text:
    PROPERTY DAMAGED BY BACKING UP OF SEWER.
    Circuit Court of Summit County.
    August Merzweiler v. City of Akron.
    Decided, April 8, 1910.

      Municipal Corporation—Negligence as to Sewers.

    A municipal corporation is liable for damages to a lot owner by the flowing back into his cellar of filth from a sewer with which it is attached, by reason of the negligent overloading of said sewer by the municipality.
    Marvin, J.; Winch, J., and Henry, J., concur.
   The relation of the parties here is as the relation was in the court below.

The plaintiff brought suit against the city to recover damages which he claims to have sustained by reason of the action of the city in connection with a sewer in North Forge street, in said city, upon which his premises abut, and which premises he claims were greatly injured by reason of what the city did and failed to do in connection with such sewer.

Before the case was ready for trial numerous pleadings by both parties had been filed, and the issues were finally made up by a second amended petition and answer thereto, and a reply to such answer. After the impanneling of a jury in the ease the defendant objected to the introduction of any evidence' by the plaintiff, which objection was sustained, and the court directed the jury to return a verdict for the defendant,, which was done accordingly. Judgment was entered upon this verdict. All of this was objected to by the defendant and exception taken to the action of the court. Judgment‘having been entered, such proceedings were thereafter had that the case is properly here for review.

The only question presented by the record is as to the sufficiency of the second amended petition; whether it alleges facts which entitle the plaintiff to any relief.

The plaintiff charges that all the sewer work and construction mentioned in the petition was done by the city without any re: gard to any plan or system of sewerage; that in 1897, the defendant constructed a sewer 8 inches in diameter along said North Forge street; that the same was constructed for and was sufficient only for the proper drainage of the property abutting upon Forge street. That down grade in the sewer is to the east, and is much greater west of the premises than it is east of the same, causing a much more rapid flow therein from'the west than the flow to the east and overburdens that part with a tendency toward filling the sewer to the east. After the construction of said 8 inch Forge street sewer, the plaintiff says, the said defendant from time to time constructed the several sewers hereinafter mentioned, without any reference whatever to any plan or system of sewerage, and without any plan or system whatever; all of which sewers drain into said Forge street sewer west of plaintiff’s said property. And said defendant has thereby unlawfully, carelessly, recklessly-and negligently attempted to use said Forge street sewer as a main sewer, and has thereby unlawfully, carelessly and negligently overcharged said Forge street sewer, so that the same is wholly inadequate to safely carry the great volume of additional water and sewage discharged therein; said Forge street sewer itself being at no time more than sufficient in size to drain the abutting property on said street.

And the plaintiff further says that the sewer so unlawfully added to and carelessly drained into Forge street sewer and connected therewith, are all 8 inch sewers, and are described as follows (and then he follows with a description of three sewers, which he says are discharged into the Forge street sewer west of his premises where the grade to the east is steep, whereas east of his premises it is much less steep) ; and he says that after the construction of all of said sewers, said Forge street sewer being overcharged and overloaded, that on or about August 15th, 1906, by reason of the wrongful acts and negligence and carelessness of said defendant as aforesaid, the water, filth and sewage in said Forge street sewer backed up and was forced back through the connections of plaintiff’s property therewith, so that said plaintiff’s property and the cellars of his said dwelling-house, he having described therein the dwelling-house on his property, were filled with sewage, etc., whereby, he says, they were greatly injured; and he says the defendant unlawfully, carelessly and negligently failed and refused to relieve said Forge street sewer from its overcharge of water and sewage so unlawfully and negligently forced therein.' lie goes on then further and says that the plaintiff became aware of this condition of his property by reason of the acts already charged, and that it undertook to repair the sewer, failed to make such repairs as would cause the sewer to properly discharge, but that it backed up and broke the traps, and that the water and sewage again flowed back into his premises and upon them, and thereupon caused noisome smells from the sewage in the cellar of the plaintiff’s house and greatly injured the plaintiff, rendering the property unfit to use.

The defendant claims, first, it was not required by law to adopt a system of sewerage before constructing said Forge street sewer, and', hence, the charge in the petition in that regard can not render it liable for damages resulting for such want of a system. This contention of the city is borne out by the statute, Section 1536, sub-section 251. The caption of the section reads:

1 ‘ Council may provide for, the construction of sewers without adopting any plan of sewerage, or dividing such city into districts. ’ ’

The reason and application of this is well pointed out in the case of Hartwell v. Railroad Co., 40 O. S., 155.

The second claim on the part of the defendant is that it is not liable in damages becau'se the sewer constructed by it is inadequate to the uses to which it is put. In support of this proposition it cites the case of Springfield v. Spence, 39 O. S., 665. I think I will not take up the time to read that case or any part of it. Counsel in the case are entirely familiar with it, but, as we think, it is not parallel or near akin to the case now before us. In that case the matter under discussion and that for which damages was claimed was the failure of the city to properly dispose of surface water, but that the property of the plaintiff had been inundated by the surface water, his lot being lower than the grade of the street and the surrounding lots. So also is the case of the City of Hamilton v. Ashbrook, 62 O. S., 511. The circumstances of that case were altogether different from this. There it was the use of a natural stream, water being thrown into it. An examination of that case, we think, will satisfy one that it is not applicable here.

If the plaintiff is entitled to recover in this case it is because of the acts of the city, not in the construction of the Forge street sewer, but in the overloading of such sewer by constructing other sewers leading into it to provide for the sewering of other territory not contemplated in its original construction, and in making its repairs on such sewer in so faulty a manner that the sewage was thrown upon the plaintiff’s premises, bringing about the injuries of which he complains. That it is liable for these injuries seems so thoroughly in consonance with right as to commend it to the judgment of the court; and, as we see it, is supported by high authority. See Hart v. Neilsville, a Wisconsin case reported in 1 L. R. A. (N. S.), 952. I will not stop to read it. Counsel are familiar with that, as it was cited to us. We think it is thoroughly in point. See also City of Terre Haute v.-, an Indiana ease reported in the 30 N. E., 686. See 2 Dillon Municipal Corporations, Sections 1042-1051. Section 1049 reads:

;iTn accordance with the above distinction between legislative or judicial duties on the one hand and ministerial duties on the other” (a distinction plain in theory, but oftentimes difficult of application to particular cases).

And I may stop here to say that the allegation in the petition to which attention has already been called that the city adopted no system of sewerage, and the proposition further stated, that under the statute, it is not bound to do it, is applicable here to this extent, that the very fact that it did not do it, shows that it was not acting in a judicial capacity. It is when it acts judicially by the adoption of a system, it is when it acts by the adoption of a system that it is said to act judicially, and that, therefore, an action can not be maintained because of a judicial mistake.

“A municipal corporation is liable for negligence in the ministerial duty to keep its sewers (which it alone has the power to control and keep in order) in repair, as respects persons whose estates are connected therewith by private drains, in consequence of which such persons sustain injuries which would have been avoided had the sewers been kept in a proper condition. If the sewer is negligently permitted to became obstructed or filled up, só that it causes the water to back-flow into cellers connected with it, there is a liability therefor on the part of the municipal corporation having the control of it, and which is bound ‘to preserve and keep in repair erections it has constructed, so that they will not become a source of nuisance’ to others. The'work of constructing gutters, drains and sewers is ministerial, and when, as is usually the case, the undertaking is a corporate one, the corporation is responsible in a civil action for damages caused by the careless or unskillful manner of performing the work. ’ ’

I will not stop to read Section 1051, but it will be found in point, and as we think, sustaining the claim of the plaintiff here.

From what has been said and from the authorities cited, we reach the conclusion that the second amended petition in this case states a cause of action in this—it avers that the city had not adopted a system of sewerage, and therefore, could not escape liability because it had acted judicially in adopting such system, and the allegation of the failure to adopt a system, though as already pointed out, it constitutes no ground for complaint, it removes from the city the defense that it was acting under a system, and therefore, acting judicially, or rather that it acted judicially in adopting a system, and therefore, can not be liable because of its judicial mistake. It would have been probably as well to have omitted this from the petition, and then left the defendant, if it could do so, to have plead as a defense that its work was done under an adopted system. If the averments of the petition are true, it had turned into the Forge street sewer from three other sewers, which it was entirely unable to take care of and for which it was not intended it should care for, and thereby had brought about an injury to the plaintiff which the defendant should have foreseen. In addition to this, when knowledge was brought home to it of the evil effects of this action, it wholly failed to remedy the defects in any adequate manner. The result is we find that there was error in the action of the court as hereinbefore stated, and the judgment is reversed and the case remanded to the court of common pleas.


source: Caselaw Access Project

license: Public Domain

text:
    EFFECT OF BANKRUPTCY OF A JUDGMENT DEBTOR UPON OTHER JOINT DEBTORS.
    Circuit Court of Lorain County.
    James B. Seward, Administrator, v. Frank R. Fauver et al.

    Decided, September 28, 1910.

      Joint Judgment Against Three■—Bankruptcy of One—Revivor Against Other Two.

    In proceedings to revive a joint judgment against three makers of a promissory note, the discharge in bankruptcy of one of them from his indebtedness thereon is no defense to a revival of the judgment against the other two, notwithstanding the debt was not proved up in the bankruptcy proceedings, there being no assets of the bankrupt for distribution to his creditors.

      Priiz Budin, for plaintiff.

      P. M. Stevens, contra.
    Marvin, J.; Winci-i, J., and ITenry, J., concur.

       Affirmed without opinion, Fauver v. Seward, 85 Ohio State, 466.

   This case is here on appeal. The facts are that on the 5th of March, 1906, George IT. • Arnold recovered a judgment in the court of common pleas of this county against all three of these defendants. No part of that judgment has ever been paid, and, Arnold having died, the administrator of his estate brings this suit to have judgment revived in his name.

The judgment-was founded upon a promissory note, which reads:

“Elyria, 0., June 8, 1904.
$2,800. January 1st” 1907, after date, we promise to pay to the order of George H. Arnold twenty-eight- hundred and no 100 dollars. This not does not draw interest. Value received.
“John 0. Koepke,
“Frank R. Fauver,
“Rollin H. Sprague.”

-On the 9th day of November, 1907, the defendant, John O. Koepke, upon proper proceedings and upon his own petition, was discharged in bankruptcy in the District Court of the United States for the Northern District of Ohio. This judgment was included in the schedule of debts filed in the bankruptcy proceedings, so that Koepke was discharged from this indebtedness by such proceeding. The claim was not proven in the bankruptcy proceedings. The schedules in bankruptcy showed, however, that the bankrupt had no assets other than such as were exempt by law and he made his claim for exemptions, which were allowed; so that the proving up of any claim in the bankruptcy proceedings would have been a vain thing, the schedules themselves showing there was nothing with which to pay anybody.

The defendants Fauver and Sprague claim to be discharged, because they say that the discharge of Koepke was a discharge and release of them, and they make in their brief and in oral argument the claim that this was a joint note an,d not joint and several, and that the judgment in any event was a joint judgment, and that it being a joint judgment, not joint and several, the discharge of the one discharges all. and in any event that they are only liable for an aliquot part of the indebtedness; and they cite some authorities which, at least, it is claimed sustain them in this. But we regard it as absolutely indifferent whether this note made a joint and several indebtedness or a joint indebtedness; the judgment was a-joint judgment, and that is what is sought to be revived.

It is said that the release was a voluntary release and is that kind of a release, of course, which they claim would be a release of them, because no proo f was made in the bankruptcy proceeding of this debt; but we think this matter is absolutely and completely settled by the bankruptcy statute itself as it reads in plain words and as it has been'construed by the Supreme Court of the United States.

In the case of Abendroth v. Van Dolson, 131 U. S., 661, reading from the opinion on page 7, the court sav:

“The only remaining point relied on by plaintiff in error as a ground for reversal of the judgment below is, that the defendants were sued in the action as general partners, and the judgment in favor of the plaintiffs determined that they were general partners; and that the adjudication in bankruptcy of Griffith and Wandram was a judgment against the two partners, which is a bar to any action subsequently brought by the creditors against the two defendants as such general partners. Against this view there is, we think, an insuperable objection. By Section 5118 of the Revised Statutes, formerly Section 33 of the act of March 2, 1867 (and which is now Section 16 of the Bankruptcy Act of 1898), the rule of the common law, as declared by the court in Mason v. Elred, 6 Wall., 231, that a judgment upon a contract, merely joint, against one of several persons, bars an action against the others on the same contract, is rendered entirely inapplicable to adjudications in bankruptcy. That section provides: ‘No discharge shall release, discharge or affect any person liable for the same debt for or with the bankrupt, either as partner, joint contractor, indorser, surety, or otherwise. ’
“If the discharge of the two bankrupt partners, which is the final judgment in the proceedings, can not estop the creditor from afterwards setting up the liability of the third partner for the joint debt, clearly the other and previous adjudication in the course of the proceedings can not be held to have that effect. Though the action in the court below was brought against the three defendants, the jury was directed by the court to render its judgment against Abendroth alone, and the judgment was entered up against him alone, thus -fully recognizing the validity and force of the adjudication of bankruptcy of the other two partners. ’ ’

Applying that to this case, and the language can not be stronger than the language of the act itself, that it shall in nowise affect any release of any joint debtor, the judgment of the court will be that the judgment sought to be revived is revived as against Fauver and Sprague.


text:
    INJUNCTION AGAINST ADDITION TO PERSONAL PROPERTY TAX RETURN.
    Court of Appeals for Lawrence County.
    The Fearon Lumber & Veneer Company v. Arno C. Robinson, as Auditor of Lawrence County, Ohio.
    Decided, December 12, 1913.

      Taxation—Appeal to Tax Commission—Not a Necessary Prerequisite to Injunction Proceedings against an Arbitrary Addition to Tax Return—Levy Not Complete, When—Duty of Board of Revieio ivith Reference to Returns of Corporations—Sections 2583 and 5592.

    1. When a tax-payer claims that a city board of review has made an addition to his tax return arbitrarily and without evidence, it is not necessary to appeal to the tax commission of Ohio before plaintiff can bring suit to enjoin the levy of such addition.
    2. When the county auditor has placed such addition on the treasurer’s duplicate, but not on the original tax list provided for by Section 2583, General Code, the levy is not complete and the auditor may be enjoined.
    3. The language “any list returned under oath” as used in Section 5592, General Code, comprises the return of corporations as well as individuals, and before adding to the tax return of a corporation the board of review must comply with the provisions of such section.
    4. A statement on the journal of the board of review in these words: “The board devoted the N day to reviewing the personal returns of the various lumber companies and made additions as shown, the Fearon Lumber Company on own statement and information, add item 12a $24,647,” is not such a statement as required by Section 5592, General Code.
    Appeal from the Common Pleas Court of Lawrence County, Ohio.
    September 29, 3911, the plaintiff, an Ohio corporation, brought suit against the auditor of Lawrence county to enjoin him from adding $24,647 to the personal property return of the plaintiff made by it to such auditor May 27, 1911, and from entering said sum against it on the tax list and duplicate of said county. Plaintiff avers that it made a true and correct return, under oath, of all its property which could be legally charged against it under item 125, ‘ ‘ average value of all articles on hand during the year or part thereof, previous to the first of April, 1911, which have been by me manufactured or changed in any way, either by combination, rectifying, refining or adding thereto” in the sum of $34,104; that the board of review of the city of Ironton, Ohio, -without any notice to the plaintiff to show cause why the valuation of its property should not be increased or -without making any statement of the facts upon which such addition was made and without evidence, except the tax statement of the plaintiff, added to the return of plaintiff, under item 125 $24,647; that the said addition was made arbitrarily and illegally.
    It appears from the evidence that the suit was brought before the addition was placed upon the tax list but after it had been placed upon the treasurer’s copy.

      •Jecl B. Bibbee, for plaintiff.

      Timothy S. Hogan, Attorney-General, Clarence C. Laylin, Arno C. Robinson and L. K. Cooper, contra.
    -Sayre, J.; Walters, J., and Jones, J., concur.
   The questions for determination arise upon . the following propositions contended for by counsel for the defendant:

(a) The Tax Commission of Ohio had power and authority to afford plaintiff complete relief, and without appealing to said commission the tax-payer has no standing in a court of equity. ■

(5) The addition in this case having been made and entered on the duplicate of the county treasurer, the auditor can not be enjoined in this action.

(c) That the board of review is not- required to comply with Section 5592, General Code, in adding to the return of a corporation.

(cl) That the statement made by the board of review was sufficient if compliance with Section 5592 is -necessary

As to the first contention, the decision of the Court of Appeals of the First District in the case of Standard Oil Co. v. Hopkins, Treas., reported in Vol. 18 C.C.(N.S.), is approved and followed in the case under' consideration,

The syllabus in that ease is:

‘1 Injunction against collection of taxes is the proper and only remedy to review a board of review’s action in ‘arbitrarily and capriciously’ and without evidence or' information adding to tax returns; act 102 O. L., 224, makes no provision for review by the state tax commission by error or appeal.”

Can the auditor be enjoined, it appearing that the addition made by the board of review was placed on the' tax duplicate of the treasurer but not on the original tax list before the suit was brought and the preliminary injunction secured?

Sect:on 2583, General Code, provides that:

“The county auditor shall make,.in a book prepared for that purpose, in such manner as the state auditor prescribes, a complete list or schedule of all the taxable property in the county.” # * #

Section 2584 provides:

“In making the original tax list, the county auditor may place.” * * *

Section 2588 reads, in part, thus:

“From time to time the county auditor shall correct all errors which he discovers in the tax list and duplicate. * * * If the correction is made after the duplicate is delivered to the treasurer it shall be made on the margin of such list and duplicate without changing any name * * * in - the duplicate as delivered or in the original tax list, which shall always correspond exactly with each other.”

Section 2589 provides:

“After having delivered the duplicate to the county treasurer for collection,” etc.

From these sections it' will be seen that the original is the tax list prepared by the auditor and kept in his office. The duplicate is the copy thereof delivered to the treasurer. These two words, “tax list” and “duplicate” are used interchangeably.

. Whatever may be the practice of county auditors in making up these books it seems to us that the levy is not made until the addition is placed on the tax list. The statute provides that the tax list and duplicate shall always correspond exactly with each other. Since the addition made by the board of review has not been carried on the auditor’s tax list the levy is incomplete. Something remains to be done by the auditor, which the law requires, before the duplicate is turned over to the treasurer. Since something remains to be done by the auditor, which he must do, an injunction will lie.

This holding is not in conflict with Jones v. Davis, 35 O. S., 474, as in that case the word “duplicate” was used, as it often is, to include “tax list” as well.

Is it necessary for the board of review or the board of equalization, in increasing the value of the property of a corporation, to comply with Section 5592, General Code ?

It is the contention of counsel for defendant that the language of Section 5592, “any list returned under oath,” means a return by an individual and does not include the return of corporations; and as reflecting on this matter the language, “whether the return is made upon oath of each person or upon the valuation of the assessor or county auditor,” found in the last clause of Section 5591, shows that returns or valuations are limited to those under oath (individuals), those by the assessor (in case of refusal, neglect, etc.), and those by the county auditor (corporations) because of the, last amendment to Section 5405 authorizing the auditor to ascertain and determine the valuation of the tax returns of corporations.

An examination of the history of Sections 5592, 5591, 5375, 5391, 5404 and 5405, will aid in arriving at a correct under-' standing of the language now found therein.

“Each person required by this act to list property shall make out and deliver to the assessor, when required, or within ten days thereafter, a statement verified by his oath or affirmation, of all the personal property * * * in his possession.” * * * S. & C., 1442, Section 4, now 5375, General Code.

The return of corporations for taxes was made to the county auditor and it was required that the president, secretary or principal accounting officer should list for taxation all the personal property of the corporation “verified by oath or affirmation of the person so listing.” S. & C., 1446, Section 16, now Sections 5404 and 5405.

In the case of refusal or neglect, absence or sickness of any person to list personal property the assessor was to ascertain the value of the personal property* of such persons and return the same to the county auditor. S. & C., 1447, Section 18, now' Sections 5391 and 5392.

The annual county board of equalization, composed of the county commissioners and county auditor “shall have power * * * to equalize the valuation of all real and personal property, moneys and credits within the county.” * * * S: & C., 1456, Section 44, now Section 5580.

“And said board shall have power to add to or deduct from the value of the personal property * * * of any person returned by the assessors or which may have been omitted by him * * * or to add other items upon such evidence as shall be satisfactory to the said board, whether such return be made upon oath of such person or upon valuation of the assessor; but when any addition shall be ordered to be made to any list returned under oath a statement of the facts on which said addition was made shall be entered on the journal of the board.” * * * S. & C., T457, Section 45, now Sections 5591 and 5592.

It might be concluded from reading the language last above quoted that the annual board of equalization could only add to or deduct from the valuation of personal property returned by the assessors and had no authority to change the valuation of the property of a corporation returned to the auditor. But the language of S. & C., 1456, Section 44, that the board “shall have power to equalize the valuation of all real or personal property, moneys and credits within the county,” which must be construed with the language of Section 45, makes it clear that the board had authority to add to or deduct from the return of a corporation, despite the language ‘ ‘ returned by the assessors,” as found in Section 45.

It will be seen, therefore, from the language above quoted (S. & C., Section 4, p. 1442, and Section 16, p. 1446) that individuals and corporations both made returns under oath, although one return was made to the assessor and the other to the county auditor, and one kind of return was made by the assessor (Section 18, p. 1447) in ease of refusal, neglect, absence or sickness.

There were, therefore, two classes of personal property valuations to be added to or deducted from by the board of equalization: one, in which the return was made under oath, and this included both individuals and incorporated companies; and the other, upon the valuation of the assessor in case of refusal, neglect, absence or sickness.

The language above quoted from S. & C., p. 1457, Section 45, became part of Section 2807 of the Revised Statutes and_was amended March -19, 1880 (O. L., 77, p. 76) to read, in part, as follows:

“And they shall have power to add to or deduct from the valuation of the personal property of any person, firm or corporation returned by the assessor, upon such evidence as shall be satisfactory to the said board, whether said return be made upon the oath of such person or upon the valuation of the assessor * * * but when any addition shall be ordered to be made, whether to a list returned under oath or upon an original assessment, a statement of the facts on which such addition was made shall be entered on the journal * * *; and when any reduction shall be ordered to be made in the amount of personal property * * * of any person, firm or corporation a statement of the facts on which such reduction was made shall be entered on the journal of the board.”

It will be observed that the Legislature here authorized two returns of valuation, one under oath and the valuation of the assessor.

Section 2807 was again amended April 13, 1880 (O. L. 77 P-191).

It there became part of an act to amend Sections 2766, 2806, and 2807. In that act, by Section 2766, the auditor was authorized “to fix the total value of shares of” certain banks. By Section 2806 the auditor was directed to lay before the board of equalization “copies of all reports made by cashiers of banks ®. together with the value of the shares of such banks as fixed by the auditor and the returns of the assessor for the current year.” * * *

Section 2807 was amended to read, in part as follows:

“The said board shall hear complaints and equalize the assessment of all personal property # * * returned for the current year by the township assessors and the shares of the several banks as fixed by the auditor; and they shall have power to add to or deduct from the value of the shares’ of such banks as fixed by the auditor or of the personal property * * * of any person returned by the assessor # * * upon such evidence as shall be satisfactory to said board, whether said return be made upon the oath of such person or upon the valuation of the assessor or upon the valuation of the auditor; but when any addition shall be ordered to be made to any list returned under oath a statement of the facts upon which such addition was made shall be entered on the journal, and when any reduction shall be- ordered to be made in the personal property * * * or the shares in any bank, whether said return be made by such person or by the assessor or by the auditor, a statement of the facts upon which such reduction was made shall be entered on the journal of the board.”

The amendment just referred to authorizes the auditor to fix the valuation of shares of banks, and the statute, as so amended, provides for three valuations, three returns; valuations or returns under oath, by the assessor, and by the auditor. The valuations-made under oath included all valuations except those made by the assessor or auditor.

It will be further observed by this last amendment that only when an addition is to be made to a list returned under oath is the board required to enter a statement of facts on the journal. The language “or upon an original assessment,” found in the amendment of March 19, 1880 (O. L., 77, p. 76), is taken out.

The three sections, 2766, 2806 and 2807, were again amended by the act of March 9, 1883 (O. L., 80, p. 54), and Section 2807 was amended so as to read as it does at the present time with the exception of the language requiring the notice to the taxpayer and the hearing by the board of equalization.

Section 2766, Revised Statutes, became Section 5412, General Code, and the auditor transmits to the tax commission of Ohio the report of the banks (Section 5603), and that commission examines the valuation of the auditor (Section 5604) and may increase or decrease the value of the shares (Section 5605).

However, since the act approved April 12, 1911 (O. L. 102, p. 60), amending Sections 5404 and 5405, the auditor of the county, by the provisions of Section 5405, determines the valuations of all incorporated companies except those specially provided for, and 'thus there are still valuations by the county auditor.

But the language of the last part of Section 5591, referring to the valuation of the county auditor, was not placed there because of the amendment of April, 1911 (O. L., 102, p. 60), for that language has been in the statute, just as it is now, since April 13, 1880. So if that language meant what we construe it to mean before the passage of the act of April, 1911, it certainly did not change its meaning when that act was passed.

■ Ever since the enactment of the act of May 11, 1878 (O. L., 75, p. 438, Section 1, now Section 5320), the word “person,” as used in the taxing laws, including Sections 5591 and 5592, is held to include firms-, companies, associations and corporations.

So it is necessary, since 1878, to read into the statute law, which is now Sections 5591 and 5592, the words “firms, companies, associations and corporations” after the word “person” where the same Is found in said statutes.

If so read the pertinent parts of the two sections would appear as follows:

Section 5591. “# * * It may add to or deduct from the valuation of personal property or moneys or credits of any person (firm, company, association and corporation) returned by the assessor or county auditor, or which may have been omitted by them, or add other items upon such evidence as is satisfactory to the boards, whether the return is made upon oath of each person (firm, company, association and corporation) or upon the valuation of the assessor or county auditor.”
Section 5592. “When an addition is ordered to be made to any list returned under oath a statement of the facts upon which such addition was made shall be entered on the journal of the board. No such addition shall be made to such list returned under oath without the board having first given reasonable notice to the person or persons (firm, company, association and corporation), if their residence is within the county * * *. When a reduction is ordered to be made in the amount of personal property or moneys or credits of any person (firm, company, association and corporation), whether such return is made by such person (firm, company, association and corporation) or by the assessor or county auditor, a statement of the facts on which such reduction was made shall be entered on the journal of the board.”

It is therefore clear that the language “any list returned under oath” found in Section 5592, comprises lists returned by corporations as well as individuals.

It is, therefore, necessary when the board of review or equalization orders an addition to the return, either of an individual or firm, company, association or corporation, to cause a statement of the facts upon which such addition was made to be entered upon the journal and to give notice of the time and place to be fixed by the board when the tax-payer may show cause why such addition should not be made.

Was a statement of the facts, as required by Section. 5592, made by the board of review on its journal in this case?

A compliance with this statute is mandatory and an addition without such compliance would be void. Ratterman v. Niehaus, 4 O. C. C., 502; Hayes v. Yost, 4 O. C. C. (N. S.), 455.

The entry on the journal is as follows:

“The board devoted the day to reviewing the personal returns of the various lumber companies and made additions as shown, the Fearon Lumber Company on own statement and information, add item 12a $24,647.”

In the ease of Fratz v. Meuller, 35 O. S., 397, the entry on the journal was:

“On motion, the amount set opposite the names of the fo1lowing persons was added to their personal returns, for the reason that the amount returned by the parties respectively was, in view of the facts, considered insufficient and below the actual value of the property owned or held by the parties: Ward 19, John W. Meuller, 425 Front street, Item 10, $1,000.”

The Supreme Court held that this entry was sufficient. That the monthly average was insufficient and below the actual value, was the statement of an ultimate fact on which the addition was made, and this was all that was required.

When the words are transposed and it is made as readable as possible, the statement in the case under consideration would be about this: “The board made an addition in the sum of $24,647 to item 12a of the return of the Fearon Lumber Company on its own statement and information.” Reduced to a simple and exact expression the statement is, that the addition was made on the evidence received by the board. AVhat fact, if any, appeared from the evidence which led the board to make the addition is not stated. There is no statement of any ultimate fact. ' There is no reason assigned or given for the increase in the valuation of the property returned, if the valuation was increased; nor is there a statement of the addition of property not returned, if such property was added by the board. It is too plain for further discussion that there was here no statement of the facts as required by the statute. Battermqn v. Niehaus and Hayes v. Yost, supra.

There will be a decree as prayed for, the defendant to pay the costs.


text:
    CHARGE TO JURY MAY BECOME CONCLUSIVE EVIDENCE OF ISSUES IN CASE.
    Circuit Court of Lorain County.
    The Citizens Gas & Electric Co. v. City of Elyria.

    Decided, September 28, 1910.

      Municipal Corporations—Recovery Against Oas Company, for Judgment for Damages Against City—Evidence as to Issues in Original Case —Charge of Court.

    In an action to recover the amount of a judgment recovered against it, which it has paid, brought by a municipal corporation against a gas company holding a franchise from it authorizing it to lay pipes in the streets of the municipality and furnish gas to its inhabitants, by the terms of which franchise the gas company agreed to defend all actions brought against the municipality for damages resulting from its excavations in the streets, and pay all judgments against the city for such damages, where the issue between the gas-company and the city is whether the judgment against the city was for damages resulting from the sole negligence of the gas company in leaving unguarded an excavation in the street made by it, or for independent negligence of the city in some other respect, the charge of the court in such former action with respect to the issue submitted to the jury therein is conclusive evidence with respect thereto, no matter what evidence was permitted to be introduced in the case.

      S. M. Douglass and Geo. TL Chamberlain, for plaintiff in error.

      H. A. Pounds, contra.
    Marvin, J.; Winch, J., and Henry, J.,. concur.

      Affirmed without opinion, Gas Co. v. Elyria, 85 Ohio State, 472.

   This is a proceeding in error seeking to reverse the judgment of the court of common pleas in an action in which the city of Elyria was plaintiff and the Citizens Gas & Electric Company was defendant.

The petition in this case avers that a man by the name of Busswell obtained a judgment against the city of Elyria for injuries sustained by reason of a defect in the street caused by the defendant, the Citizens Gas & Electric Co., and it says that the gas and electric company put in its pipe and the like under a franchise granted to it by the city and "accepted by the company, which franchise contained the following:

‘ ‘ The said Citizens Gas & Electric Company, its successors and assigns, shall further fully protect and save the city of Elyria harmless from any or all claims of damages, losses, costs, charges and expenses of every nature and kind made, suffered or incurred in any manner by reason of, or connected with the use and occupation of said alleys or streets, or resulting, from the excavation of any such allej^s or streets; and in case the said city shall be compelled to pay any person, persons, company or corporation for any loss, injury or damage of person or property as aforesaid, the same shall be fully paid or reimbursed to said city, with all the costs and expenses connected therewith or arising therefrom, and the same shall be binding upon said company, its successors and assigns; said company, its successors and assigns, shall hold the city of Elyria free, harmless from the payment of any judgment rendered or claims described herein, and further said company, its successors and assigns, shall defend each and all law suits wherein the Citizens Gas & Electric Co. its successors and assigns, is the real party in interest, although the city of Elyria is or may be the nominal party in interest, done, caused or instituted by reason of the construction, operation and maintenance of said mains and pipe.”

The petition further alleges that the man injured. Busswell, brought suit against the city of Elyria for the injuries received by him on account of his wagon getting into a trench that was dug by the gas company, that the gas company was notified and appeared and aided in the defense, that there was a recovery against the city of $300 damages, that the gas company has refused to pay it and the city has been obliged to pay it, together with the costs, and seeks a judgment against the gas company.

The gas company answered admitting it accepted the franchise and that Busswell commenced an action in the court of common pleas against the city of Elyria for certain personal injuries sustained, and. among other things:

“Avers the fact to be that said Busswell alleged that several weeks previous to the date of his injury, the defendant permitted the Citizens Gas & Electric Company to dig up said avenue by excavating certain trenches in said street, and also, negligently left said trench open and unfilled, without placing thereon any danger signal whatever.
“Said defendant admits that notice was given to it that said Busswell had commenced said action referred to against. said city; that this defendant appeared and aided the city of Elyria, sole defendant, in the defense thereof. It further admits that upon the trial of said cause in said court, that a verdict was rendered in favor of said Busswell in the sum of $300, and that judgment was rendered thereon, together with costs, and, as it is informed, that the city of Elyria, against whom said judgment was rendered, paid the same as averred in its petition; and said plaintiff further answering denies each and every other allegation in said plaintiff’s petition contained.
“Said defendant further answering, says, that in said action by Henry Busswell against the city of Elyria mentioned in said plaintiff's petition, that plaintiff averred that the defendant charged was with the care, supervision, and control of all the streets and public highways within the limits of said municipality, and that it was the duty of said city to keep said streets and highways open.”

I will not stop to read the balance of the answer. The substance of it is that the suit was brought against the city charged not only negligence for failure to keep this trench, which was opened by the gas company, in such repair as that the street could be used, but that the city urns further negligent in the care of that street and failed to perform its duty as charged in the original petition, and the defendant says that the result was, not the jury found, as alleged in the petition, that Busswell was injured because of the negligence of the gas company alone, but that it might have found, as in fact it did find, that the city was liable because of other negligence than that of the gas company.

We were not favored with an oral argument on the part of the plaintiff in error, but we were furnished yesterday with a very full brief on the part of the plaintiff in error, which we have examined and which we find not of special aid to us. We have examined it and find this so because it is based upon a wrong theory of the situation.

Counsel for plaintiff in error claims in his brief that it was not determined in the former action that it was the negligence of the gas company that brought about the injury, but that from what appears in that case it is clear that there was other negligence on the part of the city for which a recovery might well have been had, and the argument is that if the city and the gas company were both negligent and a recovery is had against the city, it can not under its franchise call in the gas company to respond. That is completely answered by the charge of the court in the case showing just what issue was submitted to the jury in the former case. I read from the charge these words:

“It is alleged in the petition and conceded by counsel for the plaintiff that there can be no recovery in this case unless it is proven and shown to you by a preponderance of the evidence that the negligence complained of is the negligence of the Citizens Gas & Electric Co. in digging a trench for gas mains in the street and not properly filling that trench. That is the first thing that is alleged. I say to you on that subject that unless you do so find that the trench in question which it is alleged caused the injury to the plaintiff was dug and left without being properly filled by the Citizens Gas & Electric Co. your verdict must be for the defendant, for plaintiff would then have failed in proving to you one of the essential and .material allegations of the case which it is necessary for him to prove in order to recover. ’ ’

And again, the court emphasizes this in these words:

“So that if you so find, then the plaintiff would be entitled to recover, if you .find this further fact that is essential and necessary; that this negligence of the gas company, which I have supposed would be the negligence of the city, in failing to properly fill the trench, directly and proximately, and without the intervention of any other independent cause, caused the injury to the plaintiff of which he here complains. If you find those two things in the affirmative by a preponderance of the evidence, then you would find for the plaintiff and he would be entitled to a verdict; while if you find either of them in the negative and find either that the gas company did not dig the trench or did not leave the same in an improper and dangerous shape so that it was negligent, then I say to you that the defendant is entitled to a verdict.”

So that the court submitted just one question and that only, and that was, was it the negligence of the gas company and of the gas company only, that brought about the injury to the plaintiff in that case. The jury necessarily answered to the affirmative when they Pound a verdict for the plaintiff in that former case. That being so, the entire argument as to the evidence in that case and what is decided, is of no avail in this case, and the judgment of the court of common jileas is affirmed.


text:
    RECOVERY FOR ASSAULT UPON THE MINOR SON OF PLAINTIFF.
    Circuit Court of Summit County.
    Gottlieb V. Seitz v. August J. Witzberger.
    Decided, April 12, 1911.

      Parent and Child—Loss of Son’s Services—Wages Paid to Mother, Yet Father May Recover—Presumption as to Emancipation—Expenses of Taking Care of Injured Son—Hospital Bills.

    1. In an action by a father for loss of a minor son’s services by reason of injuries inflicted upon the son by the defendant, the fact that the son, while working, paid over his earnings to his mother instead of to his father, the father, mother and son living together and constituting a single family, does not indicate that the father is not the proper party to sue for loss of earnings of the son.
    2. The presumption is that a minor son living with his parents, though working for another for wages, is not emancipated.

      3. A father may recover for expenses incurred for medicines, physician’s services and hospital expenses made necessary in the care of his minor son, by reason of injuries inflicted upon him by the defendant.
    4. The per diem charges of a hospital for care of minor son of the plaintiff injured by the defendant, are not to be reduced by the value of his board and lodging at home during the time he is at the hospital. •

      Musser, Kirnber Huffman, for plaintiff in error.

      G. W. May and A. J. Wilhelm, contra.
    Marvin, J.; Winci-i, J., and Henry, J., concur.
   This is a proceeding in error seeking to reverse the judgment of the court of common pleas.

August J. Witzberger brought suit against Gotti eib V. Seitz, claiming damages by reason of the loss of service of his minor son, Emil Oliver Witzberger, because of injuries received by the son at the hands of Seitz in an assault and battery.

Defense was made that the son was not injured and that the plaintiff was not entitled to the services of the son in any event, and that no expense had been caused, nor loss of service, by reason of the injuries inflicted upon the son by Seitz.

The trial resulted in a verdict for $400 in favor of the plaintiff below. -

On motion for a new trial the court stated that the judgment would be reversed unless the plaintiff would remit $75 from the amount of the judgment. This amount was remitted and judgment entered for $325; it is here sought to reverse that judgment.

As to the question of whether the son received injuries at the hands of Seitz and thereby was unable to work for any length of time, this was submitted to the jury; the jury found that the injuries were received; that the son was thereby rendered unable to perform service, and under the evidence we are not surprised that the jury so found. It is urged, however, that the father lost nothing in the way of service of the son, who was at the time about seventeen years old, because, it is said, that the evidence shows that the wages the son earned (if he was earning wages at the time of the injury), were paid, in part at least, to his mother. This fact should have no bearing on the case. The mother seems rather to have been the treasurer of the family, and the money earned by the father, as well as by the son, was in large part, at least, paid into her hands. But even if all the son’s wages had been paid into the hands of his mother instead of the hands of the father at the time he was working, so long as the father and mother lived together and the three constituted a single family, it would not indicate at all that the father was not the proper party to sue for the loss of the earnings of the son.

It is urged on the part of the plaintiff in error that since it appears that the son, who was not af the time of the f,ria] of full age, was then engaged in doing business on his own account, the presumption is that he was emancipated by his father before the time of this alleged injury.

This is not well taken. The presumption is the other way. So long as the son is a minor, the presumption is that his father is entitled to his earnings.

It was sought to show on the trial that the son ’s injuries were probably due to some hurt received by him in the playing of foot-ball.

As already said, we are not surprised that the jury reached the conclusion that he was injured at the hands of the plaintiff in error, and that his inabilitjr to work has been the result of such injuries. On the trial it appeared that the son was in a hospital at Cleveland for about sixty days, and the father was permitted to testify that he paid for a room and board at the hospital for his son while he was there $1.25 per day. The only other expense which was made to appear in the evidence, to which the father was put, was some $10 or $12 for medicines and $5 paid to Ur. Lyon. Tt should have been said that the petition seeks to recover not only for the loss of service of the son, but also for the expense to which • the father was pirt by reason of the son’s injuries.

The evidence as to the $1.25 per day paid at the .hospital for room and board of the son was put in under the objection of the defendant below, the court ruling at the time the evidence was introduced, that this was a proper subject for compensation. But, on the motion for a new trial, the court seems to have reached a different conclusion, and to have required the remittitur of $75 from the verdict, because he thought that the father was not entitled to be reimbursed on account of this payment. On the part of the plaintiff in error it is urged that it can not be known that the jury found that the father was entitled to just $75 for this account, and that, therefore, the remittitur may not have been put upon the proper basis, and that the amount for which judgment was finally allowed may be a. different amount from that which the jury would have found, but for the evidence jn relation to the room and board,

It is difficult to understand how the plaintiff in error can complain in this regard. The evidence was that the son was in the hospital about sixty days at an expense of $1.25 per day. If the jury allowed for this, it is hardly possible that it could have allowed more than $75 and therefore the deduction made from the verdict by the court, when it entered judgment, must have relieved the plaintiff in error from any prejudice that he could have received by the admission of this evidence. We are of the opinion, however, that the evidence was entirely competent, and that if the father was entitled to recover at all in this ease he was entitled to recover for this hospital expense. It is said that he ought not to recover for this because whether the son was injured or not, the father would have had to furnish him with board and a home, and that the duty thus imposed upon him as a father was not greater because of any injury which necessitated bis being taken care of at the hospital. This reasoning is not sound. Though it is the duty imposed by law upon parents to furnish a. home and board for his minor children, it is no part of his duty to furnish them a home and board at a hospital where the expenses are $1.25 a day, when such hospital service is not necessary by reason of some disability of the minor, and in this case the disability of the minor was brought about by the wrongdoing of the plaintiff in error. These people were not in circumstances such as made the expense of each member of the family for room and board $1.25 a day. at home. Every head of a family understands that probably the expenses at home would be the same whether this boy was at home or not, and that practically the room and board paid for at the hospital was just that much additional expense, caused by the injury to the boy. If the plaintiff in error thought this was too much, perhaps it would have been proper for him to have shown by the evidence what the fair expense would have been to the father to have kept the boy at his own house and thereby reduce the amount which he should recover by reason of the hospital expenses; but even if such evidence' woiild have been admissible, it still would not render incompetent the evidence as to the hospital expenses and, in the absence of any evidence on that subject, we should not feel warranted in reversing the ease, even if the judgment included the whole amount allowed for expenses at the hospital. We suppose that the attorneys in this case and that all men who do business for others, when they are required to go from home to attend to such business, regard it as entirely legitimate that their hotel expenses shall be paid by the employer, and that none of us would regard it as a good answer against the payment of such expenses by the employer, that if the employed had remained at his home, he would have been at the expense of his board and room.

Complaint is further made that the court erred in its charge to the jury. The first statement in the charge pointed out as erroneous reads in these words:

“A parent is entitled to the services of his son, and anyone by committing an assault upon him, so that he is unable to perform any services, is liable to the parent for the service, the parent has thereby lost. ’ ’

It is urged that this has no application tó the present case and is misleading and prejudicial to the plaintiff in error. In the brief for plaintiff in error, it is said, after quoting from the above paragraph of the court’s charge:

“The jury could infer nothing else than that the parent is always and under all circumstances' entitled to the services of his son, be the son.a minor or a man of mature years; be he single or a married man; be he living with the parent or be he emancipated. ’ ’

This criticism is not well founded. The court so instructed the jury as to what they should take as the law in this particular ease.

Even if the jury understood this to mean what they surely did not understand it to mean (because they were men of some intelligence, undoubtedly), that eveiw father was entitled to the services of every son, still it could not have affected or injured the plaintiff in error in this case, for it was this son, who was a minor and unmarried and lived with his father, to which they were to apply the law as given to them.

But, it is said, that a minor may be emancipated by the father, so that the father would not be entitled to his earnings. This is true. But there was no evidence in this case tending to show emancipation of this son at the time of this injury. The evidence all tended to show the contrary.

In Schouler’s Domestic Relations, paragraph 267a, it is said that emancipation may be by instrument in writing or by parol agreement, or may be inferred from the conduct of the parent. That at the present day a father can verbally sell or give his minor son his time, and that after payment or performance the son is entitled to his earnings; that is, after the son has paid to his father a specified amount or has performed something on his part to be performed to entitle him to emancipation, he may be emancipated. And in speaking on this subject this language is used in the. same section:

“We are to distinguish between a license for a child to go out and work temporarily and the more positive renunciation of parental rights.”

And again:

“All emancipation strictly so-called, is not to be presumed; it must be proved.”

There is no error in this part of the charge.

It is further charged that after stating the issues the court used this language:

“That makes the issue for you to determine, first, whether there was an assault made upon the plaintiff’s son, and second, whether he has sustained any damage.”

The complaint as to this is, quoting from the brief of the defendant in error:

“We believe the natural and reasonable interpretation of this paragraph from the language used is that the second issue of fact is whether the minor son has sustained any damage. If this is the meaning that the jury has taken from the charge, it is clearly not the law, and when taken in connection with the second paragraph set forth, we believe was misleading the jury to the defendant’s prejudice,”

This criticism is not well taken. The language fairly construed means that the second issue is whether the plaintiff has sustained any damage, and this is made clear from other parts of the charge, in which the court distinctly ¿said that there was nothing to be taken into account but the pecuniary loss of the father. In one part of the charge this language is used:

“If you find then that this was done by the defendant to the plaintiff’s son, and you further find that the plaintiff’s son was injured by reason of the assault and battery perpetrated upon him by the defendant, then you may proceed to ascertain how much the plaintiff in this ease has been injured.
“Now he is entitled to only compensatory damages or for the loss he has sustained by reason of the loss of his son’s services-.
“If you find for the plaintiff, you should award him compensatory damages. The mental suffering of the victim and his parents or the culpability of the defendant are not proper elements of the damage.”

Other parts of the charge are to the same effect and make it perfectly clear that it is for the damages sustained by the father and not for any damage that the son has sustained.

Various .other paragraphs of the charge are complained of, none of which we find to have been erroneous or misleading.

Attention is especially called to this language, complained of by the plaintiff in error:

“You may also award him his necessary expenses, including medicines required in treating said son, to relieve him while suffering from the injuries sustained; also for medical bills which he has paid or for which he is liable, as shown by the evidence in thé case. ’ ’

It is said that there was no evidence on the matter of expenses for medical bills and medicines. This is a mistake. There was evidence showing that $10 or $12 had been expended for medicines and $5 for special medical attendance, and the court took especial pains to see to it that the jury should not take into account anything in regard to medicines or attendance, or anything else, except as it appeared from the evidence in the case, and said:

“You should not go outside of the record and interject any deductions not reasonably made from the evidence and justified thereby. The testimony in the case must have furnished the data upon which you may calculate and approximately estimate the value of the services of the son in question to the plaintiff.”

We regard the charge as a whole an excellent statement of the law applicable to the case, and of the rules by which the jury should be governed.

There is no error in the record of this case to justify a reversal and the judgment is affirmed.


text:
    IRREGULAR RETURN ON A SUMMONS IN ERROR.
    Circuit Court of Summit County.
    Nathan Morris et al v. The B. & O. Railroad Company.
    Decided, April 12, 1911.

      Summons on Petition in Error—Return Irregular, But Sufficient, when.

    1. No amendment can be made to a summons which will falsify the sheriff’s return thereof.
    2. Notwithstanding General Code, Section 12259, provides that a summons on a petition in error to the circuit court if issued in term time shall be made returnable on a day therein named, still a summons so issued and made returnable on or before the first day of the next term of court is sufficient though irregular, and service thereof will not be set aside.

      Holloivay & Chamberlain, for plaintiff in error.

      Allen, Waters, Young c§ Andress, contra.
    Marvin, J.; Wincii, J., and IIenrt, J., concur.
   This case is before us on a motion to set aside the service of summons issued on the petition in error.

The ground of the motion is that the summons is not in conformity with the provisions of the statute providing for such summons.

Section 12259, General Code, so far as it need here be considered, after providing for the filing of a petition in error reads:

“Thereupon a summons shall issue and be served, or publication made as in the commencement of an action. “ * * The summons shall state that a petition in error has been filed in the case. If issued in vacation, it shall be returnable on or before the first day of the term of court; if issued in term time, on a day therein named.”

The summons in this case was issued on the 18th day of November, 1910, which was a day in the October term of this circuit court. The summons was made returnable on the first day of the next term of said circuit court. The return of the sheriff on the summons shows that it was served upon the attorney of record of the defendant in error on the 22d day of November, 1910. It will be noticed that the return day in the summons was made as though the summons had been issued in vacation. It will be further noticed by reading the summons that the order as to its return is directed to the sheriff. It is he to whom these words in the summons are addressed: “You will make due return of this summons on or before the first day of the next 1erm of said circuit court.” It was suggested on the argument that possibly there might be an amendment ordered with reference to this summons, and counsel for the plaintiff in error, following such suggestion, has filed a motion asking for an amendment to the summons and suggesting that the return day be made December 1, 1910. It seems clear that no amendment can now be made to this summons which will cure any defect therein. Amendments are allowed in proceedings in court, and especially upon a return made on a summons and other writs, to conform to the facts, but here, if an amendment were made, as suggested in the motion, or -any amendment which should fix a day certain for the return of this summons, we should have the curious situation of having by an order of court, falsified the return of the sheriff. For the sheriff says in his return that he “served the same by handing a true and attested copy thereof with the endorsements, thereon, ’ ’ etc. If the summons is changed to read, as suggested, this return of the sheriff would not be true, because we should have then to fix a summons, a true copy of which he did not serve on anybody. It seems clear, therefore, that no amendment can help out any defect in this summons. And this brings us to the' question whether there is a fatal defect in the summons, so as to render it void. We have reached the conclusion that there is no such fatal defect. The purpose of the summons is to notify the defendant in error that proceedings have been commenced, seeking a reversal of the judgment of the court below. That is the only purpose of the summons. That notice was received by the defendant in error and received at a time sufficiently long before the opening of the next term of court to give him all the time for preparation which could reasonably be necessary.

It is suggested on the part of the defendant in error, that when the statute provides that a summons issued in term time shall be made returnable on a day certain, it necessarily means a day within the term. This is clearly not tenable, because neither the clerk nor the attorney who files the precipe for the issuing of the summons can know when the term will close. He does know, however, whether or not the summons is being issued during the term of court, and clearly the intention of the statute was to have a day certain fixed and that if that day certain should turn out to be a day within the term, the case might be ready for hearing at that time, and if that day certain should turn out to be a day after the adjournment of the term, the ease would not stand for hearing until the next term, but in no event would the day for hearing be later than the next succeeding term, unless it should be that the day certain is later than the beginning of the next term.

Counsel for defendant in error call attention to Volume 20, Encyclopedia of Pleading and Practice, at page 1159, and to cases cited, under paragraph C, note 4, on that page. The language of the text in the citation referred to reads;

“All writs must be returnable, as provided by law, and the return day can not be extended beyond that fixed by the statute for the purpose. A writ not returnable, as provided by law, as where a less number of days intervene between its teste and the return day than the statute requires, is fatally defective.”

Many of the cases cited have been examined and in several of them it appears that the summons being considered was a summons issued by a justice of the peace in which the party is notified in the summons of when his case will be for trial; and in the other cases it is where a summons is issued upon a petition filed in a nisi prius court, where the summons indicates to the party when he will be required to answer to the petition. The summons in these cases are clearly distingishable from the summons required to be issued by our statute in proceedings in error. No time is fixed either by the summons or by the statute for an answer to be filed. No answer is required. The defendant is simply notified that a petition has been filed, and by examining the summons he knows when the sheriff is required to make return of the writ, and thereby he knows when the case will be ready for hearing in court.

The Supreme Court of Wisconsin, in the case of Porter v. Vandercook, 11 Wis., 70, had this situation before it. An action was commenced in June, 1859. Summons required the appellant to answer within twenty days, whereas the statute provided that'the answer should be filed within ninety days from the service of summons, and the court said in the syllabus:

“Though the better practice would be to state the true time prescribed by law for the defendant to answer the plaintiff, yet it is not error to state that the answer must be made in twenty days.”

In the opinion at page 73, it is said:

“Perhaps, the better practice is to specify in the summons the true time as prescribed by law for the defendants to answer the plaintiff. Still, this court held, in the case of Lawrence v. Brown, decided at the January term, 1859, not reported, that the phraseology of the summons in this particular was not material; that the defendant must be presumed to know the law and the time which it gave him to answer; and that therefore a summons should not be set aside even though it did not conform to the law in that respect, and require the defendant to answer according.
“This was the extent of the decision in that ease and upon so unimportant a question of practice, must be considered decisive as to the objection taken to the summons in the present case. The appellants undoubtedly well knew that the law gave them ninety days to answer the plaintiff and were not misled by anything which the summons contained.”

In the case of Guion v. Melvin, 69 N. C., 242, it is said in the syllabus:

“A summons served on a defendant commanding him to answer on a day certain, which day is less than twenty days from the time of the service, is not necessarily on that account void, and the probate judge is not bound to dismiss it. lie should have allowed the defendant the time allowed by the code for an appearance. ”

The court stated the eas.e in these words, at page 243:

"The defendants appeared before the judge of probate and objected that the summons was irregular, because it commanded the sheriff to summon the defendants to answer the plaintiff on a day certain. That twenty-one days had not elapsed from the time when the summons was served on the defendants before the day set for its return. That under the code of civil procedure the defendants were entitled to twenty days, to which one day is to be added for every twenty-five miles travelled in which to answer the plaintiff, and the defendants can not be required to answer in a less time. The defendants therefore moved to dismiss the proceeding.
"The court being of opinion that the'defendants could not be required to answer the plaintiff within a shorter time than twenty-one days, counting from the service of the summons, allowed the motion and dismissed the proceeding. From this judgment the plaintiff appealed.”

And in discussing the question the court at page 248 quotes the statute as follows:

"It (the summons) shall command the officer to summon the defendant to appear, etc., within a certain number of days after the service, exclusive of the day of service to answer, etc. The number of days shall in no case be less than twenty.”

And then goes on to say:v

"In the present ease the plaintiff made the summons returnable on a day certain, and not on a certain day after service. We do not say that this deviation from the statute form is such an irregularity as will make the summons void, although it is always best and safest to follow tbe form prescribed by the code. But clearly the defendant can not be deprived of any right by such an irregularity. lie is not obliged to appear until the twentieth day after service, exclusive of the day of service, and any proceeding had before that day is null and void. We think the probate judge was not bound to dismiss the proceeding for the irregularity but that he should have allowed the defendants the time allowed by the code for an appearance. As that time has long since expired, when the case is remanded to him, it will be his duty to allow them a reasonable (which will be generally twenty days) after notice of the remanding, within which to appear and answer. He will then proceed as required by law. ’ ’

The reasoning of these two cases seems to us to be sound. No possible prejudice can come to the defendant in error by requiring him to appear to this summons, and whether or not it were a summons which required him to answer on a given day we should hold the summons good, we do hold in the present case that notwithstanding the irregularity in the summons as to the day on which the sheriff was to make return, the service will not be dismissed, and the motion to dismiss is overruled.

As to the motion made by the plaintiff in error, we suggest that it be withdrawn. Tf it is not withdrawn, it is overruled.


text:
    EXPERT TESTIMONY AS TO PERSONAL INJURIES.
    Circuit Court of Lorain County.
    Lake Shore Electric Railway Company v. Alice Gatens.
    Decided, May 1, 1907.

      Negligence—Expert Testimony—Internal Injuries—Evidence—Excessive Judgment.

    1. In a personal injury damage case against a corporation, it is not reversible error to ask a physician, testifying as an expert for the defendant, if he' has not frequently acted as an expert for defendant corporations.
    2. It is competent to ask an expert witness in such a case, if certain injuries from which the plaintiff is shown to be suffering, could be attributed to an accident of the character claimed in the petition, ,if followed by other evidence tending to exclude all other possible causes than the accident itself, and tending to establish an actual causal relation between the accident and the injuries "in question.
    3. Where a petition alleges internal injuries generally, evidence may be received that the plaintiff suffered from pains in the head, irregular menstruation, .enlarged ovaries and displaced womb.
    4. A judgment for $3,500 is too large where it is not shown that the plaintiff was permanently crippled in any manifest way, nor that there will he any great permanent impairment of her general health or incapacity in the performance of her duties.

      E. G. & H. G. Johnson, for plaintiff in error.

      Sidles, Green c& Sidles and Stroup c& Fauver, contra.
    Henry, J.; Winch, J., and Marvin, J., concur.
   The defendant in error, Alice Gatens, recovered a verdict and judgment for four thousand dollars in the court of common pleas against the Lake Shore Electric Railway Company, on-account of personal injuries sustained by her while alighting from one of its cars, in which she had taken passage. The negligence alleged consists in the premature starting of the car, causing her to be thrown violently to the ground.

Among the errors alleged is, first: The overruling of an objection asked on cross-examination of an expert medical witness for the defendant below, namely, whether he had not frequently acted as an expert witness for defendant corporations. AVe think this does not transcend the limits of reasonable cross-examination; it implies no necessary reflection upon defendant corporations in general, nor upon the plaintiff in error in particular. It may or may not tend to weaken the testimony of an expert to elicit the fact that he has been frequently employed by others in like cases, but its force in that behalf, if any, is perfectly legitimate. A corporate defendant occupies neither a better nor a worse position than other defendants with regard to the cross-examination of witnesses which it produces, and this question does not assume anything else with regard to the defendant below.

It is complained further here that the trial judge overruled an objection to a hypothetical question addressed by counsel for the plaintiff below to one of her expert witnesses, which called for an opinion as to whether or not certain injuries, from which she jwas shown to have been suffering since the accident, could be attributed to an accident of that character. The witness’ answer was that they could be. This question did not seek to elicit, nor- does the answer disclose, whether the injuries in question probably did result from such an accident. The most that can be said is that they involve the possibility of such a causal relation. Tinas limited in its scope and effect we see no valid objection to the admissibility of the evidence, if supplemented by other evidence tending to exclude all other possible causes than the accident itself, or by expert or other evidence establishing the existence of an actual causal relation between the accident and the injuries in question. The evidence on the subject would then be full enough for submission to the jury.

Tt is, however, insisted that the petition below fails to allege some of'the injuries, as to which the medical experts were permitted to testify, and that the evidence fails to show that some of those injuries resulted from the accident in question. Particular attention is called to pains in the head, irregular menstruation, enlarged ovaries and displaced womb. Upon examination of the petition we find, however, that it does allege inter'nal inuries, without 'specifying in full detail -what they were, and the evidence discloses, although somewhat meagerly it is true, a causal relation between the accident and the internal ailments referred to., with á possible exception of the enlarged ovaries, and even these are somewhat doubtfully included by one expert among those organs, "the unhealthy condition of which he ascribed to an accident of the kind and character complained of.

The extent of the injuries of the plaintiff below was sharply contested, and it is claimed here that the verdict of four thousand dollars, even as reduced below by remittitur to thirty-five hundred dollars, is still so large as to evince bias or prejudice on the part of the jury, in view of all the evidence upon the subject, and it is insisted that the damage awarded, as thus reduced, is still in excess of any amount warranted by the evidence. We have carefully read the testimony in this behalf, and we conclude that the jury were misled in this respect. We can not attribute such bias to any particular cause, although it is suggested that the repeated reference to one of the defendant’s medical witnesses in the arguments of counsel for the plaintiff below, as a “company doctor.” without warrant in the evidence for such characterization, might have had the effect of prejudicing the jury against his testimony; but we find that no prejudice of any kind could have arisen from this remark, for the witness referred to did not testify on the sharply contested issues, and we may remark parenthetically at this juncture, that although the repetition of the reference in question, after the admonition of the court, was improper, we do not think that it constituted such misconduct as to amount to reversible error.

Recurring to the amount of the judgment, we are unable to find from the record that the plaintiff below offered any such proof as to the extent of her injuries, as to justify the inference that she had been damaged to the extent of $3,500. It is impossible, of course, to measure accurately in money the damage that accrues to a person injured, in consequence of'impaired health, but some proportion must be admitted to exist, and should be maintained between the amount of damage referable to injuries of a permanently crippling and incapacitating character upon the one hand, and the damages recoverable on account of temporary injuries and moderate impairment of health, upon the other. That this woman was severely injured we do not doubt, but she is not permanently crippled in any manifest way, nor does it appear that there will permanently be any such gross impairment of her general health or incapacity in the performance of her housewifely duties as to warrant the recovery of so large a sum. It is possible that upon a new trial and a more complete disclosure of the facts the evidence might warrant a recovery of the amount which the jury in this case awarded, but, taking the record as we have it, we find that there was error in overruling the motion for a new trial, upon the ground that the verdict was excessive, and the amount awarded indicated bias or prejudice and that the verdict in respect of the damages awarded was not sustained by the evidence, and unless the defendant in error shall remit $1,000 from her verdict and judgment, the judgment will be reversed and the cause remanded.


text:
    PROVISION BY WILL FOR. LUXURIES FOR INFIRMARY INMATES.
    Circuit Court of Lorain County.
    Judson C. Starr v. N. H. Forbes et al.
    Decided, May 1, 1907.

      Trust—To Provide Luxuries for Inmates of Infirmary—Enfor title.

      A. trust created in a will for the purpose of providing for the inmates of a county infirmary such luxuries as they would not have in the regular administration of the institution, is not illegal or impossible of accomplishment.

      Geo. H. Chamberlain, for plaintiff: in error.

      E. G. (6 H. C. Johnson, Ingersoll, Stetson Wileox, F. M. Stevens and Lawrence Gillmore, contra.
    Henry, J.; Winch, J., and Marvin, J., concur.
   This is an action by an heir at law against legatees in trust who are in possession of a fund which, it is alleged, they had no capacity to take. By the will of Orline R. S. Hamilton, the residue of her estate remaining after the payment of certain other bequests, was bequeathed to the directors of the Lorain County Infirmary, and their successors in office forever, upon certain trusts for the poor of said, county, who were defined to be, in a suit instituted for the purpose of construing the trust, the inmates of .said infirmary. In that suit it was also decreed that the object of the trust was to provide for said inmates such luxuries as they would not have in the regular administration of that institution. Some $3,813.17 is now in the possession of the directors of said infirmary, who are the successors in office of the persons who occupied that position at the time the will was made and the bequest paid. The estate has been fully settled, and this action is brought without making the executor a party. It is objected on behalf of the infirmary directors that they are not liable to be thus directly sued, but in the view we take of the case, it is not necessary to determine that question. The main contention is that neither Section 20, nor any other section of the Revised Statutes of Ohio, empowers infirmary directors as such, to take a legacy, or to accept or execute a charitable trust; that the testator’s intention was to repose a personal confidence in those whom the people might elect to the office -of infirmary director, and to those who by reason of occupying that official position would be peculiarly qualified to carry- out her wishes, and that, therefore, no substitute trustees appointed by a court of equity could carry out the purpose of the will; that in any event the interference with the public administration of the poor laws and incentives offered by the trust thus sought to be created, to induce the poor to become public charges in order that they may become beneficiaries of this fund, are so repugnant to the public policy of the state as to render the trust illegal and impossible of accomplishment through any agency, official or non-official.

Upon the other hand it is claimed that the infirmary directors are within the spirit if not the letter of Section 20 of the Revised Statutes of Ohio; that no statutory authority is required to authorize public officers to administer q^asi-publie trusts; that if the infirmary directors can not take in their official capacity, they may nevertheless take as individuals, and that ir any event, if the trustees named in the will are incapable of taking, a court of equity may and should in the ease of a charitable trust, appoint suitable trustees to Carrs'- out the general purpose provided for in the will.

It is perfectly manifest that the plaintiff’s case must stand or fall upon its own merits. Unless the trust provided by the will is utterly illegal or incapable of enforcement by any lawful means, the plaintiff has no claim to this fund. It is not necessary for us to decide whether or not the title of the trustees who now have possession of the fund is unassailable, unless we further hold that the trust itself is void. We see nothing incompatible with the public policy of the state and with the enlightened humanitarianism which it offers, to defeat this most charitable attempt to alleviate the unfortunate condition of those who through age. sickness or other adverse circumstances become unable to support themselves, and hence a charge upon the community. This is eminently such a public or eleemosynary trust as will be enforced "by a court of equity, if necessary, through a trustee of its own appointment. It is not to be supposed that the testator reposed a personal confidence in persons whom she never saw or knew, simply because they held elective office and have supervisory control over paupers. On the contrary, a court of equity must be presumed to be quite as capable of appointing a trustee who is well qualified to administer a trust of this character, as the general electorate of the county, and if necessary, such trustee can hereafter be appointed. •

It follows, therefore, that the plaintiff’s claim to this fund, resting as it does upon the supposed invalidity of this trust, is not well founded, and his petition is dismissed.


text:
    PROSECUTION FOR UTTERING AND PUBLISHING FORGED INSTRUMENT.
    Circuit Court of Lorain County.
    Frank Lieblang v. State of Ohio.
    Decided, May 1, 1907.

      Criminal Laic—Affidavit of Prejudice—Misstatements of Prosecuting Attorney—Uttering and Publishing Forged Check—•Similarity of Handwriting—Evidence—Accused Absenting Himself During Trial.

    1. It is not error for a trial judge to disregard an affidavit of prejudice filed on the day of the trial.
    2. No prejudice results from misstatements as to the crime charged by the prosecuting attorney in his opening statement of the case to the jury in a criminal case, if, after the evidence is all in the trial judge instructs the jury to consider only the evidence admitted and to disregard all statements of the prosecuting attorney with regard to evidence offered, but not admitted.
    3. One who seeks to obtain money on a forged check purporting to be payable to himself, by presenting it to the bank on which it is drawn and asking that it be cashed, is guilty of uttering and publishing the forgery, though it is not until afterwards that he endorses his name upon the back of the check.
    4. Circumstantial evidence may be sufficient to lay a proper foundation whereby one writing is so authenticated as to authorize the comparison therewith of another writing to show identity or diversity of authorship.
    5. If, after the trial of a felony case has begun and before it is finished, the accused absent himself, the trial may continue, after forfeiture of the recognizance, and the verdict be received and recorded, but sentence can not be pronounced until the accused is in court, or is retaken.

      Anthony Neiding and Brady cG Bowling, for plaintiff in error. F. 21. Stearns, contra.
    Henry, J.; Wincii, J., and Marvin, J., concur.
   The plaintiff in error was convicted of uttering and publishing a forged instrument. An affidavit of prejudice was filed against the trial judge, who disregarded it upon the ground that it was filed immediately before the trial began and on the same day, and was, therefore, too late. Under the recent amendment of the statute in that behalf, we think the trial court committed no error in disregarding the affidavit.

It is said that the prosecuting attorney was guilty of misconduct in his opening statement in intimating that the prisoner was guilty of attempted blackmail or extortion in connection with the offense for which he was tried. His statement was challenged at the time by the prisoner’s counsel but the court overruled the objection, stating that he could not at that stage of the ease determine whether evidence of these collateral matters would or would not be competent. The prosecuting attorney seems to have been acting in good faith upon the supposition that the matters in question were material, but later in the trial when he attempted to*introduce evidence thereof, such evidence was excluded. The trial judge, moreover, carefully instructed the jury to consider only the evidence introduced, and to disregard all statements made by the prosecuting attorney with regard to evidence offered but not admitted. In this, we find no prejudicial error.

Another error complained of is that the forged instrument set Forth in the indictment did not contain the endorsement of the prisoner’s name, which appears on the back of the instrument as introduced in evidence. We think there is no material variance in this-respect. The evidence shows that before the forged check had been introduced, the prisoner sought to obtain money on it by presenting the same .and requesting that it be cashed. This, of itself, constitutes an uttering and publishing. The prisoner urns told when he thus presented the cheek, which was payable to his own order, to write his name on the back of it. He turned and went a few feet away to a desk and came back after a few moments with what purported to be the same check, bearing his signature. On this state of facts it is further complained that this endorsement was determined by the court to afford a sufficient basis of comparison to admit of the introduction of evidence of a letter alleged to have been written by Lieblang, and to authenti-ate his handwriting thereon. Another writing proved to have been made by the prisoner was also used as a basis of comparison. It is objected, however, inasmuch as no one actually saw the prisoner endorse the check, the circumstantial evidence that the endorsement was written by him was not sufficiently positive to make it a proper basis of comparison. We think that circumstantial evidence may, and in this ease does suffice, to lay a proper foundation, whereby one writing is so authenticated as to authorize the comparison therewith of another specimen of handwriting to show identity or diversity of authorship.

It is further complained that the court committed error in proceeding- with the trial when, after the evidence was all in, the prisoner failed to appear at the opening of court on the morning of the last day of the trial.

Section 7301 of the Revised Statutes, of Ohio provides:.

“A person indicted for a misdemeanor may, upon his request in writing, subscribed by him and entered on the journal, be tried in his absence, or by the court; no other person shall be tried unless personally present; and if a person indicted escape, or forfeit his recognizance, after the jury is sworn, the trial shall proceed, and the verdict be received and recorded; if the offense charged is a misdemeanor, judgment and sentence shall be pronounced as if he were personally present; and if the offense charged is a felony the case shall lie continued until the convict is in court, or is retaken. ’ ’

It is insisted that this being a case of felony there is no authority for going forward with the trial during the prisoner’s absence and that the only course open in this event is indicated by the words, “The case shall be continued until the convict is in court, or is retaken. ” .

We think that counsel misinterpret this section. The true intent and meaning thereof is, that in the prisoner’s absence a trial may not be commenced and carried on in case of felony; that it may be commenced and carried on in casé of misde-_ meanor, upon the prisoner’s request in writing, subscribed by him and entered on the journal. If, after the trial is commenced the prisoner absent himself, the trial may continue whether it be a ease of felony or misdemeanor. Sentence, however, can not be pronounced in the prisoner’s absence, except in case of misdemeanor. '1 ;

It is further contended that even with this interpretation of the statute, the trial was erroneously proceeded with, inasmuch as it did not appear that there had been an escape or forfeiture o£ recognizance. It is suggested that his absence may have been due to sickness, accident, arrest, or other cause beyond’his control. This, however, would not be sufficient to prevent a forfeiture of his recognizance, although it might justify the selling aside of such forfeiture thereafter. The transcript here shows that the recognizance was duly forfeited on the same day that the bill of exceptions shows the objection to the further prosecution of the trial was made and overruled. We think there was no error in submitting the case to the jury and receiving their verdict under these circumstances in the defendant’;: absence.

No other error in the record is alleged, and we find none

Judgment is therefore affirmed.


text:
    LEWD WOMAN HELD ENTITLED TO HOMESTEAD EXEMPTION.
    Circuit Court of Lorain County.
    Maud Barnes et al v. H. P. Elickman.
    Decided, May 1, 1907.

      Attachment—Discharge of Property Claimed as Exempt—Owner a Prostitute.

    It is no reason for refusing to discharge an attachment of goods shown to be the property of a married woman living with her husband, neither of whom have a homestead and the goods being claimed as exempt in lieu of a homestead, that the debtor is a prostitute, plying her vocation.

      Thompson, G-litsch <& Ginniger, for plaintiff in error.

      8. H. Williams, contra.
    Henry, J.; Winch, J., and Marvin, J., concur.
   The error alleged in this proceeding is the failure of the court below to discharge an attachment levied upon a piano, the property of Maud Barnes, a married woman living with her husband, neither of whom has a homestead; the piano in question .being claimed by way of exemption in lieu of homestead. All these facts are admittedly true, save that it is alleged that Maud B,arnés is a prostitute, plying her vocation, and' that her husband, therefore, does not live with her in the sense contemplated by the exemption statutes intended for the protection of the family.

We are not able to read into the statute any qualification of this sort, and the judgment below is reversed

Proceeding to enter the judgment which the court below should have rendered, we now order that the attachment be and the same is discharged.


text:
    ENFORCEMENT OF RESTRICTION IN DEED.
    Circuit Court of Summit County.
    The West Hill, Land Company v. Samuel J. Ritchie.

    Decided, April, 1907.

      Restrictions in Deed—General Plan—Constructive Notice—Waiver.

    Restrictive covenants contained in a deed in defendant’s chain of title, of which he had constructive notice, which are part of a general plan or scheme of restrictions published and adhered to by plaintiff and its trustee, will, be enforced notwithstanding plaintiff has offered to sell the defendant other lots in the allotment, without restrictions.

      Stuart Stuart, for plaintiff in error.

      W. F. Young, contra.
    Henry, J.; Winci-i, J., and Marvin, J., concur.

      Affirmed without opinion, Ritchie v. West Hill Land Co., 80 Ohio State, 722,

   We see no reason why the restrictions in the deed of defendant’s grantor should not be enforced so as to prevent defendant from erecting any building nearer than the stipulated distance from the street. He had constructive notice of the restrictions when he bought. They were a part of the scheme or plan of restrictions published and adhered to by plaintiff and its trustee, Christy, who has nowr executed his trust by conveying the entire allotment to plaintiff. The restriction complained of is not unreasonable. There is nothing in the evidence to show that plaintiff has waived it. True, it offered to sell to defendant its entire line of lots on defendant’s side of the street, without restrictions; but that does not amount to a waiver, much less to an estoppel. The plaintiff may, therefore, take a decree in accordance with the prayer of the petition.


text:
    LIABILITY OF WIFE ON NOTE TO WHICH SHE SIGNED HER. HUSBAND’S NAME.
    Circuit Court of Summit County.
    William Waldo et al v. Frank P. Fuller et al.

    Decided, 1907.

      Promissory Note—Authority of Wife to Sign Husband’s Note—Liability of Wife as Accommodation Maher.

    1. Where a husband authorizes his wife to collect what .is owing to him and pay what is owing by him, that does not authorize her to give a promissory note to pay part of his debts and sign his name thereto.
    2. One who receives a note purporting to be the note of his debtor and the debtor’s wife, to pay an antecedent debt of the husband, may enforce said note as against the- wife, notwithstanding she signed her husband’s name to the note without his authority, the creditor not knowing that fact.

      Musser, Kohler c& Mollinger. for plaintiff in error.

      Esgaie, Spencer Snyder, contra.
    Henry, J.; Wincii, J., and Marvin, J., concur.

       Affirmed without opinion, Fuller v. Waldo, 79 Ohio State, 437.

   The action below was upon a promissory note alleged to have been given by the defendants in error, who are husband and wife. Plaintiffs in error were plaintiffs below and are Iowa merchants. The defenses interposed by the separate answers are: First, want of consideration. Second, that the signatures to the note are not genuine. Third, that if the wife did in fact sign her own and her husband’s names, she had no authority to bind him.

The last defense affects the husband only, and as to him the judgment must be affirmed. The evidence of her agency at most amounted to a statement by him that his wife would collect what was owing to him and pay what ivas owing by him. This does not warrant any inference that she was authorized to sign his name to promissory notes. Mechem on Agency, Section 389.

As to the wife the case is different. True, the rule is that where an answer sets up two defenses, and the jury finds on the issues for the defendant, it is a finding on all the issues, and where error intervenes affecting only one of them, the verdict must be upheld (McAllister v. Hartzell, 60 Ohio St., 69). Here, however, we think there was error affecting both defenses interposed by the wife. An inspection of her admitted signature affixed to a deed very near the time of the note’s date, together with the other evidence on the subject, compels the conclusion that her signature to the note is genuine, and we hold that in that respect the verdict is contrary to the weight of the evidence.

As to the other defense the court charged that inasmuch as the note was given for the husband’s debt, if given at all, a newr consideration wras necessary to bind the wife upon it in the hands of the original payee. Such is not the law.’ See, as declaratory of the common law, Sections 3172a and 3171a:, Revised Statutes.

Fon these errors, and these only, the judgment in favor of the wife is reversed and the cause as to her is remanded.