text:
    ERROR — STREET RAILWAYS.
    [Hamilton (1st) Circuit Court,
    November 19, 1910.]
    Giffen, Smith, and Swing, JJ.
    Cincinnati Trac. Co. v. John L. Renner.
    Verdict for Plaintiff Reversed for Carelessness in Driving upon Street Railway Track.
    Since thd evidence indicates that the plaintiff below either saw before driving upon the track the car by which he was struck approaching and very near, or he heedlessly drove upon the track without looking, support is not found for a verdict in his favor in either aspect of the case.
    [Syllabus approved by the court.]
    Error to common pleas court.

      Paxton, Warrington & Seasongood, for plaintiff in error.

      A. G. FricJce and Thos. L. Michie, for defendant in error.
   GIFFEN, P. J.

The plaintiff, John L. Benner, was driving a team of mules hitched to a platform wagon out of Jane street into Sixth street, in the city of Cincinnati, and while attempting to cross over to the south side of Sixth street his wagon was struck near the front wheel by a west bound car of the defendant company, •whereby he was injured.

He himself testifies that when the mules were within two feet of the west bound track he looked in the direction whence the car came, and, although he had a clear view of two or three hundred feet, he saw no car; that he attempted to cross and when his mules reached the east bound track he heard the car, which was then about five feet from him.

If he looked for the first time when he says he did he must have seen the car, for it is incredible that the ear traveled 200 feet while his team was walking twelve or fifteen feet, unless the car was running at the rate of fifty or sixty miles an hour, which is not shown by any evidence. His inattention, recklessness, or incredibility appears from his statement that he did not discover the car until within five feet of him. If he looked to the front all the time, as one of his own witnesses testified, he could, without turning his head, have seen the approaching car, not only five feet away, but twenty-five feet and possibly fifty feet. "While there is no absolute rule of law which required him to look in both directions for an approaching car, yet he could not close his eyes to his surroundings and be held blameless for an accident resulting therefrom. He either saw the car approaching before entering upon the track and assumed a risk that an ordinarily prudent person would not assume, or heedlessly attempted to cross without any effort to ascertain whether a car was coming. The other testimony fixes the distance between the car and the wagon when plaintiff attempted to cross at twenty-five to one hundred feet. The jury must have adopted the testimony of the plaintiff that there was no car in sight when he started over the track; but this statement is not supported by any other evidence, and is wholly incredible.

The special charge requested by. the defendant, and refused by the court, assumes that the failure to look when about to cross a street railway is negligence per se; but the rule of law applicable to steam railroad crossings does not govern at street railroad crossings. Cincinnati St. Ry. v. Snell, 54 Ohio St. 197 [43 N. E. Rep. 207; 32 L. R. A. 276].

There was no error in refusing such instruction. That part of the definition of preponderance of evidence quoted in the brief of counsel for the plaintiff in error is faulty, but cured by the next paragraph.

The other alleged errors are not likely to occur in a subsequent, trial, and it is unnecessary to here consider them further than to say that we deem them harmless.

The judgment will be reversed, because not sustained by sufficient evidence, and the cause remanded for a new trial.

Smith and Swing, JJ., concur.


source: Caselaw Access Project

author: JONES, J.

license: Public Domain

text:
    DEATH — ERROR.
    [Hamilton (1st) Circuit Court,
    May 4, 1912.]
    Smith, Swing and Jones, JJ.

       Charles E. Roth v. Agnes Bien, Admrx.
    Evidence as to Decedent’s Attachment to His Children Held Irrelevant and Prejudicial.
    In an action for wrongful death testimony that decedent was greatly attached to his children is irrelevant, and having been brought out for the purpose of influencing the amount of damages the children should receive as beneficiaries, and the pourt being unable to say that this purpose was not accomplished, rhust assume that prejudicial error resulted.
    Z>. F. Cask, for plaintiff in error.

      Kramer & Bettman, for defendant in error.
    . Nicholas Bien was killed by an automobile belonging to Mr. Roth, which struck him as he was crossing the street at Eighth and Walnut, Cincinnati. Judgment for $9,000 was recovered below by the administratrix.

       Affirmed, no op., Bien v. Roth, 87 O. S. 000; 57 Bull. 472.

   JONES, J.

On pages 13 and 14 of the bill of exceptions will be found the following:

‘ ‘ Q. Mrs. Bien, will you state what his disposition towards the children was? A. Why, he was always with them; he was always with them; he thought so much of them; he would call them around him in the evening, or sometimes in the afternoon, and want to tell them something that was going on, with the little ones, the small ones.
“Q. Now, I don’t know that I understood that; speak louder. A. He thought so much of them he would always call them to him in the evening, or Sunday afternoons, that was.-his pleasure, to call them up to him, the smaller ones, to tell them something.
“(Counsel for defendant moved that'the answer be ruled out. Motion overruled; to which defendant, by his counsel then and there excepted.) ”

These questions and answers were irrelevant and could not possibly throw any light upon the issues in the case.' The authorities cited in the brief, of defendant in error do not sustain . the contention made as to the admissibility of such evidence.

It appears that counsel for plaintiff below insisted upon the questions being answered against objection and requested a “louder” repetition of the answer.

His purpose manifestly was to have the jury consider the evidence thus given as affecting the amount of damages suffered by the beneficiaries.

We can not say that the desired effect was not accomplished, and, hence, are justified, we think, in holding that the error was prejudicial. We find no other error.

Judgment reversed and cause remanded to court of common pleas.

Smith and Swing, JJ;, concur.


author: HENRY, J.

text:
    EJECTMENT — MUNICIPAL CORPORATIONS — RAIL= ROADS.
    [Cuyahoga (8th) Circuit Court,
    January 17, 1910.]
    Marvin, Winch and Henry, JJ.
    Cleveland & P. Ry. et al. v. Cleveland (City) et al.
    1. Possession of Street Obtained by Action to Recover Real Property if City Entitled to Immediate Control Despite Railroad Easement.
    To recover possession of a city street an action for the recovery of real property, under Gen. Code 11903, is maintainable by such city, if it be otherwise entitled to the immediate possession and control of the street in question, whatever be the exact legal nature of its estate or interest, and despite any easement of the defendants for railroad purposes therein.
    2. Fifty Years’ Uninterrupted Use by Public before Adverse Easement Began Coupled with Repeated Adjudications Raise Presumption of Competent Dedication of Streets in Issue.
    Irrespective of any irregularities in the dedication of the original streets of the city of Cleveland, their long and uninterrupted use and enjoyment by the public for nearly half a century before the defendants’ use of the one here in question began, raises a presumption that such street was in early days, laid out and established by competent authority, and the conclusiveness of such presumption is emphasized by the further circumstance that the actual sufficiency of the dedication of all said original streets was long ago so settled by repeated adjudications as to be stare decisis.
    3. Limitations on Use of Dedicated Street or Diversion to Their Uses, With or Without Color of Legislative Authority, not Sufficient in Absence of Appropriation Proceedings.
    Inasmuch as it is not and never has been in the power of the legislature, unless in the exercise of the power of eminent domain, to authorize property dedicated to the public for a specific purpose to be used for any other and inconsistent purpose, it is immaterial what limitations the city of Cleveland in early days sought to place upon the public use for street purposes of one of its dedicated streets, or to what other purposes it may'have sought to divert it,' either with or without color of legislative authority.
    4. City Charter Conferring Power to “Settle and Establish Boundaries” of its Streets not Power to Vacate.
    The power conferred by Secs. 6 and 8 of the first city charter of the city of Cleveland (34 O. L. 271), to settle and establish the boundaries of its streets and to make maps and surveys thereof that should be conclusive evidence of the position and limits of such streets, is to be construed as a power in substance, to ascertain, not to alter street boundaries, and to establish the existing location of streets, not to abandon or vacate them.
    5. Cleveland never had Power except by Eminent Domain and Statutory Vacation to Part with Title in Streets Dedicated.
    It is not and never has been within the delegated powers of the city of Cleveland to part with its title, held by dedication in trust for the public, to its properly established and opened streets, otherwise than by compliance with the provisions of statutes expressly providing for their vacation or their appropriation to a parampunt public use.
    6. Act Authorizing Use of Streets in Location of Railroads does no£' Grant Exclusive Easement.
    Section 11 of “An act regulating railroad companies,” (46 O. .L. 40) and the substantially similar provisions of Gen. Code 8763, authorizing railroad companies, in' the exercise of the power of eminent domain by agreement with municipalities or by action for appropriation, to acquire the right to use and occupy public streets, when necessary in the location of their railroads, do not authorize the acquisition by such companies of an exclusive and permanent estate or easement, but of a right merely to the joint use and occupancy with' the public, of lands already dedicated or appropriated to public use for street purposes; and this right is exercisable only in such manner as shall not destroy the street, nor exclude the public use and enjoyment of any and every part of it, nor cause any nuisance therein, nor interfere with the full control and supervision thereof by the municipal authorities.
    7. Permanent Structures Placed by Railroads in Streets Nuisances, • though by Agreement with City.
    The placing by railroad companies upon city streets of permanent structures that prevent the public use of all or part of such streets, being unauthorized by statute, constitutes the maintenance of public nuisances, in favor of which, the statute of limitations does not run; especially if such structures when so placed were claimed by such railroads, however mistakenly, to be subservient to the public use to which the premises had been dedicated as a street, and pursuant to a lawful agreement with such city to that end.
    8. Doctrine of Estoppel does not Apply to Grant of Street for Railroad in Absence of Power to Make Grant Originally.
    The doctrine of equitable estoppel has no application in aid of the validity or extent of a grant to a railroad by a municipality of its street, where there is an entire absence of power to mhke such grant originally.
    9. Statute of Limitations Admissible in Defense in Ejectment against Railroad not as Tolling but Showing Character of its Possessions as Consistent with City’s Use.
    Where, in an action of ejectment brought by a city against railroad companies to recover possession of a city street, the defense of the statute of limitations is interposed by one of said companies in aid of its color of title imperfectly derived from a source paramount to that of the city, an answer filed by such company in an action to which said city was not a party and at a time when the alleged running of the statute of- limitations was hut just begun, averring that said company occupies the land in controversy by permission of and agreement with such city and in harmony with the street purposes for which said land was originally dedicated, is admissible in evidence, not as tending to prove any tolling of the statute of limitations, but as characterizing the said defendant’s possession as permissive and consistent with the original public use.
    10. Dicta in Judicial Opinions Prior to Formal Decisions of Same Court on Same Subject not Basis for Operation of Rule Fixing Property Rights.
    The fact that various dicta in the opinions of judges of the Supreme Court of Ohio, touching the proper construction of Gen. Code 8763, are prior to and inconsistent with the first . formal decisions by the same court upon that subject, affords no basis for the application of the rule of property that rights founded upon the adjudicated construction of a statute cannot be swept away by later contrary decisions.
    11. Municipal Governmental Functions as to Streets not Lost by Compromise of Litigated Title to Dedicated Street.
    The implied- authority, in all corporations with the power of suing and being sued, to compromise and settle matters of bona fide dispute or litigation to which they are parties, does not extend to the destruction or impairment of any governmental function of a municipal corporation (such as its duty to keep its streets open, in repair, and free from nuisance), by its alleged compromise settlement of a litigated title to one ■of its dedicated streets, whereby it is claimed to have surrendered its title to a substantial part of such street; especially when its adversaries in such litigation are not parties to the alleged settlement or the consideration therefor, and are not concluded thereby.
    [Syllabus by the court.]
    Error to common pleas court.

      Squire, Sanders & Dempsey and Cook, McGowan & Foote, for plaintiffs in error.

      Newton D. Baker, city solicitor, and James Lawrence, for defendants in error.
   HENRY, J.

This proceeding in error is brought to reverse the judgment rendered by the Cuyahoga common pleas court in behalf of the plaintiff in an action of ejectment begun by the city of Cleveland, under favor of R. S. 5781 (Gen. Code 11903), to recover possession from divers railroad companies, defendants below, of the greater part of a street on the lake front between the Cuyahoga river and the Union Station in said city.

The court below found: “That the plaintiff has a legal estate in and is entitled to the immediate .possession of, the premises described in the petition, subject to all the rights which the defendants herein, and each of them, have in and to said premises, under and by virtue of a contract dated September, 1849, by and between the city of Cleveland and the Cleveland, Columbus and Cincinnati Railroad Company,” etc.

This judgment fails to define the rights of the defendants below thus reserved in such manner that a writ of restitution may discriminate what is to be restored to the city from what is not. Inasmuch as the controversy turns on the extent of the rights conferred upon the defendants below by the contract of 1849, the judgment begs the very question at issue.

Passing by'this question, however, for the present, we hold, at the outset, that ejectment by the city to recover possession of its street is, however its estate or interest therein be defined, and despite any easement of the defendants below therein, a remedy both fitting and adequate. Paige v. Cherry, 9 Circ. Dec. 364 (17 R. 579), affirmed, no op., Paige v. Cherry, 52 O. S. 644; Fulton v. Mehrenfeld, 8 Ohio St. 440; Doe v. Mehrenfield, 12 Dec. Re. 543 (1 Disn. 151); Fulton v. Mehrenfield, 12 Dec. Re. 389 (2 Han. 176); St. Louis v. Railway, 114 Mo. 13 [21 S. W. Rep. 202].

Nor will we indulge any doubt as to the original validity of-the city’s title to this street as such. Its long and uninterrupted use and enjoyment for half a century before the defendant’s use began would raise a conclusive legal presumption, were resort thereto required, that this street, at some anterior period, was laid out and established by competent authority. Railroad Co. v. Roseville, 76 Ohio St. 108 [81 N. E. Rep. 178].

All the original streets and public grounds of Cleveland are in like case, and the sufficiency of their dedication was long ago settled by repeated adjudications, both reported and unreported, and is therefore stare decisis. Holmes v. Railway, 3 Dec. Re. 416 (8 Am. L. Reg. 716); Cleveland v. Railway, 12 O. F. D. 459 (93 Fed. Rep. 113); Gleason v. Cleveland, 49 Ohio St. 431 [31 N. E. Rep. 802].

Inasmuch, moreover, as it is not and never has been in the power of the legislature unless in the exercise of the power of eminent domain to authorize property dedicated to the public for a specific purpose, as in this case, to be used for a purpose, inconsistent with that for which it was dedicated, it is immaterial what limitations the city sought to place upon the public use of said street for street purposes, or to what other purposes it may" have sought to divert it, either with or without the color of legislative authority during that early period. Louisville & N. Ry. v. Cincinnati, 76 Ohio St. 481 [81 N. E. Rep. 983]; Van Wert (Bd. of Ed.) v. Edson, 18 Ohio St. 221 [98 Am. Dec. 114]; LeClercq v. Gallipolis, 7 Ohio (pt. 1) 217 [28 Am. Dec. 641]..

Suffice it to say that in the very contract, already alluded to, the parties themselves have referred to and characterized the premises in controversy, including much of the present large littoral accretion, as being at and prior to the date of said contract, a street of the city of Cleveland.

The city had always recognized the street as such; and the equivocal phrases in the early municipal records, “Rath street, so called,” and “land known as Bath street property,” are referable not to any uncertainty as to its legal status but to the anomalous littoral boundary and variable width. It is true that, pursuant to the provisions concerning streets contained in its charter enacted March 5, 1836 (34 O. L. 271), as amended by the act (irreconcilable with the above decisions) passed December 21, 1844, the city council had, with respect to said premises, availed themselves of the qualified “power to lease any portion, or portions, of said streets,, not in their opinion required for public use.” The so-called Merchant map, which the council procured and put on record, in order to facilitate such temporary leasing, and which distinguishes the portions of Bath street allotted for that purpose from the residue then deemed to be required for public use and travel, was plainly not intended to be “conclusive evidence of the position and limits of such street” nor to “settle and establish the boundaries” thereof, under Secs. 6 and 8 of the charter, in such manner as permanently to exclude from public use the premises in controversy. The power conferred by those sections is to ascertain, not to alter street boundaries; to establish the location of streets, not to abandon them. The settling of street boundaries is not a method available for vacating the major part of a street or for deliberately extinguishing the dedicated public use of any portion thereof.

There is no pretense here that the disputed part of Bath street was ever formally vacated, in- compliance with the provisions of any statute to that end. As stated in Lake Shore & M. S. Ry. v. Elyria, 69 Ohio St. 414 [69 N. E. Rep. 738], “we find nowhere any other method of vacating such public highway, or any part of it. By the proper establishment and opening of the street the village or city becomes vested with the full title thereto, in trust for the public, and it is not within the delegated powers of the municipal council to barter or grant away such title, except in the mode provided for the purpose.”

The strength and character of the city’s ancient title being thus beyond question, what grounds had the defendants below for withholding possession of the premises ? The answers plead the following contract, which admittedly inures to all the defendants, and binds the city so far as it had power so to contract :

“This indenture, made this thirteenth day of September, in the year of our Lord eighteen hundred and forty-nine, by and between the city of Cleveland, by F. W. Bingham, mayor of said city, thereunto duly authorized by resolution of the city council, of said city, party of the first part, and the Cleveland, Columbus and Cincinnati Railroad Company, by John M. Woolsey, vice-president thereof, thereunto duly authorized by resolution of the board of directors of said company, party of the second part, Witnesseth:
“That said city of Cleveland, in consideration of the sum of fifteen thousand dollars, received by said-city-of said railroad company, in the capital stock of said company, for which a certificate for one hundred and fifty shares, of one hundred dollars each, full paid of said stock, hath been issued to said city, the receipt whereof is hereby acknowledged, and also in consideration of the covenants of said railroad company hereinafter contained,- hath granted, and by these presents doth grant to said railroad company as fully and absolutely as said city or the constituted authorities thereof, have the power or legal authority so to do, the right to the full and perpetual use and occupancy for their railroad tracks, turn-outs, engine and car and passenger houses, turntables, water tanks or stations, avenues to and from the same, leaving open spaces between when deemed expedient, and other purposes connected with, and necessary for the convenient use and working of said road, all of Bath street in said city of Cleveland, situated northwardly of a line drawn parallel with the southerly line of Bath street and one hundred and thirty-two feet northwardly at right angles therefrom — excepting a reserving therefrom a piece or parcel bounded southerly by the last described line — eastwardly by a line drawn parallel with the westerly face of the stone pier so called, and one hundred (100) feet eastwardly therefrom — and northwardly by a line drawn parallel with the south line of Bath street and two hundred and eighty-two (282) feet northwardly therefrom, which is reserved for public use as a part of Bath street and also reserving and excepting therefrom a strip of twenty-five fe'et in width, bounded westerly by the west face of said pier and east-wardly by a line parallel therewith 'and twenty-five feet therefrom and extending from the northerly line of said last described parcel qf and along said pier to the northwardly and thereof as it now is, or may be hereafter extended, which is to be kept open as a public highway, and shall not be obstructed by said city, or by any person.or persons, or company claiming through said city or by their permission.
“To have and to hold the same to the said railroad company, its successors and assigns, upon the terms and subject to the stipulations and conditions following, that is to say:
“Said company shall take and hold the same subject to all legal claims either in law or equity, of any person or persons, company or companies, — it being expressly understood that tbe city does not guarantee nor warrant either the title or the right to occupy the same, the said railroad company to have all the money, compensation, interest benefits and rights which the city could in any manner be entitled to on account thereof.
“Said company - shall save said city harmless from all damages to persons holding any part or parts of the premises under leases from the city, consequent upon the taking possession of the ground so leased, or in -any way depriving them of the full enjoyment of their leasehold interests before the expiration thereof, it being understood that this indemnification is to extend to such damages only as the city shall be legally holden to make good to the claimants thereof.
“All leases made by the city of the parts of said premises shall be assigned to said company — said company to have the right to collect and receive the rents hereafter accruing, and shall pay over to said city, two-thirds of all rents epllepted on land fronting on the river and lying between the south line of Bath street and a line parallel therewith and 282 feet northwardly therefrom, until said company shall deliver to said city the possession of said strip of 100 feet in width next to the pier hereinbefore reserved.
“And said company shall not renew or extend said leases, nor grant any new leases of any part of the premises which will interfere with the opening of Bath street to the width of 132 feet, or of the extension thereof on or near the stone pier as hereinbefore described.
“The said company shall not lease any part of the premises to any person or persons, company or companies, to be used for carrying or forwarding, storage or commission business, or for the erection of warehouses thereon, for the accommodation of such business, nor shall said company use said premises or any part thereof, for the purpose of engaging in, accommodating or aiding in the transaction of forwarding, commission or warehousing business, with a view either directly or indirectly of deriving profit therefrom, nor shall they grant the right to any railroad company, person or persons, or other company or companies so to do.
“But this prohibition shall not be construed to prevent said railroad company from erecting on said premises a suitable warehouse or warehouses for the reception and safe keeping of such articles of property as may be entrusted to their care for transportation and not consigned to any person or persons or company in Cleveland having the means of storing the same, it being the object and intent of the parties to this agreement to provide that said premises shall- not be so used as to interfere or come into competition with individuals, companies or firms engaged in forwarding, commission, storage or warehousing business in Cleveland, by carrying on or engaging in by said company, accommodating or aiding in forwarding, commission, storage, warehousing or other business not necessary to secure the transportation of property over their road, but may be used by said company for all purposes necessary for the convenient and profitable working of their road, subject to the restrictions aforesaid.
“Said .company to take and hold said land subject to all the legal rights and claims of the Cleveland & Pittsburgh Railroad Company upon the same, and to have all the benefits to accrue from such claimants as is before provided and as a further provision for same, shall upon reasonable and equitable terms, extend to said Cleveland & Pittsburgh Railroad Company and the Cleveland, Painesville & Ashtabula Railroad Company, room for warehouse and passenger depots, and such facilities for coming on to said premises with their cars, engines and tenders, for the reception and delivery of passengers, baggage and freight, subject to the same restrictions as to warehousing, forwarding and commission business as are herein imposed upon the Cleveland, Columbus and Cincinnati Railroad Company, and for transferring them to or receiving them from -other railroads, -or from steamboats, either by independent tracks, or by use of the tracks laid by the Cleveland, Columbus & Cincinnati Railroad Company, as shall be found most convenient to all concerned, and in case the parties cannot agree either as to the terms or manner of occupying such part of the premises as may he so required, the same shall be determined by three competent, disinterested men, one to be chosen by each party and the third by the two so chosen; it being however understood that the Cleveland, Columbus and Cincinnati Eailroad Company shall not be bound to permit either of said railroad companies to use for car, engine or warehouses, or grounds on which to place or dispose of ears, engines, tenders, or other furniture of their roads, any part of said premises which said arbitrators shall decide is necessary for those purposes to be used exclusively by said Cleveland, Columbus & Cincinnati Eailroad Company; it being further understood and agreed that no part of said premises shall after two years from this date, be used by said Cleveland, Columbus & Cincinnati Eailroad Company, for forges, furnaces, work shops or anything of similar character for the manufacture of cars, engines or other machinery, so as to deprive either of said other railroad companies of the full benefit of the use of part of said premises intended by this agreement to be extended to them.
“Said Cleveland, Columbus & Cincinnati Eailroad Company shall manage and take care of all suits, or actions now pending or which may hereafter be commenced for obtaining possession of said premises or any part thereof, and may compromise or settle such suits. And said company shall save said city harmless from all costs and charges on account thereof, except such as have already accrued against the city, and in case of settlement, shall save the city harmless from all legal costs in the case in court in bank, except the costs made by the city. And shall further save the city harmless from all legal claims or demands which are now or may hereafter be set up against the city, growing out of the use or occupation of said premises by said city or its tenants or lessees. And to enable said company to compromise and settle with the claimants Lloyd & Camp and all other claimants for the extinguishment of their claims to said premises or any part thereof, they may allow them to retain'such portion thereof as may be necessary to effect such settlement, and as shall not be deemed necessary to Be used for railroad purposes.
'"And the said Cleveland, Columbus & Cincinnati Railroad Company doth hereby covenant and agree to and with said city thdt said company will hold said premises upon the terms and subject to the stipulations and conditions herein recited, and will do and perform all and singular the acts required and abstain from doing and performing all and singular the acts prohibited by the terms and stipulations herein recited.
“In Witness Whereof the city council of said city of Cleveland have caused to be hereunto affixed the seal of said city and these presents to be subscribed by the mayor thereof. And the Cleveland, Columbus & Cincinnati Railroad Company have caused to be hereunto affixed their corporate seal and these presents to be subscribed by their vice president the day and year first above written.
"The City of Cleveland,
"By Flavel W. Bingham, Mayor.
" (Seal of the City of Cleveland, Ohio),
"The Cleveland, Columbus & Cincinnati Railroad Company.
"By John M. Woolsey, Yiee-President.
"(Seal of the Cleveland, Columbus & Cincinnati Railroad Company). Signed, Sealed and Delivered (the words ‘Alfred Kelley’ in the sixth line of first page being first erased and the words ‘John M. Woolsey Vice’ interlined above such erasure. Also the word ‘Vice’ being first interlined above the second line from the bottom of the last page). In the presence of "Jas. D. Cleveland,
"D. W. Crop. .
‘ ‘ State of Ohio, Cuyahoga County, ss:
"Before me, Jas. D. Cleveland, a justice of the peace in and for said county, personally appeared the within napied John M. Woolsey as vice-president of the Cleveland, Columbus & Cincinnati Railroad Company and Flavel W. Bingham, as mayor of the city of Cleveland, and severally acknowledged the signing and sealing of the within instruments to be their several voluntary act and deed for the, purposes therein expressed this 14th day of September, 1849.
Justice of the Peace.
“Jas. D. Cleveland,”

The only statute of this state then authorizing contracts; between municipal and'railroad corporations, for the use andl occupation by the latter of streets belonging to the former is found in Sec. 11 of “An act regulating railroad companies’’ (46 O. L. 40, 45), passed February 11, 1848. See. 9 of that act provided that any “such corporation is authorized to enter upon any land for the purpose of examining and surveying its railroad line, and may appropriate so much thereof as may be deemed necessary for its railroad, including necessary side tracks, depots, work shops and water stations,” etc.

The power of eminent domain was thus conferred upon' railroads for the acquisition of private property for railroad purposes. For their acquisition of the right to use or occupy public property already devoted to public uses, See. 11 of the same act provided that:

“If it shall be necessary in the location of any part of any railroad to occupy any road, street, alley or public way'or ground of any kind, or any part thereof, it shall be competent for the municipal or other corporation or public officers, or public authorities, owning or having charge thereof, and the railroad company to agree upon the manner, and upon the terms and conditions upon which the same may be used or occupied; and if said parties shall be unable to agree thereon, and it shall be necessary in the judgment of the directors of such railroad company, to use or occupy such road, street, alley, or other public ground, such company may apply to the court of common pleas of the county in which the same' is situate, setting forth the aforesaid facts,” etc.

R. S. 3281 and 3283 (Gen. Code 8759, 8763), now embody substantially similar provisions.

The latter of these statutes has since been construed to authorize the acquisition by railroad companies not of an exclusive and permanent estate or easement, but of a right merely to the joint use and occupancy with the public of lands which were already dedicated or appropriated to public uses. Such companies may, by agreement or action for appropriation, acquire the right to use a public street for such railroad purposes and in such manner as shall not destroy the street or exclude the public use and enjoyment of any and every part of it for street purposes, or cause any nuisance therein or interfere with the full ■control and supervision thereof by the municipal authorities. Lake Shore M. S. Ry. v. Elyria, supra; Wabash Ry. v. Defiance, 52 Ohio St. 262 [40 N. E. Rep. 89]; Zanesville v. Fannan, 53 Ohio St. 605 [47 N. E. Rep. 703; 53 Am. St. Rep. 664]; Louisville & N. Ry. v. Cincinnati, supra.

It follows that unless the rights of the defendants below are ■•otherwise enlarged the contract of September 13, 1849, must be restricted in its operation to the limitations prescribed by the construction thus put upon the statue whereon it rests, and that ás so restricted, it could afford no defense to the action below.

A striking fact, however, in this case and one upon which the defendants below place much dependence, is the great interval between the accrual and the assertion of the city’s right, together with the defendants’ outlay in the erection of many large and costly structures upon the premises during that interval under color of absolute ownership for their railroad purposes.

If-the city were asserting a merely proprietary title, its action would scarcely lie after this lapse of time, but its title to its streets is held, as already noted, in trust for the public, whose sovereign right no prescription nor laches can abridge.

We are not unaware of the early decisions in this state ah firming the application of the statute of limitations to somewhat similar cases. But the authority of those decisions is ■questioned in Heddleston v. Hendricks, 52 Ohio St. 460 [40 N. E. Rep. 408]., where Minshall, J., says at page 467:

“More recent eases place the right of the public as against encroachments on its highways, however long continued, on the ground that they are public nuisances, in favor of which the statute of limitations does not run. ’’ See also Lake Shore & M. S. Ry. v. Elyria, supra; Wasteney v. Schott, 58 Ohio St. 410 [51 N. E. Rep. 34].

Those early decisions are moreover contrary to the well defined current of American authority, and this court has long since determined that their application must be restricted to the particular facts upon which they are founded, until they shall be, as they ought to be, overruled. Wright v. Oherlin, 13-23 O. C. C. 509 (3 N. S. 242); Morehouse v. Burgot, 12 Circ. Dec. 163 (22 R. 174).

So the loss by mere abandonment, mere nonuser, of the common right of highway rests finally on no other or better footing than loss by prescription, an’d is therefore equally illusory. Kelly Nail & Iron Co. v. Furnace Co. 46 Ohio St. 544 [22 N. E. Rep. 639; 5 L. R. A. 652]. Nor does the doctrine of equitable estoppel, when invoked to accomplish the same result, occupy any firmer foundation. If, as already shown, the legislature can not, unless in the exercise of eminent domain, authorize property to be diverted from the public use to which it was originally dedicated, it is of course beyond the reach of any subordinate agency of government so to do; and that which is thus incapable of direct accomplishment must be equally unattainable by indirection. So where there is an entire absence of power to make a grant originally, there can be no room for an ■ estoppel to grow up afterwards. Louisville & N. Ry. v. Cincinnati, supra. And this is so, because whoever relies upon the conduct of public authorities must take notice of the limits of their power, Hubbard v. Fitzsimmons, 57 Ohio St. 436 [49 N. E. Rep. 477].

It being once established that the premises in controversy were originally dedicated to the public for street purposes, no grant, nor prescription, nor mere nonuser, nor equitable estoppel can change its status.

In the case, however, of the defendant, the Cleveland & Pittsburg Bailroad Company, the plea of the statute of limitations is said to rest upon a different footing, since it claims under a chain of title independent of the contract of 1849, and 'perhaps also of that on which dedication of Bath street depends. The intrinsic merits of this title need not be examined for it is conclusively presumed, as already stated, to be inferior to the ancient title of the city of Cleveland, and its merit is moreover immaterial to the application of the statute of limitations.

Unfortunately for this plea, however, the defendant interposing it is confronted with. its own formal public disclaimer of the color of title which it now claims was then ripening into prescriptive right. After the contract of 1849 was entered into, this defendant was called upon to defend its right of possession and occupancy in an action brought by Henry Holmes and Julius C. Sheldon, et al., on behalf of themselves and the other heirs of the stockholders of the Connecticut Land Company to recover the Bath street property. ■ The suit was tried before Judge McLean in 1857, and is reported in Holmes v. Railway, supra. The claim of the plaintiffs was that the city of Cleveland had abandoned Bath street, and that the plaintiffs, therefore, as heirs of the original proprietors, had 'a right to recover possession of the property. The Cleveland and Pittsburgh Bail-road Company by its answer, expressly repudiated the claim of title on which it now seeks to found its prescriptive right, and it, and the other defendant railroad companies planted themselves squarely and solely upon their rights as derived from the contract of 1849. These answers aver, as to each defendant:

“That it has the right as a component part of the public, to occupy with the consent of said city said Bath street in the manner and for the purposes aforesaid; that such are a great public accommodation and not incompatible with the purpose intended by said Connecticut Land Company in dedicating the same to the public, as aforesaid, but consistent therewith, and that the city of Cleveland in permitting this defendant thus to use a limited portion of said street and thereby distributing its legitimate use so as to best subserve the convenience and business interests of its inhabitants and the rest of the public, has committed no breach of trust nor violated any public or private right, but performed rather a duty which it owed, as well to the forecast of said land company as to the public. ’ ’

This defense prevailed and the contract was upheld. The city was not a party to the action, and therefore is not bound by the judgment,- but that fact affords no reason for refusing to give effect to the Cleveland & Pittsburg Railroad Company’s admission that it was not then holding adversely to the city, as it now claims to have done. Not only is its answer in the Holmes case admissible in evidence now, but it is conclusive as against its alleged title by prescription, not indeed by any tolling of the statute, but by characterizing the defendant’s possession as permissive, and consistent with the original public use.

And this is after all the common footing of all the railroads under the contract of 1849, the act of 1848, and the dedication of Bath street as such. It is doubtful if any unequivocal exclusion of the public use or complete disseizin of the city ever occurred before this action was begun. The contract of 1849 passed to the railroads, so far only as the grantor had “the power or legal authority so to do, the right to the full and perpetual use and occupancy for their railroad tracks, turn-outs, engines, and oar and passenger houses, turntables, water tanks or stations, avenues to and from the same, leaving open spaces between when deemed expedient,” etc. This appropriation of an easement for railroad purposes in part of Bath street was valid in so far only as the parties had the corporate power and the lawful right to agree to it. The scope of the easement was expressly left open to judicial construction, and no lawful right, either permissive or prescriptive, can spring therefrom to permanently exclude the public use of any párt of Bath street for street purposes.

Another defense relied upon hy the defendants below is the alleged change in the judicial construction of Sec. 11 of the act of Feb. 11, 1848 (46 O. L. 45), and R. S. 3283, since the contract of 1849 was entered into thereunder. In fact, no judicial construction of said section was1 ever made prior to that time, for the original act had been in force but little more than a year, when the contract was made. It is said, however, that the same doctrine applies, where, on the faith of a construction judicially pronounced by the court of last resort in any state, upon a statute of the same state, property rights have grown up or been extended prior to a change in such construction as evinced in later decisions.

Whether this modification of the well known rule of prop- ' erty be tenable or otherwise, it is not true that any such change of judicial construction of the statutes in question has taken place in the decisions of the Supreme Court of Ohio. It is true that various dicta appear in the opinions of judges of the Supreme Court touching upon the proper construction of this statute, prior to and inconsistent with the formal decisions by the Supreme Court above cited. But in no ease were these dicta necessary to the decision of the cases in the report of which-they appear, not even essential to the lines of reasoning upon which these decisions of the court were founded and fortified. Little Miami Ry. v. Greene Co. (Comrs.) 31 Ohio St. 338; Cincinnati & So. Ry. v. Carthage, 36 Ohio St. 631; State v. Railway, 37 Ohio St. 158.

The rule of property which has been invoked in this connection has no application where the supposed rights that were swept away by later decisions have been founded upon no more substantial basis than mere obiter dicta. Friedman v. Suttle, 10 Ariz. 57 [85 Pac. Rep. 726; 9 L. R. A. (N. S.) 933].

The principle, moreover, on which the present authoritative interpretation of R. S. 3283 rests, was foreshadowed as long ago as Hatch v. Railway, 18 Ohio St. 92, 119; and still more clearly in Hickok v. Hine, 23 Ohio St. 523 [13 Am. Rep. 255], paragraph 6’ of the syllabus of which reads:

“Where the legislature has power to require one public easement to yield to another more important, the intention to grant such power must appear by express words, or by necessary implication; and such implication arises only when requisite to the enjoyment of the powers expressly granted, and can bp extended no further than such necessity requires.”

So also in Little Miami Ry. v. Dayton, 23 Ohio St. 510, paragraph 1 of the syllabus reads:

“Land appropriated to a particular public use is not thereby withdrawn from the liability to be taken by legislative authority, in the exercise of the power of eminent domain, for another public use; but a subsequent grant cannot be construed to authorize the destruction or subversion of the former use, unless such appears by express words, or by necessary implication, to be the legislative intent. ’ ’

These cases are all prior to those relied upon by the defendants in this behalf.

And the answers of the railroads in the Holmes case, already referred-to, show, moreover, a considerable appreciation, even at that early day, of the true construction of the statute on which their rights are founded, and the perils which they would encountér • should they undertake to exclude the public from the street use to -which the property in question had admittedly been dedicated.

As a last resource the defendants below invoke the doctrine of inherent corporate power to compromise and settle property rights which are the subject of bona fide dispute or litigation. It is claimed that the contract of 1849 can and should be upheld as an agreement for the compromise and settlement of certain claims against the city of Cleveland to parts of the premises in controversy upon grounds which went to the city’s title to the entire' tract. Some claims of this sort had indeed been so far prosecuted as to be in judgment against the city and to be pending on review in the Supreme Court of Ohio. The contract of 1849 refers to these claims in the concluding paragraph thereof, as already quoted at length.

The power to compromise and settle is doubtless inherent in all corporations as a corollary of the powers to sue and to be sued. There are, however, several objections to the application of this doctrine to the facts' of the present ease.

In the hrst place the rights which the city is claimed to have parted with by virtue of its power to compromise and settle, are not of a merely proprietary nature. They are, in a sense, governmental. The defendants contend, however, “that a municipality in dealing with public grounds or streets has precisely the same power to protect herself against threatened loss through possible unfavorable results of litigation; precisely the same power to protect herself by compromising a doubtful right, that pertains to an individual dealing with property. Two well considered eases illustrate the correctness of this proposition. ’ ’

The first of these eases, Mills County v. Railway, 47 Ia. 66, is not applicable to the distinction thus drawn, for the property there in question, though publicly owned, was neither dedicated nor appropriated to specific public uses.

The other case, St. Louis v. United States, 92 U. S. 462 [23 L. Ed. 731], though in point, is shorn of its force by the circumstance that the property, surrendered under the compromise, passed to the government from which it was derived.

In Northern Pacific Ry. v. Minnesota, 208 U. S. 583 [28 Sup. Ct. Rep. 341; 52 L. Ed. 567], on the other hand, the incapacity of municipalities to exercise their implied powers of compromise and settlement in derogation of their governmental functions is illustrated by the statement that “the exercise of police power cannot be limited by contract for reasons of public policy, nor can it be destroyed by compromise; and it is immaterial upon which the contracts rest, as it is beyond the authority of the state or the municipality to abrogate this power so necessary to the public safety.”

But be this as it may, a conclusive objection to the application here of the doctrine of compromise is that no compromise was in fact effected- by the contract. The claimants to the property as against the city of Cleveland were not parties to this agreement and the city neither assured its peace nor its permanent title to any residue of the property by virtue of any covenant in the contract contained. The claimants were still at liberty to prosecute their actions and vindicate their claims without let or hindrance so far as any bar interposed by this contract was concerned. Clearly a city may not settle a litigated street title by getting someone to buy both street and lawsuit.

Upon the whole record we fail to find any reversible error.' It is clear that the railroads have no right to maintain any permanent structures on these premises except their tracks, and those only so far as they are compatible with the concurrent use of every part of the street and its accretions for public travel.

Recurring, however, to the uncertainty of the judgment below, we exercise our power to modify the same so that it shall read as follows:

“This cause coming on for hearing this day, and all parties hereto having waived a jury and submitted this cause to the court, the same was heard upon the pleadings and the evidence; and upon consideration thereof the court finds that, ihe plaintiff has ,a legal estate in and is entitled to the immediate possession of the premises described in the petition, subject to all such contract rights as defendants, or any of them, may have under and by virtue of a contract dated September, 1849, by and between the city of Cleveland and the Cleveland, Columbus and Cincinnati Railroad Company, which said contract is recorded in Vol. 51, pages 187, 188, 189 and 190 of the Records of Cuyahoga County, Ohio, and being the same contract referred to in the pleadings of the parties herein, including such rights under and by virtue of said contract as any of said defendants have acquired by succession from or agreement with the Cleveland, Columbus and Cincinnati Railroad Company, its successors or assigns, to lay, maintain and use tracks over and across the portions of said premises hereinafter designated as first, second and third parcels, without thereby or in any manner excluding free use of the whole and every part of said premises by the public for street purposes and full control and supervision of the same by the proper municipal officers of said city.

And the court further finds that the defendants have unlawfully kept the plaintiff out of the possession of said premises,” etc., etc.

The judgment will proceed as rendered below save that any further mention of said contract rights shall be qualified by the insertion thereunder of the words, as aforesaid.

As so modified, the judgment below is affirmed.

Marvin and Winch, JJ., concur.


author: PER CURIAM.

text:
    DRAINS AND DITCHES — RAILROADS.
    [Richland (5th) Circuit Court,
    January Term, 1910.]
    Taggart, Donahue and Voorhees, JJ.

       Sandusky, Mansfield & Newark Ry. v. Anna Henry et al.
    Accepting A County Ditch by Abutting Owner Relieves Railroad Company of its Obligation to Ditoh.
    A railroad company which has, as part consideration for a right of way grant, contracted with the abutting owner, to maintain a ditch and dike along the right of way, is released from the obligation of such contract when a county ditch is subsequently located along such ditch and brings to it other waters not otherwise draining into it and such abutting owner or his successors in title have notice of the establishment of such county ditch and pay the assessment imposed for its construction, and later pay another assessment for cleaning out such county ditch.
    Error to common pleas court.

      Cummings, McBride & Wolfe, for plaintiff in error:

      C. H. Workman and B. E. Hutchinson, for defendant in error:

      Reversed, no op., Sandusky, M. & N. Ry. v. Henry, 87 O. S. 000; 57 Bull. 503.

   PER CURIAM.

This is the second time this cause has been in this court upon error. The original action out of which this proceeding grows was brought by Anna Henry, widow of Benjamin Larimer and Fayetta F. Larimer for herself and as guardian of Blanche Larimer, child of Benjamin Larimer, to recover damages from the defendant railroad company for failure to maintain a ditch and dike along its right of way, adjacent to the real estate owned by said plaintiff, which it is claimed the defendant company, as a part consideration of the grant of said right of way, agreed,and contracted to do with the then owner, Robert Larimer; said contract being a covenant to run with the lands.

The defendant for a first defense admits it is a corporation and denies the allegations in the second amended petition and for a second defense says in effect that in 1892 the board of county commissioners, in a proceeding on the petition of J. R. Crabbs, et al., established a county ditch over and along said premises and oT'er and upon a ditch opened bv it along its right of way, the same being the ditch referred to in the plaintiffs’ second amended petition. And that by means of said ditch, so constructed by the board of county commissioners, a large territory of land was drained of waters that did not naturally flow into the ditch opened by the railroad company.

In the establishment of such ditch the predecessors in title of the lands now opened by plaintiffs were duly notified and assessed for benefits and paid the same; th^t this ditch has been, since that time, cleaned out by the county commissioners upon petitions filed for that purpose. That at each of said times, the parties owning plaintiff’s land were assessed and paid the same, and that by reason of the establishment of said county ditch over and along defendant’s ditch from the fact that waters from a large acreage of land are now drained thereto, but did not, formerly, naturally flow to that point, they are not compelled by this contract set forth in plaintiffs’ petition to further maintain said ditch or dike. They' further aver that the plaintiff Anna Henry was in possession of this land and entered into a contract with the commissioners, and other landowners, for the purpose of having the same tiled or partly tiled and agreed with other landowners that, if the commissioners would appropriate $100 for that purpose, she, and the other landowners would keep said ditch open and in repair.

When this cause was first before us it was reversed by this court for the reason that a demurrer had been sustained to the second defense. We are still of the opinion that this second defense is good and ought to have been submitted to the jury, and that the court erred in its charge in taking the same from the jury.

First. The contract relied upon by plaintiffs provides that the ditch and dike shall be maintained sufficient to drain and confine the waters naturally flowing thereto. The claim of the defendant is’ that there is a large amount of water now carried by this artificial ditch and other ditches to this point that did not naturally flow there, and therefore it cOuld not be compelled under its contract to maintain a ditch and dike that would take care of all this additional water, nor keep in repair .a dike that might be washed or injured by this additional water.

This was denied; it was a question of fact for the jury and 1 if the jury had found upon this issue in favor of the defendant, the plaintiff could not recover for damages suffered from the overflow of these additional waters.

So, in this respect, it clearly appears that the court was in error directing the jury to disregard the second defense, as appears on page 176 of the charge.

But this court is of the opinion that when the county commissioners established a county ditch over and upon the ditch which the owner of this land had contracted to be opened and maintained by the railroad company, that owner acquiescing therein, and paying his share of the costs, the railroad company was thereby released from further obligation under this contract.

The plaintiffs’ predecessor in title must have known at the time that this county ditch was established, that the land occupied by it must be appropriated by the county for that purpose and that the county commissioners would have charge of i said ditch; that it would be cleaned and kept only in the manner provided for by law; that if additional waters were to be conducted to this ditch it would bring additional debris and deposits into the ditch and require additional labor and expense in remov- ' ing the same, all of which was not contemplated in the contract of the railroad company. And by paying the assessment without protest or complaint in any manner that appears from the record, or advising the commissioners of his contract with the railroad company to maintain such a ditch, the owner of the land must be held to have admitted that the construction of such ditch was a benefit to his land, over and beyond the benefit secured to him by the contract of the railroad company. Otherwise, he should not have been required to have paid any part of the cost of the construction of the same. And the same is true as to cleaning out of this ditch. The owner of this adjacent land was assessed for the payment of the same; so that it clearly appears that, for years, the owner of this land recognized that the obligation of the company was ended and that thereafter the county would be compelled to clean and maintain this ditch, and for that purpose had the right to assess adjoining proprietors.

In order that defendant in error may test this question in the, Supreme Court of Ohio, we are disposed to hold that this judgment is contrary to law, instead of holding that it is against the manifest weight of the evidence.

Therefore, this judgment is reversed for the error . of the court in its charge to the jury and because the verdict and judgment of the court is contrary to law. Exceptions of defendant in error may be noted.


author: R.OCKEL, J.

text:
    APPEALS — PRINCIPAL AND SURETIES.
    [Franklin (1st) Circuit Court,
    January 24, 1911.]
    Rockel, Dustin and Allread, JJ.

      Shedd & Pembroke et al. v. D. P. Cooke.
    Surety not Liable on Appeal Dismissed for Wdnt of Prosecution Pursuant to Rule of Court.
    A surety upon an appeal bond, executed in .conformity to Gen. Code 10383, providing that appellant will prosecute appeal to effect without unnecessary delay, is not liable to appellee under Gen. Code 10393 where the cause on appeal, having been , perfected as provided by Gen. Code 10384, and petition and answer filed is dismissed for want of prosecution under a rule of court directing the dismissal of cases “not noticed for trial for two consecutive terms” after being at issue.
    Error to common- pleas court.

      Ed. Howard, for plaintiffs in error:
    Cited and commented upon by the following authorities: Burris v. Peacock, 2 Dee. Re. 482 (3 "W. L. M. 264) ; Rudershauer v. Pagels, 8 Cire. Dec. 11 (4 R. 327) ; Job v. Harlan, 13 Ohio St. 492; Gimperling v. Hanes, 40 Ohio St. 114; State v. Sullivan, 81 Ohio St. 79 [90 N. E. Rep. 146; 26 L. R. A. (N. S.) 514] ; Trent v. Rhomberg, 66 Tex. 249 [18 S. W. Rep. 510] ; Albertson v. McGee, 15 Tenn. (7 Yerg.) 106; Earthaus v. Otvings, 6 Har. & J. (Md.) 134; Howell v. Milling Co. 36 Neb. 80 [54 N„ W. Rep. 126; 38 Am. St.'Rep. 694] ; Wood v. Thomas, 5 Blaekf. (Ind.) . 553; Legate v. Marr, 8 Blaekf. (Ind.) 404; Fowler v. Thorn, 4 Ark. 208, 210; Babcock v. Carter, 117 Ala. 575 [23 So. Rep. 487; 67 Am. St. Rep. 193] ; Sasscer v. Walker, 5 Grill. & J. (Ind.) 102 [25 Am-. Dec. 273] ; Marryott v. Young, 33 N. J. L. (4 Vroom) 336; Berghoff v. Ileckwolf, 26 Mo. 511; Lawler v. Gordon, 91 III. 602: Wilcox v. Daniels, 22 Mo. 493; Dunterman v. Storey, 40 Neb. 447 [58 N. W: Rep. 949] ; Irwin v. Lloyd, 65 Ohio St. 55 [61 N. E. Rep. 157] ; Propeller Ogontz v. Wick, 12 Ohio St. 333; Tan Ingen v. Berger, 82 Ohio St. 255 [92 N. E. Rep. 433] ; Champomier v. Washington, 2 La. Ann. 1013; Sutherland v. People, 22 111. 91; Chase v. Beraud, 29 Cal. 138; Hallanrv. Stiles, 61 Wis. 270 [21 N. W. Rep. 42] ; Helden v. Helden, 9 Wis. 508 ;. Stelle v. Lovejoy, 125 111. 352 [17 N. E. Rep. 711] ; Pass v. Payne, 63 Miss. 239; Coon v. McCormack, 69 Iowa 539, 540 [29 N. W. Rep. 455] ; McConnel v. Swailes, 3 111. (2 Scam.) 571; Dieckmann v. Hunt, 27 O. C. C. 836 (3_ O. L. R. ■ 286) ; Catlett v. Brodie, 22 U. S. (9 Wheat.) 553 [6 L. Ed. 158] ; Iiosenslein v. ,Tarr, 51 Fed. Rep. 368; Tarr v.-Rosenstein, 53 Fed. Rep. 112 [3 C. C. A. 466] ; George v. Bischoff, 68 111. 236; Flannagan v. Cleveland, 44 Neb. 58 [62 N. W. Rep. 297] ; Drennen v. Shay, 6 Dec. 341 (4 N. P. 184).

      Smith W. Bennett, for defendant in error;
    Cited and commented upon by the following authorities: Brewster v. Anderson, 1 Cire. Dec. 268 (1 R. 479) ; Burris v. Peacock, 2 Dee. Re. 482 (3 W. L. M. 264); Propeller Ogontz v. Wick, 12 Ohio St. 333; Job v. Harland, .13 Ohio St. 492; Irwiii v. Lloyd, 65 Ohio St. 55 [61 N. E. Rep. 157] ; Gordon v. Steinmetz, 71 Ohio St. 376 [73 N. E. 512] ; Willson Improvement Co. v. Malone, 78 Ohio St. 232 [85 N. E. Rep. 51] ; Dieckmann v. Hunt, 27 O. C. C. 836 (3 O. L. R. 286).

       Affirmed, no op., Shedd v. Cooke, 86 O. S. 364.

   R.OCKEL, J.

Plaintiff in error recovered a judgment before a justice of the peace against Sarah A. and Laura Sears. From said judgment the defendants appealed to the court of common pleas, filing an appeal bond upon which the defendant in error was a surety. Said proceedings were duly perfected in the court of common pleas. The plaintiffs filed their petition and the defendants their answer. The same was pending in the court of common pleas and said cause was properly at issue in the court of common pleas. According to a rule of the cdurt of common pleas, that if the “case is not noticed for trial for two consecutive terms of court after it is at issue or in default may be dismissed for want of prosecution or dropped from the docket.” This case not having been noticed as provided for in this rule was dismissed by the court of common pleas, the entry thereon being as follows, after giving the title of the case:

“Upon the call of the docket and no good cause being shown why this case should be retained, it is ordered by the court that it be dismissed without record or prejudice at the cost of the plaintiff. ’ ’

Thereafter the plaintiffs in error brought an action against the defendant in error before a justice of the peace on the appeal bond to recover against the defendant in error, who was surety on said bond, the amount conditioned for in said appeal bond, setting forth an alleged breach of said bond in this, that the plaintiffs did not prosecute their appeal to effect without unnecessary delay in the action that was pending in the common pleas court. In considering this question, it will be proper to consider the conditioned clause of the original bond. This read as follows:

“Now, therefore, we of Franklin county, Ohio, hereby promise and undertake to the said appellee in the sum and to the amount of $160, conditioned as follows:
“(1) That the said appellant will prosecute their appeal to effect and without unnecessary delay.
“(2) That if judgment be adjudged against said appellant on the appeal, we will satisfy such judgment and costs.”

This bond is in conformity to Gen. Code 10383 (R. S. 6584). The defendant contends thait because said defendants permitted said cause in the court of common pleas to be dismissed that, therefore, they did not prosecute their appeal to effect and without unnecessary delay.

This involves a consideration of what is meant and intended by the first condition of this bond. The entire matter being regulated by statute, necessarily other statutory provisions must be considered in determining the true meaning of this. In Gen. Code 10384 (R. S. 6585), we find that certain duties devolve upon the appellant in reference to his prosecution of the appeal in this, that he must file a transcript within a certain time. In Gen. Code 10393 (R. S. 6593), we find a provision as to when the surety is liable. This statute reads as follows:

“■When an appeal is dismissed, or judgment is entered in the court of common pleas against the appellant, the surety in the bond shall be liable to the appellee for the whole amount of the debt, costs, and damages, recovered against appellant.”

Taking these provisions together, we are of the opinion that, the first condition of the bond relates very largely to the per-' fection of the appeal. That is, that the appellant will, without unnecessary delay, have said appeal perfected, and that he will do all'things within a reasonable and proper time that are necessary to properly bring the action before the appellate court, and he will thereafter stand ready to do and perform whatever is proper and necessary in the due prosecution of the suit; that upon so doing this condition of the bond has been complied with. When the case comes up to the appellate court and is properly in that court, then it is subject to the laws relating to that court and to the rules which govern that court in the transaction of its business.

So, we are at a loss to understand how, in the case at bar, the defendant in error can be held to be liable on this bond. The defendants in the original action did all that was required of them, and, so far as the record shows, they were ready and willing to proceed further. If the case was not tried in the court above, it was not their fault. Unless the defendant has filed a cross petition in which he asks affirmative relief, it could hardly be expected that he would be so interested in its prosecution as that the court might presume that a duty devolved upon him to see that the prosecution did not fail. It is to the defendant’s interests that the prosecution shall fail in such instances, and it would be a violent presumption to assume the contrary.

We are, therefore, of the opinion that there was no error by the justice of' the peace in dismissing said action, nor in the court of common pleas in affirming the judgment of the justice.

The judgment of the court below, therefore, will be affirmed.

Dustin and Allread, JJ., concur.


author: SMITH, P. J.

text:
    EMINENT DOMAIN.
    [Hamilton (1st) Circuit Court,
    March, 1911.]
    Smith, Swing and Jones, JJ.
    Union Grain & Hay Co. v. Cincinnati (City).
    Jurors may Exercise Their Own Judgment as to Value in Fixing Damages for Property Condemned.,
    Jurors in fixing the market value of property in condemnation proceedings are not.limited to the evidence before them hut. may exercise their own judgment as to the value thereof; unless it appear that they acted on a wrong basis or with partiality or prejudice the presumption that the jury took into account all facts hearing on the question of damages will control.
    Error to common pleas court.

      Littleford, James, Frost & Foster and C. W. Baker, for plaintiff in error.

      Albert H. Morrill, for defendant in error.
   SMITH, P. J.

Notwithstanding the alleged errors claimed to have been committed at the trial of the above ease we are of the opinion that the same are not prejudicial. We have carefully examined the record and believe that the finding of the jury is in conformity with,the evidence in the ease.

In considering the fair market value of the property sought to be condemned, the jury may not only resort to the evidence before them, but may consider also in connection therewith their own good, sound judgment as to the value.

The rule seems to be that when it is not fairly evident that any substantial injustice has been done, the proceedings of a jury will be affirmed; the presumption being that the jury took into account of all facts bearing on the question of damages, and that there was no bias on the part of the jury that stood in the way of a fair verdict (Mills, Em. Domain Sec. 259). Such findings should not be set aside except on good cause, but not because the parties are dissatisfied with the amount recovered.

In the examination of this record, we do not think the jury-in determining the value acted upon a wrong basis, or from any partiality, bias or prejudice, nor are any of the errors of which complaint is made of such character as would furnish any inference of the existence of such influence.

It is not for us to say whether plaintiff in error was entitled to more compensation than that allowed by the jury. This was the sole question to be determined by it, and as we think the same is fair, the judgment of the court below will be affirmed.

Swing and Jones, JJ., concur.


text:
    MUNICIPAL CORPORATIONS.
    [Hamilton (1st) Circuit Court,
    June 21, 1911.]
    Smith, Swing and Jones, JJ.

       Cincinnati (City) v. George & Allan.
    Municipality Operating Waterworks Plant is Liable for Negligent Failure to Supply Water.
    A municipal corporation operating a waterworks plant is liable to a consumer for damages resulting from its failure, without excuse, to supply water, from' which in this case flowers in a greenhouse were frozen; hence, the failure, being brought about by a waterworks employe turning a wrong valve in an effort to stop a leak in a main, is without excuse, for which the municipality must respond as in negligence, and regardless of whether the contract expressly or impliedly guaranteed a continuous supply.
    Error to common pleas court.

      Geoffrey Goldsmith, for plaintiff.

      Little ford, James, Frost & Foster, for defendants.

      Affirmed, no op., Cincinnati v. George, 88 O. S. 000; 58 Bull. 190.

   SMITH, P. J.

Counsel for plaintiff in error asks for a reversal of the judgment entered by the court below in the above case upon the ground that no negligence was proven against the city of Cincinnati.

The negligence complained of in the petition is that the city turned off its water valve in Edwards road, near Madison avenue, thus cutting off the water supply to defendants in error’s plant and causing the freezing of their flowers in then-greenhouses.

We think the evidence, both direct and circumstantial, when taken together, is sufficient to sustain the verdict and judgment of the court below. .

Upon the question of contributory negligence, the jury in answer to special interrogatories found that at the time of the accident the boilers of George & Allan were in proper condition, and further, that if they were not in proper condition, then that this improper condition did not contribute to the accident.

Counsel for plaintiff in error argues that the evidence does not show that the valves at Edwards and Madison roads were turned off by the waterworks department. We think, however, that this view can not be maintained. The fact remains that for some hours after the leak in the water main had been discovered the water supply of George & Allan’s plant was not diminished and it is reasonable to assume that it would have so continued notwithstanding the leak unless the valve on the main that furnished them with water was turned off, and the entire evidence, including that which is circumstantial, would seem to bear out the contention of defendants in error, that the Edwards road valve was closed, the closing of which was the proximate cause of the damage to defendants in error.

These questions were left to the determination of the jury under a proper charge of the court and we see no reason to disturb the finding.

Argument was made to the court on the matter of contract between the city and George & Allan as to whether the former guaranteed a continuous supply of water or an implied warranty for such supply. ,We do not deem it necessary to consider this question for the reason as stated in the ease of Watson v. Needham, 161 Mass. 406 [37 N. E. Rep. 204; 24 L. R. A. 287]. Whether there was a contract or not in this regard, the question to be determined is, was the city negligent in its duty to defendants in error in depriving them of their supply of water without any reasonable excuse therefor.

Under the entire evidence we feel that the conclusion of the jury was correct in this respect, and finding no error in the record the judgment will be affirmed.

Swing and Jones, JJ., concur.


text:
    ERROR — TRIAL.
    [Hamilton (1st) Circuit Court,
    December 23, 1911.]
    Smith, Swing and Jones, JJ.
    Levi P. Hazen et al. v. Morrison & Snodgrass Co.
    Reversible Error Results From Prejudicial Remarks by Trial Judge in Hearing of Jury.
    Statements made by a trial judge within hearing of the jury during the progress of a trial are of the' Same effect as though embodied in the charge to the jury and, if they exhibit bias against either party an opinion as to the credibility of witnesses or as to the facts in issue, prejudicial error results for which the judgment will be, reversed.
    Error to common pleas court.

      Littteford, James, Frost & Foster, for plaintiff in error.

      Robertson & Buchivalter and John G. Healy, for defendant in error.
   SMITH, P. J.

The action below was one to recover $26,961.62 from plaintiffs in error on account of an alleged fraudulent contract entered into between Levi P. Hazen, Alexander T. Hazen and Silas L. Snodgrass.

There are thirty-four similar counts in the petition of which the first may be taken' as a sample.

This cause of action alleges that the plaintiff, the Morrison & Snodgrass Company, is a corporation organized under the laws of Ohio, and complains of the defendants, Levi P. Hazen and Alexander T. Hazen, partners doing business under the firm name of.L. P. Hazen & Company, and Silas L. Snodgrass, and says that at the times hereinafter named said Silas L. Snodgrass was its duly elected secretary and treasurer, authorized and empowered by it to make estimates on the value of mill-work in the building trade and to make contracts in its name and behalf therefor.

That his 'codefendants, Levi P. Hazen and Alexander T. Hazen, were building contractors, and well knowing the employment and the trust reposed by the plaintiff in said Snodgrass, did on or about June 19, 1903, wrongfully, corruptly and fraudulently agree with the said Snodgrass, and he with them, to make and did make a contract by and between the plaintiffs and the said L. P. Hazen & Company to furnish said firm the mill-work for a certain building in the city of Cincinnati of the true value of $4,765, or more, for the nominal contract price of $3,000, to be paid to the plaintiff; said plaintiff delivered said mill-work to said L. P. Hazen & Company; said defendants wrongfully, corruptly and fraudulently intending and agreeing to divide between themselves all value thereof in excess of $3,000, to wit, the sum of $1,765, or more, the exact portion thereof to be given to said Snodgrass and said Hazens the plaintiff can not definitely state, but that the said Hazens did distribute and pay to said Snodgrass individually on or about November 25, 1903, in pursuance of their said wrongful, corrupt and fraudulent agreement, the sum of $500, and did retain to themselves about the sum of $1,265 of the said value of said mill-work in excess of said nominal contract price of $3,000, which sum of $3,000 was accepted by the plaintiff, without any knowledge of said corrupt and fraudulent agreement between the said defendants.

That all of said money.paid to Silas L. Snodgrass and retained by said Hazens, to wit, the difference between said sum of $3,000 and the true value of said mill-work, was justly due to the plaintiff, which the defendants fraudulently converted to their own use, and it was thereby damaged in the sum of $1,765 with interest from November 25, 1903.

Each of the defendants filed answers denying these allegations.

The case was tried to a jury, who returned a verdict of $13,200, upon which judgment was subsequently entered by the trial court; and to reverse which judgment this suit in error is brought.

The first error complained of is, that competent proof was not offered by defendant in error to establish the true value of the mill-work that was fraudulently sold. In this regard we think the evidence offered was competent and that no error was committed by its admission.

The second ground of error urged upon the court consists in statements made by the trial judge during the progress of the trial, which it is claimed were prejudicial to plaintiff in error. Without setting forth in detail the matters complained of in this regard, it seems to us that they are' sufficient to justify the reversal of the judgment of the court. It .is well understood that juries are influenced by the language of the presiding judge, and in fact the law recognizes this. In his charge to a jury the court can readily sway it in its judgment; if he expresses an opinion on any disputed fact or upon the character of a witness which in any way tends to prejudice the jury, he commits an error of law, for which the. verdict and judgment should be set aside. The facts of a case and the credibility of witnesses are solely for the determination of the jury, and' statements of the court during the trial practically have the same effect as though they were embodied in its charge.

In the case at bar it is evident from the record that the suit was a very bitterly contested one. Many disputed facts arose. We are mindful of the fact, that a verdict of the jury in any case should not be set aside, unless the error claimed is such that it affects the substantial rights of an adverse party to the suit, or is prejudicial, but we believe from the record that such is this case.

Undoubtedly, any remarks of the presiding judge made in the presence of the jury, which have a tendency to prejudice their minds against the unsuccessful party, will afford grounds for a reversal of the judgment. 1 Thompson, Trials Sec. 218.

During the trial the judge should refrain from making any unnecessary comments which might tend to a result prejudicial to a litigant, and when calculated to influence the minds of the, jury, such remarks constitute grounds for reversal. 38 Gj&. p. 1315.

The question of the credibility of witnesses is solely for the determination of the jury, and it is improper for the court to comment on or express an opinion directly, or by implication, on the credibility of the witnesses. The reason is that words or conduct of the trial judge may on one hand support the character or testimony of a witness or on the other may destroy the same in the estimation of the jury, and thus his personal and official influence is exercised to the unfair advantage of one of the parties with a corresponding detriment to the cause of the other. 8 Cyc. p. 1320.

Remarks of a trial judge showing bias in favor of one of the parties constitute prejudicial error. So it is ordinarily held to be reversible error for him to make remarks which will tend to incite prejudice or hostility in the minds of the jury towards one of the parties, and sympathy for the other and it has been held in a number of cases that the error is not cured by directing the jury to disregard the remarks. 38 Cyc. p. 1321; State v. Tuttle, 67 Ohio St. 440 [66 N. E. Rep. 524; 93 Am. St. Rep. 689]; Metropolitan Life Ins. Co. v. Howle, 68 Ohio St. 614 [68 N. E. Rep. 4]; McDuff v. Journal Co. 84 Mich. 1 [47 N. W. Rep. 671; 22 Am. St. Rep. 673].

We think there is error also in the charge of the court as disclosed on pages 772, 790 and 791 of the record and also in that portion of the charge in which the court speaks of the Latin maxim, “falsus in uno, falsus in omnibus”; also on page 783.

Counsel for defendant in error practically admit the existence of the above errors, but insist that they are not prejudicial and did not influence the jury.

In this respect we cannot agree with counsel, as the questions in dispute in the ease at bar were such as that the minds of the jury should have been left free to determine the truth or falsity of the charge.

For these errors in the record the judgment of the court will be reversed and a new trial ordered.

Swing and Jones, JJ., concur.


text:
    CRIMINAL LAW.
    [Hamilton (1st) Circuit Court,
    June 24, 1911.]
    Smith, Swing and Jones, JJ.
    Anna Emmons v. State of Ohio.
    Record of Conviction of Person Accused of Infamous Crime Failing to Show Arraignment and Plea Thereto is Defective.
    A record of conviction of one accused of an infamous crime, failing to show affirmatively an arraignment on the indictment or entering of a plea thereto, as required toy Gen. Code 13629, 13634, is defective in a matter of substantial right to the accused to which Gen. Code 13581, relating, to defects in an indictment that are not fatal, does not apply.
    Error to common pleas court.

      A. Lee Beaty, for plaintiff in error.

      Arthur C. Frieke, for defendant in error.
   SMITH, P. J.

The plaintiff in error was indicted, tried and convicted in the court of common pleas of this county of murder in the second degree.

The error principally relied upon by counsel for plaintiff in error is, that the record of the conviction does not show that the defendant was arraigned on the indictment, that is, there was no plea of'“not guilty” to the crime charged.

Gen. Code 13629 provides that the accused shall be arraigned by the clerk of the court or his deputy reading the indictment to him, unless the accused or his attorney waive the reading thereof, and he shall then be asked by the court whether he is guilty or not guilty of the offense charged; and Gen. Code 13634 provides that if the accused plead not guilty such plea shall be entered on the indictment.

In the case of Hanson v. State, 43 Ohio St. 376 [1 N. E. Rep. 136], our Supreme Court holds that “the record of a conviction for crime must show that the defendant was arraigned on the indictment”; and in the case of Crain v. United States, 162 U. S. 625 [16 Sup. Ct. Rep. 952; 40 L. Ed. 1097], the Supreme Court of the United States says that where the record does not show that the accused was ever arraigned, or that he pleaded to the indictment, the conviction must be set aside, as it is better that a prisoner should escape altogether than that a judgment of conviction, of an infamous crime should be ■ sustained where the record does not clearly show that there was a valid trial; in this same case the Supreme Court says, that in its opinion it is the prevailing rule in this country in cases of felony that a plea to the indictment is necessary before the trial can be properly commenced, and unless this fact appears from the records the judgment can not be sustained. Until the accused pleads to the indictment and thereby indicates the issue submitted by him -for trial, there is nothing for the jury to try ; and the fact that the defendant did so plead should not be left to be inferred from a general recital in some order that the jury were sworn to try the issue joined. The court further says that the rule requiring the record of a trial for an infamous crime to show affirmatively that it was demanded of the accused to plead to the indictment, or that he did so plead, is not a matter of form only, but of substance in the administration of the criminal law, and that due process of law requires that the accused plead, or be ordered to plead, or, in a proper case, that a plea of not guilty be filed for him, before his trial can rightfully proceed.

We do not think that Gen. Code 13581, relating to'defects in an indictment that are not fatal, can apply in the ease at bar, as the right to plead to the indictment is a substantial one which can not be taken away from the accused.

Finding no other errors in the record, the judgment of the court below will be reversed on the above grounds and a new trial granted.

Judgment reversed.

Swing and Jones, JJ., concur.


text:
    TAXATION.
    [Hamilton (1st) Circuit Court,
    August 1, 1911.]
    Smith, Swing and Jones, JJ.
    Hiram Friedman et al. v. Maria F. Van Antwerp et al.
    Redemption of Property Sold for Taxes may be Had by Payment of Taxes and Penalty before Confirmation of Sale.
    Under Gen. Code 2667, 2669, 2670, 2671, relating to actions by county treasurers for recovery of unpaid taxes, an owner of real estate, ordered sold in satisfaction of a lien for unpaid taxes or assessments, may redeem the property at any time before confirmation by payment of such taxes or assessments with penalties.
    Error to common pleas court.

      H. H. Friedman, for plaintiffs in error.

      Thomas B. Paxton, for defendants in error.
   SMITH, P. J.

Under Gen. Code 2667, 2669, 2670 and 2671 relating to actions by treasurers of counties for recovery of unpaid taxes or assessments, the court- is of the opinion that the owner or owners of the real estate ordered sold to enforce the lien of such taxes or assessments may redeem the same at any time before the confirmation of the sale thereof.

The record in the above case discloses that before confirmation of the sale to plaintiffs in error of the real estate described in the petition, the court allowed the owners to redeem the same upon the payment of all liens for taxes, assessments, penalties, etc., due.

We find no error in the court overruling the motion of the purchasers to confirm the sale to them, and the judgment therefore will be affirmed.

Swing and Jones, JJ., concur.


author: POLLOCK, J.

text:
    APPEAL — ATTACHMENT—PRINCIPAL AND SURETY.
    [Monroe (7th) Circuit Court,
    April Term, 1912.]
    Norris, Pollock and Metcalfe, JJ.
    Citizens Tr. & Guar. Co. v. Fred L. Timberlake.
    Surety on Appeal Bond Approved not Released by Plaintiff’s Discharging Property Attached.
    The surety on a bond given to appeal a cause from the judgment of a justice of the peace to the court of common pleas is not released by the plaintiff discharging, after the approval of the appeal bond and before judgment in the court of common pleas, the property of the defendant held by a writ of attachment.
    [Syllabus approved by the court.]
    ■ Error to common pleas court.

      F. A. Jeffers, for plaintiff in error:
    Cited and commented upon by the following authorities: Curtice v. Bothamly, 90 Mass. (8 Allen) 336; Robinson v. Masterson, 136 Mass. 560; Wright v. Rowland, 4 Abb. Dec. (N. Y.) 649; 2 Cent. Dig. p. 2678; Magill v. Sauer, 61 Ya. (20 Gratt.) 540; Danforth v. Carter, 4 Iowa (4 Clark) 230; State v. Mc-Clothlin, 61 Iowa 312 [16 N. W. Eep. 137] ; 2 Wade, Attachments Sec. 412; Shinn, Attach. & Garn. See. 4; Fidelity Deposit Co. v. Bowen, 123 Iowa 356 [98 N. W. Eep. 897; 6 L. E. A. (N. S.) 1023] ; American Bonding Co. v. Bank, 97 Md. 598 [55 Atl. Eep. 395; 99 Am. St. Eep. 472] ; McClung v. Beirne, 37 Ya. (10 Leigh) 394 [34 Am. Dec. 739] ; Peirce v. Higgins, 101 Ind. 178; Smith v. Josselyn, 40 Ohio St. 409; Dixon v. Ewing, 3 Ohio 280 [17 Am. Dec. 590] ; Day v. Ramey, 40 Ohio St. 446; Maquoketa •v. Wylley, 35 Iowa 323; Little Rock- Ft. S. Ry. v. Wells, 61 Ark. 354 [33 S. W.,Eep. 208; 30 L. E. A. 560; 54 Am. St. Eep. 216] ; City Bank v. Young, 43 N. II. 457; 4 Cye. 573; Hawkins v. Mins, 36 Ark. 145 [38 Am. Eep. 30] ; Everly v. Rice, 20 Pa. St. 297; Lewis v. Armstrong, 80 Ga. 402 [7 S. E. Eep. 114] ; Robeson v. Roberts, 20 Ind. 155 [83 Am. Dee. 308] ; McKenzie v. Wyley, 27 W. Ya. 658; Commonwealth v. Vanderslice, 8 S. & E. (Pa.) 452; Concordia Sav. & Aid-Assn. v. Read,
      124 N. Y. 189 [26 N. E. Rep. 347] ; Minor v. Smith, 13 Ohio St. 79; Bank of Steubewuille v. Leavitt, 5 Ohio 207; Commercial Bank v. Bank, 11 Ohio 444 [38 Am. Dec. 739] ; 2 Cyc. 947, 949; Bingham v. Mearé, 4 N. D. 437 [61 N. W. Rep. 808; 27 L. R..A. 257].

      Mats & Kramer, for defendant in error.
   POLLOCK, J.

Fred L. Timberlake, the defendant in error, began an action against one, Louis McCallister, before a justice of the peace of this county, and caused an attachment to issue on the grounds that the defendant was a nonresident. By virtue of this writ the constable attached a horse, the property of the defendant.

A trial was had before the justice, resulting in a judgment in favor of the plaintiff. After the judgment, and within ten days, the defendant, McCallister, filed an appeal bond, with the Citizens Trust and Guaranty Company as surety thereon. This bond was approved by the justice and an appeal was had to the common pleas court. Such proceedings were had on this action in the common pleas court, that judgment was again rendered in favor of the plaintiff and against the defendant. McCallister having failed to pay the judgment, Fred L. Timberlake then brought an action against the Citizens Trust and Guaranty Company on the appeal bond, to recover the amount of the judgment and costs.

The Citizens Trust and Guaranty Company answered, admitting the proceeding and' judgment before the justice, and the execution by it of the appeal bond, the appeal to common pleas court, and the judgment against McCallister in that court, biit alleged that at the time it executed the appeal bond and at the time the appeal] bond was approved by the justice, th^ property of McCallister which had been attached was retained by the constable under the attachment; that after the approval of the appeal bond, and before judgment in the court of common pleas, the plaintiff, Timber-lake,caused the attached property to be released from the attachment, and it was removed by McCallister from this county before the judgment was obtained in the court of common pleas; that the value of the property attached was about $200, sufficient to pay the judgment and costs that Timberlake had recovered against MeCallister.

The answer further alleged that MeCallister was insolvent, and that by reason of these facts it was released from its liability on the appeal bond.

A demurrer was interposed to this answer, which was sustained, ' and defendant not wishing to plead further judgment was rendered against him.

The plaintiff in error prosecutes this action to reverse the judgment of the court of common pleas, for error in sustaining the demurrer to its answer.

It is urged by the plaintiff in error that when the surety is compelled to pay the debt of his principal, that he is entitled to be subrogated to all the rights of the creditor to the property or securities held by him for the payment of the principal debt, and that when the defendant in error discharged the property held under the writ of attachment, he released the plaintiff in error from liability to him on the appeal bond.

This raises the question whether or not the rule that applies to ordinary guarantee contracts of debtors to creditors, applies to securities on appeal bonds.

The provisions of the code for appeals from justices of the peace to the court of pommon pleas are as follows:

Gen. Code 10382. “In all cases, not otherwise specially provided for by law, either party may appeal, from the final judgment of a justice of the peace, to the court of common pleas of the county where the judgment was rendered.

Gen. Code 10383. “Within ten days from the time a justice renders judgment, the party appealing therefrom must give a bond to the adverse party, though he need not sign it, with at least one sufficient surety to be approved by such justice, in a sum not less than fifty dollars in any case, nor less than double the amount of the judgment and costs; conditioned, that appellant will prosecute his appeal to effect without unnecessary delay, and that, if on the appeal judgment be rendered against him, he will satisfy it and the costs.”

The effect of an appeal is to vacate the judgment of the justice of the peace, and transfer the case to the court of - common pleas, where the case is again tried de novo. It entirely releases the judgment debtor from liability to the judgment creditor by reason of the judgment of the justice; and the prevailing party before the justice must obtain a judgment in the court of common pleas, before the security on the appeal bond has assumed any legal liability to pay his claim.

In giving an appeal bond there is no privity between the judgment creditor and the security upon the bond. The judgment debtor, within ten days from the rendition of the judgment, enters into a bond with sufficient security to be approved by the justice, conditioned that the appellant will prosecute his appeal without unnecessary delay, and satisfy any judgment and costs that may be obtained against him on appeal.

While the bond is to the adverse party, yet he cannot exercise any right of either accepting or rejecting the securities thereon. The perfection of the appeal is entirely within the power of the appellant and the justice.

The giving of an appeal bond is a statutory provision wholly for the benefit of the losing party, enabling him if he so desires to try his case in the court of common pleas, ' without consulting the wishes of the judgment debtor.

To require the judgment creditor to retain the attachment on the property of the defendant, to await the delays and Uncertainties of the trial in the court of' common pleas, for the protection of the surety on the appeal bond, under the penalty that if he discharges it he would release the surety, would be inequitable and unjust. He is liable to the officers for the care and safe-keeping of the attached property. This, in many instances, would equal or exceed the value of the property attached, and probably would in the case at bar.

In the case of Curtice v Bothamly, 90 Mass. (8 Allen) 336, the syllabus is as follows:

‘ ‘ The surety in a recognizance given to prosecute an appeal from a judgment of a police court is not discharged by the plaintiff’s subsequent release of his attachment upon the writ.”

In commercial transactions, sureties obligate themselves to the creditor for his benefit. It is for the protection of the creditor that the suretyship is created. It is a contract relation between ••the creditor and surety. The creditor has a right to accept or reject the offer of suretyship. ,

“The rights of sureties are'largely creations of equity, and courts of chancery will not hold them liable, where the risk is increased by the act of the party for whose benefit the surety-ship is intended to inure; and, if by the act of the creditor, the surety is injured or exposed to injury, that act may be laid hold of for the surety’s relief.” Day v. Ramey, 40 Ohio St. 449.

But the giving of an appeal bond is not for the benefit of the judgment creditor, but to give the judgment debtor a right to a new trial. If the surety on the appeal bond had refused to interfere, the officers would have sold the attached property and satisfied the judgment; after the giving of that bond, the judgment creditor must obtain a new judgment before he can assert his claim against .the judgment debtor.

In the opinion in Curtice v. Bothamly, supra, the court says:

“He cannot be held as contracting with the surety that he will preserve his attachment, nor can he be regarded as a trustee of the surety to preserve the attached property for his indemnity. The recognizance is- merely an independent security, which the law gives him when his adversary appeals from the judgment which he has obtained, and he is at liberty to waive or release his attachment and rely upon the recognizance in whole or in part, as he may see fit. ”

It would be inequitable to apply the same rule to the release of attached property by judgment creditors in favor of a surety on an appeal bond, that are applied to suretyships which are intended to inure to the benefit of the creditor.

The judgment of the court Below is affirmed.

Norris and Metcalfe, JJ., concur.


text:
    LANDLORD AND TENANT — NEGLIGENCE.
    [Hamilton (1st) Circuit Court,
    June 1, 1907.]
    Swing, Giffen and Smith, JJ.
    Caroline Mouliet v. Emma M. Anderson.
    Agreement of Landlord' with Tenant as to Repairs does not Inure to Benefit of Others.
    An agreement by a property owner .with bis lessee to repair the premises occupied, does not inure for the benefit of others toward whom the owner sustained no relations growing out of the agreement; in order to recover, a party, injured by a defect in the premises, must show an obligation to him and that its violation was the proximate cause of the injury.
    Error to common pleas court.

      C. B. Smith and J. B. Sehroeder, for plaintiff in error.

      Worthington & Strong, for defendant in error.
   PER CURIAM.

The action below was to charge' defendant as owner of leased premises for injuries received by a servant employed in the family of the lessee in manipulating a cellar door in a sidewalk adjacent to the leased building, upon the theory that the hinges of the cellar door being defective when the lease was made and the owner having promised to repair, the facts created an obligation toward plaintiff.

The court below directed a verdict for the defendant. That an obligation -toward the party injured, and that its violation was the proximate cause of the injury must be shown, is well settled. Baltimore & O. Ry. v. Cox, 66 Ohio St. 276 [64 N. E. Rep. 119; 90 Am. St. Rep. 583].

But this the testimony failed to show. The premises were leased entire to one Giésling, and were under his sole control. He may have been liable to her as master in not furnishing her a safe place to work, but an owner’s contract to repair, made with a lessee, does not inure to the benefit of others toward whom the owner sustained no relations growing out of the contract. Burdick v. Cheadle, 26 Ohio St. 393 [20 Am. Rep. 767]; Langabaugh v. Anderson, 68 Ohio St. 131, 150 [67 N. E. Rep. 286; 62 L. R. A. 948].

We find no error in the judgment and proceedings below.

Judgment affirmed.