text:
    (Sixth Circuit — Lucas Co., O., Circuit Court
    January Term 1899.)
    Before Smith, Haynes and Parker, JJ.
    ABRAM K. DETWILER v. JOSEPHINE LOUISON et al.

      Innocent purchaser— Title not affected by subsequent suit against grantor—
    (1) . A title acquired by an innocent purchaser for value can not be annulled in a suit against the grantor to which the purchaser or grantee is not a party. A decree against one who has parted with the title before suit is brought will”not"biñd those to whom the title has been conveyed.

      Plaintiff's suit for damages for tort — Not creditor of defendant before judgment—
    (2) . A claim for damages for alleged assault and battery is not a credit, and the plaintiff in such case is not a creditor within the meaning of the law upon the subject of conveyances in fraud of creditors, until his claim has been reduced to judgment.

      Judgments on suits after transfer of land — Not liens on property as against previous innocent purchasers—
    (3) . One dealing with titles to land is not bound to search the record to ascertain whether judgments or decrees have been entered against those who may have at one time owned the property in suits brought against them after they have parted with the title. Such persons are as much strangers to the title as persons who never had an interest in it, and there is no more reason for searching the records for judgments against one than the other. In neither case can the judgment become a lien upon or in any way affect the title.

      Fraudulent conveyance — Remedy of creditor—

    (I). A judgment creditor who is in a position to have a conveyance, made by his judgment debtor, set aside because fraudulent as to him as respects his judgment, may cause an execution to issue on his judgment and be levied on the land of his debtor, and may bring it to sale, and the purchaser may go into possession and defend his title thus acquired in ejectment brought by such fraudulent grantee,by showing the fraudulent character of the conveyance; or he may maintain an action to quiet title, or forcible detainer to recover possession from such fraudulent grantee; or, if necessary to obtain possession of the premises after purchasing at judicial sale made under the judgment, he may bring ejectment against the fraudulent grantee and obtain possession ; but whether he will recover or not in any of these cases, will depend upon whether he establishes and the court determines judicially that tho conveyance was as to him fraudulent.
    Appeal from tbe Court of Common Pleas of Lucas county.
   Parker, J.

This case comes here by the way of appeal. For a statement of certain facts, which are not controverted, or which are certainly beyond controversy, necessary to be stated for an understanding of the issues, I read from the plaintiff’s brief: This is an action commenced in the common pleas court by Abram K. Detwiler as plaintiff against Josephine Louison and other defendants, to foreclose a mortgage on lot 10, King’s addition to the city of Toledo, Ohio, given by the defendants Josephine Louison and Francis Louison, husband and/wife, to Frank Brenot, July 13, 1889, to secure the payment of a promissory note of that date for $400, payable two years after date, with interest thereon at the rate of six per cent, per annum, payable annually. Mortgage properly executed and recorded July 13, 1889, in volume 127, of Lucas county records of mortgages, pages 286, etc. Leonard H. Wilkinson claims to be the owner of the mortgaged premises,and that said mortgage is invalid and not a lien upon the premises. Prior to March 7, 1888, Francis Louison, one of the defendants in this case, and one Louise Louison were husband and wife. On that date a divorce was granted them,and said lot 10,King’s addition, decreed to said Francis Louison free of her dower. May 12, 1888, said Louise Louison, the divorced wife of Francis Louison, commenced suit in the common pleas court against him for damages on account of alleged assault and battery. At the September term of said court, 1888, to-wit, November 23, 1888, a judgment was entered in favor of Louise Louison against Francis Louison, for $1,000. The first day of said September term was September 24th, 1888. On February 9tb, 1889, execution was issued upon this judgment and was levied on said lot 10, in King’s addition. Subsequent to the bringing of this suit by Louise Louison against Francis Louison, her husband, for assault and battery, and prior to the judgment, to-wit, on May 21, 1888, said Francis Louison sold and conveyed said lot 10, King’s addition, to Aloys Zimmerman, which deed was recorded on December 11, 1888, in volume 146 of Deeds, on page 620. In July, 1888, Francis Louison married his present wife, Josephine Louison. On February 22, 1889, Aloys Zimmerman and wife conveyed said lot 10, King’s addition, to Josephine Louison, the present wife of Francis Louison, by deed recorded February -5th, 1889, in volume 153, of Deeds, page 581. On July 13tb, 1889, said Josephine Louison and her husband, Francis Louison, mortgaged said lot 10, King’s addition, to Frank Brenot for $400; mortgage recorded July 13, 1889, in volume 127, of mortgages, page 286. On September 12, 1896, this mortgage was assigned to Abram K. Detwiler, the plaintiff herein, and this is the mortgage upon which he brings this suit.

Subsequently to the conveyance of this lot by Zimmerman and wife to Josephine Louison, and of the record of that deed, to-wit, on April 22, 1889, Louise Louison commenced suit in the court of common pleas of Lucas county, Ohio, against Francis Louison, Aloys Zimmerman and Mary Zimmerman, his wife, to set aside the deed from Francis Louis to Aloys Zimmerman of date May 21, 1888, and to subject said to 10, King’s addition, to the payment of the judgment in her favor above mentioned — Ihe judgment in the assault and battery case. In this suit a decree was entered setting aside said deed, and said lot was ordered sold free from any claim of said Zimmerman and wife, to pay said judgment for $1,000. On March 22, 1890, an order of sale was issued in said case to the sheriff of Lucas county, Ohio, under and in pursuance of which said lot 10, King’s addition, was appraised at $500, and on April 26th, 1890, it was sold to John Redding, Jr., for $603. May 5th, 1890, this sale was confirmed. Neither Josephine Louison, who owned the legal title.to said lot at the commencement of said suit to set aside the deed to Louise Louison, or Frank Brenot, to whom this mortgage had been given in the meantime, were ever made parties to this suit. .On May 7th, 1890, the sheriff of Lucas county, Ohio, in pursuance of the sale mentioned in the foregoing suit, executed a deed to said John Redding, Jr., and subsquently said Redding conveyed said property to the defendant Leonard H. Wilkinson. These deeds were duly recorded.

The claim of defendant, Leonard H, Wilkinson, to said lot,is based upon and solely derived through this deed from Redding, the purchaser at the sheriff’s sale.

In the course of these transactions Wilkinson obtained a mortgage upon the premises, which appears in the evidence, but nothing is here claimed on that account.

The defendant Wilkinson avers in his answer and cross-petition that the deed from Francis Louison to Aloys Zimmerman was made without consideration and with intent to defraud Louise Louison, a creditor, of the claim upon which she had brought suit, and which she afterwards reduced to judgment, as before stated; and he also avers that the deed subsequently made by Aloys Zimmerman to Josephine Louison was without consideration; that the mortgage in suit from Josephine Louison and Francis Louison to Frank Brenot, and the assignment thereof to the plaintiff, Detwiler, were likewise without consideration, and that said several instruments and transfers were made and received with intent to carry out the same fraudulent purpose.

At the time Francis Louison conveyed this lot to Zimmerman, Louise Louison was not a creditor because of her said demand afterward reduced to judgment,in a sense that a conveyance made to defeat her demand would be in fraud of her right as a creditor. Her claim was for damages for an alleged assault and battery, and it was not a credit, nor was she a creditor within the meaning of the law upon the subject of conveyances in fraud of creditors, until it had been reduced to judgment. Allen v. Louis, 30 Ohio St., 11.

But assuming that she might have attacked this conveyance and had it set aside, and that Wilkinson had been subrogated to her right in that respect by virtue of his purchase from Redding — who purchased the lot at sheriff’s sale made under an order of sale issued on the decree in the case Louise Louison vs. Francis Louison and Zimmerman and his wife, and assuming that the evidence submitted is sufficient to justify us in finding that the conveyances from Francis Louison to ZimmermaD, and from Zimmerman to Josephine Louison were made without consideration and with intent to defraud Louise Louison, as averred, we must go farther before the claim of the plaintiff under the mortgage can be affected.

Now, the evidence discloses that at the date the mortgage was given Francis Louison was indebted to Frank Brenot in the sum of $300, and he- then borrowed from Brenot an additional $100, and the note and mortgage were given as evidence of and to secure this indebtedness. Though we may entertain some suspicion of the entire accuracy of the testimony on this point, yet there is nothing in it all to warrant us in discarding or disbelieving it. It stands uncontradicted. The same is true as to the evidence of the want of knowledge of Brenot of''any fraudulent purpose in this transaction, and as to the valuable consideration paid by plaintiff for the note and mortgage, and his good faith' in the transaction. How then can the title of Wilkinson prevail against the mortgage in the hands of plaintiff?

Counsel for Wilkinson answer this by saying (if we understand him) that the decree in the case of Louise Louison v. Francis Louison and Zimmerman and wife, operates upon the title with such potency and far-reaching effect that any one receiving a conveyance thereof by deed or mortgage except under the title acquired at the sale made in that case, takes subject to such title. That the decree in that case binds not only the parties and their privies in title who acquired title after suit begun, but that it binds as well those who acquired title before said suit was begun, though not parties to the suit, and as well all claiming under them.

That this contention and the real point in issue here may be understood, let us refer again to certain of the events before mentioned, and especially to the order thereof.

The action for damages was begun by Louise Louison against Francis Louison on May 12, 1888, but judgment was not obtained until the September term, 1888, which began on the 24th of that month.

On May 21st, 1888, Francis Louison conveyed the property to Zimmerman, so that no judgment lien by virtue of this judgment ever attached to the property.

On February 22,1889, Zimmerman and wife conveyed the lot to Josephine Louison.

On April 22, 1889, Loui3 Louison begun her suit against Francis Louison, Zimmerman and wife, (none of whom then had any title to the property),set up her judgment,and alleged that Zimmerman and wife claimed some interest in the property, and prayed that they might be required to answer and set it forth or be foreclosed from afterwards asserting it. These defendants, having no interests to protect, allowed a decree to go against them by default.

Afterwards, viz; on July 13th, 1889, this mortgage was given by Josephine Louison, then in possession of the premises, her husband joining, and, as we find, the mortgagee loaned the full amount represented by the mortgáge, and had no knowledge of any fraudulent purpose on the part of the mortgagor. We have no doubt but his title was and that of the plaintiff as his assignee of the mortgage is unassailable by those claiming under this decree.

The sale under the decree was made subsequently, but whether made before or after we deem immaterial. It is urged that because the mortgage was executed after the decree which in effect set aside the deed from Francis Louison to Aloys Zimmerman,that the mortgagee was bound by constructive notice of that decree, so that he could not be mortgagee in good faith, Assuming that such a decree against the parties to that suit was authorized and valid, it was not in the chain of title under which the mortgagee claimed, and was not against ono who had title at the time the suit was begun, or at any time during its pendency, so that it wasmot constructive notice to anybody of anything.

One dealing with titles to land is not bound to search the record to ascertain whether judgments or decrees have been entered against those who may have atone time owned the property in suits brought against them after they have parted with the title. Such persons are as much strangers to the title as persons who never had an interest in it, and there is no more reason for searching the records for judgments against the former class than for judgments against the latter. In neither case can the judgment become a lien upon or in any way affect the title.

It is suggested that conveyances, void because made in fraud of creditors, cannot be the basis of a good title, but the authorities are clear to the effect that such conveyances are as effective against the grantor to transfer the title'as those innocently made can be, and that an innocent purchaser from a fraudulent grantee takes a perfect title. We cite Schultz v. Brown, 3 Circuit Court, 609, a case that came readily to hand; but we express our opinion upon this subject without the least doubt, and we think counsel will have no difficulty in finding an abundance of authority like it upon the subject.

But it is said that the proceeding to set aside such conveyance is in effect a proceeding in rem, and that the fraudulent grantee is not a necessary party, and that as a consequence of such fraudulent grantee being bound by the decree, though not a party, those claiming under such fraudulent grantee are likewise bound. This reasoning proceeds upon a false assumption. Sockman v. Sockman, 18 Ohio, 362, is the chief reliance of counsel urging these views. This case and others cited, do not support this contention. This is the syllabus to that case:

“Where a debtor has made a fraudulent conveyance of his lands, and the judgment creditor, after levying on the same, applies to a court of chancery to aid him in making a sale to satisfy his judgment, a decree for the sale by a master will not be void, though the fraudulent grantees are not made parties, but may be set up by a purchaser under such decree, as a perfect defense in an action of ejectment.”

Now,the case before the court on review was an action in ejectment, instituted by the fraudulent grantee, and the evidence in the case was sufficient in the opinion of tne court to justify the lower court in holding that the conveyance was fraudulent and therefore void, and that therefore the defense was established; but then it will be observed that this was said after judicial inquiry and judicial determination of that very point.

This case has been reviewed by the supreme court at least twice. I call attention to a reference in 24 Ohio St., 445 and 446, where this is said of it, and this seems to be the understanding of that court of what was decided in the Sockman case:

“A decree, in a suit between her and purchaser” (that is, the purchaser at the judicial sale under the judgment) ‘‘that the conveyance to her was fraudulent, would effectually cut off all claim on her part to an interest in the purchased property. ”

That is to say — as it affected her,- after it had been determined judicially that the conveyance was fraudulent, (page 456).

, It is true that a judgment creditor who is in a position to have a conveyance, made by his judgment debtor, set aside because fraudulent as to him as respects his judgment, may cause an execution to issue on his judgment and be levied on the land as the land of his debtor, and may bring it to sale, and the purchaser may go into possession and defend his title thus acquired in ejectment brought by such fraudulent grantee, by showing the fraudulent character of the conveyance, and he may maintain an action to quiet title; or forcible detainer to recover possession from such fraudulent grantee; or, if necessary to obtain possession of the premises after purchasing at judicial sale made under the judgment, he may bring ejectment against the fraudulent grantee and obtain possession; but whether he will recover or not in any of these cases, will depend upon whether he establishes and the court determines judicially that the conveyance was as to him fraudulent.

Of course,the safer and commoner method is to bring an action to remove the cloud cast upon the title by such fraudulent conveyance, before bringing the land to sale under the judgment. Upon certain facts being found and determined judicially in an action of any of the kinds mentioned, the title is annulled by the judgment of the court. But we find no authority for saying that a fraudulent conveyance is ipso facto and as to all the world so completely and wholly void ab initio that good title cannot under any circumstances be acquired from the-fraudulent grante6, or for saying that a title acquired by an innocent purchaser for value may be annulled in a suit against the grantor, to which the purchaser or grantee is not a party; or for saying that which would be in effect the same — 4hat a decree against one who had parted with the title before suit brought would bind those to whom the title had'been conveyed.

R. M. McKee, Esq., for Plaintiff.

A. W. Eckert, Esq., and L.H. Wilkison,for Defendants.

The doctrine of subrogation invoked by the defendant Wilkinson, and the claim that the rights of the parties are affected by the circumstance of Francis and Josephine Louison obtaining some part of the proceeds of the sale made under the decree in favor of Louise Louison, by the way of exemption in lieu of a homestead,may be disposed of by the remark that, however those things may affect the rights of Wilkinson and Francis and Josephine Louison as between themselves, they cannot prejudicially affect the interest of the plaintiff, who stands in the shoes and right of an innocent purchaser for value from one having apparently a clear and perfect title to the premises.

Decree will be entered in favor of plaintiff as prayed for.


source: Caselaw Access Project

author: Adams, J.

license: Public Domain

text:
    (First Circuit — Hamilton Co., O., Circuit Court
    Jan. Term, 1899.)
    Before Adams, Douglass & Voorhees, JJ. [Of the Fifth Circuit sitting in the First Circuit.]
    LEWIS, Auditor, v. TAYLOR. LEWIS, Auditor, v. SYMMS. BADER et al, COUNTY COMMISSIONERS, v. C. P. & V. RAILWAY COMPANY. [Three Cases.]

      Constitutional Laio — Statute onee decided constitutional but after-wards unconstitutional — JEffect on transactions before later decision— (1). When the supreme court has declared a statute conatitu- ■ tional,the county commissioners and other public bodies have a right to-rely on the constitutionality of that and similar statutes, and any act or acts done prior to a later different decision by the supreme court should not be affected or rendered void by a subsequent decision of the supreme court reversing its former decision and holding that the same or similar statutes were unconstitutional.

      Parties bound to know the law — Effect of different decisions by the Supreme Court—
    (2) . Partios are bound to know the law, but an allegation of knowledge of- the unoonstitutionality of'an act which the supreme court has held to be constitutional, is not an allegation of fact, and is not admitted by demurrer.

      Bonds, etc., issued when law decided constitutional, remain valid after law declared unconstitutional—
    (3) . Bonds issued by county commissioners for the payment of the cost of an improvement made under a statute which has been held constitutional by the supreme court, must bs paid when in the hands of innocent purchasers who had relied upon that decision of the supreme court; and when such statute has been afterward declared unconstitutional by the same court, the county at large, and not, special property owners, should bear the burdens imposed on the county by acts of its officers done under acts of the legislature, if afterwards declared invalid.

      Lease — Lessee to pay assessments — Lessor may contest validity of assessments—
    (4) . Where .the lease makes the lessee liable to pay all taxes and assessments on the property, yet the lessor is not thereby estopped from questioning or testing the validity of an assessment on the land.

      Estoppel by silence — Doctrine—
    (5) . The holding of the supreme court in Tone v. Columbus, 36 Ohio St., 281, that a party is estopped from contesting the validity of an assessment by mere silence while the improvement was being constructed, goes beyond the great weight of authority, and is not supported by the later holding of the supreme court in Columbus v. Agler, 44 Ohio St., 485, and the court follows the latter holding.
    Error to the Court of Common Pleas of Hamilton county.
   Adams, J.

There are three cases, Lewis, auditor, v. Symmes’ heirs, and the same plaintiff in error against Taylor, and the same plaintiff in error against the Cincinnati, Portsmouth & Virginia Railroad Company, that were argued and submitted to the court together because they involved almost identical questions, and they will be disposed of together.

These three cases are here on error, and defendants in error, plaintiffs below, sought by their respective petitions in the court of common pleas to enjoin the collection of certain assessments put on their respective properties by the commissioners of Hamilton county in the construction of what is known in these cases as Columbian avenue, under the act of the general assembly of Ohio of April 12, 1893, found in 90 Ohio Local Laws, 217

That this act of the general assembly was and is unconstitutional is substantially admitted by counsel for plaintiff in error. We think that it is unconstitutional is established by the decision of the supreme court in the case of Hixson v. Burson, 54 Ohio St., 470, overruling the second paragraph of the syllabus in the Hibbs case in 35 Ohio St., 458. Also by the decision of the supreme court in State v. Commissioners, 54 Ohio St., 333.

The answer of the auditor in the Symmes case admits many, if not all, of the allegations .of the petition, and among other things admits that one of the plaintiffs, Anna H. Symmes, demanded $500 as compensation for the land of hers actually taken for the purposes of the improvement, and that she received therefor from the commissioners $200. That Kate Hart, the other plaintiff, demanded $2,100 for her land actually taken, and received $830.

It is also admitted as set out in the petition that these lands were under lease to one Tilden B. French for a term of five years from February 28, 1893, to February 28, 1898, and that in his lease French agreed to pay the taxes and assessments that might be made against the property; and that these assessments were made on June 9, 1897, during the lifetime of that lease.

It is alleged in all these answers that these respective plaintiffs had knowledge that this improvement was to be made, and knowledge that the assessment was to be made upon the property in accordance with the act, They allege that the improvement is a benefit to the property within Hamilton county, and a special benefit to the property of plaintiffs.

There is a further allegation that if the act was unconstitutional, that the plaintiffs below knew of its unconstitutionality.

In the court below demurrers were sustained to these answers, and judgments rendered accordingly.

The Taylor case differs from the other two cases in that none of the Taylor lands touch the avenue; none of them abut or border on the improvement. And in the Taylor case a written protest was filed with the county commissioners objecting to the making of the improvement and to assessing any part of the costs on the Taylor property.

In the railroad case it is alleged that a part of the lands the railroad company bought from a man by the name of Morton, and in their deed they agreed to pay assessments.

On the facts contained in these answers counsel for plaintiffs in error claim that the defendants in error are estopped.

We may say here before we go to the discussion of the merits of the questions argued by counsel for plaintiffs in error on the question of estoppel, that the claim is made broadly here that up until the decision of the supreme court in Hixson v. Burson, under the prior decision of the supreme court in the Hibbs case, 85 Ohio St., 458, that this act and similar acts yyere constitutional under the decision of the supreme court of the state. Now, how it is possible for a party, whether a lawyer or not, to know that an act is unconstitutional when the supreme court has held that a similar act, one exactly like it, is constitutional, is a matter that this court is not able to determine. Probably it is one of those questions which Judge Shauck says can only be answered by a court of last resort. 56 Ohio St., 396.

We think that the allegation of knowledge of the unconstitutionality of an act which the supreme court has held to be constitutional is not an allegation of fact, and is not admitted by demurrer. And we think that that matter is important when we come to the consideration of the question of estoppel under the decisions of the supreme court of Ohio.

In addition to the claims of estoppel under our Ohio decisions, counsel for plaintiff in error claims that as the Columbian avenue act was constitutional under the decision of the supreme court in Hibbs v. Commissioners of Franklin county, 35 Ohio St., 458, which was decided in 1880, that the county commissioners and other parties had a right to rely on the constitutionality of this statute and similar statutes, and that any act or acts done prior to the different decision by the supreme court should not be affected or rendered void by a subsequent decision of the supreme court reversing its former holding, and holding that the same or similar statutes were unconstitutional.

Counsel has cited us to a number of authorities. The chief ones are cases decided by the supreme court of the United States, and I read from Green County v. Conness, 109 U. S., 104:

“The court adheres to its former rulings in regard to the liability of municipal corporations to innocent holders of the bonds of such corporations issued in aid of railroads. Douglass v. Pike County, 101 U. S., 677.
“The rights of such holders are to be determined by the law as it was judicially construed to be when the bonds were put on the market as commercial paper.”

And again from the 116 U. S., 356:

“When, at the time of creating and issuing a negotiable evidence of indebtedness of a municipal corporation in a state, the highest court of a state has construed the law under which it purports iq be issued, rights accruing under that construction will not be affected merely by subsequent decisions of the same court., varying or departing from it.
“When negotiable evidences of indebtedness of a municipal corporation in a state axe created and issued under laws which have not, at the time of issue, been construed by the highest court of the state, its subsequent construction of them is not conclusive on federal courts, although they will lean to an agreement of views with the state court.”

Counsel has also cited us to cases in 1 Wall., 175; 16 Wall., 178; 33 Pa, St., 455; 51 Ala., 151, and other cases.

It must be, and was, conceded in the argument, that none of these cases are exactly like the case at bar. Those' decided by the supreme court of the United States related to an issue of bonds or other evidence of indebtedness, and relate to contract rights. There are no contract rights between these parties. It might be said upon the strength of these decisions that the bonds issued by the commissioners of Hamilton county for the payment of the cost of this improvement would have to be paid when those bonds were in the hands of innocent purchasers who had relied upon the prior decision of the supreme court; but the county at large, and not special property owners, should bear the burdens imposed on the county by acts of its officers done under invalid acts of the legislature.

And again, we know of no decision of our supreme court that has ever held constitutional a law authorizing an assessment without regard to benefits.

An examination of section 2 of the act under consideration, at the top of page 218, 90 Ohio Local Laws, shows that the legislature required the commissioners of Hamilton county to assess one-half of the cost of this improvement upon certain lands found in certain sections in proportion to the acreage thereof, and without regard to value, and without regard to benefits.

We think that this alone would render this act unconstitutional, and without regard to the former decision in 35 Ohio St.

In the case of the Village of Norwood v. Baker, de cided by the supreme court of the United States, the controversy arose in the village of Norwood in this county. The second paragraph of the syllabus says:

“Where a special assessment is in itself illegal, because it rests upon a basis that excludes any consideration of benefits to the property taxed, proof that it is in excess of benefits is not required, in a suit to enjoin its enforcement, as the only appropriate decree in such case is one enjoining the whole assessment leaving the local authorities to make a new one according to law.”

As to the question of estoppel: In the Symmes case we think that the lease to French makes no difference so far as this question is concerned; that that was a contract between the plaintiff below and French; that French agreed to pay assessments, and if these parties are ultimately compelled to pay these assessments, they would have a right to proceed against French to recover for the amount that they had paid. It in no way estops them from questioning or testing the validity of the assessment. And we think the same thing applies to the deed of the railroad company. The railroad company having agreed to pay assessments, the court in construing that contract would hold it to mean “legal and valid assessments”, and they would have the right to question and have determined by a competent court the validity of the assessment.

Counsel rely in the question of estoppel largely upon the case of Tone v. Columbus, 39 Ohio St., 281. The fifth paragraph of the syllabus of this case is as follows:

“Active participation in causing the improvement to be made will estop the party engaged therein from denying the validity of the assessment.”

It is not claimed in any of these cases that there was any active participation on the part of any of these parties in causing the improvement to be made, so that the estoppel does not arise, and is not claimed to have arisen under that portion of the syllabus. The court say further:

“But to create an estoppel from silence merely, it must be shown that the owner had knowledge, 1., that the improvement was being made, 2., that it was intended to assess the cost thereof, or some part of it, upon his property; 3., that the infirmity or defect in the proceedings existed which he is to be estopped from asserting; and 4., it must appear that some special benefit accrued to his property from such improvement which it is inequitable under the circumstances, he should enjoy without compensation."

An examination of that case will show that the assessments complained of in that case were made under an act of the legislature that had been held in a prior case — 31 Ohio St., I think it was — 4o be unconstitutional. It is shown that in the case of Tone v. Columbus, Tone was estopped to question the constitutionality of the act in question because he had signed the petition for the improvement. The defects that Tone was relying on to enjoin the asssssments were certain defects in the proceedings of council after they got beyond the question of the constitutionality of the act. It appears in that case that the court of common pleas had sustained demurrers to the Tone petition and the cases submitted with ii, and the district court reserved the cases to the supreme court, and the supreme court, although it lays down this rule in regard to estoppel by mere silence, held that the petition stated a cause of action, and that the demurrers to the petition should have been overruled.

Judge Okey, while he concurs in the result of the decision, differs from his associates on the bench as to this rule of estoppel. So far as I know, and so far as this court is advised, this paragraph of the syllabus goes further on the question of estoppel than any other case of which we have knowledge, goes beyond the great weight of authority. The great weight of authority is that a man is not estopped unless by his acts or conduct he has induced the other party to change his condition to his disadvantage; and here is the doctrine laid down of mere silence.

Inthe Agler case in 44 Ohio St., 485, the opinion on page 486, we think, lays down the true rule, and as it is a later decision than that in 39 Ohio St., we follow it. And it is to be noted that none of the judges who decided the case in 39 Ohio St. were on the bench when this case in 44 Ohio St. was decided.

“The finding of the court in this case is that Mary J. Agler was not a petitioner, and that she remained silent until the improvement was made and the bonds of the city for the payment of the same had been negotiated; yet that she had knowledge that the improvement was being made at the time thereof. It is also found that her property was benefited by the improvement to the extent of four dollars per front foot, and no more.
“We think the judgment in this case should be affirmed. The act under which the proceedings for the improvement were had was invalid, as held in State ex rel. v. Mitchell, 31 Ohio St., 592, and she was in no way a promoter of the same. There is nothing in her case to distinguish it from the decision in Wright, Treas., v. Thomas, 26 Ohio St., 346. Neither the city, in causing the work to be done, nor the contractor in doing it, were trespassers as to her, although the proceedings were invalid. The title to the street was in tLe city,and not in her. Its improvement was no injury to her, and she could not prevent it by any proceeding she could adopt, as she might have done had it been an improvement upon her own land. She was not called upon to do anything until steps were taken to make the assessment upon her property. This distinguishes the case from Kellogg v. Ely, 15 Ohio St., 64, and similar cases.”

The rule laid down by the supreme court there applies exactly, we think, to the situation of the Taylors; nor do we think that any different rule should be applied in the Symmes case because of the fact that the plaintiff below in that case had demanded and received compensation for the land actually taken. And the same applies to the railroad company.

We think that they in no way induced the construction of this improvement; they in no way promoted it by the mere fact that they allowed or suffered the improvement to be made across their railroad without demanding compensation for the use of their property.

B. de V. Carroll, Symmes & Fox, Hollister & Hollister, Oliver B. Jones, F. H. Kinney, for Plaintiffs.

Wm. Rendings, F. F. Dinsmore, for Defendants.

For these reasons we think the judgment of the court below was right in all of these cases, and the judgments are affirmed.


author: Parker, J.

text:
    (Sixth Circuit — Lucas Co., O., Circuit Court —
    January Term, 1899.)
    Before King, Haynes and Parker, JJ.
    HARVEY P. PLATT v. HARVEY SCRIBNER.

      Contract partly written partly oral — Effect of statute of limitations—
    (1) . By sec. 4980, tí. S., an action on a promise in writing may be brought within fifteen years from the time a cause of action accrues thereon, and this is true though such promise is but a ■ part of the contract, and other material terms thereof£rest in parol.

      Same — Proof of oral terms — Admissibility—
    (2) . Where it evidently appears from the written instrument that only a part of the terms are expressed therein, parol evidence is admissible to show other terms not inconsistent with those expressed ; and wnere no consideration for the contract appears in the writing, the fact that there was a consideration may be proven orally.

      Pleading — Denial sufficient — When—
    (3) . Where the correctness of averments in the petition is disputed, the adverse party claiming a different state of facts not amounting to confession or avoidance or new matter, but which, if established, would defeat the action, it is not necessary for such adverse party to set out the facts as he claims them to be, but a denial is sufficient, and under such denial the party’s testimony giving his version of the affair would be admissible.

      Consideration — Burden of proof—
    (4) . In an action on a contract the burden of_'proving a'consideration is on the plaintiff, and where the consideration pleaded is denied, and the answer unnecessarily details a state .[of facts Which, if established, would disclose a want of consideration, such burden is not thereby shifted on the defendant.

      Divisible contract — Consideration applicable to one part only—
    (6). Where a contract is plainly divisible, it may be shown that-the consideration only extended to one part of the contract,, while the other part was not sustained by aN°nsideration.
    Error to the Court ef Common Pleas of Lucas county.
   Parker, J.

This proceeding is brought by Harvey P. Platt, plaintiff below, to reverse a judgment in favor of Harvey Scribner, defendant below.

The plaintiff brought his action against the defendant in error, Harvey Scribner, upon a certain written instrument reading as follows:.

“Toledo, Ohio, April 12th, 1887.
“I have an understanding with Harvey Scribner"to this effect: He has brought suit v. certain parties in U. S. court to set aside foreclosure of mortgage v. T. & I. R. R. and to collect certain claims v. said R. R,,and he is to have •| of all collected. I am to have 1/5 of the amount Scribner is to receive, i. e., he to have 80 per cent, and I 20 per cent, of the -J he is to receive. The claim this day placed in Scribner’s hands for collection owned by V. W. Granger $680.37. Scribner to settle with Granger and retain i of all received of which I am to have -J,or j of the whole.
“H. P. P.
‘ ‘ Harvey Scribner, ’ ’

Since it did not appear upon the face of this instrument' that there was any consideration for the promise of Harvey Scribner to share his compensation growing out of the collection of these claims with Mr. Platt, plaintiff avers in his" petition certain facts showing the relations and surrounding circumstances of the parties, so as to place the court in po«sition to construe and understand this instrument and ap-' ply it to the subject matter, and also makes certain averments showing that there was, according to plaintiff’s claim, a consideration for the promise. He says in that connection that.

“Prior to the 12th of April, 1887, certain, the Toledo & Indianapolis Railroad Company, a corporation theretofore organized under the laws of the state of Ohio and owning a railroad extending from the city of Toledo, county of Lucas,through the county of Wood, in said state, had become insolvent, leaving a large amount of claims for labor and material unpaid. A number of the claimants against said company had consulted this plaintiff with reference to the collection of their claims, and a number of other claimants had consulted the defendant with reference to the collection of their claims^- and it was thought desirable by this plaintiff and the defendant that the claims should be united and prosecuted at onetime, and this plaintiff agreed with the defendant that he would turn over to the defendant all the claims which he held or represented against said the Toledo & Indianapolis Railroad Company and would put the defendant in possession of all the facts and circumstances and information which he had with reference to said claims, and that he would thereafter turn over to the defendant all claims which he might receive against said company and would render any assistance which might be desired by defendant in and about the prosecution of ¡said claims.”

And he avers that it was in consideration of these things ■done and to be done by the plaintiff that the defendant ■made this written promise, and that he has performed in all respects as he promised, and that the defendant 'has received such an amount by the settlement or collection ■of these claims as that the plaintiff became entitled to receive $1248.00, and for that amount he asks judgment.

For his amended answer to this petition the defendant ■says, among other things, that he admits the signing of this instrument;'admits the facts and circumstances surrounding the transaction substantially as alleged by the plaintiff; that he did make collections upon which the plaintiff would be entitled to receive this amount, provided he had performed as he had promised. But he denies that plaintiff has performed; denies that there was any consideration for the promise on defendant’s part, and then states this, which he denominates his second defense:

“This defendant for his second defense further says, that on April 12th, 1887, at the time of the signing of the written paper, a copy of which is set out in plaintiff’s petition, the said plaintiff represented to this defendant that he could and would settle the claims in this defendant’s hands for collection, with A. W. Scott, Esq., the attorney representing the persons against whom this defendant was trying to collect said claims, and the said plaintiff then and there orally agreed that in case this defendant would sign the paper set forth in plaintiff’s petition, said plaintiff would settle the said claims with the said Scott within a short time from said date, which promise on the part of the said Harvey P. Platt was and is the only consideration for the signing of the written paper set forth in plaintiff's petition. This defendant further says that the said plaintiff did not settle said claims, and did not do or perform his said oral contract, but on the other hand, the said plaintiff, within a few days after the signing of said paper and making of said contract, disqualified himself from carrying on any negotiation for the settlement of said claims, by engaging in an angry controversy with the said Scott, and never thereafter attempted to settle said claims, but wholly neglected the same, and all that waB done towards the prosecution and settlement of said claims, was done and performed by this defendant.’’

To that a reply was filed, containing a denial of this new matter. The parties went to trial to a jury. Mr. Platt testified on his own behalf,detailing the circumstances under which this instrument was signed, and giving his version of his promises which he said constituted a consideration for the written promise of Mr. Scribner, in that connection detailing certain conversation between himself and Mr. Scribner with reference to this matter leading up to the signing of the instrument.

Mr. Scribner went upon the witness stand in his own behalf and undertook to give his version of these conversations, as well as his version of the promises made or undertakings entered into orally by the plaintiff, constituting what plaintiff claimed was the consideration for defendant’s written promise; and in the course of his examination as a witness he is enquired of and testifies as follows:

‘‘Q. Coming down to the making of that' contract and the negotiation between you and Mr. Platt, tell what was said and done between you in regard to the making of that contract?”

That is objected to, and there was some discussion between counsel and the court. The witness is finally permitted to answer, as follows:

‘‘A. In the first place, on the date that this contract was drawn, Mr. Platt told me he had got some claims against the T, & I., and knew a party that had got a number of them, and wanted to know if he got them, what I would collect them for,and how much I would give him,and I told him we might ask, say one-half of what I collected, and if he brought me some claims I would divide my half with-him.”

And the witness says that refers to the half of the claims that Mr. Platt proposed to bring to him,and referred to the Granger claims; that that was agreed upon. Then he says:

‘‘We commenced to discuss the question of making some kind of an arrangement by which he was to have a share of the whole thing.”
‘‘Q. State what was said? A. I said to Mr. Platt that so far as the American Finance Company and Col. Lemmert and those people were concerned, they were my friends, I had been fighting for them, and they for me, and he could not help me with them any, because I was solid; with them; but the man I was after was Burke; if he could influence Mr. Burke,or could influence Mr. Burke’s counsel and secure a settlement,it would be some benefit to me, and he says: ‘My relations with Scott are very close. We are good friends,’ and he says ‘I think I can persuade Mr. Scott to settle these claims.’ Well, I didn’t realize then, and I said to Mr. Platt, ‘If you will do that I will be very much obliged to you.’ And he was running into our office quite a lot,and he says ‘If I should do that, I should have a share of what I make.’ And I says ‘How much do you think you should have?’ He says ‘I think I should have one-half.’ I says ‘I will tell you what I will do with you; if you will influence Mr. Scott and bring around a settlement of these claims, I will give you twenty per cent, of what we realize on that settlement.’ ‘Well’,he says,‘I will agree to do it’, ‘and’ he says, ‘I guess we had better put it in writing,’ and he went out and back to his office, and I was sitting at my desk covered with all these papers, busy at work, and he brought in that piece of paper and showed it to me,and I read it over and says ‘I guess that is right.’ As I handed it back I said,‘I want it distinctly understood, Mr. Platt, this agreement is made’—

Thereupon an’objection was made, and there was more discussion, but further along he takes up the story as follows:

‘‘I signed the paper, and as I held it in my hand I says ‘Mr. Platt, I want it understood that unless you bring about a settlement of these claims, that you are not to have anything.’ That was the substance of it, if he succeeded in settling the claims — -unless he succeeded in settling the claims, he was not to have anything. I handed him the paper,and if Mr. Platt had not answered that and said ‘All right’, I would not have given him the paper,”

That part of the answer in which he states that he would not have given Platt the paper if he had not answered ‘‘All right”, was stricken out, and properly so. And defendant farther testifies on page 52:

‘‘He said he would agree to that, and went out of our office and into his office. I proceeded with my work for a little while,and when he came in with that paper and asked me if it was all right(referring to Exhibit ‘ ‘ 2”). I said ‘Yes’, and he took and signed it and said: ‘I want it understood that you are not to have anything unless you make the collection and settlement,’ then I handed him the paper’.”

This was objected to by counsel for the plaintiff, on the ground that it was an effort by oral evidence to vary or add to the conditions of a written contract. Exceptions were duly taken to the ruling of the court permitting this evidence to go to the jury; and the court, in the course of its charge, gave the jury certain instructions, which were also excepted to. I may say that reading extracts from the court’s charge does not give one a fair view of what the court did instruct the jury upon these various questions presented, but it is too long to read here,and I will confine myself to the reading of those parts which were excepted to:

‘‘Upon this subject I instruct you as a matter of law governing you and controlling you as follows: If you find from the evidence that the delivery of the Granger claims had nothing whatever to do with the written promise, and formed no part of the consideration for the same whatever, but find from the evidence that the contract respecting the Granger claim had been fully closed and consummated,and that the consideration for the execution of the written memorandum known as Exhibit No. 2 was claimed by Scribner, that Platt could and would settle the claim with A. W. Scott, the attorney representing the persons from whom Scribner was trying to collect the claims, or would use his efforts in that direction, and you further find that said Harvey P. Platt orally agreed that in case that the said defendant would sign this paper marked Exibit No. 2, he, the said plaintiff, would use his influence and his efforts in causing a settlement, and you further find that there was no consideration for the execution of Exhibit No. 2, and you further find from the evidence that said Harvey P. Platt did nothing whatever towards effecting a settlement or endeavoring to effect a settlement through A, W. Scott, or Burke, or anybody, and did not make any effort in that direction, but refused or neglected to do anything, the plaintiff would not be entitled to recover the 20 per cent, of Scribner’s fees upon the claims other than the Granger claims. In that event Platt would only recover the $46,40 and interest. * * * The substance of it is, that if you find from th3 evidence that the oral consideration as claimed by Scribner was the only consideration for this written promise on the part of Platt, and that the oral promise wss that Platt was to use his influence for effecting a settlement through Scott, and if he did nothing whatever in the performance of his oral promise, it would be an absolute and entire failure of consideration, and equivalent in the eyes of the law to no consideration.”

The court further charged the jury that if they should find that there was any consideration whatever for the promise, the plaintiff would be entitled to recover; that, in order to defeat the claim,there must be a total failure of consideration.

Now, the first question presented in respect to this matter is, whether the claim was barred by the statute of limitations? The action was not prosecuted until more than six years after the cause of action is alleged to have arisen.

It is contended on behalf of defendant in error that the six years rule applies, and we are cited to a great deal of authority from other states to the effect that where a contract is only partly in writing, as this one evidently is, (there being material terms or promises upon the one side that are not reduced to writing, so that it is as to certain terms a unilateral contract,) the six years limitation, or whatever the limitation may be governing unwritten oral contracts, governs. In our state, it would be six years, upon oral terms. But our statute is somewhat different from the statutes of those states in which these holdings have been made. They have always been made, so far as we have been able to find, in states where the statute provides for limitations upon actions upon contracts, either oral or in writing.

Our statute, section 4980, reads as follows:

“Within fifteen years: An action upon a specialty, or an agreement, contract, or promise in writing,”

Now, this is clearly a promise in writing, and we think that the fifteen years limitation applies,and that the claim is not barred. This seems to be settled by the following cases: 18 Ohio State, 391; 20 Ohio St., 190; (both of which were actions upon subscriptions to capital stock), and in 15 Ohio, 130(an action upon a promissory note),3 Bulletin,893 (in the Hamilton county District Court, an action .upon a bill of lading).

Where it evidently appears from the written instrument that only a part of the terms are expressed, parol evidence is admissible to show other terms not inconsistent with those expressed. In the case at bar all that is to be done by either party is not expressed. What Mr, Scribner is to do is not definitely stated; bui it is fairly implied perhaps by his writing that he is to perform some service in and about making these collections. The only thing that is provided for distinctly in this written agreement is the basis of the division of the fees or compensation. In this case the written part of the contract expresses no consideration, Upon its face it is a nudum pactum. It became necessary for the plaintiff to allege and prove a consideration, The consideration alleged consisted of the turning over to Scribner of the Granger claims, and the agreement on the part of the plaintiff that he would perform certain services; that is,that he would do something to aid Scribner in and about enforcing the collection or obtaining a settlement of all the claims, including the Granger claims. Plaintiff says that he has duly performed the contract on his part by turning over the Granger claims and by aiding as promised.

These allegations as to consideration and as to performance, are denied by Scribner, And then he proceeds to aver that the consideration consisted of promises on the part of Platt to do something else, something different — that is, to bring about a settlement through the exercise of hia influence upon certain persons in control of the adverse interests; and he says plaintiff has not performed, in whole ■or in part.

Now, we do not regard this so-called second defense set up by Scribner as anything more in effect than a denial of the consideration alleged in the petition. It was not at all necessary to aver it as it is averred. All competent evidence on the subject could have been introduced under the denial. It is not matter in confession and avoidance,so far as the question of consideration is'concerned; it is in effect to say — and that is argumentative — 'that “since the promise to plaintiff forming the consideration for my promise is as I state it, it cannot be as he states it.” We do not re.gard it as a distinct allegation of a condition precedent, at least not as that alone; but, even if it has that aspect or character, it nevertheless forms the consideration for the promise of Scribner, and since it becomes necessary for the plaintiff to prove a consideration, and in doing so he is obliged to produce oral evidence, i. e. to testify himself of certain conversations between himself and Scribner which he says embodied the agreement on his part constituting ■such consideration, and Scribner is permitted by the law to give his version of the same conversations, we cannot see how the court could do otherwise than hear and consider the whole matter and therefrom determine the true agreement, and whether it had been performed. Scribner then is not to be limited or confined as a witness to a denial of the statements made by Platt as to these conversations. Though disproof of the consideration alleged by the plaintiff, or of performance of the promises as alleged by plaintiff would be sufficient, Scribner is not to be thus limited in his testimony. With this testimony properly admitted, what disposition is to be made of it? It must be given due consideration in so far as it tends to disprove plaintiff’s case.

The form of pleading adopted by Scribner, i. e. setting-up the alleged second defense as if it were new matter necessary to be thus pleaded, has served, we think, to obscure the real question, to give it a false aspect, and to confuse court and counsel.

In charging the jury, the court instructs them that as to-this matter the burden of proof is upon the defendant; whereas, as we view the matter, the whole of the evidence bore upon the question as to whether the written promise of defendant was supported by a consideration, and if the consideration consisted of something to be done — something to be accomplished by the plaintiff to entitle him to recover, whether he had done or accomplished the thing substantially as promised. And we think that on this issue the burden of proof was on the plaintiff from the beginning to-the end of the inquiry. See Leisy & Co. v.Zuellig, 7 Cir. Ct,, 423.

The evidence received did not tend to alter the express-terms of the promise, or to make it otherwise than a promise to pay 20% of Scribner’s share of the amount collected on the claims when collected.

In the case of Holzworth & Sebastian v. Koch et al., 26 Ohio St., 33, cited by counsel for plaintiff, a defense was made to a promissory note by the sureties that the payees promised to furnish goods to the principal in certain amounts and at certain times, and extend certain credit to the principal, and that this formed the sole consideration of the note, and that plaintiffs — payees—had not furnished the goods or credit agreed upon. The trial court instructed the jury inter alia that if plaintiff’s promise, as set up in the answer, was the sole consideration of the note, and plaintiffs had wholly failed to comply with or execute the promise, then the sureties were entitled to a verdict. Welch, J., speaking for the court, says, “We see no error in these instructions of the court.” etc. The instructions in the case at bar were, we think, in accordance with this decision. We see in the proof introduced by defendant here, and the effect given to it under the charge of the court, nothing resembling the conditions and modifications attempted to be engrafted upon the written contract in the case cited.

We have disdussed this as if the alleged consideration for the turning over of the Granger claims had been eliminated from the problem, This must have been done by the jury, else, under the charge of the court, they could not have arrived at the verdict found.

That this might be done upon sufficient oral proof without violating any law of evidence, we have no doubt. This question, also, has to do with the consideration. The contract is plainly divisible in the sense that there are distinct promises with respect to distinct claims or classes of claims. The agreement is to divide the fee on the Granger claims o.n the basis of one half to Scribner 'and one-half to Platt. The fee from the other claims is to be divided four-fifths to Scribner and one-fifth to Platt. It was competent to show that the agreement as to the Granger claims was complete before negotiations were entered upon as to the other claims, and that the turning over of the former formed no part of the consideration for the promise to divide fees received on the latter. Oral proof of this character did not tend to vary any of the terms of the writing. The jury was distinctly told, and properly, that if the turning over of the Granger claims formed any inducement to or consideration for the promise to divide fees or commission on the other claims, then even though promises made by Platt had not been performed, there was not a total failure of consideration, and plaintiff had a right to recover, With these instructions before them the jury found for the defendant. We think the evidence justified this finding. We find no error in the admission of evidence or the charge of the court, or otherwise in the record, requiring a reversal of this judgment, and it is therefore affirmed.

Smith & Baker, for Plaintiff in Error.

C. W. Everett, for Defendant in Error,


author: Haynes, J.

text:
    (Sixth Circuit — Erie Co., O., Circuit Court
    Nov. Term, 1897.)
    Before Haynes, Hale and Price, JJ. [Judge Hale of the Eighth Circuit taking the place of Judge King, and Judge Price of the Third Circuit taking (he place of Judge Parker. ]
    THE NORWICH UNION FIRE INSURANCE SOCIETY v. FRANK STANG.

      Fire Insurance — Loss through negligenec of Railroad — Right of Ins. Go. to subrogation on payment of loss—
    (1). S., whose property to the value of 8125,000 had been destroyed by a fire caused by the negligence of a railroad company, and who was paid by the insurance companies the insurance which he had on said property amounting to about half the actual loss, entered into a written contract with these insurance companies by which he agreed to bring suit against the railroad company for damages for the destruction of his property', for the benefit of himself and such insurance companies, these companies to assist in and bear their part of the expense and cost of the litigation, and to be entitled to a certain proportion of the amount if any to be recovered. After suit was brought as agreed upon by S., naming himself and the insurance companies as plaintiffs,and after counsel provided by the insurance ■ companies had taken part in the preparation and prosecution of the case and it stood ready for trial, S,, without the consent or knowledge of the insurance companies, made an individual settlement with the railroad company and dismissed the case without paying or offering to pay to the insurance companies any proportion of the amount so by himself received. Held:
    (1) . Where a loss, covered by insurance, is occasioned by a wrong-doer, the underwriter, after reimbursing the owner in specie, or making compensation in money, is, in a proper case, entitled to be subrogated, quoad hoc, to the right of the assured against the wrong-doer.

      Same — Where insurance paid covers entire loss, Ins. Go. may sue in its own name—
    (2) . At common law such right must be asserted in the name of the assured. In a court of equity or of admiralty, or under the modern codes of practice, it may be asserted by the insurance company in its own name when it has paid the insured the full value of the property destroyed.

      Where insurance covers partial loss, owner and Ins. Co. must join— (3) . Where, however the value of property insured, and destroyed
    through the negligence of a third person, exceeds the amount of insurance paid, the insurer by making such payment, only acquires a joint interest with the owner to the extent of that payment in the cause of action against the wrong-doer to recover the whole loss; and in bringing such action, both the insurer and the owner must be joined as a co-plaintiffs.

      Agreement of owner with Ins. Co. to jointly prosecute suit — Consideration — Tmst relation—
    (4) . The agreement between S. and the insurance companies was based on an adequate consideration, and it was a valid and. binding agreement. Under this agreement, S. in this suit stood in the relation of a trustee to the insurance companies, and is chargeable with the duties as a trustee.

      Remedy of Insurance Co. on breach of agreement by owner — Direct suit against owner — •
    (5) . The insurance companies might have proceeded under sec. 5354, R. S., to have the entry of dismissal of the suit set aside on the ground of irregularity and fraud. But the remedy given by see. 5354, R. S., is cumulative, and the insurance company had a right also to proceed in an action against S. for having unlawfully dismissed the suit and given a judgment in favor of the railroad company to the injury of plaintiff, in violation of his agreement and of his obligations as trustee.
    Error to the Court of Common Pleas of Erie county.
   Haynes, J.

The petition in error is filed for the purpose of reversing the judgment of the court of common pleas,and the grounds set forth are that the court of common pleas erred in sustaining the demurrer of the defendant in error tc the petition of the plaintiff in error, and that said court erred in giving judgment for said defendant in error, when by the law cf the state it ought tc have been given for said plaintiff in error.

The case is one of some importance,and one that does not frequently arise in our courts. Perhaps a brief statement of the case will be in order.

The oase is entitled “The Norwich Union Fire Insurance Society of England, plaintiff v. Frank Stang, defendant.” The plaintiff in its petition sets forth, in substance, that it had insured with other companies the property of Frank Stang in the oity of Sandusky and county of Erie, the property consisting of certain buildings, a brewery and its appurtenances, and that the total amount of the insurance upon the property by itself and other companies [amounted to $51,100. It sets up that the property was wholly destroyed by fire, and that the fire was caused by the negligence of the Big Four Railroad Company, in that it had a locomotive which was imperfect and not properly furnished with a spark arrester, and that in using that locomotive the sparks from the same caused the burning of the buildings owned by John MoKelvey and others, being certain, ice houses, and that the fire from the ice houses communicated to the brewery which was near by the premises of MoKelvey, and that the property was destroyed. It further avers that the defendant Stang commenced an action on September 2, 1891, in the court of common pleas of Erie county against the railway company, claiming that his loss amounted to about $125,000 and alleging that his property had been destroyed by the negligence of the railway company, its agents and servants, and praying for judgment for that amount. Subsequently he amended his petition, but before that amendment was made an agreement was entered into between the plaintiff and the defendant Stang, in reference to the prosecution of the suit that had already been commenced, and thereupon the plaintiff filed his amended petition in which he set forth that he proseouted the case on behalf of himself and the insurance companies, naming them, and stating the amounts that had been paid by each insurance company, the total being over $40,352, this being the amount of the various companies that had entered into the arrangement. The contraot that was entered into by Stang and the plaintiff company was as follows:

“This memorandum of agreement,made and subscribed by the undersigned the day and year hereinafter written; Witnesseth: That whereas, The Norwich Union Fire Insurance Society of England did insure Frank Stang, of Sandusky, Ohio, under its Policy No. —■—■ issued at its Sandusky Agency upon the property and terms set forth in said policy, for one year, commencing January 8, 1891, and continuing until January 8, 1892.. And, Whereas, on the 15th day of July, 1891, said property so insured was damaged or destroyed by a fire,and the damage and loss upon said property, together with other property at the same time damaged or destroyed, belonging to the said Stang, amounted to the sum of $125,000.00, and the fire so damaging said property having been caused by the negligence of the C„ C. C. &. St. L. Railway Company, or some other party or company ;and, Whereas, the said Frank Stang did, on the 2nd day of September, 1891, commence an aotion against the railway company above named, in the court of common pleas of Erie county, Ohio, asking to recover from it the full value of his loss, namely; $125,000.00. Now, therefore, I, Frank Stang, in consideration cf the sum of twenty-two hundred and twenty-two and 22-100 dollars, to me in hand paid by said Norwich Union Fire Insurance Society, in full settlement of my claim against said company by reason of said loss, damage and policy of insurance, do hereby agree to assign, set over and tranfsr to the said Norwich Union Fire Insurance Society all my right, claim or interest to the extent cf twenty-two hundred and twenty-two and 22-100 dol■ooverpaid me as aforesaid, in the judgment which I may recover, or secure in said action against said railway company •or any other party or company who may be liable cr hereafter .adjudged liable for the burning of said property, and I hereby authorize and empower the said Norwich Union Fire Insurance Society to collect and reoeipt for the same. Provided, that if the judgment so secured, is less than $51,100, that being the total amount so paid me on account of said .insurance by all companies interested, then this assigment shall not inure to the benefit of said Norwich Union Fire Insurance Society to any greater extent than WxW cf the -total amount of the judgment so secured. It being expressly stipulated that said Norwich Union Fire Insurance Society shall be liable for and shall pay such proportion of the expense and costs of prosecuting said action to a final judgment in any court of this state or of the United States, and the collection of the judgment had in my favor, as the amount aforesaid paid me by the said Norwich Union Fire Insurance Company bears to the amount collected from said railway company, or other party or company, for the loss and damage to said property: Provided, that if the amount so reocvered shall not exceed the sum of $51,100, that said insurance company shall pay such proportion of all the costs and expenses of said litigation as the sum so paid by it bears to said sum of $51,100; and, provided further, that if said final judgment be against said Stang, and he recover nothing from said railway company, that said Norwich Union Fire Insurance Society shall then pay such proportion of the costs and expenses of said litigation as the amount so as aforesaid paid to said Stang by said Norwich Union Fire Insurance Company bears to the sum of $100,000.00.
"Provided further, that said Norwich Union Fire Insurance Society, for itself and for such other insurance companies as may elect to join it, shall have the right and privilege of employing an attorney to assist said Stang and his attorneys in prosecuting said action, the expenses so incurred to be deemed a part of the general expense for the apportionment of which provision is above made.
“In witness whereof, the said parties hereto have affixed their hands and seals this nineteenth day of September, 1891.”

It then avers that in April, 1893, the said Stang filed in said court of common pleas in said action against said railway company an amendment in which he alleges:

“That he brings this action for himself and for the benefit or the persons and corporations hereinafter named. That at the time of the happening of the grievances complained of in this action, seme of the property described in said amended petition was insured for a part cf its aotual value by certain insurance companies hereinafter named, and the losses sustained were by the assurers and this plaintiff adjusted and settled, and this plaintiff was paid by said assurers the sum of fifty one thousand one hundred dollars as the total loss and the amount of liability of said assurers under and upon their several contracts of insurance, which amount was about one half of the actual value of the property destroyed. That after such payment of insurance, the following named insurance companies having paid the several amounts herein set forth to-wit:
The National Fire............................. $2222 23
Norwich Union Fire Insurance Society, London
England................................. 2222 22
Lancashire Insurance Company England....... 2222 22
German Insurance Company, Freeport, 111...... 2222 22
Liverpool London and Globe Insurance Company 878 14
American Fire Insurance Company............ 2222 22
Connecticut Fire Insurance Company.......... 2222 22
Liberty Fire Insurance Company.............. 2222 22
Cooper of Dayton............................ 888 82
Northern Assurance of London................ 1333 34
Concordia Insurance Company............... 2222 22
Western Assurance Toronto Canada............ 2222 22
Providence Washington Insurance Company.. .. 1344 03
Security Insurance Company, New Haven...... 1334 34
Norwich Union Fire Insurance Society......... 1000 00
Royal Insurance Company, London............ 1000 00
New Yurk Bowery Fire Insurance ............. 2222 22
German Fire Insurance Company, Pittsburg. . . . 2222 22
German Fire Insurance Company, Pittsburg.... 600 00
North western National Fire Insurance Company. 2500 00
New Hamphire of Manchester, New Hampshire.. 2500 00
American Insurance Company, Newark, N. J.. . . 2500 00
Total...................................$40,322 21
agreed to and with the plaintiff, that he should and might bring an action in his own name against the defendant railway company for the benefit of himself and said contract-in' I!'8018006 c°mpanies, as well such other companies as e lüíereeíed, and that in case oí a recovery not ex-mg the total amount cf insurance so paid, each of said and* ofTh8 S^°U^ be entitled to receive from the plaintiff share*” 68111080 rec°vered its proper and proportionate

It then alleges that the railway company made a motion to strike out this amendment, and it was overruled; that whirdi1150!1 a° aoswer was filed by the railway company to trial To !epJy Was :ma(le> and the case regularly stood for to • Urtber avers that the plaintiff had hired counsel thesuto t¿e C°UOsel of Mr- Slang in the prosecution of th U1 ’ ari(l that they were in frequent consultation with fo/trial ^ fr0m titte Í0 time’ aod were preparing the case

It further avers: “On the eighth day of June, 1895, an x Wa8 made In said cause in this court by the said to-wit*a55‘°P°* the journals thereof as follows,, can 1 ' .s day oanie tbe Parties, and by consent this tfris^t'18 Ooribli:itle(^ at the cost of the defendant.’ Up to 8 1100 sa^ Stang and his attorneys were in consultation om ime to time with this plaintiff and the other insurance aver^on68 ^ ^eir a£enis and attorneys. But plaintiff , ,S’ at notwithstanding said continuance,and after court 18958P^arerit;^ a^lonrrieci)ori the seventh day of September, ant ¿8 ¶61?6 sPecial session of said court, the said defend-this T*" ao<^ ^8 attorneys, without any notice to as f aiDtiff or any of said insurance companies, their 0 60 8 01 attorneys, and without its or their knowledge, <rp, 86 ,ao er|try to be made in said case as fellows, to-wit: tb 8^ 0Sme *be Plaintiff, Frank Stang, and dismissed eotj'^e<l action,costs paid, no record to be made,’ 10 entry was entered by said court and journalized upon the journats; thereof.

"And said Frank Stang, the defendant aforesaid, in violation of his said agreement as aforesaid, and in violation of rjgfits cf ijjjg entered into an airangtment with said railway company, the defendant in said action, and fcr a consideration to him paid by said railway company to have said dismissal occur after the cause of action against said railway company for the negligence and tort aforesaid was barred by the statute .of limitatiens, so that this plaintiff could not maintain an aotion upon its subrogated rights as aforesaid against said company.

“And plaintiff further avers that said Frank Stang, the defendant herein, did in faot recover and receive from said railway company, defendant in said action, in payment for the damages and tort aforesaid, and in settlement thereof, and as the result of the aotion aforesaid, and upon the liability of the said railway company aforesaid,a large amount of money, the exact amount of which plaintiffs are not informed, but is informed and believes, exceeds the sum of fifteen thousand dollars, and that he in faot settled said action so by him brought fcr the said sum; but instead of entering said cause as settled and showing the terms thereof, or having judgment rendered for the amount so by him agreed upon and received, caused said suit to be entered as dismissed by him as aforesaid, for the purpose of defrauding this plaintiff and the other insurance companies interested cut of the amount to which they were entitled under the facts herein stated.”

“W-herefore it prays judgment against the defendant for $8,2251.” (There were two policies, one of which was for 2,222 and one for $1,000, making $3,222.)

It would appear that the contract referred to therein was entered into with reference to the decision in Newcomb v. Cincinnati Ins. Co., 22 Ohio St., 382. In that case the suit was brought by the Cincinnati Insurance Company against Newcomb & Co., who had recovered $11,086 and the expenses of the suit, say $5,000, in an aotion against a certain vessel owner for causing the destruction of a vessel of New-comb & Co. A finding of fact was made in the superior court in which the case was tried, and the case went up and was heard upon the pleadings and findings in the case. The insurance company claimed to recover a proportion of the amount that had been recovered by Newcomb & Co. from the other party, it having paid a certain amount cf the insurance on the property destroyed or lost.

The Supreme Court say:

“The defendant in error founds its claim on the doctrine of subrogation. This may be stated as follows: Where a loss,covered by insurance, is occasioned by a wrong-doer, the underwriter, after reimbursing it in specie, or making compensation in money, is, in a proper case, entitled to be subrogated, quoad hoc, to the right of the assured against the wrong-doer. This is of the highest equity, for whereas the loss is, in the first instance, that of the assured, after reimbursement or compensation, it becomes the loss of the insurer.
“The plaintiffs in error insist that the doctrine, if ever recognized, has been doubted by modern decisions. We do not so think. It was fully rmognized by Lord Hardwick in the early case of Randall v. Cochren, 1 Ves. Sen., 98, with which the American oases are in nearly universal accord. The loss of mortgaged premises, insured at the instance of the mortgagee, presents a case sui generis, for rejection of the application cf the doctrine.
“There are two classes of cases for its application; first, where the total loss sustained is covered by insurance, and reimbursed or compensated by the underwriters: Second, when the loss sustained is but partially covered by insurance, and is reimbursed or compensated accordingly. These may be respectively denominated full insurance and partial insurance.
“In case of partial insurance, of which class is the one at bar, the assured and underwriter have each a substantive interest in the claim against the wrong-doer; whereas, in a case of full insurance and compensation, the interest of the former is but nominal. ‘Where the assured, as in case of partial insurance, sustains a los3, in excess of the reimbursement or compensation by the underwriter, he has an undoubted right to have it satisfied by aotion against the wrong-dcer. But if, by such action, there comes into his hands, any sum for which, in equity and good conscience, he ought to aocount to the underwriter, reimbursement will, to that extent, be compelled in an action by the latter, based on his right in equity to subrogation. But the assured will not, in. the forum of conscience, be required to account for more than the surplus, which may remain in iris hands, after satisfying his own excess of loss in full, andi his reasonable expenses inourred in its recovery, unless the underwriter shall, on notice and opportunity given, have contributed to, and made common cause with him, in the prosecution.
“In this case, the losses of the plaintiffs in error, in excess of insurance, exceeded $9,000; their recovery was $11,086. The costs of prosecuting the action exceeded $6,000. The amount applicable to their excess of loss, after payment of expenses, was insufficient to satisfy it. It is not unconscionable that they retain this: It would be to award any part of if to the defendant in error, who refused to hazard the costs of its recovery. ”

It will be seen by the pcrtions„of the petition read that the plaintiff insurance company had entered into a contract with Stang whereby it had undertaken to sustain a portion or contribute to the cost and the expenses of this suit against the railroad company.

The counsel who opened the case on behalf of the defendant in error, admitting the general doctrine as claimed by counsel on behalf of plaintiff in error,said nevertheless that this action could not be maintained for the reason that the proper and the only remedy of the plaintiff in error was to. have made application in the court of common pleas to set aside the entry of dismissal on the ground of irregularity and fraud, proceeding under section 5854, Revised Statutes.

Conceding that this is a proper case for a party to proceed under section 5854, Revised Statutes, nevertheless under the decisions of the supreme court of the state of Ohio it is not his only remedy, and for this holding of the supreme court I refer as the latest case,at least that I know of, to the oase of Darst v. Phillips, 41 Ohio St., 514. The syllabus of the case reads:

“The special proceeding provided by section 5854, Revised Statutes, authorizing courts to vacate their own judgments rendered at a previous term, for fraud practiced by the suooessful party, is a cumulative remedy and does not exolude or limit the right of a party hy original action to impeach a judgment or enjoin its collection for such fraud. ”

I shall not read from the decision of the oase,which fully sustains the position; but the judge in deoiding the case cites Long v. Mulford, 17 Ohio St., 484, and Coates v. Chillicothe Bank, 23 Ohio St., 415. So that the contention that the plaintiff’s only remedy is the setting aside of this judgment in this case under this seotion is not sustained by the authorities. But in our opinion this case is not a suit for the purpose of setting aside that judgment. The petition nowhere claims that the judgment of dismissal should be set aside. It proceeds upon the theory that the plaintiff has unlawfully dismissed a suit, and given a final judgment in favor of the railroad company to the injury of the plaintiff without the plaintiff’s knowledge or consent, and in violation, first, of his agreement in writing entered into with the insurance company, and second, of his obligations as a trustee to commence and prosecute the suit for the interest of all concerned.

It is contended by oounsel who succeeded the first counsel in this case, first, that there was no consideration for that contract; and second, that there was no trust. It was claimed and contended that Stang in settling this case had settled only his interest, his claim for damages, without any reference whatever to" a claim for damages, if any, that the insurance companies might have and for which they might maintain a suit.

Counsel for plaintiff in error have cited a great many cases in regard to the rights of these parties, in regard to the dootrine of subrogation and upon the question as to in whose name the suit must be prosecuted. It is claimed the suit must in all cases be proseouted in the name of the party who owned the building, the original owner — in this case it was Stang — 4o protect and obtain the rights and remedies that the plaintiff insurance companies may be entitled to. Of course, some of those oases are under the old system of practice, but there are cases which have been cited under the laws of states that have a code which is substantially like the code of the state of Ohio. One case of that kind, which is found in 8 U. S. Circuit Court of Appeals, 438, was a case in which a suit had been brought by this same insurance society against the Standard Oil Company,and that was brought for the purpose of recovering from the Standard Oil Company the amount of moneys that had been paid by the insurance oompany to the original party who had lost the property. The suit was brought in the name of the Norwich Union Fire Insurance Society against the Standard Oil Company, and the Standard Oil Company demurred to the complaint on the ground that the plaintiff could not maintain the action in its own name, and the court deciding the case said “the correctness of the ruling is the only question we find it necessary to consider.” The demurrer had been sustained by the circuit court upon the oircuit, and in the court of appeals the judgment of the.circuit court was affirmed. The result of that was that the suit could not be brought in the name of the Norwich Union Fire Insurance Sooiety, but in the name of the original owner of the property, the assured, but of course, for the benefit, at least to a certain extent, of the insurance society. I will read from what the judge says in that case, because it states the general doctrine:

“When an-insurance oompany pays to the assured the amount of a loss of the property insured, it is subrogated, in a corresponding amount, to the assured’s right of action against any other person responsible for the loss. This right of the insurer against such other person is derived from the assured alone, and can be enforced in his right only. At common law it must be asserted in the name of the assured. In a court of equity or of admiralty, or under the modern codes of practice, it may be asserted by the insurance company in its own name, when it has paid the insured the full value of the property destroyed. St. Louis, J. M. & S. Ry. Co. v. Commercial Union Ins. Co., 139 U. S., 223, 235, 11 Sup. Ct., 554, and cases cited; Marine Ins. Co. v. St. Louis, I. M. & S. Ry. Co., 41 Fed., 643. But the rule seems to be well settled that, when the value of the property exceeds the insurance money paid, the suit must be brought in the name of the assured. Aetna Ins. Co. v. Hannibal & St. J. R. Co., 3 Dill. 1, Fed. Cas. No. 96; Assurance Co. v. Sainsbury, 3 Doug., 245; Insurance Co. v. Bosher, 39 Me., 253; Hart v. Railroad Corp., 13 Metc., (Mass.) 99; Connecticut, etc., Ins. Co. v. New York, etc., R. Co., 22 Conn., 265, 278; Insurance Co. v. Frost, 37 Ill., 333; Fland Ins., pp. 360, 481, 591; Marine Ins. Co. v. St. Louis, I. M. & S. Ry. C., supra. In such an action the assured may recover the full value of the property from the wrongdoer, but as to the amount paid him by the insurance company he becomes a trustee; and the defendant will not be permitted to plead a release of the cause of action from the assured, or to set up as a defense the insurance company’s payment of its part of the loss. Hart v. Railroad Corp., supra; Hall v. Railroad Co., 13 Wall., 367. In support of this rule it is commonly said that the wrongful act is single and indivisible and gives rise to but one liability. “If, ” says Judge Dillon in Aetna Ins. Co. v. Hannibal & St. J. R. Co., supra, “one insurer may sue, then if there are a dozen, each may sue; and, if the aggregate amount of all the policies fallís short of the actual loss, the owner could sue for the balance. This is not permitted, and so it was held nearly a hundred years ago, in a case whose authority has been recognized ever since, both in Great Britain and in this country.”

There is a case cited here and found in 23 Am. St. Rep., 151. It, also, is to be found in 20 Oregon, 569. I refer to it because it has a full discussion of the authorities on this subject,and a large number of authorities aro cited. I read the syllabus cf the case:

“Where the value of property insured, and destroyed through the negligence of a third person, exceeds the amount of insurance paid, the insurer by making such payment, only acquires a joint interest with the owner to th,e extent of the payment in the cause of action against the wrongdoer to recover the whole loss, and in bringing such action, both the insurer and the owner musr be joined as co-plaintiffs. ”

In the case here involved, while the insurance companies were not named as co-plaintiffs in that they were named distinctly as plaintiffs, yet under the statute of the state of Ohio the suit was prosecuted by Frank Stang,as stated in his petition, for the benefit of himself and all those insurance companies, and no question was made, or if made it was overruled, that that was not the proper method.

Therefore the case stood in that position on the petition itself°and the action of Mr. Stang. The question is as to the rights of Mr. Stang in this condition cf affairs.

First, he says there is no consideration for this written agreement. We think that proposition -cannot be sustained. We find there is adequate consideration for the agreement, and the agreement is a valid and binding agreement between Stang and the insurance companies. There was about tobe a payment made by the plaintiff of the amounts for which it had insured the property. There was a question as to whether the railroad company was liable for the whole of this loss, and the plaintiff company, desiring to have the benefits of any recovery that might be had against the railway company and in pursuance of the decision in Newcomb v. Cincinnati Ins. Co., supra, entered into an agreement whereby they agreed to contribute towards the expenses of the prosecution, and wherein they were to receive a portion of the benefits of any moneys that were to be obtained from the railroad company. That ol itself is clearly a sufficient consideration.

There is also a claim made that there was no trust, but there are a large number of authorities, perhaps the' universal body of authorities is that Mr. Stang stood in the position of a trustee in bringing this suit for the benefit of •all persons who may be interested, and he was charged with the duties of a trustee. In order to settle their respective rights arising out of that relation, he entered into this contract. That of itself would no doubt be a sufficient condition, for it states the rights of the parties,and the insurance oompany proceeded to pay the amount it had agreed to pay apon the loss; so that Stang stands here before this court in the position of a party who has agreed to prosecute that suit to final judgment for the benefit of himself and these insurance companies.

It is said in making this settlement that Stang only settled his own suit. That cannot be in this state of affairs, if it were possible that it might be while there was no agreement made,and that under the decision in Newcomb v. Cincinnati Ins. Co., supra, he would be suing for and recovering •only his own amount, still the position could not be maintained. The suit is brought by him to recover the whole •amount, and under that decision he would be called upon only to pay over to the insurance companies what might remain after he himself had been compensated for his loss ■over and above the amount received from the insurance ■aompanies.

So he stands, then, in the relation of trustee, and under those duties to these insurance companies. But under this agreement,and under the decision in Newcomb v. Cincinnati Ins. Co., supra, he was suing for, and whatever he recovered was for the joint benefit of these respective parties, so that he could not, as a matter of law, settle his own interests •and leave the interests of the insurance companies to be prosecuted by them. Whatever action he takes in that matter, he takes for the benefit of both parties; and in making a settlement he settles the whole suit, dismisses the action, and leaves these parties without any further remedy apparently.

Without discussing the matter further, we have no quesiiion' but that the petition here states a good cause of action as against Mr. Stang,and that the court erred in sustaining the demurrer to that petition; and it follows the judgment of the court of common pleas will be reverted, and the case will be remanded to that court for further proceedings according to law. ■ ,

Doyle & Lewis, Attorneys for Plaintiff in Error.

Wickham, Guerin & Colver, Attorneys for Defendant in Error.

Defendant in error excepts.


author: Smith, J.

text:
    (First Circuit — Hamilton Co., O., Circuit Court
    Jan. Term, 1899.)
    Before Smith, Swing and Giffen, JJ.
    THE STATE OF OHIO ex rel. CAROLINE STEINKAMP, EDWARD STEINKAMP, JOHN RITTER and CHARLES PHARES v. DAVID DAVIS, Judge of the Common Pleas Court of Hamilton County, Ohio.

      Proceedings in Contempt — Error will lie—

    (1) . Error lies to proceedings in contempt.

      Professional statement of counsel as evidence — Must be included in Bill of Exceptions—
    (2) . Where there is no evidence offered, but professional statements are made by counsel, these statements should be included In the bill of exceptions as evidence.

      Costs — Discretion of Court—
    (3) . The discretion conferred upon the court as to the awarding of costs is not an unlimited discretion, but it is a reasonable discretion and is reviewable on error.
    In Mandamus.
   Smith, J.

The relators pray for a writ of mandamus requiring the defendant, Judge Davis, to sign a bill of exceptions which accompanies the petition, which contains what purports to be all the evidence or what was said and done by parties or their counsel at the hearing before the defendant, one of the judges of the court of common pleas of this county, of a contempt proceeding brought against the relators, charging them with improperly interfering with the discharge of the duties of Mr. Nippert, who had been appointed receiver in an action pending in said court.

As we understand, the admitted facts are these: In an action brought for the partition of certain real estate owned-by the Steinkamps, the relators, and which was incumbered by mortgages, or in an action by the holders of mortgage liens on said real estate to foreclose the same, all' parties in interest were before the court, and on the application of the lien holders the court appointed Mr. Nippert as receiver to take charge of and rent the property until a sale could be made. Some objection seems to have been made by the Steinkamps, the-owners of the real estate subject to the mortgages, and Mr. Phares, their attorney, as to the manner in which the receiver was managing the rental of the property- — -particularly in this, that he displayed too many signs “To Let” on the windows of the vacant rooms in the buildings — and that he was not diligent in finding good tenants, and thereupon a controversy arose between them and the receiver, and at the instance of the. receiver two members of the bar were appointed by the court to prepare and prosecute charges against the Steinkamps and Mr. Phares, their attorney,, charging them with contempt of court by unlawfully interfering with the discharge of his duties as such officer of the court. Such charges were prepared and filed, and were denied by answers filed by the defendants.

The matter came on for hearing before Judge Davie, and a stenographer’s report was made of all that took place at the hearing. There was not an iota of sworn testimony offered. The report mentioned contains the statements of the attorneys appointed by the court as to what they claimed to be the facts in the case, and of Mr. Phares as to what he claimed had occurred, and the colloquies between the different counsel, and between the court and counsel, often of an unpleasant character, at the conclusion of which the court dismissed the proceedings for contempt, but rendered a judgment that the costs in the case, including a fee to the two members of the bar appointed to prosecute the ■charges for contempt, be paid by the receiver from the ■moneys in his hands belonging to the trust — thus in effect ordering them to be paid by the Steinkamps, the owners of the land. To this judgment and order as to costs the said relators excepted, and filed a motion for a new trial, which was overruled and exceptions taken to this action.

Thereupon a bill of exceptions containing everything that was said by parties, counsel and the court at the hearing was duly prepared and submitted to opposing counsel and the court within the time fixed by the statute, but the judge refused to sign the same. He expressly admitted at the hearing that the bill as proposed and submitted, contained a true statement of all that was said and done at the trial of the ■casa, but assigns as a reason for refusing to sign such bill, that the defendants were not entitled to a bill of exceptions in such case; that the charges were dismissed, and that they had no cause to complain of that, and that the question of ■costs was a mere matter of discretion, and that error would not lie to that. And, for another reason, that it appears that no evidence was, in fact, heard at the trial.

We think the reasons assigned or the refusal are not sufficient:

1st. Error undoubtedly lies to.a proceeding of this kind.

2d. While there was no sworn testimony introduced at the hearing, the court did hear the professional statements ■of counsel, and scted upon them,and if so, it should appear •as evidence. But if this is not so, the bill then clearly shows -that there was no evidence submitted, and if this be so, what reason was there for taxing costs and fees against defendants against whom there was not an iota of evidence? The relators are entitled to a bill of exceptions showing these facts.

Phares & Keller, for Relator.

Wade Cushing and B. B. Tuttle, for Respondent.

3d. The discretion conferred upon the court in certain cases as Jo awarding costs, is not, we think, an unlimited discretion. It is a reasonable discretion, and isjeviewable on error. The idea that a court can adjudge costs against a defendant in a case of this kind, when there is not a par« tide of evidence to sustain the charges, should not lightly be entertained.

As suggested at the hearing, we think the better plan will be to require the bill of exceptions to be signed, and then the matter, if desired, can be more fully presented.

A peremptory writ of mandamus will therefore be awarded requiring the defendant forthwith to sign and allow the bill of exceptions handed to him.