text:
    FRAUDULENT MARKING OF VOTING LIST.
    Circuit Court of Cuyahoga County.
    Michael F. Ryan v. The State of Ohio.
    Decided, February 17, 1908.

      Elections — Indictment for Marking Voting List at Primary — Method of Proof — Publications During Trial-Charging Bribery of Jurors —Not Prejudicial, When — And not Ground for a New Trial — Disqualified Jurors Included in the Panel — Objection Thereto Waived, When — Receiving the Verdict — Recital of the Transcript as to Polling of Jury — Declaration by Prosecutor as to Conduct of Defendant not Misconduct, When — Section 1061.

    1. The publication during the progress of a trial in a criminal case, in a paper of large circulation in the municipality where the trial is being held, of articles in which it is charged that attempts have been made to bribe the jury, together with pictures of certain jurors alleged to have been offered bribes, and the appearance of copies of the papers containing these publications in the court room, does not afford ground for the granting of a motion to discharge the jury because of such publications and the prejudice created against the defendant thereby, where there is no evidence offered that the papers containing the objectionable matter came into the hands of any of the jurors or were read by them.
    2. Neither does the fact that these or any other publications, calculated to prejudice the case of the defendant in the minds of the jury, were made and extensively read by others than the jury during the progress of the trial constitute ground for the granting of a motion for a new trial.
    3. The fact that one of the jurors who sat during the trial was dis-disqualified, for the reason that his name was not drawn from the jury wheel and he was not regularly summoned, does not afford ground for a new trial, where it appears that the fact of the disqualification was known to counsel for the defendant at the time the jury was impanneled and no objection was madé.
    4. While service on the grand jury which returned the indictment constitutes ground for challenge where the same person appears in the petit jury panel, failure to make inquiry as to such service or to exercise the right of challenge constitutes a waiver of the objection, and under such circumstances service on both the grand and petit juries by the same person does not afford ground for a new trial.

      5. In a criminal case it is proper for the judge rather than the clerk to call the jury; and where it does not affirmatively appear that only eleven men were called, and no objection was made to the call at the time, and the transcript.of journal entries recites that “the jury returned their verdict into court and were properly inquired of,” it must be assumed that the entire twelve men were called.
    6. The proof offered, that a certain mark opposite certain names on the certified list of voters at a primary election was made by the defend- . ant, in this case, was sufficient to establish that fact beyond a reasonable doubt; and the use of these marks as a standard, from comparison with which an expert testified that other marks made opposite other names were made by the same hand, was a legal method of proof and established the fact claimed beyond a reasonable doubt.
    7. Where the prosecuting attorney was challenged by counsel for the defendant to state to the jury why he had not tried the case long before, and in his reply the prosecutor declared the reason was the defendant absconded and could not be found „by the police, the declaration does not if true amount to misconduct and the trial is not vitiated thereby.
    Marvin, J.; Winch, J., and Henry, J., concur.
    Error to the court of common pleas.
   Michael F. Ryan was indicted, tried and convicted under Section 7061, Revised Statutes, which reads:

“Whoever shall, from the time any ballots are cast or voted until the time has expired for using the same as evidence in any contest of election willfully and with fraudulent intent, inscribe, write, or cause to be inscribed or written, in or upon any poll-book, tally-sheeet, or list, lawfully made or kept at any election in, or upon any book or paper purporting to be such, or upon any eléction returns, or upon any book or paper containing the same, the name of any person not entitled to vote at such election, or not voting thereat, or any fictitious name, or within the same time shall wrongfully change, alter, erase, or tamper with any name, word, or figure contained in such poll-book, tally-sheet, list, book, or paper; or falsify, mark, or write on such poll-book, tally-sheet, list, or paper in any manner whatsoever, such act or acts being done with intent to defeat, hinder, or prevent a fair expression of the will of the people at such election, shall be imprisoned in the penitentiary not more than three years nor less than one year.”

The charge in the second count of the indictment under which count and no other the jury returned a verdict of guilty, is that Michael F. Ryan on the 7th day of September, 1905, at a primary election of the Republican party held in pursuance of the statute, in precinct A of ward 20 in the city of Cleveland, in Cuyahoga county, Ohio, which election was held for the selection of candidates for county and municipal offices to be filled at an election to be held on the 7th day of November, 1905, in said city and county; that at this primary election said Michael F. Ryan acted as a judge of election; that he was duly and legally authorized and empowered to so act; that in said city, registration of voters was required by law; that while so acting as such judge, he did then and there unlawfully and feloniously mark the duplicate certified list of registered electors of said precinct by placing a “V” distinctly in the column under the words “voted at primaries,” and in a line with the names of some forty-three electors, which names are given in this count of the -indictment, which said names appeared in said duplicate certified list of registered electors. This count of the indictment charges that said persons did not -vote at said primary election, that such marking was done with the intent then and there to cause it to appear that the persons, before whose names this mark was made, had voted at said election, there being in the ballot box of said precinct forty-three ballots so marked as to indicate -the persons for whom they were east in excess of those lawfully oast at said election, this with intent to defeat and hinder a fair expression of the will of the people at such primary election. One Percy A. Secor was jointly indicted with said Ryan, he being charged as having acted as a clerk at said primary, and with doing the same things charged against Ryan.

To this indictment a demurrer was filed by Ryan, which was overruled' by the court and this is- assigned as error. The indictment is not copied in this opinion, but no reason was given, either in oral argument or in brief of counsel, why the indictment was .not sufficient, nor has the court, after careful consideration, been able to discover any reason why this demurrer should have been sustained.

It is further alleged that error was committed in the progress of the trial by reason.of the overruling of a motion made by counsel for Ryan, that the jury be discharged by reason of the publication of certain articles in regard to the jurors, which articles were published while the trial was in progress, in the Cleveland Press, a daily newspaper, shown to have a very large circulation in the city of Cleveland, where the trial was being conducted. The attention of counsel for the defendant was called to one of these articles by the trial judge, and it was shown that articles -of a similar character to that to which attention was first called were published in at least two different editions of said Press during the progress of the trial. These several >articles had headings in very large type, the several letters being at least one inch long and the heading making two lines extending at the top of the page, across six columns of the page and reading: “Attempt made to bribe jurymen in Ryan case. ’ ’

Immediately under this there is printed in large type extending across two columns the words, “Prosecutor McMahon and Judge Babcock put in possession of the facts* and indictments may follow. Gamblers haunt court room where the election fraud case is on trial. Jurymen called out of bed and offered money to vote a certain way.”

Below these words are cuts purporting to be likenesses of three of the jurors, with the name of each. These cuts extend across two columns of the paper printed one above the other each being the likeness of a man’s face, and each occupying about two inches* perpendicular space, then in large letters the words ‘ ‘men offered bribes, ’ ’ followed by the names of six of the jurors. Following this is an article stating that one juror was visited at his home Sunday night by a man who. said there was money for any juror who would vote right; that another was called out of bed at 10 o’clock Monday night and asked if he would consider a proposition to vote a certain way. This article is made up of statements of a similar character and covers a double column space of some ten or twelve inches perpendicular; the same article or practically the same, together with the same pictures was printed in another edition of the same paper on the same day, -under the heading: “Drop ease is demand,” the letters being about an inch and a half in length.

Upon hearing of these publications counsel for the defense filed a motion for the discharge of the jury, based upon the fact of these publications, and in support of the motion filed the affidavit of J. P. Dawley, Esq., one of the attorneys for the defendant, in which he alleges the publication of the articles already spoken of in this opinion, annexing as exhibits copies of the papers containing the publioations; that said newspaper has a very wide circulation throughout the city of Cleveland and in. Cuyahoga county and elsewhere; that it is extensively sold by newsboys'upon the public streets of the city of Cleveland, and around and in the vicinity of the court house where said trial was progressing; that his attention was called to it by the court, who had one of .the papers in his possession, and that several were being circulated and commented on in the court room where said case was being tried.

The affidavit further states that said paper goes into. the. homes of those who are serving upon the jury in the court; as well as into the homes generally of the people of Cleveland; that several of the jurymen sitting in the case on trial reside in the city of Cleveland, and are general readers of the daily papers. lie further says the case has attracted great and universal interest in the community, and that, in his opinion, these newspaper articles can not but be prejudicial to the 'interests of the defendant. No other evidence was introduced for or against the motion.

As has already been said, this motion was overruled, and this action of the court is alleged as error.

That these articles are of such a character as to tend -to prejudice whoever should read them, whether jurymen or not, against Ryan, does not admit of a doubt; that the headings and pictures were intended to and would attract attention .to them can not be doubted. It follows of course that their publication was naturally calculated to interfere with the due administration of .justice, because of the danger that they might be read by jurors and their minds be biased thereby. But in the absence of any evidence that any one of the papers fell into the hands of and was read by any juror, other than is contained in the affidavit referred to, we are not prepared to say that the motion to discharge the jury should have been sustained.

Our attention has been called to but one case in which it has been held sufficient ground for a new trial, that newspaper publications, calculated to affect the judgment of the jury, were made and circulated about the place of trial during its progress, without also directly showing the reading of the same or comment thereon by some juror. Meyer v. Cadwallader, 49 Fed. Rep., 32, was a case in the Circuit Court of the United States, Eastern District of Pennsylvania, in which it was shown only that the objectionable publications were made in leading journals and scattered broadcast throughout the community where the trial was in progress: The court held this to be a sufficient showing that the articles had been read by the jury.

Judge Acheson uses this language in the opinion at page 36:

“ It is idle to, say that there is no direct evidence to shew that the jury read these articles. They appeared in the daily issues, of leading journals and were scattered broadcast over the coni-' munity. The jury separated at the close of each session of the court, and it is incredible that going out into the community they did not see and read the newspaper- publications.”

This case is cited in the opinion in the ease of Street Railway Company v. Grenell, 90 Ill. App., 30. At page 47, the court, after quoting the words hereinbefore quoted from the opinion of Judge Acheson, says, “But in the present case it is not necessary to resort to the presumption indulged in by the court in the case cited,” the opinion then goes on to show that the newspapers- were traced into the hands of jurors, and that at least two of the jurors read one of the articles.

Authorities are numerous to the effect that the reading by jurors of newspaper articles prejudicial to- one of the parties is ground for new trial, but we do not feel justified in indulging in the presumption which Judge Acheson seems to have indulged, in that the objectionable articles were read by the jurors, or any of them. We feel it,our. duty rather to presume that the jurors were mindful of their duties and that they did not, in violation of such duties, .read the newspaper .publications about the case while it was on trial before them. We think it should not be said there was misconduct on their part simply because a popular newspaper gave them the opportunity for misconduct. There was no error, therefore, in overruling this motion.

On the motion for new trial it was shown that certain other publications of the same newspaper were made during the progress of the trial, equally prejudicial to the defendant, and circulated in the same way. We do not find that the action of the court, in overruling the motion for a new trial on this ground was in contravention of any provision of Section 7350, Revised Statutes, which provides for what causes a new trial may be granted. The first ground named is for “Irregularity in the proceedings of the court, jury, prosecuting attorney, or the witness” for the state, or for any order of the court or abuse of discretion by which the defendant was prevented from! having a fair trial.” The second is for “misconduct of the jury, or of the prosecuting attorney, or of the witnesses for the state.” What has already been said applies as well to the action of the court on the motion for new trial on the ground now being considered, as to its action in refusing to discharge the jury on the former motion.

It is further urged that a new .trial should have been granted because it was shown, on the motion for new trial, that one M. J. Oviatt, who was one of the jury before whom the ease was tried, was not regularly summoned as a juror, nor was his name drawn from the jury box as provided by law. The further fact is shown, too, that one of the attorneys representing the prisoner and who took part in impanneling the jury had full knowledge of all the facts relating to Oviatt’s disqualification. Indeed, this attorney had shortly before the impanneling of the jury tried a case in the same court where Oviatt sat as a juror, and had made a motion for a new trial on the ground that Oviatt had not been summoned as a juror noi his name been drawn from the box. It is true at the time when this jury was being impanneled the attorney .overlooked the fact that he knew of this disqualification of Oviatt, but he states in his affidavit that he really knew ¿11 about it, and it was simply a matter of forgetfulness for the moment which prevented his calling attention to it at the time. Knowledge on the part of the attorney is to be treated as knowledge on the part of his client in a matter of this sort. It is qnly where there is want of knowledge that the court will hear a party complaining of such disqualification. In the case of McGill v. The State, 34 Ohio St., 228, this language is used by the court in its opinion on page 235:

“The rule is clearly settled by the cases cited below, that the disqualification of a juror sitting at the tidal of a cause, either civil, or criminal, which the exercise of due diligence would have disclosed, is not sufficient ground for setting’ aside the verdict and granting a new trial. * * * The party moving for a new trial on such ground must show that he exercised such carp and diligence before the juror, was sworn, or he will be held .jo have waived all objections to his competency, which the employment of reasonable diligence would have shown to be well founded.”

The court was right in refusing to grant a new trial on this ground.

Another complaint made is that one Colson, who was impanneled as a juror in this ease, was a member of the grand jury which found the indictment upon which the prisoner was being tried. Colson was examined by the prosecuting attorney as to his qualifications; no question was asked of him by counsel for the prisoner, nor was any question asked of him by anybody as to whether he was a member of the grand jury which found the indictment. He was asked if he had talked with anybody about the ease, and he answered, “Not for a year.” He was asked if he talked' with anyone a year ago about it, and he answered, ‘ ‘ I presume I did. ’ ’ He was asked if he remembered that conversation, and he said that he didn’t. He said that he did not know Mike 'Ryan, and that he did not know whether the talk which he had concerned the guilt or’ innocence of Ryan. He was then asked the question: “Do you remember definitely that you did have a conversation about this case a year ago?” To which he answered, “No, sir; I may have talked about it at that time, but would not say that I did.-”- He < was further-asked if he had formed or expressed an- opinion■ concerning the! case, and he answered. -“I have not; no,- sir;”:. ■

As has been said these questions were all asked by the prosecuting attorney. The fact is that the indictment was found something more than a year before the trial was had, and it is by no means impossible, and perhaps not improbable that the juror had forgotten this particular case. His answers indicated that he had some indefinite recollection about the ease, but that it was wholly indefinite.

It is urged that since he was a member of the grand jury which returned the indictment he must have at that time formed an opinion as to the guilt or innocence of the prisoner. This is not necessarily so. A grand jury consists of fifteen men, and it is provided by Section 7206, Revised Statutes,'-that “at least twelve of the grand jurors must agree in the finding of an indictment,” so.that there may have been at the time this indict- j ment was found three -^f the grand jurors who had formed no opinion either way, as /jo whether there was evidence sufficient^ to .warrant* the indictment. For aught that appears Colson may s have-served upon the gr,and jury and have been one "of three who never made up his mind or formed- any judgment as to' the guilt or innocence of the party indicted. The-statute makes the fact that one was -a member of the grand jury* which found the indictment, a ground of challenge of such person as a juror upon the trial, but where no ehallange is made and no question put upon the examination of the juror touching his qualifications, in this regard it is too late to raise this objection, after the trial and verdict. In the case of Beck v. The State, 20th Ohio St., 228, it is said in the opinion at page 230:

“The objection taken, after trial, to the juror is thus declared by statute to be a ground of challenge only, and as such it may be waived. The court below was justified in regarding ’the failure to interrogate the juror or to make inquiry into the subject-matter in this cause for challenge before the jury was sworn, as a waiver of the same.”

We find no error then in the action of the court in this regard.

Another complaint made is that there was irregularity in the manner in which the verdict was received by the court. The facts in this regard are, as appears from the affidavit of Gertrude Kelley, a stenographer: That she was present at the time the jury returned its verdict, and that a true transcript of the proceedings connected therewith is attached to her affidavit. It will be noticed that she does not say that a full transcript is attached, but that what is attached is Irue. The transcript to which she refers shows that the court proceeded to call the roll of jurymen, and then she gives a list of eleven names only, with the word “here” following each of the names. Later it appears from her said transcript that the court inquired in these words: “Gentlemen of the jury, is this your verdict?” That the answer was: “It is.” The court: “So say you all, gentlemen?” Answer: “Yes, sir.”

Counsel for the- prisoner then asked for the polling of the jury, and, there follows an inquiry made of the same eleven men whose names appear as having been called by the court.

; It is said, first, that the court should not have called the jury; that this is required to be done by the cleik. This is a mistake. In. criminal cases the statute does not provide that. the clerk shall call the jury. But, it i.s said, that only eleven men were called. This does not affirmatively ..appear, although it does appear affirmatively that eleven names were called. No objection appeals to have been made by anybody that the full number was not called. The transcript of the journal entries shows that on the 26th day of December, 1906: “The jury duly impanneled and sworn having heard all of the evidence adduced by the respective parties, the arguments of counsel and the charge of the court, retired to their room in the custody of the court constable, and after due deliberation they do, upon their oath, find, return and say, as follows:” Then follows the verdict, and then these words: “Thereupon the court discharges the jury from the further consideration of this case.” In the absence of any suggestion made at the time of the calling of the names of the jurors, that but eleven names had been called, and but eleven were especially inquired of by the court, wc can not reach the conclusion that the statement in the transcript of journal entries, that the jury which was impanneled returned their verdict into court and were properly inquired of, is incorrect, and so we find no error in the action of the court }n refusing a new trial on this ground.

Another objection to the record arises on the evidence. The charge, it will be remembered, was that the prisoner while acting as a judge at a primary election made a mark opposite certain names, thereby indicating that the parties whose names were thus marked had voted at this election; whereas in truth and in fact they did not so vote. This was said to be established by showing that Ryan had charge of one of the books containing a certified list of electors, and that Secor, who was jointly indicted with him, was acting as a clerk in the same booth at the same election, and had charge of another of these certified lists. These, books were introduced in evidence, and we think it was shown clearly that Ryan made the mark opposite the name of several voters who actually voted at the election; that Secor made the mark opposite the name of one voter at least who voted at the election. These marks which were so established, were used as standards of comparison by an expert witness, who was placed upon the stand, and he assuming the marks, which we have said we think. it was- clearly established, were made by Ryan as a standard, gave it as his opinion that Ryan made the mark, which is spoken of in the indictment as a “v” opposite the names of a considerable number who did not vote. It must be conceded that ordinarily a mark made by one with a pen or pencil is much less satisfactory as a standard of comparison than written words. But, an examination of these marks, which are peculiar, tends very strongly to corroborate the opinion expressed by the expert witness. The marks shown .to have been made by the prisoner differ materially from that shown to have been made by Secor. The mark made by the latter has an angle at the bottom much more acute than those shown to have been made by Ryan. Not only so but the upstroke on the Secor mark is much longer than on the Ryan mark. The court in its charge to the jury said to them that the marks used as a standard of Ryan’s mark must be established beyond' a reasonable doubt. We are not surprised that the jury found it was so established. The court said to the jury that the fact that the disputed marks were made by the same man who made those used as the standard must be established beyond a reasonable doubt. We are not surprised that the jury found they were. There was no error in 'admitting the evidence of the expert, nor is the evidence such as to justify a reversal on the ground that it was not shown by sufficient evidence that the disputed marks were made by him who made the marks established as a standard.

Another complaint made is that there was misconduct on the part of the prosecuting attorney in his closing argument to the jury. • It appears that one of the counsel for the prisoner in his argument used this language, pointing his finger at the prosecuting attorney and speaking of this case:

“Why was it not tried before? Let the prosecutor tell us why the case was not tried. Mr. McMahon did not want to try it; he Was forced against his will to try it. Term after term has gone by, yet the prosecutor failed to try it. ' We challenge you to tell this jury, when you come to argue to them, why you have not tried this case before.” i

The prosécutor in his argument following the one just quoted from, made on the part of the defendant, said:

“He (Meals) asked, why wasn’t this ease tried before? You challenged me and I am going- to tell you: Because Mike Ryan absconded from this county when we wanted to try him, last April or last May, and ran away from the police and got out of town. You ask me, and 1 told you why.”

To this language used by the prosecuting attorney the prisoner’s counsel objected at the time. There was no misconduct on the part of the prosecuting attorney in making this answer if it was true to the challenge made to him by counsel for the prisoner. Indeed, it would have been an extraordinary thing if he had allowed to go unanswered the statement that it was because he'did not want to try the prisoner that he had not been tried, if the fact was as the prosecuting -attorney stated it to be. Other language used by the prosecuting attorney is complained of, but was not such as to constitute misconduct. Many other complaints are made by the prisoner of the record in this case. All of them have been examined, but we do not feel that it would be profitable to enter into a discussion of any more of them. We find no error in any part of the record, and the judgment of the court of common pleas is affirmed.

Dawley & Meals, for plaintiff in error.

S. V. McMahon, Prosecuting Attorney, and W. A. Carey, As-, sistant Prosecuting Attorney, for defendant in error.


source: Caselaw Access Project

license: Public Domain

text:
    PARTITION FENCES.
    Circuit Court of Portage County.
    John H. Nichols v. H. J. Turner et al.
    Decided, October Term, 1907.

      Construction of the New Law — Relating to Partition Pences — Enclosed and Unenclosed Lands now under the Same Rule — Section Jf239 as Amended — Constitutional Law.

    Under the act of April 18, 1904, owners of adjoining lands are required to build and maintain in good repair all partition fences between them in equal shares, unless otherwise agreed upon between them in writing, although such lands may not be enclosed with fences.
    Cook, J.; Burrows, J., and La'ubie, J., concur.
   This action is upon appeal and is for the purpose of obtaining an injunction to restrain the Turners and the board of township trustees from requiring plaintiff to build and maintain a partition fence between the lands of plaintiff and defendants Turners.

The evidence shows that at one time there' was a partition fence between these lands, now owned by plaintiff and the Turners, but that it had gone into decay and is now entirely worthless as a fence; that the land of plaintiff is practically unenclosed; .that no stock of any consequence has been kept upon the farm for several years; that while a tenant has been upon the farm, yet he had only a horse, a cow or two, and a couple of hogs, which were kept in an enclosure about the house.

The evidence further shows that about ten years ago plaintiff gave notice to the then owner of the Turner farm, under Section 4241, Revised Statutes, that he would remove his part of the fence between their farms, as he had no further use for it, he intending to abandon all fences upon his farm.

There is no claim but what the proceedings before the township board of trustees was in all particulars regular.

Under these circumstances plaintiff claims that he should not be required to build and keep in repair any part of the fence between his farm and that of Turners for three reasons:

First. That his land is unenclosed.

Second. That he gave due notice that he would remove his part of the partition fence, and would not longer continue to keep any part of it in repair.

Third. The act under which the proceeding was had before the township trustees is unconstitutional.

As to the first and second claims, it will be observed that the act of April 18th, 1904 (97 Yol. Ohio Laws, page 138), made a radical change in the fence laws of the state. Previously the law provided (Revised Statutes, Section 4240) that:

“The owner or lessees for one or more years of lands enclosed with fences should keep up and maintain in good repair all partition fences between their own and the next adjoining enclosures in equal shares so long as both parties continue to occupy and improve the same. ’ ’

By Section 4241 it was provided:

“When the enclosures of two or more persons are divided by a partition fence of any kind and either Of the parties think proper to vacate his part of such enclosure, or to make a lane or passage between such adjoining enclosures, such person may remove his share or part of such partition fence, on giving six months notice in writing of such intention to the party owning or occupying the adjoining enclosure, or his agent if such party is a non-resident of the county.”

By the act of April 18th, 1904, both of these sections are repealed and, so far as the question here involved, Section 4239, as amended, took their place.

That section now provides:

“That the owners of adjoining lands-shall build, keep up and maintain in good repair all partition fences between them in equal shares, unless otherwise agreed upon between them, which agreement must be in writing and witnessed by two persons.”

Nichols & Cole, for plaintiff.

Maxsom & Wolcott, contra.

The evident intent and purpose of the Legislature by the new law was to require all owners of adjoining lands, whether enclosed or not, to make and maintain one-half of the fences between them. This is especially apparent from the fact that the lawr now applies to the owners of the land alone — lessees being eliminated, and the further fact that in order to be relieved from the requirements of the statute there must be an agreement in writing, signed by the adjacent owners in the presence of two witnesses, so that there may not be any misunderstanding as to the liability of the parties. Further, the repeal of Section 4241, taking away the power of either party to remove his part of the fence is important as tending to show that enclosure or non-enclosure should thereafter not have any effect and that thereafter there should be no "devils” lanes. Whether this material change in the law is salutary or not it is not for us to inquire. Its tendency no doubt will be to keep down controversies and litigation between neighbors, as they will now know precisely what their exact rights and liabilities are. The changing of the -law so that it applies to all owners will have very little effect, as there is now very little unimproved land in this state, and no doubt that had some effect in prompting the change

As to the third claim of plaintiff, we do not see how the change in any manner affects the statute as to its constitutionality, and as the fence law, substantially the same in its provisions, has been incorporated in our law for nearly eighty years and has been before our Supreme Court time and time again without any question being made as to its constitutionality, and further, as the counsel for plaintiff does not show us ■ in what respect it is unconstitutional, we leave that matter without further comment.

Judgment for defendants dismissing the petition of plaintiff at his costs.


author: Winch, J.

text:
    MORTGAGE EXECUTED UNDER PARENTAL DURESS.
    Circuit Court of Cuyahoga County.
    Mabel Lane v. The Reserve Trust Company.
    Decided, November 6, 1907.

      Duress — Where Exerted hy Parents upon a Ohild — Burden of Proving Good Faith — Mortgage—Presumption—Banks and Banking — Fraud ■ — Acknowledgment—Deed—Parol Evidence.

    1. A petition for cancellation of a real estate mortgage on the ground of parental duress exerted soon after plaintiff attained her majority, whereof the defendant mortgagee had knowledge or will be held to have had knowledge, is not open to demurrer.
    2. While a mortgagee in such a transaction will not be held to the ascertainment of bad faith at his peril, it is incumbent upon him to make reasonable inquiry when the known facts suggest that an improper advantage is being taken of a fiduciary relation; and the convenience of banking houses in transacting business with persons thus related is subordinate to the protection of the property rights of persons in actual or quasi wardship from the greed of their protectors.
    Henry, J.; Marvin, J., concurs; Winch, J., dissents in a separate opinion.
    Error to tbe Court of Common Pleas. ■
    The plaintiff has appealed from final judgment, rendered upon demurrer sustained to her second amended petition, wherein she prays cancellation of her real estate mortgage to the defendant, given under alleged parental duress, while she still lived with her parents, soon after she attained her majority, and to secure a loan to her father. She .alleges - defendant’s actual knowledge of these facts, save that as to the undue influence she says defendant knew or by the exercise of ordinary care would have known it. The parents were originally parties defendant, but were dismissed by the court below as improperly joined.
    Under the principles laid down in Berkmeyer v. Kellerman, 32 O. S., 253, the petition here would be sufficient as against the parents, had the mortgage been given to them. At page 252, the opinion by Johnson, J., quotes approvingly from Cocking v. Pratt (1 Ves. Sr., 400), that “the court will always look with a jealous eye -upon a transaction between parent and child just come of age, and interpose if any advantage is taken.” The fourth paragraph -of the syllabus .indicates moreover that the burden of proving the good faith of such transactions is upon him who is alleged to have profited unjustly from the fiduciary relation established.
    But in Jenkins v. Pye, 12 Pet., 241, it is held that a conveyance from child to parent is not prima facie fraudulent; whence it evidently follows that the burden of proof is on him who charges the fraud.
    In this forum we are of course bound by the English rule, so far as it is sanctioned by our state Supreme Court, in preference to the so-called American rule enunciated by the United States Supreme Court. Applying, therefore, 'the principles of Berkmeyer v. Kellerman, supra, to the ease in hand, what duty, if any, rested upon the bank, knowing that it was lending money to the father upon the security of the child’s property, and that a court, viewing the transaction with a jealous eye, would call upon the father to vindicate its good faith? Manifestly the bank’s duty was to use reasonable care to ascertain whether or not the father was acting bona fide, and whether or not the child was actuated only by her own free will.
    The petition, however, alleges that by the exercise of such care the defendant would have discovered the undue parental influence under which the mortgage was executed, acknowledged and delivered. It is, therefore, chargeable with such knowledge as it would thus have acquired, and stands in no better position than the father himself.
    It is no answer to this conclusion to say that the notary’s certificate of acknowledgment' can not be varied by parol evidence; for the deed and acknowledgment are alike assailed directly for fraud. Nor is it ah answer to say that the requirements of business should be held to relieve banks from the hazard and burden of such a rule. It can not be true that banks will be greatly prejudiced by having to make reasonable inquiry as- to_ the fact of undue influence in cases where, they know that a fiduciary relation exists, and that the proposed transaction can stand only upon the footing of utmost good faith.
    We do not hold that third parties acting in such a transaction must ascertain bad faith at their peril, but only that they must make reasonable inquiry when the known facts suggest improper advantage taken of a fiduciary relation. The practice of English banks, in having the person reposing confidence exhibit competent independent advice that he is free from undue influence before allowing a gift to his fiduciary to be consummated through .the medium of a bank loan or the-like, may not always be essential to the validity of gifts of this sort; but though the .authorities do not go that far, the practice is manifestly a salutary one. The protection of the property rights of persons in actual or quasi wardship from the greed of their protectors is plainly paramount in importance to the mere convenience of banking houses in transacting business with persons thus related.
    The principles herein approved were applied in a very similar and exceedingly well considered American case, Noble’s Admr, v. Moses Bros., 81 Ala., 530, reversing the previous conclusions of the court in the same ease as reported in 74 Ala., 604. While that decision is perhaps not in accord with the current of American authority, we deem it to be the necessary corollary of the holding in Berkmeyer v. Kellerman, supra.

    A majority of the court, therefore, our Brother Winch dissenting, hold that the judgment of the court of common pleas must be and the same is reversed, and" the cause remanded.

      Mattheivs & Orgill, for plaintiff in error.

      Howland & Niman, for defendant in error.
   Winch, J.

(dissenting).

I dissent in this case because I believe that the petition does not sufficiently charge the defendant with knowledge of the imposition and fraud alleged to have been practiced upon the plaintiff by her father.

Without resort to presumptions of law, the most the defendant is alleged to know is the relationship of the plaintiff to her father and that she was making a gift of her property to him. This she had a right to do and from certain authorities, two of which I shall mention, I believe that the presumption is in favor of the validity of such gifts.

One of the cases referred to is Jenkins v. Pye, 12 Peters, 240, and part of the syllabus or head note, reads as follows:

“The complainants, as the ground to invalidate a deed, made by a daughter, of twenty-three years of age, to her father, by which she conveyed the estate of her deceased mother, to her father (he having a life estate as tenant by courtesy in the same), asserted, that such a deed ought upon considerations of public policy growing out of the relations of the parties, to be deemed void. We do not deem it necessary to travel over all the English authorities which have been cited; we have looked into the leading cases, and can not discover anything to warrant the broad and unqualified doctrine asserted; all of the cases are accompanied with some ingredient showing undue influence exercised by the parent, operating on the fears or hopes of the child; and sufficient to show reasonable grounds to presume, that the act was not perfectly free and voluntary on the part of the child; and in some cases, although there may be circumstances tending in some degree to show undue influence, yet if the agreement appears reasonable, it has been considered enough to outweigh slight circumstances, so as not to affect the validity of the deed. It becomes less necessary for the court to go into a critical examination .of the English chancery doctrine on this subject; for, should the cases be found to Countenance it, we should not be disposed to adopt or sanction the broad principle, that the deed of a child to a parent is to be deemed, prima facie, void.
“To consider a parent disqualified to take a volutary deed from his child, without consideration, on account of their relationship, is opening a principle -at war with all filial, as well as parental, duty and affection; and acting on the presumption that a parent, instead of wishing to promote the interest and welfare, would be seeking to overreach and to defraud his child. Whereas the presumption ought to be, in the absence of all proof tending to a contrary conclusion, that the advancement of the interest of the child was the object in view; and to presume the existence of circumstances conducing to that result; such a presumption harmonizes with the moral obligations of a .parent to provide for his child; and is founded upon the same benign principle that governs cases of purchases made by parents, in the name of a child; the natural and reasonable presumption in all transactions of this kind is, that a benefit was intended the child, because in the discharge of moral and parental duty. ’ ’

The opinion bears out all that is stated in the head note.

This case is quoted as ‘ ‘ the leading case ’ ’ on the subject in the case of Towson v. Moore, 173 U. S., 17, where it is also stated that Mr. Justice Story, who sat in .the Jenkins case, in the last edition of his Commentaries on Equity Jurisprudence, stated the doctrine as follows:

“The natural and just influence which a parent has over a child renders it peculiarly important for courts of justice to watch over and protect the interests of the latter; and therefore all contracts and conveyances, whereby benefits are secured by children to their parents are objects of jealousy, and if they are not entered into with, scrupulous good faith, and are not reasonable under the circumstances, they will be set aside, unless third persons have acquired an interest under them; especially where the original purposes for which they have been obtained are perverted, or used as a mere cover. But we are not to indulge undue suspicions of jealousy, or to make unfavorable presumptions as a matter of course in cases of this sort.”

If the courts are not “to make unfavorable presumptions as a matter of course in cases of this kind,” why should the bank be required to?

No answer to this question can be deduced from the statement found in the syllabus of the Towson case that, “in the case of a child’s gift of its property to a parent, the circumstances attending the transaction should be vigilantly and carefully scrutinized by the court, in order to ascertain whether there has- been undue influence in procuring it,” for that scrutiny is called forth by proper allegations of undue influence; a petition relying upon any presumption would be demurrable and invoke no scrutiny as to facts not presented by it.

So, here, the bank was not called upon to scrutinize this transaction, for there was nothing in it suggesting undue influence, if we are warranted in applying the presumptions suggested by the cases from which I have quoted.


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    POLICE COURT PROSECUTIONS UNDER THE NEW STATUTE.
    Circuit Court of Lucas County.
    State, ex rel Charles S. Northup, v. David T. Davies, Jr., Auditor; and State, ex rel Lyman W. Wachenheimer, Prosecuting Attorney, v. John W. Kerr et al.
    Decided, June 15, 1907.

      City Solicitor and Prosecuting Attorney of the Police Court — Effect of Appointment of an Assistant Prosecutor — Fees—Mandamus—Sections 1536-668 and 1586-844.

    The appointment of an assistant prosecuting attorney for the police court does not have the effect of terminating the tenure of the city solicitor to the office of prosecuting attorney of the police court. The city solicitor continues to he ex-officio police court prosecutor, and the county auditor may he compelled by mandamus to recognize such solicitor’s claim to the compensation to which he is entitled by virtue of the statute.
    Wildman, J.; Haynes, J., and Parker, J., eoncur.
   These are two suits, one, the title of which is first given, instituted in this court and the other brought into this court by appeal. The first mentioned is a proceeding in mandamus to compel the auditor to recognize the claims of the relator to certain 'Compensation to which he asserts he is entitled as solicitor of the city of Toledo, and, by virtue of that office, prosecuting attorney of the police court. The other action, appealed to this court, is a suit for an injunction to restrain the allowance and payment of the same compensation. Both actions involve the construction of a section of the municipal code, in our latest revision of the statutes designated as Section 1536-663. In the mandamus suit a demurrer has been filed to the second defense in the answer of the defendant Davies, auditor. In the injunction suit a motion has been filed by the defendant, Northup, to strike matter from the amended petition which w.as filed in this court after appeal of the action. The decision of the demurrer in the one case substantially disposes, upon principle, of the decision of the motion in the other, and, indeed, no question is presented except that to which I have already referred, the question of the proper construction of Section 1536-663.

The case, by reason of much public discussion, has assumed undue importance. No question of so-called “graft” is involved, and it is of very little consequence to the public whether the compensation which is sought is payable, by a proper construction of the statute, to the city solicitor or to some assistant solicitor who, for some period is, by virtue of this statute, authorized to act as prosecuting attorney in the police court. Our construction of the statute will, in its ultimate result, neither add to nor take from the county treasury one dollar, so far as the application of this compensation is concerned. The statute provides for the election of a city solicitor for the term of two years, and that his tenure of office shall continue until the election and qualification of his successor. lie is required to be a practitioner of law. in the courts of Ohio; his powers and duties are such as are provided in certain other sections numbered and such as are provided in the act to which I have already referred and all other acts or parts of acts having uniform operation throughout the state and not inconsistent with this act; he is required to do certain duties for the city, and finally, in one of the paragraphs of the section, we have this provision:

“The solicitor shall also be prosecuting attorney of the police court, and shall receive for his service such compensation as council may prescribe, and such additional Compensation as the county commissioners' shall allow; provided, that where council allows an assistant or assistants to the solicitor, said solicitor may designate an assistant or assistants to act as prosecuting attorney or attorneys of the police court. The duties of the solicitor as prosecuting .attorney of the police court shall be such as are provided in Section 1813 of the Revised Statutes; such as are provided in this act, and in all other acts or parts of acts applying to all cities of the state and not inconsistent herewith. In ease of the inability or absence of the solicitor or any of his assistants to act as prosecuting attorney of the police court, the provisions of Section 1815 of the Revised Statutes shall apply.”

Sections 1813 and 1815, Revised Statutes, mentioned in this section are now known in the latest revision as Sections 1536-844, 1536-846. It is manifest that the framers of Seetion 1536-663 took cognizance of the existence of the other two sections mentioned and the application of those sections goes only so far as to provide what shall be the duties of the solicitor as prosecuting attorney of the police court; but there is no suggestion that the compensation shall be such as is provided in the other two sections mentioned, or that the compensation shall be governed by any rules specified in those two sections. The two sections so referred to — Sections 1813 and 1815, Revised Statutes (now Sections 1536-844, 1536-846) — had, I think, been in existence many years, with perhaps some amendments, and were in force at the time when this more recent statute (1536-663), was enacted. We will not search for inconsistencies in the two sections. I am not inclined to think that there are any, so far as this matter of compensation is concerned; but, if there be such, by any construction, the latter enactment will, of course, govern.

Now what is the construction of Seetion 1536-663? The attorney for the prosecuting attorney and the auditor insist that upon the appointment or designation by the city solicitor of any of his assistants to act as prosecuting attorneys of the police court, his right so to act ceases, and the right to compensation also fails. We are not disposed to adopt this contention. I will spend no time in any elaborate discussion of the paragraph which I have read, but will touch only such salient features as seem to us to make clear its proper interpretation. The statute provides, not that the solicitor shall act as prosecuting attorney of the police court, but that he shall be prosecuting attorney of the police court. By virtue of his office as solicitor, he is also prosecuting attorney of the police court, and in the same sentence in which the statute makes this provision we have the provision for compensation. The clause is:

“And shall receive for this service such compensation as council may prescribe, and such additional compensation as the county commissioners shall allow.”

Emphasis is placed by the assistant county attorney, who represents the prosecuting attorney here and the auditor, upon the clause in the paragraph beginning with the word “provided,” and his idea seems to be, that by this proviso an entire change in the status of the solicitor is made or may be made. The language is: “Provided that where council allows an assistant or assistants, to the solicitor, said solicitor may designate an assistant or assistants to act,” not to be, but to act as prosecuting attorneys of the police court. And there is no provision that thereupon the city solicitor shall lose his power or his status as prosecuting attorney of the police court. He is still proseeuing attorney of the police court, so far as any language of this section provides. There is nothing in the section anywhere which says that his office, his official status, as prosecutor shall terminate, when he designates someone else to act. There is no provision here as to the length of tenure of such assistant or assistants; «there is no provision that the appointing power — the solicitor himself — shall not also have the power to terminate the period during which such assistant or .assistants shall so act, and we, are inclined to the view that all of this power is lodged in the city solicitor and remains with him during the time that he is such city solicitor. The statute has practically conferred upon the city solicitor the functions and duties known as those pertaining to the office of prosecuting attorney of the police court.

Again it is to be noted in this section that no provision is made by the section, in terms, for the payment of any compensation to such assistant or assistants. The compensation has already been provided for in the clause preceding the proviso giving to the solicitor power to designate some one to act as assistant, or to act in his stead, temporarily or otherwise, as he may determine. We find nothing in the section as to compensation after the beginning of this so-called proviso, and it seems to us that if the Legislature had intended that his right to compensation should cease immediately upon the appointment of anyone to act as prosecuting attorney in the police court, the Legislature would have so said. It would have been very easy to give expression to such an intent as that; but nothing of the kind has been done.

Again in the last sentence of the section we have the provision that “in case of the inability or absence of the solicitor or any of his assistants to act as prosecuting attorney of the police court, the provisions of Section 1815 (1536-846) shall apply.” The intimation is clearly given by this sentence that the solicitor or any of his assistants designated by him may act as prosecuting attorney of the police court. They may be disabled or they may be absent, but if they are able to act and are present, then they have the power to act. He, as solicitor, has power to continue to act, because he is the prosecuting attorney of the police court, and his assistants have power to act because he has designated them to act; but, in case of the inability or absence of the solicitor, or any of his assistants, then the provisions of the other section apply; to-wit, that when there is a temporary inability or absence of such prosecuting attorney or a vacancy in the office by resignation, death or otherwise, the judge of the police court, or, if there be more than one judge of said court, then the judges thereof shall appoint some competent member of the bar to perform the duties of the office, such appointee' to act until the removal of the inability or the return of such prosecuting attorney, and in case of vacancy until his successor, shall be elected at the next annual municipal election and has been duly qualified. Said appointee must qualify in the same manner, and has the same power and authority to discharge the same duties, and is subject to the same liabilities, and receives the same salary as the officer whom said appointee succeeds; but in case of inability or temporary absence of such prosecutor the judge may deduct such amount from the salary of such prosecuting attorney. It is not provided that the court shall deduct such compensation or salary from any supposed compensation awarded by this other section (Section 1536-663), to some person who acts temporarily as prosecuting attorney; but it is to be deducted from the salary which is awarded to the officer who holds the office.

There are other expressions in some of these sections that may afford aid to the construction, but I will not prolong this opinion by any special reference to them. It suffices to say that it is the unanimous judgment of the court that the contention of the city solicitor, Mr. Northup, as to the proper construction of Section 1536-663, should, be sustained; and, holding that view, the demurrer to the second defense in Davies’ answer in the mandamus suit and the motion to strike matter from the amended petition filed in this court in the injunction suit should be sustained and it will be so ordered.

L. W. Waehenheimer and B. W. Johnson, for plaintiff.

J. B. Mantón and James Austin, contra.


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    QUESTIONS RELATING TO SEWER. ASSESSMENTS.
    Circuit Court of Montgomery County.
    John W. King v. The City of Dayton.

    Decided, June 16, 1907.

      Ordinances — For Sewer Improvements — Notice to the Property Owner —Law Governing Assessment — Pumping Station may be Included in Cost — Benefits—Surface Drainage and Storm Water — Jurisdiction for Reduction of Assessment.

    1. A sewer district is not changed by a reference in the resolution of necessity to a part of the territory only, leaving the remainder for future description and improvement.
    2. Where the sewer is adequate and so located that it may be utilized in the future, the lands must be regarded as'specially benefited, notwithstanding the property is not so improved as to make sewer connections available.
    3. A pumping station is a necessary part of a sewer equipment and its cost may be included in the assessment.
    4. There is no jurisdiction in a court of equity to reduce a sewer assessment which is not grossly excessive.
    Dustin, J.; Wilson, J., and Sullivan, J., concur.

       Affirming King v. City of Dayton, 5 N. P. — N. S., 369.

   The sewer districts were never changed. The reference in the resolution of the necessity and the ordinance, etc., to those parts of the district covered by the plan of improvement, as “sewer districts Nos. 6 and 7 ’ ’ was an error of description simply and did not constitute a repealing or amending clause. The ordinance itself was not inconsistent with the sewer district plan already established. It simply covered a part of the territory, leaving the remainder for further disposition. It is competent, however, to assess the whole district for the construction of the’ main sewer. According to the statute the assessment can not be made in any other way. Should a new main sewer ever be constructed west of Western avenue, the property east of it in the same district will have to help pay for it.

William G. Frizell and R. G. Corwin, for plaintiff.

Thomas B. Eerrman, City Solicitor, and Philo G. Burnham, Assistant Solicitor, contra.

If the notice was misleading and plaintiff did not have his day in court at the time, he has it now and may present his objections.

It is not necessary that property be improved so as to make sewer connections immediately available. If the sewer is adequate and so located that it may be utilized in the future, the lands are specially benefited. The presumption is that the present plan will be perfected so as to include convenient laterals as the city grows. The assessment for the main sewer can be but once and must be now in order to provide prompt payment for its eonstruction.-

Coneeding that the. law in force at the time of the passage of the resolution of necessity applies as to the time of collection, etc., wherein has the plaintiff been prejudiced? The few days difference in interest would be too small for the consideration of a court of equity. Besides, it was an error for which there is a remedy at law.

There was no excess in the amount assessed for the main sewer. The pumping station was a necessary part of the equipment.

The increased cost necessary to make it large enough for the storm water for the entire district should be collected therefrom, because the present surface drainage for that part which is west of Western 'avenue is but temporary and must inevitably be wiped out by the improvements as they are constructed.

The assessments must be grossly excessive in order to come within our jurisdiction for reduction. We do not find them so. Decree for defendants.


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    INSANITY OF DEFENDANT IN A DIVORCE ACTION.
    Circuit Court of Cuyahoga County.
    Mary Kerlick v. Thomas Kerlick.
    Decided, May 11, 1906.

      Divorce and Alimony — Property Rights where the Defendant is Insane — Adjudication may Proceed — Trustee for Defendant — Appeal —Sections 5106, 1¡056 and 5000.

    1. Property rights of parties to a divorce proceeding may be adjudicated, notwithstanding the defendant is insane. Whether present insanity is a bar to divorce is not decided.
    2. In the absence of any special provision in the chapter of the Revised Statutes on divorce with regard tó procedure as to an insane party, the general statutes apply; and the appointment of a trustee for an insane defendant in a divorce proceeding is proper.
    Winch, J.; Marvin, J., and Henry J., concur.
    Error to Cuyahoga Common Pleas Court.
    Klein & Harris, for plaintiff in error,
    cited:, Clowry v. Clowry, 16 C. C., 302; Rhude v. Rhude, 33 Bull., 273; Casler v. Bowen, 39 Bull., 4; 14 Cyc., 628, and oases noted under 71; Harrigan v. Harrigan, 135 Cal., 397; Rathbun v. Rathbun, 40 How. Pr. (N. Y.), 328; Stratford v. Stratford, 92 N. C., 297; Mansfield v. Mansfield, 13 Mass., 412; Douglass v. Douglass, 31 Iowa, 421; Mordaunt v. Mordaunt, 41 L. J. Rep. (N. S.), 42; 2 Nelson, Div. & Sep., 669; 2 Bishop, Div. & Sep., Sections 518, 522.
   Plaintiff brought her action against the defendant .praying for divorce, custody of children, alimony, and that she be decreed to be the sole owner of certain real estate which she claims to have paid for herself, although the record title thereto is in the plaintiff and defendant jointly. Extreme cruelty and gross neglect of duty are alleged as the grounds for divorce.

The petition further alleges:

■. “Defendant is now an inmate of the Cleveland hospital for the insane, duly committed By the Probate Court of Cuyahoga County, and is hopelessly insane beyond hope of recovery. All of the grounds of divorce above set forth arose prior to the insanity of the defendant and while .he was in good health and of sound mind.”

Service was had by delivering copies of the summons and of the petition to the defendant, and like copies for him to Dr. A. B. Howard, suprintendent of the state hospital, in which the defendant is detained.

Thereupon the court of common pleas appointed a trustee for the defendant in the suit, finding that his legal guardian had an interest in the controversy adverse to defendant; and the trustee so appointed, answered, admitting the marriage, birth of children and insanity of the defendant, as alleged in the petition, but denying all other allegations therein.

At a subsequent term, the trial court made the following-order in the cause:

‘ ‘ This cause having been duly advanced, came on this day for hearing, whereupon the court without final hearing dismissed the petition of the plaintiff at her costs, for which judgment is rendered against her.”

Notice of appeal was given, bond fixed and given, and the ease brought into this court under favor of Section 5706, Revised Statutes, which reads as follows:

“No appeal shall be allowed from any judgment or order of the court of common pleas under this chapter, except from an order dismissing the petition without final hearing, or from a final order or judgment granting or refusing alimony, or in eases under Section 5705 (injunction against intemperate husband from squandering property); when judgment is rendered for both divorce and alimony, the appeal shall apply only to so much of the 'judgment as relates to the alimony; and when an appeal is taken by the wife, she shall not be required to give bond. ”

In this court a motion is made to dismiss the appeal, but said motion is overruled, as it is clear that the ease is applicable as to the property rights of the parties, and we do not now decide whether or not, as to the divorce, an order was made dismissing the petition without .final hearing, within the intendment of the statute, so as to require this court to hear and determine whether a divorce should be granted to the plaintiff.

Further objection is made to this court’s hearing the case, based upon the defendant’s insanity.

So far as that objection amounts to a demurrer to the petition, it is overruled, for we know no good reason why the property rights of the .parties should not be adjudicated, even though the defendant is insane. Whether the present insanity is a bar to divorce, we do not now decide.

But it is said that this case should not be tried, because there is no provision in the chapter on divorce, authorizing the appointment of a trustee who may make a defense for the defendant, which his insanity precludes him from making for himself.

In the case of Johnson v. Pomeroy, 31 Ohio St., 247, at page 248, it is said:

“An insane person may be sued and jurisdiction over his person .acquired by the like process as if he were sane. But when it is miade to appear to the court that a party to.the suit is insane, it is made the duty of the court by statute (S. & C. 385, Sec. 7) to appoint a trustee to prosecute or defend the suit for and on behalf of such insane party.”

The statute referred to is known as Section 5000, Revised Statutes, and is found in the revision and consolidation of the laws relating to civil procedure, enacted May 14, 1878 (75 0. L., 597, 606), but was originally enacted March. 14, 1853. (51 O. L., 473, Sec. 7), and then read: “Whenever, in any suit in court now pending, or which may hereafter be instituted, it shall manifestly appear to the court that any person who is party to such suit is an idiot, lunatic or insane person,” the court may appoint a trustee.

This act was passed three days after the Legislature had adopted the original code of civil precedure (51 O.L., 57), and the act concerning divorce and alimony (51 O. L., 377), both of which were also carried into the revision and consolidation of the laws relating to civil procedure, above referred to.

The code provided for “one form of action which shall be called a civil action,” and the provisions regarding divorce constituted a “special proceeding,” so designated in the revision (75 O. L., 726), and so held by the Supreme Court. State v. Cook, 66 Ohio St., 566, 573.

Klein & Harris, for plaintiff in error.

Mathews <& Orgill, contra.

Section 604 of the code of 1853 (51 O. L., 161) provided:

“Until the Legislature shall otherwise provide, this code shall not affect * * * proceedings under statutes relating to dower, divorce, or alimony; * * * but such proceedings may be prosecuted, under the code, whenever it is applicable. ’ ’

This section dropped out in the revision, and in its place appears Section 4956, Revised Statutes, which reads:

“Where in part three of this revision special provision is made as to service, pleadings, competency of witnesses, or in any other respect, inconsistent with the general provisions in this title, the special provisions shall govern, unless it appear that the provisions are cumulative.”

Considering this history of the statutes, we have concluded that as there is no special provision in the chapter on divorce with regard to the procedure as to an insane party the general statutes on the subject apply, and that a trustee was properly appointed for the insane defendant.

The motion to dismiss the petition is, for the reasons stated, overruled, and the case is assigned for trial upon May 7, 1906, immediately upon our return from the circuit.


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    MOMENTARY FORGETFULNESS IN A PLACE OF DANGER.
    Circuit Court of Hamilton County.
    J. Q. Martin, Administrator, v. Cincinnati Traction Co.
    Decided, February 15, 1908.

      Negligence — Street Gar Conductor Knocked from, Gar — At a Point of Known Danger — Roof Projected Almost to Line of Gar- — Unfortunate Warning Caused Accident — Assumed Risk — Pleading—Gause Arrested from Jury.

    Where a street car conductor, in response to the warning “Look out,” projects his head beyond the line of the car and is struck by a projecting roof and killed, the question of contributory negligence between him and the superior who gave tlie warning would be one for the jury;- but in the absence of any averment that the conductor did not know of the projecting roof, and the evidence indicating that he must have known of it if he exercised ordinary care, it was not error for the court to take the case from the jury on the ground of assumed risk.
    Giffen, J.; Swing, P. J., and Smith, J., concur.
   The negligence charged in the petition is as follows:

“Said building or shed was negligently and carelessly constructed and maintained by said defendant in this, that the roof of said building or shed was so negligently and carelessly constructed that said roof extended or projected over the building or shed to the danger of the lives of those who were ordered, and of the intestate, to take cars into the barn or ear shops of the defendant over the tracks ad joining, said building or shed, all of which was known to the defendant. That on said day while said building or shed was so maintained plaintiff’s intestate was directed and ordered by the'defendant to take, as a conductor, a disabled car to the Chester Park shops, * * * and while placing said car where directed by the defendant, and without fault or negligence on his part, * * i:= was crushed between a Cincinnati traction car and the extended or projecting roof.”

The testimony shows that the car would pass the projecting roof, and could be operated in safety by the employes, if they remained within the outer lines of the car; and that both the motorman and the deceased conductor were looking forward when the car barn boss, who was directing them where to place the ear hallooed “look out,” and “he put his head out.”

C. L. Swain and Thos. L. Michie, for plaintiff in error.

Outcalt & Hichenlooper, for defendant in error.

The sudden call of the boss to “look out” seems to have been the only occasion for the conductor putting his head out beyond the line of the car. In his effort to obey the warning and ascertain the cause of it, he momentarily forgot the existence of the obstruction and looked out on the side of the car where the boss was standing on the running board. Under such circumstances he was not guilty of contributory negligence, nor was the conduct of the boss negligent; but if it was, there is no such charge in the petition.

It may be observed, however, that the conductor was probably dangerously near the obstruction when the warning was given, as there appears no other reason for it. In that event the question of contributory negligence would be one for the jury, but in neither event could the court determine the question as matter of law. If the negligence of the defendant in constructing the projecting roof be admitted (and we are not prepared to say that it would be), then the only ground upon which the court was justified in arresting the ease from the jury was the assumed risk.

While the plaintiff avers in his petition that the defendant knew of the dangerous condition of the place where the work was done, he fails to aver that it was unknown to his intestate. The evidence also showed that it was obvious and must have been known to the intestate, if he exercised ordinary car. It appears therefore from the pleadings as well as the evidence that he assumed the risk. Coal & Car Co. v. Norman, 49 O. S., 598; The Pennsylvania Co. v. McCurdy, 66 O. S., 118.

The evidence of the plaintiff presented one of those unfortunate cases for which the law affords no relief, and the court properly instructed the jury to return a verdict for the • defendant.

Judgment affirmed.


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    FATAL IRREGULARITIES IN A COURT HOUSE CONTRACT.
    Circuit Court of Richland County.
    The State of Ohio, for the Use and Benefit of Richland County, by C. H. Huston, Prosecuting Attorney, v. F. H. Williams et al.
    Decided, January, 1908.

      Contracts — Bond for the Faithful Performance thereof — Action on Bond —Pleading—Necessity of Compliance with Section 799 — Procedure Where Contractor Fails to Complete the Work — Provisions as to County Contracts not for the Benefit of the Sovereign Power only — When a Judgment Should he Affirmed.

    1. A judgment should be affirmed, if among the defenses interposed there was any one that was valid, or if there is any other sufficient reason under the law for sustaining the judgment.
    2. There can be no recovery in an action against a contractor and his sureties for damages by reason of failure to complete a contract entered into with county commissioners, where there is no averment that the contract relied on was one of binding force and effect.
    3. It is also necessary to aver compliance with Section 799, Revised Statutes, by alleging endorsement of the contract by the prosecuting attorney and performance of all the other pre-requisites to a complete and valid contract.

      4. These pre-requisites are not for the benefit and protection of the sovereign power alone, but they are of the essence of the contract, which without them becomes null and void.
    Taggart, J.; Donahue, J., and Craine, J., concur.
   This proceeding in error is prosecuted to reverse the judgment of the court of common pleas. The plaintiff in error was plaintiff in the case below and defendants in error were defendants therein. To the amended petition filed by plaintiff the defend- ' ants each filed general demurrers.

In the court of common pleas these general demurrers were overruled, and thereupon defendants filed joint and several answers containing fifteen separate defenses. To each of these defenses except the first the plaintiff filed demurrers, and the denxurrers were sustained to each excepting the third and fifth.

The case was heard by the common pleas court, a jury being waived, and a judgment rendered in favor of the defendants. A motion for a new trial was filed, overruled and exceptions taken, and this proceeding is now brought in this court to reverse the judgment of the common pleas court.

We may say at the outset that the judgment of the court of common pleas must be affirmed, if there is a single valid defense made in this case, or if, under the law, there is any other sufficient reason for sustaining the judgment.

The Supreme Court, in the 23d O. S., at 626, thus lays down the rule as to the verdict of a jury:

"Where the jury, by their verdict, ‘find the issues joined in the cause’ in favor of one of the parties, this is to be taken as a verdict finding each of the issues therein for such party. In such case, if the issues are such that a finding of either of them in favor of the successful party entitles him to the judgment rendered, the judgment will not be reversed for error in the instruction of the court relating exclusively to the others.”

In the 60 O. S., page 69, the Supreme Court lays down the rule:

"Where two issues are presented in the pleadings for the determination of the jury, and there is a verdict finding the issues for the defendant, and such finding, on either issue, entitles him to a general judgment in his favor, and that judgment is rendered on the verdict, such judgment will not be reversed for error in the instructions of the court to the jury relating exclusively to one of the issues. ’ ’

The Supreme Court, in the recent case of Ben Dickerson v. The State of Ohio, held that the reviewing court was entitled to look into the record and, if the judgment which was 'in review was right for any reason, it was the duty of the reviewing court to affirm the same.

The amended petition that was filed in the court below was based upon a bond which the defendants, Williams and Beaver, as principals, and Esswein, Shinnick and Carter, as sureties, had executed and delivered to the board of county commissioners of Richland county, in the sum of $15,000.

The condition of the bond was that — “F. H. Williams and H. H. Beaver have this day submitted to the board of county commissioners a proposal for labor and materials for remodeling the court house at Mansfield, Ohio, as set forth in the proposal hereunto attached. Now, should the said F. il. Williams and PI. PI. Beaver, within ten days after receiving notice to that effect, enter into a contract to complete said work, and after entering into a contract faithfully to carry out all the conditions, implied and stated, in said contract, a full understanding of which is hereby acknowledged, and leave the building and premises free from all liens and claims whatsoever, chargable to said county commissioners, then this obligation to be void and of no effect; otherwise to remain in full force and virtue in law.”

The petition proceeds, after giving a copy of the bond and reciting its conditions, and says that the board of county commissioners theretofore accepted the proposal of Williams and Beaver and entered into a contract 'in writing with the said Williams and Beaver to remodel the court house of Richland county. The petition further avers that Williams and Beaver failed, neglected and refused to complete the remodeling of the court house, according to the terms of said contract, wholly abandoning said contract and refusing to complete the same. They further allege that the commissioners of Richland county, complied with all the terms of their contract on their part to be performed.

It will be noted that, by the averments of this petition, the plaintiff does not allege that Williams and Beaver entered into “a valid or binding contract,” that they entered into “a contract agreeable to the statute in such eases made and provided,” that they entered into “a contract according to law,” or that they “duly entered into a contract.” So that there is a total lack of averments in this petition that the “contract,” which was so claimed to- have been entered into between Williams and Beaver and thé commissioners was of any binding force and effect whatever.

The Supreme Court, in the 65 O. S., at page 219, thus states the rule: ‘ " ■ .

“To state a good cause of action against a municipality in matters ex contractu, the petition must declare upon a contract, agreement, obligation or appropriation made and entered into according to statute.”

So that, at the outset of this case, so far as there is any averment in this petition, it totally fails to state that the ‘ ‘ contract, ’ ’ or alleged contract, that it is claimed was entered into between Williams and Beaver, was of legal and binding effect.

We are .also of the opinion that it would be necessary for the plaintiff in this case to set forth the facts showing a compliance with the statute, such as is required by Section 799, Revised Statutes, alleging the endorsement by the prosecuting attorney and all the other pre-requisites to a complete and valid contract.

It is elementary, and as Judge Davis states the rule in 74 O. S., 92, “there is no proposition of laiw more firmly settled in this state than that sureties are not liable beyond the letter of their contract.” These sureties, defendants in this case, could not be bound beyond the strict letter of their contract. Their obligation was that, if said Williams and Beaver, after entering into the .contract, would faithfully fulfill and carry out all the conditions stated in the contract, then the obligation was to be void and of no effect; otherwise to remain in full force and virtue in law. AYe are clearly of the opinion that this presupposed an entry into, on the part of the principals, of a valid, legal and binding contract.

But it appears from the petition itself, and also from the record in the case, that Williams and Beaver either wholly abandoned or failed to complete their contract according to the terms - of the contract that they had entered into. The contract which it is claimed they had entered into with the commissioners provided that, after a certain certificate was made by the architect and after written notice given to the contractors, the commissioners were at liberty to enter upon the premises and complete the same. And the petition avers that said certificate was furnished and the county commissioners proceeded, under the terms and provisions of said contract and in accordance with the specifications and supplemental specifications, details and plans, and with due diligence, to complete said uncompleted contract for the remodeling of the said court house. And then the petition closes with the averment that they have completed the uncompleted contract in so far as they had power to do so and have paid for the completion of the work.

Section 799 of the Revised Statutes provides, in respect to public buildings and bridges, in contracts of this character—

“If said contractor- or contractors fail or refuse to proceed with the work specified in his or their contract or contracts, the commissioners shall have power to declare such contract or contracts annulled and shall proceed to malte another contract or contracts for the completion of such work, in accordance with the provisions of this chapter.”

Now, the provisions of this chapter provide that there shall be competitive bidding in .all cases where the amount is over $1,000. It is linneeessary to quote at length the statutes governing this provision.

As we have called attention, this petition affirmatively states that they proceeded to complete the uncompleted contract in so far as they had power to do so, but there is not a single averment that ’ they attempted to comply with the law in a single respect, so far as letting the contract by bids, having the subsequent contracts endorsed by the prosecuting attorney, or having the certificate of the auditor that the money was- in the treasury therefor. It does appear in the record in this case that they did attempt to let the contract by competitive bidding and that -one Whissler made a bid which was, as shown by the record, above the amount the auditor certified was in the fund to the credit of the building fund for that purpose. The record shows that they rejected the bid on the ground that it was illegal to accept the same, and then, in total disregard of the law, as- we find in the record, they entered into separate contracts, without any competitive bidding, without having the contracts endorsed by the prosecuting attorney, or without, it seems to us, complying with any of the provisions which are provided for the safeguarding of the public funds. So that, so'far as the sureties are concerned, this petition is- fatally defective; and, so far as the record goes, we think it shows affirmatively that, at the time of the default of the principals, Williams and Beaver, the county commissioners wholly failéd to observe the law in respect to buildings of this kind.

In respect to the principals, Williams and Beaver, if no valid contract was entered into between them and the commissioners, they could not be held to complete the contract, and there would be no default on their part if, before its completion, they had abandoned, failed or refused to complete the same. If the partiés to this contract were bound to complete said contract, it would present the anomalous position that they could be compelled to give their time, labor and effort to supply the county with a remodeled court house, and the commissioners at the end refuse to pay, or a tax-payer enjoin the payments, and these parties be without remedy.

But it is urged on our attention and claimed earnestly in argument that these provisions are for the benefit of the sovereign power, and that the parties to the contract can not take advantage of the failure to comply with the law. For the failure to have a contract endorsed by the prosecuting attorney, the statute says that the contract shall be null and void, and for failure to comply with the other provisions, certifying the money, etc., the statutes provide it shall be null and void, and you can not add to or take from the clear and expressive language of the statute.

If anything were needed to interpret the meaning of these words, we call attention to a case .in the 60 O. S., at page 425, where the court, speaking through Judge Burket, uses the following language:

“No notice of the proposed letting was published, no record of the contract was entered in the minutes of the commissioners by the auditor, no plans or specifications were ever made, approved and deposited with the auditor, no contract was ever submitted by the commissioners to the prosecuting attorney for his approval, and none was ever approved by him. These omissions are fatal to the validity of the contract and, by force of the above cited sections of the statute, the contract is totally void and imposes no obligation on either party to it. The statutes are notice to the world as to the extent of the powers of the commissioners, and the bridge company is bound by that notice. It knew, or was bound to know, that the commissioners had no power to thus enter into a contract, and .that a contract thus attempted to be entered into would be null and void, and would not bind either party.”

Brucker & Cummings, Skiles, Green & Sidles and C. H. Huston, for plaintiff in error.

Douglass & Workman, Sater & Seymour, John J. Adams and George Crane, for defendants in error.

As we view it there was no valid contract between the commissioners and Williams and Beaver and none is alleged in this petition and, therefore, there could be no recovery.

Upon the issues made by the answer in this action, we think' that the judgment of the court upon the third and fifth defenses was sustained by the proof in this case, and the judgment of the court of common pleas was right and is affirmed. Exceptions will be noted and .the cause will be remanded to the court of common pleas for execution.