deeds covering the same lands, where the, said deeds were not executed in accordance with law and were not delivered to the grantees and there is no proof showing or tending to show that they were placed in escrow.

      T. B. Maieer and J. W. Barry, for plaintiffs in error.

      J. G. Williamson and Benjamin Olds, contra.
   Houck;, J.

This is a proceeding in error in which it is sought to reverse the judgment of the common pleas court of this county.

The plaintiffs below, the defendants in error, in a second amended petition, brought suit against the plaintiffs in error, the defendants below, alleging that certain language used in the last will and testament of Jacob L. Klinefelter, deceased, with reference to the disposal of the real estate of which he died seized, and a part of which is now claimed by Lillie E. Price as the surviving widow of Elmer E. Price, deceased, is ambiguous, and prays for a construction of same; also for an order and decree in partition for the real estate described in the petition..

The defendants below filed an answer, being in substance a general denial.

Two grounds of error are relied upon by plaintiffs in error:

1. That the court below erred in holding that the language of the will in question is ambiguous.

2. That the court erred in the admission of certain testimony.

Let us first determine whether or not the language in the will is or is not ambiguous. The provision of the will under consideration is as follows:

“I give and devise to my beloved wife in lieu of her dower the farm on which we now reside, and other lands in North Bloomfield township, containing in all about two hundred and fifteen acres, during her natural life, and all the stock, household goods, furniture, provisions and all other goods and chattels which may be thereon at my decease, during her natural life as aforesaid.
“I do hereby after the decease of myself and wife and my debts are paid, I desire the balance to be given to my grandson, Elmer E. Price.”

By ambiguity we mean that the words are capable of more senses than one; that there is an indistinctness or uncertainty of meaning in the language used.

Ambiguities are of two kinds, patent and latent.

A patent ambiguity is one which appears on the face of the language or the instrument; that which occurs when the expressions of the language or instrument are so defective that a court which is obliged to place a construction upon it can not, placing itself in the situation of the one making it, ascertain therefrom his intention.

A latent ambiguity is one which does not appear on the face of the language used or the instrument being considered, or when the words apply equally to two or more different subjects or things.

We think that extrinsic evidence' can not be used, and is not proper where the instrument or language-upon its face shows no uncertainty of intention; but where it is insensible, unless this borrowed light is thrown upon it, the same may be resorted to in order to ascertain the intention of the one making the instrument.

From an examination of the words and language used by said testator can his intention be determined? We think so. If we give the words and language used therein the plain and common meaning applicable to same we think the claim that upon their face they are ambiguous and not of plain meaning is not well founded.

What meaning does the language convey? To us it seems clear, plain and explicit that the testator intended to and thereby did convey the real estate in question and all his property described in said provision of the will to his wife, during her natural life, and after his decease, and the payment of his debts, and the death of his wife, all that remained of all the property described in said provision of his will was to go- to and be the property of Elmer E. Price. Wé are of the opinion that it was prejudicial érror for the court below to hold otherwise. We think that the claim of defendants in error that the paper writing reputed to be a deed, and covering the real estate in this action, is not supported either in fact or law, because it does not conform to the requirements of Section 8510 of the General Code, which provides:

“A deed, mortgage, or lease of any estate or interest in real property, must be signed by the grantor; mortgagor, or lessor, and such signing be acknowledged by the grantor, mortgagor, or lessor, in the presence of two witnesses, who shall attest the signing and subscribe their names to the attestation.”

It is admitted by the parties to this suit that .there was but one subscribing witness to said paper writing, and, therefore, it not being executed in compliance with law, it does not have the effect and force of a deed, and is not a deed.

We think it was prejudicial error in the court below in permitting this paper writing to be admitted in evidence, and in holding that it was a deed.

The second amended petition alleges “that said deeds (one being the deed in question) were delivered to one George R. Hosier, to be delivered by him to the grantees therein at the death of said Jacob L. Klinefelter and Catharine Klinefelter, his wife, or the survivor of them.”

We have carefully read the testimony of every witness, as appears in the record in this case, and we fail to-find any proof whatever in support of said allegation. In the first place, the paper writing in question was not executed as required by law, and therefore is not a deed. In the second place, if it had been so executed and was in fact a deed, there is an absence of proof showing or even tending to show that it was delivered in escrow.

From what has already been said it of necessity follows that we find prejudicial error in the record, and that the judgment of the common pleas court should be reversed. It also follows that the cross petition in error of the defendants in error should be dismissed, and the same is hereby done.

Judgment of the common pleas court reversed and cause remanded.

Shields, J., and Ferneding, J. (sitting in place of Powell, J.), concur.


text:
    DAMAGES FOR. THE MALICIOUS SUING OUT OF AN ATTACHMENT.
    Court of Appeals for Hamilton County
    The Munro Hotel Company v. James Brough.
    Decided, April 19, 1915.

      Reasonable Cause for the Suing Out of an Attachment — Remedies of a Defendant Whose Property is Wrongfully Attached — Measure of Damages for Wrongful Attachment — Charge of Court — Confusion in the Use of the Words “Testimony” and “Evidence.”

    1. The discovery among the belongings of J A B of canceled checks drawn by J B affords reasonable ground for the belief that the bank account upon which these checks were drawn belonged to J A B, out having been informed, after the bringing of a suit in attachment against JAB and the garnisheeing of this account, that J A B and J B were two different persons and that the said account did not. belong to J A B, it became the duty of the plaintiff at once to release said attachment, and failure so to do warranted the finding in the court below that the suit was being maliciously prosecuted.
    2. While it is error, in a charge to the jury, to use the words “testimony” and “evidence” interchangeably, or to use the words “fair preponderance of the evidence” instead of “preponderance of the evidence,” it does not afford ground for reversal where the prejudice, if any arose from such use, was against the .defendant rather than the plaintiff in error.
    S. The measure of damages for the bringing of a suit in attachment without probable cause and maliciously is such compensatory damages as will make the plaintiff whole for expenses incurred in securing a discharge of the attachment and loss of the use of the property, together with counsel fees and punative damages on account of the humiliation and injury sustained by the plaintiff by reason of the suit.

      Harry Hess, for plaintiff in error.

      Chas. Broadwell, contra.
   Gorman, J.

The action below was one to recover damages for maliciously and wrongfully suing out an attachment and garnishing funds of the defendant in error in the Fifth-Third National Bank of Cincinnati.

It appears that one James A. Brough, the son of the defendant in error, contracted a hotel bill at the Munro Hotel, operated by the plaintiff in error company, amounting to $27.50; that he had left the hotel without paying this bill, and in his room was found after he had left a suit case containing, among other things, several returned canceled checks on the Fifth-Third National Bank, signed by James Brough. Thereupon plaintiff in error brought a suit before a justice of the peace and sued out an attachment and garnisheed the funds of the defendant in error in the bank aforesaid. The defendant wras not indebted to the plaintiff, but at the time of the attachment the agents and officers of the company did not know this fact. They supposed that James A. Brough, the son, who had in his possession the canceled returned cheeks, was the owner of the account in the bank, whereas the father was the owner of the account. The defendant in error, on learning of the attachment and garnishment, went to the Munro Hotel and the agents thereupon told him that he was not the person against whom suit had been brought and that it was a mistake if his funds were attached. He requested the attachment to be released, but it was not done. He was obliged to and did file a motion before the justice to discharge the attachment. The same was overruled, and he appealed from the judgment overruling the motion, to the common pleas court, which court reversed the ruling of the justice of the peace, discharged the attachment and issued a mandate to the justice of the peace to enter a judgment discharging the attachment.

The defendant in error thereupon brought this action alleging that the former action -was brought maliciously and without reasonable or probable cause. In the trial of the case below a verdict for $200 was rendered in favor of the defendant in error, and judgment was entered upon the verdict. Error is now prosecuted to reverse that judgment. Numerous errors are alleged in the petition in error and in the brief filed by counsel for plaintiff in error.

We believe that at the time the suit was commenced before the justice of the peace against James Brough, alias James A. Brough, the officers and agents of plaintiff in error had reasonable grounds to believe that the account in the Fifth-Third National Bank belonged to the man who had been the guest at the hotel, but the failure of the agents and officers of the hotel company, after ■ being satisfied that the defendant in error was not the man indebted to the hotel company, to discharge the attachment and its resistance of the motion of defendant in error to discharge, the attachment in the justice’s court and in the court of common pleas, we think put the plaintiff in error in the wrong. The moment that the agents and officers of the plaintiff in error were satisfied that the defendant in error was not indebted to the plaintiff in error, and that it was his funds in the bank which were attached, it became the duty of the agents and officers of the hotel company to see that the attachment was discharged with all possible dispatch. We think that the failure to do this is sufficient to warrant the finding that the prosecution was set on foot maliciously.

The principal ground of complaint made by plaintiff in error is that the court erred in several respects in charging the jury, 'and that these errors were prejudicial to plaintiff in error, and therefore the judgment should be reversed.

The court, throughout the charge to the jury, used the word “testimony” instead of “evidence,” and charged the jury that they must- find from the preponderance of the testimony that the plaintiff was entitled to recover, etc., instead of from the preponderance of the evidence. The evidence outside of the oral testimony of the witnesses, was a letter from Mr. Slutes, the attorney for the Fifth-Third National Bank, to Charles T. Dumont, justice of the peace, advising him that the account of James Brough had been attached, a transcript of the docket and journal entries of the justice of the peace before whom the attachment was sued out, and the canceled returned cheeks; also, a page taken from the register of the Munro Hotel Company. This evidence was offered by the defendant in error to maintain the issues upon his part, and while- the court erred in employing the word “testimony” rather than the word “evidence,” we are of the opinion that this error was not prejudicial to the plaintiff in error, as the jury might well have believed that they could disregard the written evidence and consider only the oral testimony. Furthermore, we are of the opinion that the jury were not astute enough to distinguish the difference between the words “testimony” and “evidence.” It is not an uncommon occurrence for the court to employ the word “testimony” as synonymous with the word ‘ ‘ evidence, ’ ’ nor is it uncommon for the ordinary jury to accept the term “testimony” as the equivalent of “evidence, ’ ’ and we are not prepared to say that if the word ‘ ‘ evidence” had been employed rather than the word “testimony” the jury’s verdict would have been different from what It was. "We are, therefore, of the opinion that on this point the error of the court was not prejudicial to the plaintiff in error.

It is further claimed by plaintiff in error that the court in charging the jury used the words “fair preponderance of the evidence.” This appears to be true, and we think it was error on the part of the court to modify the word “preponderance” by employing the word “fair.” This has been held by the Supreme Court to be error, but this error was not prejudicial to plaintiff in error — it was rather prejudicial to the defendant in error — and if the verdict had been in favor of the plaintiff in error the defendant in error might be here complaining of that error of the court. But the error was favorable to the plaintiff in error and it therefore was not prejudicial.

It is further claimed that the court erred in stating to the ■jury that they must be “satisfied by the preponderance of the evidence.” This has been held by the Supreme Court to be error, because it requires the jury to find by a greater degree of proof than the rule requires in civil actions before the plaintiff can recover. This error was not prejudicial to the plaintiff in error, but rather prejudicial to the defendant in error.

It is further claimed that the court erred in defining to the jury “probable cause.” The court in its charge to the jury, among other things, undertook to define to the jury “probable pause,’’ as follows:

“Probable cause may be said to be that cause wbicb tbe ordinarily reasonable man or ordinarily prudent man 'would accept as a guide for himself under any like state of circum.stances. ”

Our Supreme Court has defined “probable cause” in the case of Ash v. Marler, 20 O. S., 132, as:

“A reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the facts were true. ’ ’

This definition, we think, has been generally accepted as the correct one in describing “probable cause.” Nevertheless, the definition given by the trial court was not so far wrong as to warrant this court in holding that the jury were misled by the language employed by the court.

There are numerous other errors alleged to have been committed by the court in the charge to the jury, but on an examination of the whole charge we are satisfied that the charge was as fair to the plaintiff in error as it could reasonably ask it to be, and that the jury were not misled by the charge.

In this ease the defendant in error had two remedies: he could have brought an action upon the bond to recover damages for the wrongful attachment, in which case he would have been limited to the actual damages sustained by the attachment of his money and the expense he had been put to in securing the discharge of the attachment. But the defendant in error was not bound to pursue this remedy, as he had another remedy, the one at common law, which he pursued in this case.

“ It is well settled and has been uniformly held in this country, that in attachment plaintiff may be subjected to damages for attaching the defendant’s property maliciously and without probable cause. The defendant’s remedy in this respect is not at all interfered with by the plaintiffs having at the institution of the suit given such a bond with security, conditioned to pay all damages the defendant might sustain by reason of the attachment having been wrongfully obtained. ’ ’ Drahe on Attachment, Par. 726 (6th Ed.).

The essential wrong in an action of this kind is the proceedings complained of were without probable cause, and from the want of probable cause malice may be inferred, or malice may be shown by the facts and circumstances of the ease. The measure of damages in actions of this kind is the same as in cases of malicious prosecution.

In Greenleaf on Evidence, Section 456, the rule with reference to damages is laid down as follows :

“Whether the plaintiff has been prosecuted by indictment or by civil proceedings, the principle of awarding damages is the same; and he is entitled to indemnity for the peril occasioned him in regard to his life and liberty, for the injury to his reputation, his feelings and his person, and for all the expenses to which he necessarily has been subjected.”

In this case, 'if the jury had found that the action was without reasonable or probable cause and maliciously instituted, they would have been warranted in assessing not only compensatory damages, but also punitive damages; and as a part of the damages they had a right to allow reasonable counsel fees. The compensation which the defendant in error would be entitled to recover, if he made out a case, would be the expense that he had been put" to in securing a discharge of the attachment, including counsel fees for services rendered in securing such discharge. He would also be entitled, as stated by Greenleaf, to compensation for the humiliation and injury to his feelings, and the publicity given to him by the bringing of such attachment, and for the injury resulting from his deprivation of the use of his funds.

The court below charged the jury that they might find punitive damages in addition to the expense plaintiff was put to, if the action for malicious attachment was without probable cause and was found to have been maliciously begun. We think the court correctly stated the rule of damages, as far as the court went; but the court would have been justified in going still further in charging the jury that they would be warranted also, if they found the plaintiff was entitled to punitive damages, in allowing him reasonable counsel fees for the prosecution of this action. The charge of the court in this regard was, therefore, as favorable to plaintiff in error as it had a right to expect. It certainly was not prejudicial to it.

Upon a review of the whole case, we are of the opinion that substantial justice was done in this ease by the verdict rendered, and the judgment of the court below will be affirmed.

Jones (E. H.), P. J., and Jones (Oliver B.), J., concur.


author: Swing, J.

text:
    ACTION TO RECOVER COMMISSION FOR SALE OF REAL ESTATE.
    Court of Appeals for Hamilton County.
    William R. Thompson v. Josephine D. Dorman.
    Decided, July, 1914.

      Beal Estate Agent — What He Must do to Earn a Commission — Purchaser Procured Must he Able, Beady and Willing to Fulfil His Part of the Contract.

    In an action for recovery of a commission for sale of real estate, the petition is demurrable where there is no allegation that the purchaser who was procured was able .to buy the property on the terms proposed; and where the evidence fails to cure this defect by showing that the proposed purchaser was able, ready and willing to mate the purchase, a motion to direct a verdict for the defendant should be granted.

      E. T. Brown, for plaintiff in error.

      Adler, Kelley <£ Hctuclc, contra.
   Swing, J.

This cause'came into this court on error to the judgment of the court of common pleas wherein William B. Thompson was plaintiff and Josephine D. Dorman was defendant.

The action was originally brought before James B. Miyers justice, of the peace, Cincinnati township, Hamilton county, Ohio, for a commission for the sale of real estate, the amount being for $80, 2 per cent, on $4,000, the amount of the alleged sale made by the agent. In the court of common pleas the court directed the jury to return a verdict for the defendant, and error is prosecuted in this court.

Plaintiff in his petition alleged:

“Plaintiff further says that on or about the 27th day of February, 1911, the defendant requested the plaintiff as such agent, to endeavor to procure for her a purchaser of said property. The plaintiff then agreed to comply with said request, and on or about the 21st day of March, did procure for said defendant a purchaser for said real estate, who thereupon entered into a written contract with said defendant to purchase said real estate for $4,000 upon terms agreed upon by and between said purchaser and said defendant. That without fault upon ■ plaintiff’s part said purchaser failed to carry out his said contract of purchase with said defendant, and said defendant because thereof refused and still refuses to pay said plaintiff his commission therefor. ’ ’

The law in regard to what is necessary for a real estate broker to do in order to earn his commision is thus stated in Fairfield v. Cunningham, 84 Minn., 521:

“A real estate broker is not entitled to a commission for the sale of land unless he procures a purchaser who is able, ready and willing to comply and purchase on terms named by, or which are, in the absence of an express agreement as to terms, satisfactory and acceptable to the owner.”

"We think thjs is the well settled law.

In 124 Iowa, 457, in the case of Flinn v. Jordel, the court say:

‘ ‘ The contract furnished by a broker signed by the purchaser, furnishes no evidence of his ability to perform its conditions.”

There is no allegation in the petition that said purchaser was able to purchase on the terms set forth in the contract, and we think with the lack of such allegation the petition was demurrable. The evidence offered at the" trial fails to cure this defect in the petition because it does not show that the alleged purchaser was ready, willing and able to purchase, and because of the failure to make this showing, we think the court was right in directing the jury to return the verdict for the defendant.

We find no errors in the judgment of the court of common pleas, and the same will therefore be affirmed.

Jones (E. TI.), J., and Jones (Oliver B.), J., concur.


author: Bichards, J.

text:
    VALIDITY OF A CODICIL PROVIDING FOR CARE OF TESTATOR AND HIS WIFE.
    Court of Appeals for Wood County.
    William H. Rogers v. Elizabeth B. Monroe et al.
    Decided, November 13, 1914.

      Wills — Action to Contest — Competency of a Hypothetical Question— Photograph of Testator Admissible in Evidence, When — Charge of . Court.

    1. It is not prejudicial error to sustain an objection to a hypothetical question which is based on an assumed fact that is supported by some evidence, but is clearly dispróved by the manifest weight of the evidence.
    2. In the trial of an action to contest the validity of a will the opinion of a non-expert witness as to the mental capacity of the testator must be confined to a time when such testator is under the observation of the witness.
    3. A photograph of a testator, taken at or near the time his will was executed, may be a useful and competent item of evidence in an action to set the will aside, but it is not prejudicial error to sustain an objection to the introduction of such a photograph which was taken eight or nine years prior to the execution of the will or codicil which is under attack.

      Benjamin F. James, for plaintiff in error.

      N. B, Harrington, contra.
   Bichards, J.

This action was brought for the purpose of contesting the validity of a codicil to the will of William Bogers. The original will was executed in 1899, and the codicil on October 20th, 1911. By the terms of his original will his property was left to his wife during the term of her life, and at her decease it was to go to -the children and grandchildren of the testator. In the codicil he ratifies and confirms the provisions of the original will and then adds a bequest in favor of Elizabeth B, Monroe of $8 per week during the time that she should care for him and his wife. The codicil also provides that interest should be computed at five per cent, on the' amounts to become due her for services and which were given to her by the terms of the codicil.

William Rogers was at the time of the execution of this codicil of about the age of ninety-one years, and it is contended that he did not have sufficient testamentary capacity to execute the instrument and that the same was the product of undue influence. The testator was born in England and spoke the English language with a decided brogue. He was the owner of forty-six acres of land which he had purchased many years before at a low price, but which was worth at the time of his decease approximately $8,000. In the year 1909 the dwelling-house situate on this tract of land was destroyed by fire, and this loss seems to have more or less affected his condition. In the succeeding year he suffered a slight stroke of paralysis which affected hi's right arm and side and to a limited extent interfered with his speech. Some witnesses testify to a difficulty in understanding what he said, but it appears that because of his brogue that difficulty had always existed to a greater or less extent. He seems to have suffered his full share of afflictions, having during the last few years of his life a cancerous growth on his face and a toe affected with gangrene. It appears from the evidence that he subscribed regularly to a daily paper, that he took a church paper, and that he frequently read from the Bible, but during the last few years of his life apparently he did not do much reading himself, but had others read to him. It is clear from the evidence that he was naturally a man who was very taciturn all his life, and that this condition perhaps increased with his age; at any rate he could not be charged with the garrulity which is sometimes witnessed in aged people.

With his increasing years, feebleness, probably both of mind and body, came on gradually. In 1899 he was married for the third time and to a woman who still survives and is of the age of about ninety-one years. She had been theretofore married and had a daughter named Elizabeth B, M'onroe of the age of forty-seven years. This daughter is a defendant in this action and came to care for her mother and stepfather in June of the year 1911. Some question having been raised by certain of the children of William Rogers, he asked Mrs. Monroe to accompany him to Bowling Greeen, which she did, on October 20th, 1911, and he there executed the codicil in question and on the same day entered into a written contract with her providing specifically for the terms of her employment, the same being in accordance with the provisions of the codicil.

The evidence leaves no room for doubt but that Elizabeth furnished to the aged people excellent care, and that they were clearly in a condition requiring that kind of care is apparent. She had had much training as a nurse and was able to do whatever household work was necessary about the house, and in addition to care for the cancer with which he was afflicted and to dress the toe which was affected with gangrene.

William Rogers died on August 18th, 1913, of a final stroke of paralysis and a gradual weakening of the powers of his body and mind incident to old age, and called by some of the witnesses senile dementia. The jury on the trial of the ease returned a verdict sustaining the codicil.

We have carefully read the evidence contained in this record, and from such examination we are unanimously of the opinion that the verdict returned by the jury is sustained by sufficient evidence.' Many objections and exceptions were taken during the trial of the case. During the examination of Dr. C. M. Deibert, who was the family physician of the deceased, he was asked his opinion as to the capacity of the testator to make a rational selection among the objects of his bounty. To this question an objection was made by counsel for the defendants, and that objection was sustained, and the plaintiff excepted to the ruling of the court; but no offer was made to prove what the witness would answer in response to the question, and without such offer prejudicial error is not made apparent.

A hypothetical question was submitted to Dr. Powell and the identical question to Dr.» Stove, and these witnesses were not allowed to answer as experts the question so submitted. The question is very lengthy and undertakes to review all the facts disclosed in the case and concludes with an inquiry as to the capacity of the testator to comprehend the relations which he held to those who had claims on him and to keep them in mind long enough to form a rational judgment in regard to them, and to make a rational selection among them. This question assumes as a fact that for a period of five years or more before the testator ’s death he had performed no business. In view of the testimony of Ross Rogers, a son of the plaintiff, and Ophelia IT. Rogers, the wife of the plaintiff, who testified that they did not know of his doing any business and were so situated as to probably have knowledge if he had performed any business, we think counsel were justified in assuming as a fact that the testator had not performed any business. Nevertheless, when the evidence was all in, it clearly appeared that the testator did attend to more or less business during the last five years of his life.

Without undertaking to restate all the evidence on this subject, it appears from the 'bill of exceptions that in the year 1909 he made a written contract with a daughter, Mrs. Tipladj*-, for the support of himself and wife. In October or November of 1909 he borrowed $500, and to secure the same executed a note and mortgage upon his property. In February, 1910, he executed a written lease of his farm to the plaintiff, and in the same year he signed as bail for the plaintiff. During most of the period of time covered by the hypothetical question, he sold more or less of his share of the crops raised on his land and collected the pay therefor. Most of these facts appear from the testimony of witnesses called by the plaintiff himself, and the fact that the testator transacted the business above mentioned is not seriously disputed. Indeed, the only evidence to the contrary is that of the two witnesses mentioned, who testify that they do not know of his doing any business.

It is clearly the law that jurors should disregard the answers of witnesses to hypothetical questions in case they .find the hypothesis not in accordance with the facts. Under such eiremnstances the jurors must be told that the opinion is of no value. So that, assuming that the question under consideration was in such form that it should have been allowed to be answered, yet it would have been the duty of the trial judge after the evidence was all in, and it appeared that the assumed fact was clearly and manifestly not sustained by the evidence, to have directed the jury to disregard the answer. If, then, it would have been the duty of the jury to disregard the answer of the expert witnesses, it could not be prejudicial error for the trial judge to refuse to permit the question to be answered.

In propounding a hypothetical question to an expert witness, counsel may assume any material fact which the evidence tends to establish, but it is not reversible error to sustain an objection to such question if the whole evidence discloses that such assumed fact is clearly disproved by the manifest weight of the evidence. 17 Cyc., 260; West v. Knoppenberger, 4 C.C.(N.S.), 305; 16 C. D., 168; McLean, Administrator, v. Cincinnati, 3 N.P.(N.S.), 676; 16 O. D., 459, 462; Rogers Expert Testimony, Section 32.

In view of the whole evidence, we find no prejudicial error in the action of the court in sustaining the objection to this question.

The defendants called a non-expert witness who was not present at the time of the execution of the codicil on October 20th, 1911, and of whom inquiry was made on the witness stand as to the capacity of the testator for transacting the ordinary business affairs of life on that date. Over the objection of the plaintiff, the witness was permitted to answer, and the answer was favorable to the defendants. We think this question was improper for the reason that non-expert witnesses must confine • their opinions to the capacity of a testator to a time when he is under their observation.

This was the only witness called by the defendants in which the rule just given was violated, but it was in fact violated.in questions that were asked by counsel for the plaintiff. We can not believe, in view of the state of the record in this case, that if the objection had been sustained any different result could have been reached from that which is expressed by the verdict. The provisions of Section 11364, General Code, would seem to clearly cover this aspect of the case, and that section has been applied to a case for the contest of a will in a decision by the Supreme Court in Dunlap, Executor, v. Dunlap, 89 Ohio St., 28, where the following language is used:

“While holding that the admission of neither of the two objectionable questions by the trial court constitute error, the court is of the opinion that if it be conceded that they are sufficiently objectionable to constitute error, yet it would not be error of such substantial and prejudicial nature as to warrant the setting aside of the verdict of a jury founded on otherwise legal and sufficient testimony.
“The salutary and enlightened provisions of Section 11364, General Code, should serve as a powerful deterrent to all reviewing courts from reversing causes for any other reason than that the alleged error was one affecting the substantial rights of the adverse party. Applying the mandatory principles of that section, it appears most clear to this court that had the two objectionable questions and answers been omitted the issue involved in the controversy would not have been settled otherwise that it was.”

The plaintiff to maintain his action offered in evidence certain photographs of the testator, shown to have been accurate representations of him at the time they were .taken, which was eight or nine years prior to the date of the codicil. These photographs were not allowed to be introduced in-evidence, and the action of the court in rejecting them is assigned as error. The marvelous accuracy of photographic representation when the work is fairly and honestly done is common knowledge, and for the courts to decline to utilize the information to be derived from that art is to forego one of the most valuable aids for the ascertainment, of the truth. 1 Ghamberlayne Modern Law of Evidence, Section 729; C., H. & D. Ry. Co. v. DeOnzo, 87 O. S., 109.

We do not think the trial judge in refusing to admit in evidence the photographs of the testator was unmindful of the principle which has just been stated, nor did he commit error in so holding. These photographs were taken eight or nine years before the execution of the codicil and at a time when the testator was about eighty-two years old. It is not claimed that he was incompetent to make a will at that time. Without doubt, the photographs accurately depict his features as they existed when he was eighty-two years of age, but it does not appear that they fairly represent him as he was at the age of ninety-one, much less that they would aid the jury in ascertaining his testamentary eapicity at that time. Notwithstanding the language of the circuit court in Varner v. Varner, 9 O. D., 273, holding that a photograph of the testator is not competent evidence, we are not convinced that such photographs taken near the time the instrument is executed might not be a useful item of evidence. Indeed, in some cases it might be very persuasive evidence, but in the ease at bar no prejudicial error occurred in rejecting the photographs taken eight or nine years before the execution of the codicil.

We think it proper to call attention to the fact that nowhere in the charge to the jury does the court state that the order of probate of the codicil to the will raises a presumption that the same is valid, nor did the court explain to the jury that such order of probate was prima facie evidence of the due attestation, execution and validity of the codicil. Of course, this omission was not prejudicial to the plaintiff, but if the verdict had been against the validity of the codicil such omission would have required a reversal of the judgment. We need only call attention to Hall v. Hall, 78 O. S., 415, and Bloor v. Platt, Id., 46, 52.

Finding no prejudicial error justifying a reversal, the judgment of the court of common pleas will be affirmed.

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


author: Chittenden, J.

text:
    ISSUE DETERMINED BY FORMER. JUDGMENT.
    Court of Appeals for Wood County.
    A. J. Steele v. The Ohio Oil Company.
    Decided, October 22, 1913.

      Bes Adjudibata — Plaintiff Bound by Former Judgment — Where Same issue Was Presented and He Had Full Knowledge of the Facts Upon Which the New Action is Based.

    In an action to obtain the cancellation of an oil and gas lease, where the answer sets, up a former action between the same parties in which the validity of the same lease was in issue, and alleges that the case was tried upon that issue and judgment entered sustaining the validity of the lease, and further alleges that at the time of bringing the former suit the plaintiff had full knowledge of all the facts set up in the present action as grounds for cancellation of the lease, and no reply was filed to the answer, the plaintiff is not entitled to the relief sought because the controversy is res judicata.

      George K. Phelps, for plaintiff.

      J. W. Sehaufelberger and Biegle & Avery, contra.
   Chittenden, J.

The plaintiff brought this action in the Court of Common Pleas of Wood County Ohio, for the purpose of having canceled a lease for the privilege of producing oil from certain lands in said county and also for the purpose of enjoining defendant from all further operations upon said lands for the production of oil therefrom. The prayer also asked for an accounting for all oil taken from the lands since the plaintiff became its owner in 1909.

As a reason for granting the relief which he seeks, plaintiff alleges facts which he claims show that the defendant is engaged in a conspiracy to monopolize the production of crude petroleum and its manufactured products and by-products, and that as a part of such monopoly and fraudulent conspiracy the lease of plaintiff’s premises was purchased by the defendant from the original lessee, and he claims that as a result of such unlawful conspiracy the price of petroleum has been depressed to about thirty per cent, of its true economic value.

The facts are pleaded somewhat in detail, but they are all to the effect above stated.

The defendant files an answer to the plaintiff’s claim in which it admits the corporate character of the defendant, the execution of the lease and ownership of the land and lease involved in the action, and denies all allegations contained in the amended petition of the plaintiff which charge an unlawful conspiracy to control production and market for petroleum and its products. It asserts that the lease in question was originally executed by the owner of the property to certain individuals from whom the defendant later acquired title. The defendant further alleges that the plaintiff bought the lands in question at a judicial sale with full knowledge of the lease and its terms and of the fact that the lease was owned by the defendant company. It further claims that it has in every particular complied with and carried out the terms of the written lease.

By a third defense set forth in the answer of the defendant it is alleged that in a former action in the courts of Wood county between the same parties, the validity of this same lease was in question and that the courts determined, upon the merits of the case, that the lease was valid and that the defendant was entitled to operate for and produce oil upon said property in accordance with the terms of the lease.

It is alleged that in the former litigation above referred to, the plaintiff attempted to set up the same defense of an unlawful conspiracy upon the part of the defendant and others to monopolize the petroleum trade and depress r,he market value of its products and by-products. That during the course of the proceedings the pleadings in which it was sought to make this defense against the validity of the lease were voluntarily withdrawn by the plaintiff. The defendant alleges that at the time of the commencement of the former action above referred to the plaintiff, A. J. Steele, had full knowledge of all the facts stated in his petition filed in this case, and that all the matters hnd things in connection with the defendant’s exclusive right to operate for oil and gas upon the whole of plaintiff’s farm were in issue in the former action and were conclusively and finally litigated therein. To this answer no reply has been filed.

The defendant has filed a motion for judgment upon the pleadings in favor of the defendant, and the cause is now submitted on said motion.

The first question challenging our attention is the defense set up by the defendant that the cause has been fully adjudicated in a former action.

Although the answer of the defendant shows that the pleadings of the plaintiff setting up the unlawful conspiracy as a reason for avoiding the lease was withdrawn before the case was finally submitted for trial, it further alleges that at the time of the commencement of that action the plaintiff was in full knowledge of all those facts which he now claims if proven would avoid the lease.

In Covington & Cincinnati Bridge Co. v. Sargent, 27 O. S., 233, it was held:

“Ina judicial proceeding in a court of record, where a party is called upon to make good his cause of action or establish his defense, he must do so by all the proper means within his control, and if he fails in that respect, purposely or negligently, he will not afterward be permitted to deny the correctness of the determination, nor, to re-litigate the same matters between the same parties.”

In Rindskopf Bros. & Co. v. Doman et al, 28 O. S., 516, 521, the court after quoting the syllabus in Bridge Company v. Sargent, supra, say:

"So we take it when a party has full knowledge of all the facts that would make, for him a valid defense in a given case, a failure to assert them at the proper time, from any cause over which he has control, will work a waiver, and cause him to loose the benefit thereof.”

And in Petersine v. Thomas, 28 O. S., 596, the court say on page 601:

“All matters of action and defense coming properly within the scope of the .suit or action^ will be put at rest by the final determination of the action or suit, unless excepted by some provision of law: ’ ’

The doctrine in Bridge Company v. Sargent, and Rindskopf v. Doman, supra, has been followed in many subsequent decisions, viz.: 28 O. S., 668; 40 O. S., 343; 54 O. S., 562, 596; 60 O. S., 1, 6. The principle indeed is elementary and it would serve no purpose to multiply authorities in this opinion.

We think the facts set forth in the answer of the defendant and which are undenied by the plaintiff, bring the case clearly within the doctrine above announced, and although the pleadings setting forth the facts of the unlawful conspiracy were voluntarily withdrawn from the action by the plaintiff before trial in the former case, yet the pleadings upon which the ease was submitted to the court presented the issue as to the validity of the lease in question and the right of the defendant to operate under such lease, and that action, thus framed by the pleadings, left that as the issue upon which the ease was tried and called upon the plaintiff to present every defense that he had to the claim made by the defendant in that action.

The answer of the defendant in this case contains the allegation that the plaintiff at the time of the bringing of the former suit had full knowledge of all the facts that he now sets up as a reason why the lease should be canceled.

Following the law as laid down in the several decisions above cited, we hold that the cause has become res judicata, and that the plaintiff is therefore not entitled to the relief prayed for in this action.

With this view of the case it becomes unnecessary to inquire into any further questions made upon the pleadings.

The judgment of the court will be that the petition of the plaintiff be dismissed at his costs.

Kinkade J., and Richards, J., concur.

      24 C.C. (N.S.), 27.


author: Richards, J.

text:
    LIABILITY FOR. INJURY RECEIVED ON A DEFECTIVE APPROACH TO A BRIDGE.
    Court of Appeals for Wood County.
    Minnie Chapman v. Board of County Commissioners of Wood County.
    Decided, May 19, 1916.

      County Commissioners — Not Liable for Repairs to a. Bridge Approach Where the Cost Would Not Exceed Fifty Dollars — Failure of an Action .for Injuries Received on a Defective Bridge Approach.

    A claim for damages on account of injuries, alleged to have been due to negligence in keeping the approach to a bridge in proper repair, can not be enforced against county commissioners, in the absence of any showing that the cost of such repairs would have exceeded fifty dollars.

      Benj. F. James and E. D. Bloom, for plaintiff in error.

      E. K. Solether, Prosecuting Attorney, and Fries & Hatfield, contra.
   Richards, J.

This proceeding in error is brought to reverse a judgment rendered on a verdict directed in favor of the county commissioners. The plaintiff was injured on May 2d, 1915, while a passenger in an automobile riding easterly on what is known as the River road, extending from Grand Rapids to Perrysburg. The accident happened at the point where this road crosses the bridge over Sugar creek.

The plaintiff claims that the bridge and the approaches thereto were so negligently and carelessly constructed, kept and maintained as to be unsafe and dangerous, and out of repair, and were negligently allowed to remain out of repair and in a dangerous condition for mole than a year prior to the date of her injury.

The evidence discloses that in the forenoon of the day of her injury she was riding with other passengers in an automobile approaching this bridge, and that the driver of the machine, in order to avoid a rut near the center of the road, turned to the right side of the road, and in so doing approached too near the side, so that the right wheels of the machine were on the slanting portion of the road, and that the machine skidded. The driver attempted in vain to right the machine and get again into the middle of the road, but did not stop the machine, the same continuing at the rate of about twelve miles an hour until it struck the westerly edge of the bridge, the right front wheel striking the guard-rail on the bridge with such force that the automobile was turned over on its left side, throwing the passengers out of the machine.

The approach to the bridge was, at the point where the same meets the bridge, six or eight inches below the driveway of the bridge, and on the southerly side of the road where the road slants downward the bridge was some two or three feet higher than the driveway. This slanting portion of the highway was covered with a growth of weeds, making it difficult to see the existence or extent of the slope. The bridge in question was one which was constructed a number of years ago by the county commissioners, being a concrete bridge with iron guard-rails.

The evidence does not disclose any defect in the bridge at the time of the injury, but the defect consisted in the approach thereto, which was evidently in need of repair. The common pleas court in directing a verdict for the defendant did so on the ground that no duty was imposed on the county commissioners to keep the approaches to the bridge in repair, the same being located on an unimproved road.

The plaintiff does not allege, nor is there any evidence tending to show, the reasonable cost of repairing the approaches so as to make the same fairly safe for the use of passengers in vehicles on the highway.

At common law, boards of county commissioners were not liable in damages for negligence in constructing or maintaining bridges, but this liability has been imposed on such boards in eases falling within the terms of the General Code, Section 2408, the duty there stated being to keep the roads and bridges therein named in proper repair.

The practical difficulty confronted the plaintiff of showing that the injury occurred by reason of a want of repair in the bridge. General Code, Section 2422, reads as follows:

“Except as therein provided, the commissioners shall construct and keep in repair, approaches or ways to all bridges named in the preceding section. But when the cost of the construction or repair of the approaches or ways to any such bridge does not exceed fifty dollars such construction or repair shall be performed by the township trustees.”

We have no doubt that in a general way the approach to a bridge is a part of the bridge, but the Legislature specifically imposed upon township trustees the duty of repairing aproaches to bridges when the cost thereof does not exceed the sum of $50.

There being nothing in this case to show that the cost of repairing the approaches would exceed that sum, the board of county commissioners is not liable for failing to cause the approach to be repaired.

The record does not disclose that any such duty devolved upon the county commissioners, and in the absence of such duty there could be no liability. The trial judge was right, therefore, in directing a verdict for the defendant.

Judgment affirmed.

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


text:
    LESSOR. OF EQUIPMENT NOT LIABLE FOR INJURIES CAUSED BY DEFECTS.
    Court of Appeals for Wood County.
    Edwin H. Rogers v. The Lake Shore & Michigan Southern Railway Company.
    Decided, October 22, 1913.

      Railways — Owner of Cars under Lease — Not Liable for Injuries Resulting from. Defective Condition.

    A lessor of railway cars parting with the possession and control of the cars is not liable for damages for personal injuries resulting from the defective condition of one of the cars in the absence of an averment that such condition existed at the time of the lease.

      Benj. F. James, for plaintiff in error.

      Doyle & Lewis and F. P. Beigle, contra.
   Richards, J.

This is a personal injury case brought by Edwin H. Rogers to recover against the Lake Shore & Michigan Southern Railway Company and the Toledo & Ohio Central Railway Company. The Lake Shore Company filed a general demurrer to the petition in the court of common pleas, which was sustained, and the plaintiff not desiring to plead further, final judgment was entered against him, to reverse which this proceeding in error is brought.

It appears from the allegations of the petition that Rogers was engaged in loading logs upon a certain car, which was the property of the Lake Shore & Michigan Southern Railway Company, but which had been leased by it to the Toledo & Ohio Central Railway Company. He was injured by the falling of an end gate which he avers was insufficiently fastened by reason of unsafe fasteners provided by the two companies.

The petition contains no averment that -the alleged defects existed at the time the car was leased by the Lake Shore & Michigan Southern Railway Company to the Toledo & Ohio Central Railway Company, but it does contain an averment that the ear was at the time of the injury in the possession and under the control of the Toledo & Ohio Central Railway Company. It further appears from the petition that the plaintiff did not have knowledge of the terms of the lease from the one company to the other.

The court of common pleas committed no error in sustaining the demurrer of the Lake Shore & Michigan Southern Railway Company to this petition, nor in the final judgment entered.

Under the allegations of the petition the case is clearly within the principle announced in Burdick v. Cheadle, 26 O. S., 393; Shindelbeck v. Moon, 32 O. S., 264, and Stackhouse v. Close, 83 O. S., 339.

Counsel for Rogers rely, among other cases, upon that of Cinti. & Springfield Ry. Co. v. Sleeper, 5 Ohio Dec. Reprint, 196. The facts of that case, however, are so different from the case at bar in material respects that it is not a controlling authority. The lessor company in that ease reserved control of the property. The petition does not contain allegations which would bring the claim of the plaintiff within the principle announced in Penna. R. R. Co. v. Snyder, 55 O. S., 342, and we need not, of course, determine whether the principle there announced would be applicable to an injury suffered to one other than an .employee of the lessee company.

Finding no error, the judgment of the court of common pleas will be affirmed.

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


text:
    AS TO THE VALIDITY OF THE TRANSFER. OF TERRITORY FROM A RURAL TO A VILLAGE SCHOOL DISTRICT.
    Court of Appeals for Wood County.
    Joseph Johann v. Board of Education of Milton Township, Rural School District.

    Decided, May 6, 1915.

      Schools — Transfer of Territory to a Village District — Changes in Boundaries — Adjustment of Funds — Filing of Resolution With County Auditor.

    1. Section 4736, G. C., as amended in 104 O. L., 138, authorizes a county board of education to transfer territory from a rural school district to a village district.
    2. The provisions of Section 4727, that centralization shall not be discontinued within three years, does not prevent such changes of boundaries as may be authorized by other statutes and will conserve the best interests of the schools.
    3. The statutory provision that an adjustment of the funds and indebtedness of the two districts involved in the transfer shall be •contemporaneous with such transfer, is not mandatory but directory only, as is also the provision that the transfer can not become effective until the resolution providing therefor has been filed with the county auditor.

      Fries & Hatfield, for plaintiff.

      B. F. James, contra.
    Pleard on appeal.

      Motion for an order directing the Court of Appeals to certify its record in this case overruled by the Supreme Court, May 18, 1915. ■

   Richards, J.

The action is one for an injunction, and the controversy arises over the acceptance of a bid for the erection of a school house in Milton township rural school district, and from entering into a contract for the erection of such school house. We will briefly state the conclusions at which we'have arrived.

The electors of this school district voted in favor of centralization of the schools. By action of the county board of education a small portion of this school district was detached from this district and attached to the Weston village school district. ^Later a further detachment of a tract of 160 acres was made. A portion of this last tract of land so detached was owned and occupied as a residence by Michael B. Metzger, who was a member of the Milton township board of education. Thereafter'the board of education not having, for thirty days, appointed a person to fill the vacancy thus caused, the county commissioners appointed R. M. Strow to fill the vancancy. Several contentions are made by the plaintiff which we will dispose of in their order.

First, it is claimed that the county board of education had no right to transfer territory from a rural district to a village district. We hold, however, that G. O. 4736 vests such power in that board. The Legislature could not have intended to limit, by the language there used, a transfer of territory from a rural district to another rural district and from a village district to another village district. The section was not intended to cover all districts, for by its terms it does not embrace city school districts nor county school districts, but in our opinion authorizes transfers between the districts named in the section above cited, when authorized by the county board of education.

It is further contended that a county board of education has no right to transfer territory from a rural district after such district has voted to centralize its schools. We find no such limitation in the statutes. It is provided in G. C. 4727 that such centralization shall not be discontinued within three years. This, however, would not prevent such changes of the boundaries of districts as might be authorized by other statutes, but the same could not be permitted to go to the extent, of being used as a pretext to accomplish decentralization.

. Our attention is called by counsel to two- cases in the 72d volume of Ohio State Reports, the first being Scott et al v. McCullough et al, on page 538, and the other being Fulks et al v. Wright, on page 547, and we have given those eases a very careful examination. The doctrine- announced in those cases is substantially, that no part of the territory of a special school district can be taken to form another special school district, and that when the schools of a township have been centralized, no part of the territory so centralized can be taken to form a special school district.

Since those decisions were announced radical changes have been made in the statutes of Ohio controlling the formation of school districts and the power of changing the boundaries of the same. Indeed, it may be quite true that the statutes relative to changing the boundaries of districts were enacted in their present form in part to escape the force of the above decisions, for the very fact of centralization would naturally raise many questions as to the propriety of existing boundary lines and the power to make such reasonable changes as should be necessary to meet the contingencies arising must be vested somewhere, and, by the school code in its present form, that power is vested in the county board of education.

By recent legislation a county board of education has been established, and this board has been given the fullest authority, by G-. C. 4736, to transfer territory from one rural or village school district to another. The board, which is given jurisdiction throughout the county, is directed to make a survey of its district and to arrange the schools so as to make them most easily accessible to the pupils of the county, and it may proceed without regard to township lines in making such changes.

The statutes further provide that a rural board of education may submit the question of centralization to a vote of the qualified electors, and that if the same carries, such rural board shall proceed to the “centralization of the' schools of the rural district. ’ ’

It thus appears that when centralization’has become effective, it is only a centralization of the schools, and that the district still remains a rural district, and by Section 4736, G-. C., cited supra> the county board of education has full authority to transfer territory from one rural or village school district to another. This authority then would exist under the present statutes even though centralization had become effective, but it could not lawfully be carried to the extent of working a decentralization of the schools. The object of the statutes is clearly to empower the county board of education to conserve the best interests of the pupils of the schools of the county, whether they reside in districts in which the schools have been centralized or not.

The plaintiff further contends that a resolution by the county board of education transferring territory from a rural to a village district can not be effective without also at the same time providing for an equitable division of the funds and indebtedness which the rural district may have. The statutes contemplate that such contemporaneous adjustment of the funds and the indebtedness shall be made, but the provisions to that end are manifestly not mandatory, but only directory.

Again, it is insisted by counsel for plaintiff that such transfer can not become effective unless a copy of the resolution is filed with the county auditor. In this case it appears that the proper resolution was subsequently filed, but was, however, not filed at the time of the transfer. The statutory requirement is directory in so far as it fixes the time for such filing, and the filing shown by the evidence in this case is a substantial compliance with the statute.

The statutes investing county boards of education with the power to change the boundary lines of school districts evince a legislative purpose to repose a discretion in the judgment of such boards, and when such boards act within the power conferred by statute, their judgment is only subject to review by the courts, when it appears that they have acted fraudulently, or that they have grossly abused the discretion vested in them.

The defendant insists that a certain prior action brought by State of Ohio, ex rel David Harris et al, v. Board of Education of Milton Township Rural School District, is res adjudicata as to the matters in issue in this case.

In the opinion of this court, Joseph Johann not having been a party to that action, and the same having been disposed of on appeal in this court other than on its merits, and by adjustment between the parties, the same is no bar to the present action.

It follows from what has been stated as to the power of the county board of education that the petition of the plaintiff must be dismissed at his costs.

Chittenden, J., and Kinxade, J., concur.