text:
    WAGES SEQUESTERED TO DEFEAT ATTACHMENT.
    Court of Appeals for Hamilton County.
    L. Kruckemeyer Co. v. John J. Burckhauser.
    Decided, May 28, 1915.

      Attachment and Garnishment — Wages of Employee Sequestered in Order to Defeat Attachment Proceedings.

    Where an action in attachment is brought against an employee and his employer is made garnishee, the employer is not at liberty to sequester wages thereafter earned by the employee up to the time of trial and the rendering of judgment; and where it is attempted by the device of paying the employee his wages in full each day in advance, "judgment will be awarded’ to the creditor against the employer up to the amount which became due to the employee during the pendency of the action, it not in excess of the judgment recovered by the creditor.
    W. R. Collins, for plaintiff in error.

      Jos. B. Derbs, contra.
    Grant, J.; Meals, J., and Carpenter, J., concur.
    This is a proceeding in which we are asked to reverse the judgment of the court of common pleas, for alleged errors there intervening.
   The cause was begun in the court of a justice of the peace, from whose judgment an appeal was taken.

The petition for substance averred that the plaintiff recovered a judgment against one Jack Abrams.

In that action the defendant was served with a writ of garnishment, in due form, by which he was required to appear and made disclosure of the indebtedness, if any, existing from him to Abrams. He did not appear and did not answer, as he ivas commanded.

Thereafter the defendant ivas duly served with a warrant charging him as for a contempt, for his default in failing to answer under the process of garnishment referred to, and upon a hearing had in that behalf did not purge himself of the disobedience imputed to him.

Such further proceedings were then had that the magistrate’s court, ivliere the action ivas pending,, found and adjudged that the defendant oived Abrams an amount of money, and ordered him to pay it, up to the sum of the judgment theretofore rendered against the latter in favor of the plaintiff.

The defendant made default in this respect also, and wholly neglected to pay the money into court, or to satisfy the plaintiff’s judgment.

To recover the sum thus required to be paid, but which ivas not paid, was the prayer of the petition.

The defendant answered, admitting that Abrams was in his employment when the order of garnishment ivas served upon him, but denied that he theta owed Abrams anything, or at any time thereafter.

Upon the issue as thus made up, the cause was put to trial before a jury. Testimony was brought forward on both sides, and at the conclusion of it all each party asked the court to direct a verdict in their favor, respectively.

The court did instruct the jury to return a verdict for the defendant, which was done.

An exception ivas saved, a motion for a new trial was made .and denied, and final judgment ivas entered upon the verdict against the plaintiff for costs.

And this is the judgment complained of, and sought to be reversed here.

The evidence in the case is all before us on the record in a bill of exceptions, whereof the material part is of the following tenor and effect: The defendant admitted that he entirely and knowingly ignored the order of the magistrate requiring a disclosure from him as to whether he owed Jaek Abrams anything or not. In fact his disobedience of that legal process ivas displayed by him rather ostentatiously than in contrition or apology. Iiis theory of how he might safely help the plaintiff’s debtor to beat the law and his creditor’s rights under it, arose upon about the following state of facts:

Jack Abrams, he testified, was owing some two hnudred people when he passed into the employment of the defendant. If his earnings could be subjected to the payment of his debts, he had no appetite to go to work. This ivas about five years before the time of the trial below.

So the two executed this flank movement on the statutes of Ohio: Abrams was to operate one., of the defendant’s two saloons in the capacity of head “barkeep,” although in one place in the record he is called a “cashier.” Each morning the first thing he ivas to do — even before his devotions, for aught that appears — Abrams was to take out of the cash register of the concern the sum of $5.71, his agreed and liquidated wage for the day then and thus beginning. It was indeed said in the argument — though we can not find it in the record specifically —that the real compensation was $40 a week. But, as this, at the rate of matutinal withdrawal fixed by the bargain, with $5.71 as the dividend, would suggest an hebdomadal divisor of seven days instead of six, and therefore would beget the further suggestion that the saloon was to be kept running on the first day of the week, commonly called Sunday — a thing not to be thought of in this latitude — it must be a slander originating in the committee on arid lands.

At all events, such was the astute deal by which the law of Ohio was to be dispensed with, in the estimation of the parties to it. Some one expressed wonder to Sidney Smith as to how the villagers of his parish had so soon constructed a wooden pavement. “Why,” said the acute parson, “we simply put our heads together and the thing was done.”

The invention possibly would merit letters patent for its novelty, were there 'not some doubts as to its usefulness.

For it is to be said that if the scheme should be permitted to have its way and operate to the effect intended, Burckhauser would bo placed in the happy position of always employing Abrams but never owing him anything; that was the pellucid theory of the whole invention. The ancient Greeks were accustomed to figure interest by the month, and the month — as indeed its name indicates — was supposed to be dominated by the moon. So when Strepsiades got badly in debt through the horseraeing propensities of his son, the advice for which he paid the manager of the .phrontisterion, or thinking-shop at Athens, was to the effect that he should hire a Thessalian witch to capture the moon and put it in hiding. Then, presto! no moon, no months; no months, no interest. It was simplicity itself and may have been the key-word to the plan we are now discussing. And what came to the Greek debtor and the thinking-shop would be interesting matter if one should care to pursue it in the pages of the master satirist of antiquity. We can not pursue it, because it would too surely and too early anticipate the conclusion we have reached, without waiting for its orderly sequence of unfolding. Stated otherwise and in terms of simple arithmetic, the example would stand about thus— Nothing from nothing leaves nothing, and nothing to carry.

We agree with counsel that the parties to this agreement of forever getting service and never owing for it, must reckon with Section 10270, General Code of Ohio, before it can be allowed to have the effect claimed for it, and given to it — apparently — by the judgment we are called upon to review. That section reads as follows:

“When any part of the earnings of the debtor is not exempt under the law relating to exemptions from levy or execution, the garnishee process shall be in force from the time of its service on such garnishee until the. trial of the cause to determine the claim, debt or demand of the creditor, and also bind all such earnings at tlie time of service and which become due from that time until the trial of such cause.”

If words are to go for .anything at all, if language means what it says and can not lie permitted to be a mere juggle, if what appears to show forth the plain legislative intent is not to give'way to a paltering that shall confound shadow and substance, if terms aparently level to the comprehension of lawyer and layman alike are for that reason not open to either enlargement or diminution by judicial construction, if, we say, these things are so, then we must conclude that from the time of the process of garnishment on Burckhauser, he was disabled to sequestrate from the law and withhold from its grasp any part of what Abrams earned in the time between that time and the day the cause against the latter was tried. And the device adopted by the employer and the debtor could not defeat the operation of the statute upon the fund in the intervening time earned. From the time of service the wages of Abrams thereafter accruing, were not unappropriated, or subject to disposition or diversion at the will of the employee and his employer with legal notice and service had. From the time of the trial they were at the disposition of the court. In this ease the trial court in that action did dispose of so much of them as is in controverse hero by directing payment to be made to the garnishing creditor. To this lawful disposition the defendant gave no heed whatever. He did not take the trouble even to answer to disclose his relations with Abrams. When haled to court to explain his disobedience he sets up what in effect is an agreement between two private men, not members of the Legislature, to repeal a statute of Ohio. This is stretching the doctrine of recall beyond its utmost tension; it is breaking it to pieces.

Upon which we are to observe, that it will take more than two men — no matter if one of them is, as has been urged in argument, indispensable in his line of industry — to make such a contract effectual in this ease. It will take at least a majority of this court to work that result in the case at bar; and, as may have been gathered from what has already been said, a majority, or even unanimity is not wanting. It would in our estimation. be doing violence to the letter of the English language as crystallized in the statute quoted, and a burlesque on common justice and ordinary honesty, to give effect to such a manifest perversion of law and business morals as is claimed, in effect, by the defense in this cause.

Some decisions from which a different conclusion might, as is said, be reached were brought to our attention in the argument at the bar. We do not feel called upon to discuss the effect of these upon their proper cases, or in any ease to which they could under law at the time existing properly be applied, more particularly than to say that under the.statute with which we are dealing they appear to us to be totally inapplicable. They were rendered at a time when the controlling and coercive statute did not command the garnishee to withhold from his servant, pending a trial, wages earned between the commencement of the action and the time it is tried. The statute in force when this cause had its inception did so command. Perhaps, probably, it may be said, because of the decisions thus blrought to our attention, the statute was made to take the form of so commanding, and courts are to administer the law as it is, and not as it was aforetime.

Another consideration that was commended to us on the argument at the bar was that the case in hand was one of an overpowering necessity. That the services of Abrams in his profession were so invaluable and so bound up in his own personality that on grounds approximating, it should almost seem, to a public necessity — in Cincinnati — any impeccable breaches of the laws made for the collection of his debts should be excused. And the contract to set aside the statute for his benefit — since he admitted he was not going to work if his creditors were going to get the usufruct in the shape of the garnishment plan of 10 per cent, for cash — was hit upon as a sort of emergency measure, so to speak.

We are sorry to think that the privilege of dodging what the new Constitution meant to give the people in the Way of referendums is limited to the Legislature; it can not be delegated to saloon keepers. It will have to be denied here. The claim as of right to dispense with statutes drove one English king from his throne and took the head o£ another from his shoulders. If it was refused to them, it can not be accorded to the proprietor of even two saloons two centuries and a quarter later. The judgment is not to be upheld on this claimed ground of public policy and necessity.

To reach another conclusion than this in this case, we should, to our own apprehension, stultify our office and come short of clearing the oath taken upon entering on its duties. And we can regard no man so powerful, or so indispensable to one’s private concerns, as to shift from ourselves the obligations to be no respoetors of persons in declaring the law and giving voice to its always impartial judgments. "Were we to sustain the proceedings beloiv we should not, as we conceive, be measuring up to the requirements of this inerrant and necessary standard.

The judgment complained of is without evidence to support it and is against the law of the case. The motion of the defendant for a directed verdict should have been denied and that of the plaintiff for a like verdict should have been allowed.

In these respects we find that manifest error has intervened, for which the judgment under review is reversed.

Each party at the trial asked the action of the court in directing a verdict. This was in law a submission of the cause to that court, and by consequence to this court. And, so finding, we proceed to render the judgment which we also find the court below should have entered, but did not enter, that the plaintiff recover according to the prayer of his petition in that court.


source: Caselaw Access Project

license: Public Domain

text:
    SETTLEMENT OF A LAW PARTNERSHIP.
    Court of Appeals for Hamilton County.
    Albert Bettinger v. Herman P. Goebel.
    Decided, May 28, 1915.

      Absence of One Partner Throws the Work Upon the Other — Adjustment of this Difference Not Conditional Upon a Continuance of the Partnership.

    The even course of a profitable law partnership, which had existed between B and G for many years, was interrupted by the election of G to Congress.. The campaign prior to his election and the duties of his office thereafter absorbed practically all the time of G and threw the work of the partnership upon B. At the end of a year it was agreed between them that matters should be equalized by G charging himself on the books of the partnership with an amount equal to one-half of his salary received from the Government for the year, but there was nothing said as to a continuance of the partnership, and thereafter it was terminated.

      Held: That the charge which G had permitted to be placed against him on the books of the firm was not in consideration of a continuance of the partnership, but in settlement of partnership affairs up to that time, and he was not entitled to recover back this amount from B.

      Peck, Shaffer & Peck, for plaintiff in error.

      Healy, Ferris & McAvoy, contra.
    Carpenter, J.; Meals, J., and Grant, J. (sitting in place of Judges Jones, Gorman and Jones), concur.
    This case conies into this court on error to the common pleas court of this county, on an action for an accounting growing out of partnership relations between Herman P. Goebel and Albert Bettinger.
   The plaintiff and defendant had been partners in the practice of law, under the firm name of Goebel & Bettinger, for many years prior to the first day of December, 1903. It appears that the partnership was begun about 1881, during which time each one drfew one-half of the net earnings of said firm.

At the November election of 1902, the defendant in error was elected Congressman from the Second Ohio Congressional District. The partnership up to and during all the time intervening between 1881 and 1903 seemed to have been mutually harmonious. On or about the first day of December, 1903, the defending in error, Herman P. Goebel, immediately prior to his departing for Washington to continue his duties as Congressman, called upon Mr. Bettinger at their office, when the defendant in error wanted to know of the plaintiff in error whether they were going to -ontinue in partnership, and if so, upon what basis of division. The plaintiff in error, Bettinger, stated that before he discussed that subject, there was another subject which he desired to settle. They immediately entered into a conference relating to their partnership matters as they had théretofore existed, when it was agreed that the defendant in error should, on account of his having been absent from the business during the time that he was engaged in his campaign for election, and also during the time he was absent in Washington in the performance of his congressional duties, charge himself on the books with $-±,300, the same as though he had devoted himself to Hie partnership business during the time of his absence.

The evidence tends to show that from the time Judge Goebel became an aspirant for the congressional nomination in the fall of 1902. until the time he went to Washington to take his seat in the fall of 1903, his time, activities, energy and services were largely devoted to matters connected with his congressional campaign and his public work. The evidence shows that Mr. Bettinger during that time was extremely active in the practice of the law; that the firm was doing a large and prosperous business; that Judge Goebel, by reason of his having his attention and principal interest in other channels, was actually producing but a small part of the financial returns which the firm was enjoying, although he was participating equally therein as a partner; that the fees amounting to $22,000 or $23,000 during a period, roughly speaking, of about a year prior, were earned through the exertions of Mr. Bettinger,' and that during this same period Judge Goebel was not only receiving credit for his congressional salary and devoting his time largely to the public affairs, but was being' credited with a full and equal one-half of 1hc receipts of the firm.

Mr. Goebel assented to- the suggestion of Mr. Bettinger, and directed the sum of $4,300 to be charged to him in the partnership books of account, which was afterwards treated as partnership assets and deposited in bank to the credit of said partnership.

Upon the deposit of this amount, the partnership then existing was dissolved; and it is admitted that upon the basis of this settlement each party received his- respective amount of the moneys due him.

After tlie termination of these negotiations of settlement, the two partners considered whether, or not they should continue in their partnership relations, and it was finally agreed between them that the partnership name should continue as before, on the. basis of distribution of the earnings as follows: Five-sixths thereof should belong to said Bettinger and one-sixth to said Goebel. A few days thereafter said partners agreed -to revoke their agreement to continue said partnership as theretofore agreed upon, and that said partnership should be dissolved and discontinued-

Tt is also admitted that in all said negotiations nothing whatever was said that the settlement in reference to the payment of said $4,300 should be dependent upon the continuance of a future partnership.

The court below found that this agreement was made in consideration of the partnership continuing under the firm name of Goebel & Bettinger, and disallowed the charge of $4,300 as a charge against said Goebel.

We think the court erred in this finding.

Lindley on Partnership, page 512, says:

“To ail action for an account of partnership dealings and transactions, an account thereof already stated and settled between the parties affords a good defense. No .precise form , is necessary to constitute a stated and settled account; but an account stated, unless it be in writing, is no defense to an action for a further account. It is not. however, necessary that the account should be signed by the parties, if it can be shown to have been acquiesced in by them; and an account may be stated and set!led, although a few doubtful items are omitted.”

It being admitted by both sides in the argument of this ease that no testimony whatsoever was given even tending to show that the settlement between these parties was dependent on or had any connection with the future continuance of the partnership, we are at a loss to know how the court could have found the fact to be that it was a settlement dependent upon a future continuance of said partnership. The court appears .to have found this fact from the language used in the report of this case in Yol. 58 of the Law’ Bulletin of September 22, 1913, on page 553:

“In putting the proper construction upon the conversation of November l>, I must take into consideration all the circumstances then existing and the natural and probable attitude of the parties. And after carefully weighing all the surrounding circumstances of this ease, I am of the opinion that a conversation did take place, on November 6 regarding this dissolution, and I am further of the opinion and do find that this agreement was that in consideration of the partnership continuing' under the firm name of Goebel & Bettinger, Judge Goebel to receive one-sixth of the partnership profits and to be allowed to retain all of his congressional salary, he was to consent to be charged on the books of the firm wdth having received $4,300. * * * It seems to me that this would be the natural conduct of the partners. I can not believe that one partner, who is entitled to an «jiial share in the firm’s business, would willingly consent to relinquish so large an amount in the firm’s profits unless there was some consideration by wav of continuance of the partnership.”

It is settled law’ that a court or a jury must determine the existence of a fact from presumption of law’ or from a known fact or facts, or from testimony tending to prove a fact. He may not and should not determine a fact to exist from mere conjecture, or w’hat appears to him would be the natural conduct of the ■parties.

There is no testimony in connection with the settlement of these two parties to make the payment of it dependent upon a continuance of the partnership relation; the nexus between tlie two is wholly w’anting.

Even assuming that the defendant in error consented to charge himself with $4,300 upon the partnership books, under an agreement with the plaintiff in error that such charge should be dependent upon the continuation of their partnership affairs for another year; and that the plaintiff in error, within a few days thereafter, had renounced such partnership relation, it is quite doubtful whether the defendant in error would have been able to establish a right in this suit to withdraw the charge or receive back that amount of money, all of which, a'ccording to the testimony, had been distributed in the final settlement of the affairs of said partnership.

It is admitted that the defendant in error, during the time that he was engaged in his canvass for election to Congress, and from that time to the dale of settlement, had contributed but little toward the earnings of the partnership; and that the plaintiff in error had, during that time, earned large sums of money, all of which were treated as partnership property, subject to an equal division between the two parties. It was then suggested by the plaintiff in error that it would be a proper thing for the defendant in error to turn over to the partnership an amount equal to the salary which he had received in the meanwhile. It was readily assented to by the. defendant in error. The question naturally arises, what equity exists on .the part of Goebel to recover back this amount of money which he had voluntarily consented to turn over into the partnership funds. In order to do so he must establish that it would be inequitable for the plaintiff in error to retain it, and in order to create the inequity it would be incumbent upon him to show that Mr. Bettinger was being unjustly enriched. The mere fact that the plaintiff in error had renounced the continuance of the partnership would not be sufficient. The restoration of the $4,300 to the defendant in error would not only be enriching the defendant in error without any consideration whatever, but at the same time it -would be impoverishing the plaintiff in error-without justification and without consideration.

This is an equitable suit, and the'parties seeking equity must do equity; and it must be apparent'to any one that the defendant in error does not support his claim upon any equitable ground.-

For the reasons stated, the judgment of the court of cbmmon pleas will be reversed.


text:
    INJUNCTION AGAINST PLACING RAILWAY TRACK IN STREET,
    Court of Appeals for Stark County.
    John Sommer v. The Pennsylvania Company.
    Decided, April 22, 1915.

      Abutting Owner — Rights of, in ¡Street — Include the Right to be Compensated — Before Property is Injured by the, Laying of a Railway Track.

    It is the duty of a court to protect the rights of an abutting owner in the street, and where it is proposed to place a railway track across the street with crossing gates, and the obstruction will be near enough to the property of an abutting owner to materially affect it or depreciate its value, injunction will lie until the property ' owner has been. properly compensated.

      Pontius & McDowell, for plaintiff.

      Cary & Armstrong, contra.
    Houck, J.; Shields, J., concurs; Powell, J., dissents.
    This cause is here on appeal from the Common Pleas Court of Stark County, Ohio.
   The plaintiff commenced suit against the defendant to enjoin it from constructing its railroad track along the corner of, and within a distance of about nine feet of the lot owned by plaintiff, on which is located a business property; also to enjoin it from constructing crossing-gates across the street, directly in front of the business property of said plaintiff.

The plaintiff in his petition, in part, says:

‘ ‘That he is the owner of the following described real estate in'the city of Canton, county of Stark and state of Ohio, being described as follows: Parts of lots known as .Lots No.-796 and 495 in said city of Canton, Ohio, and beginning at' the north-east corner of said Lot No. 796; thence westwardly along the north line of Lot No. 796 and No. 495 a distance of 85 feet; thence southwardly and -parallel with the east line of Lot No. 796 a distance of 72 feet; thence eastwardly parallel with the north line of said Lot No. 796 a distance of 85 feet; thence northwardly along the eastwardly line of said Lot No. 796;-72 feet to the place of beginning.
“That said lot has a frontage of 72 feet on what is known as Market Avenue South in said city of Canton, Ohio, on the west side of said avenue. That said street has been duly dedicated to the use of the public as a street, the fee thereof beng vested in said city in trust for said public use; that said street along said premises is 60 feet wide, and has been open for travel and public use for more than fifty years; that his said premises and the building thereon are of great value, and which improvements thereon were made with reference to the present location of the tracks of the defendant.
“That said defendant is .operating its railroad through said city and that four of its tracks cross said Market Avenue South, and that said tracks are laid side by side and have been in their present location for many years past. That said defendant company is now building a' depot or station on the east side of Market Avenue South and northwardly from its present tracks about one hundred and twenty-five feet, and that it is about to and will unless restrained by this court, build one or more tracks for its use, as a main line across said Market Avenue South, and northwardly from where its said tracks are now located, and if permitted to do so that the north line of said tracks will intersect the east line of said Market Avenue South directly opposite on said Market Avenue South, and so that the said tracks will intersect the west line of Market Avenue South at a point about five'feet southwardly from the southeastwardly corner of said premises of the plaintiff; and it proposes to build said tracks across said street at grade, and will place crossing-gates in said Market Avenue South, northwardly of said tracks, and plaintiff says that such construction of said tracks and crossing-gates will be an obstruction- of the said street along and in front (>f his entire premises; and that the defendant has no right or authority at law to do same, and has no right to use said street by crossing it with tracks in any other manner- or place than 'it now uses the same; that said proposed construction will constitute a change or alteration of the location of its railroad across said street át grade '; that said- contemplated change will'render fhe'plaintiff’s property worthless and will deprive him of his property fight in said street and the private rights and easements which he now has by reason of- being the owner of the premises hereinbefore described; and that the contemplated use of said, street will be a diversion of it to other purposes from which it was dedicated. Plaintiff says that he will be irreparably damaged, for which hé has.no adequate remedy at law, and prays-for an injunction' against fhe defendant and other equitable relief?’ •" ‘ ' - - '

The defendant, by its answer, denies all of the material allegations in the petition of the plaintiff and further says that at the time the plaintiff purchased the real estate described in his petition, and made the improvements thereon, that he had full knowledge of the nature and extent of all of the contemplated improvements that were about to be made by the defendants; that said improvements, gates and changes of tracks contemplated by defendant will in no way interfere with or damage the plaintiff; and that he will not suffer irreparable damage, and that he has an adequate remedy at law, and prays that plaintiff’s petition be dismissed.

The plaintiff filed a reply to the answer of the defendant, which is, in substance, a general denial of all of the material allegations in the answer of the defendant.

Upon the issue joined, the cause was tried in the common pleas court, and a decree was entered in favor of plaintiff, granting him all of the relief prayed for in his petition, and making the temporary restraining order and injunction heretofore allowed perpetual.

The cause, was appealed to this court. The defendant filed a motion, in this court, to suspend or dissolve said injunction for the following reasons, to-wit:

"First. For the reason set forth in the answer herein filed in this case.
“Second. The. ultimate relief, if plaintiff is entitled to any, is compensation and damages, and plaintiff’s rights in the premises can be fully secured and enforced without the delay and inconvenience incident to injunction.”

The motion was submitted in this court, on the testimony as appears in the record below.

• The material facts are not in dispute, and the court is called upon to determine the question of law, which is conceded by counsel upon both sides to be but one, and that is, has the plaintiff pursued the'proper remedy?

The plaintiff contends that his remedy is injunction, and the defendant maintains that the plaintiff has an adequate remedy at law, and if he has been damaged he should resort to a court oí law and seek a recovery in damages, and not to a court of equity for injunction.

• The question herein submitted is one of importance and vital interest to the parties to this' suit.

Upon the one hand we have a private individual who is the owner of a business property, who maintains if the defendant is permitted to lay said tracks and erect said gates in and on said street as set forth in plaintiff’s petition, it will result in great damage'to him and his property.

Upon the other hand, we have a railway company with large money and property investments,- seeking to extend its interests by'’the-laying of tracks, which must be conceded will not only be of value to the defendant company, but of great value to the general public.

' The defendant company, by its counsel, argues with much force and contends -that Under Section 8765 of the-General Code of Ohio, that the plaintiff’s remedy is one at law.

'. Counsel insist if a strong judicial interpretation is given this section in question, that the remedy that plaintiff should pursue is an action for damages and not for injunction.

The section referred to provides:

“Every company which lays a track upon or over any such street, alley, road or ground,- or part thereof shall be responsible for injuries done thereby to private of public property lying upon or near to sueh ground, which may be recovered by civil action brought by the owner before tbe proper court, at any time within two years from the completion of the track.”

We have examined this statute with some care with a view of ascertaining its true intent and meaning, as applied to the case at bar, and in our opinion we can not find anything that would or could-he interpreted to'mean -or to convey the interpretation claimed by it for counsel for the defendant.

This statute limits the time in which a suit may be brought for damages by persons who are injured by the laying of tracks, but it does not in any way provide or .determine the remedy that maybe pursued -if damages are not sought for injury resulting, or that may-result'from-the-laying of railroad tracks upon or near the ground or property of the owner thereof.

We do not understand how it could be properly claimed that under this statute that a person owning property abutting on a street, and who claimed to be injured by the laying of railroad tracks and placing crossing-gates on said, street and in front of the business property thereon, could not invoke the remedy offered by injunction.

It is contended by counsel for defendant, that an abutting property owner on a street has not such property right and interest in and. to the street as would entitle him to relief by injunction, in a suit like the one at bar; but we do not think this claim is well founded. •

At this time we do not deem it necessary to discuss at great length, the character, nature, right and extent of the owner, in and to lands abutting on a street, and his interest by reason of Mich ownership in and to the street upon which said lands abut.

It is certainly a right which attaches to the abutting owner’s land, and he certainly has a property right therein, and it matters not whether the fee to the street be in the -municipality in trust for public uses, or whether the fee be. in the abutting property owner, he nevertheless has a property right, and if he has a property right in and to said street, then under the Constitution-of our state, such property right can not be taken, by the defendant, unless the plaintiff is first compensated for same.

As we view it, it is the duty of a court of equity, in cases like the one at bar, to protect the property and rights of the owner in'and to the street on which said property abuts, and to see to it that the private property owned by such person is not taken unless'he is first compensated for same.

. If the placing of a railroad track across the street in question, and the placing of crossing-gates on said street and in front of •the property of plaintiff, is near enough to the property to materially affect it, or depreciate its value, then, in our opinion, the plaintiff has a right to be compensated before the street' is ■so obstructed, and he may properly invoke the remedy offered by injunction. • ■

It has been established by a long line of authorities not only in this.butin other states, that if the owner’s right in and to the streetbe property (referring to abutting property owners), that the same can not bo taken from such property owner, except in lime of war or other public exigency, unless compensation therefor shall he first made in money or first secured by a- deposit of money; and if it were not so, then a person’s property would not be safe at any time, and it inevitably follows that the attempt to take the property of the plaintiff in question is an invasion of the constitutional rights of the plaintiff, that private property shall not be taken without compensation be first made therefor.

It is an invasion of the rights of plaintiff to place in a street in front of his lot and business property a railroad track and crossing-gates, which will impair the owner’s access to his property, and otherwise interfere with him in his full enjoyment of his property for all purposes to which it is adapted, and of the street itself, and such is an invasion and an attempted taking; it is a diversion of the use; of the street from the purposes originally designed for it, and if it can be taken at all against the will of the owner, -it must be upon the terms prescribed by the Constitution.

■ We feel that the law in this case, is well established and that the theory of this court of the law as indicated herein is fully determined and well' established in a long line of cases, and especially by our Supreme Court in this state, and we need but cite the ease of Railway Company v. Lawrence, 38 Ohio State, page 41, the syllabus being as follows:

“1. Where the construction of a railroad in a street of a city will work material injury to the abutting property ow-ners, such construction may be enjoined, at the suit of the owners, until the-right to construct such road in the street shall first be acquired, under proceedings instituted against such owners as required by law for the appropriation of private property.
‘ ‘ 2. In such case it is immaterial whether the fee is vested in the city or in the abutting owners-, so long as it is held upon the same defined uses.”

Quoting from the above case as appears in the opinion of Judge. White on page 45, the learned judge says:

“It seems to us it can make no material difference where the fee is.vested, so long as it is held to the same defined uses.
The established doctrine in this state is, that the abutting lot owners ‘have a peculiar interest in the street, which neither the local nor the general public can pretend to claim; a private right of the nature of an incorporeal hereditament legally attached to their contiguous grounds and the erections thereon; an incidental title to certain facilities and franchises, assured to them by contracts and by law, and without which their property would be of little value. This easement, appendant to the lots, unlike ‘any right of one lot owner in the lot of another, is as much property as the lot itself.”

We find the same doctrine in the case of Kinnear Manufacturing Co. et al v. Beatty, 65th Ohio State, page 282, Judge Minshall says:

‘'The decisions in this state have clearly established that an abutting lot owner has such an interest in the portion of the street on which he abuts, that the closing of it up, or the impairment of its use as a means of access, or the addition of a burden, which is new and increased, is a taking of private property for a public use, and can not be done without compensation.”

The evidence offered in the case at bar, and which is undisputed, is clear and conclusive and of such a nature and character that we have no doubt that the proposed track and crossing-gates, if permitted to be placed on the street in question and in front of the lot and business property of the plaintiff, would materially damage his property, and impair his right to the use of said street.

In view of these facts and applying the well established principles of law to them as hereinbefore stated and set forth, a majority of this court is of the opinion that the plaintiff is entitled to the relief prayed for in his petition, and therefore the motion filed by the defendant herein to dissolve the permanent injunction allowed by the common pleas court in this ease, is not well taken, and said motion to dissolve said injunction is hereby overruled.


text:
    WOMAN THROWN FROM INTRRURBAN CAR.
    Court of Appeals for Hamiltou County.
    Amy Louis Henry v. The Cincinnati, Lawrenceburg & Aurora Electric Street Railroad Company.
    Decided, May 28, 1915.

      Negligence — Woman Carried Past Her Station — Thrown off by a Lurch of the Car — After Protesting to the Conductor on Bach Platform.

    A woman on an interurben car told the conductor she wished to get off at Stone’s crossing, a regular stop. The car ran past that stop at a very high rate oí speed. The woman rose and went out on the back platform to protest to the conductor for carrying her past her . . station. He replied, "X did,” or “I have,” and went forward in the car. The woman released her hold on tho rail to turn and go back to her seat. As she did so a lurch of the car threw her off and she was badly injured. Her action for damages was based on non-performance of an alleged legal duty arising from the fact that the conductor deserted her while in a place of peril and in extricating herself she received the injuries complained of.

      Held: That the testimony failed to tend to fasten upon the railway company an unperformed legal duty, and there was therefore no error on the part of the court below in arresting the case from the jury and giving judgment for the defendant.

      Horstman & Horstman, for plaintiff in error.

      Peck, Shaffer & Peck, contra.
    Grant, J.; Meals, J., and Carpenter, J. (sitting in place of Judges Jones, Gorman and Jones), concur.
    By this petition in error we are asked to reverse the judgment of the court of common pleas in the cause thus entitled.
   We adopt as our own the statement of the issues sought to be raised by .the pleadings, made in the brief of the plaintiff in error, as follows:

"The amended petition says that on May 9th, 1912, at about 7 :45 a. m., plaintiff was a passenger on a car operated by defendant; that she informed the conductor that she wished to get off the car at Stone’s Crossing, which was a regular stopping place for the ears of that line; that the conductor neglected to stop the ear at that crossing, whereupon plaintiff, after attempting to attract the attention of the conductor, but being unable to do so, left her seat in the car and went on to the rear platform ..where the conductor was stationed, for the purpose of reminding the conductor that she wanted to get off the car at that station; that the eonruetor, when she told him he had carried her past the station, merely remarked ‘I did’ and immediately went forward into the ear, leaving her standing alone on the rear platform of the car, which was then moving at an extremely high rate of speed, and as plaintiff was in the act of turning around to reenter the ear, she was thrown off the platform to the ground and very severely injured.
“The answer denies negligence on the part of defendant and avers that plaintiff was injured through her own negligence.
“The reply denies negligence on-plaintiff’s part.”

At the conclusion of the evidence for plaintiff the court on motion arrested the testimony from the jury, and rendered judgment in favor of the defendant below.

Nor shall we be doing an injustice to the plaintiff by stating, as being substantially correct, her version of the evidence brought forward at the trial in support of her contention.- It is as follows:

The plaintiff testified that she was 49 years of age and lived in Harrison, Ohio, at the time of the accident, May 9th, 1912; that on that day at about 7:30 a. m., she entered the car which was going eastwardly at Harrison, and sat in the back end of the car on the first seat from the rear. ‘ ‘ It was a side seat. As the ear was coming towards the city I was on the right hand side. There was nobody on that side between me and the rear platform. I had been in the habit for two years last past of going on this ear to Mr. Simonson’s to clean house twice a year. When I paid my fare I said to the conductor ‘I want to go to Mr. Zad. Simonson’s. Put me off at Stone’s Crossing.’ When I got to the crossing he didn’t stop the car, and when I saw those signs on the fence, after I passed those, I got up and I could not draw his attention, he was standing against this wheel looking off at a distance and I went out on the platform.

“Q. How did you try to attract his attention? A. Well, I stamped my foot and that is all the way, and he didn’t look around and of course I didn’t holler.
“Q. Which, way was he looking? A. That- way, looking across. I tried to attract his attention and could not. Before 1 got up he was a few steps from me. I suppose about the length of this crutch, maybe a little farther. When I failed to attract his attention I got up and I stepped out just like stepping off of this step. I says ‘you have carried me by my stop.’ Then he says ‘I have’ and that is all he did say.
‘ ‘ Q. What did he do ? A. He just deliberately left me and went to the other end of the car and I supposed he was going to stop the car.
“Q. And what did you do then? A. Well, I turned to go back to my seat and I fell.
“Q. And did you try to get off the ear? A. No, sir, I did not.
“Q. How fast was the car going just prior to your falling? A. Well, I suppose it was going at the rate of 60 miles an hour. It was-going awful fast.
“Q. Did he say anything except‘I did ’ or 11 have ’ ? A. That is all he said.
“Q. How soon after that did he leave you? A. Just as quick as he could walk away.
"Q. And how quick did you turn to go into the car ? A. Just as quick-as I could turn around. Stone’s Crossing is a regular stop on that road.
“Cross-examination. — When he came to me to collect my fare I paid him a nickel and I said ‘I am going to Zad Simonson’s to clean house and put me off at Stone’s Crossing.’ He didn’t say anything. Instead of stopping the car though as I had asked him, he carried me past.
“I didn’t get up while the conductor was in front of the car. I am sure of that. He had collected all the fares and gone back to his post on the back platform. There was a step from the aisle of the ear down on to this platform, a step of 6 or 8 inches. The door leading from the aisle to the platform was open. I tried to attract the conductor’s attention. I stamped my foot. I could not attract his attention. He was standing with his back against the wheel, but looking off, not in my direction though. I got up out of my seat. I got hold of the door as I went out. The ear was going at the rate of 60 miles an hour. It was going so fast, that is how I judged it, and I heard several say it was going that way. It was going an unusual speed. It usually runs very fast there.
“Q. And you stepped out on the platform? A. Yes, sir.
“Q. And didn’t hold on to the door? A. No, I let go of the door. Of course I had to let go of the door to turn around and go back to my seat.
‘‘Q. And when you stepped down on the platform there, you were right next to the conductor, were you not? A. I was, well in a distance of a foot, I suppose, about a foot.
"Q. And then, what did you say to the conductor then? A. 1 said to him ‘you have carried me by my stop,’ and he just looked up and says ‘T have,’ and deliberately left me and went to the other end of the car. He left me standing where I was talking to him, never answered, only said ‘I have.’ He didn’t ring the bell to stop, the ear.
“Q. How far in the car did he go? A. I don’t know, when I turned around enough to go back to my seat, I turned around as quick ¿s T could, he was standing there some place in the ear.
“Q. You had.turned around then after he left you? A. Of course I turned around to go back to my seat when he. left me.
“Q. There are handles on the door on each side? A. Yes.
“Q. You didn’t have hold of those? A. You think I could hold to those, turn around and go back to my seat ?
“Q. After you turned around? A. Didn’t have time. It threw me over. The switch of the car threw me over.
“Q. You said you saw the conductor? A. When I turned around before I fell I looked for the conductor, supposed he would stop the ear and he was standing back there and that is the last I remember.
“Q. Standing where? A. Well, in the rear of the car, I don’t know where.
“Q. Looking at you? A. No sir, he was not looking at me because he had his back to me. There were no push buttons on that car by which to attract the attention of .the conductor. If the conductor had been looking into the car he could have seen me without looking through any window pane.”

Mr. George W. Bowlby, of Harrison, Ohio, was a passenger on the car. He did not see the accident happen, but assisted in picking up the plaintiff after the car came to a stop. He says the place where she fell was 300 yards distant from the Stone’s Crossing stop.

Several other passengers on that car testified that as they were all facing forward none of them saw how the accident happened.

In the light of .the issue thus tendered by the pleadings and the testimony addressed to it, what duty did the defendant owe to the plaintiff? That is, to our apprehension, the single question to be answered in this inquiry, as a matter of first instance. That would, be a question of law upon which the court must pass without aid from a jury. If no duty was owing, then the matter was rightly resolved by the trial judge directing tñe verdict- that was returned in the case. If the testimony produced tended to establish a legal duty, owing by the defendant to the plaintiff, then the resulting question of whether the duty was performed and the obligation discharged, would have presented an issue of fact which it was the exclusive- province of the jury to determine, upon such proper instructions as to the law of the case as the court should deem proper to give in charge.

There can be no impropriety in addressing our consideration to this inquiry of duty or no duty owing — at least so far as the plaintiff is concerned — in presenting, in lime verba, her precise claim in this respect, as the same is contained in the brief of her counsel.

It proceeds thus — up to the point where cases are cited in maintenance of the position taken:

“Plaintiff, by reason of the conductor’s failure to stop where he had been directed to stop, was compelled to act quickly. "When Mrs. Henry noticed that she was being carried past Stone’s Crossing, she stamped her foot and otherwise tried to attract the conductor’s attention, but he -was looking in another direction, so that Mrs. Henry was compelled to go towards him. • The ear was running at a high rate of speed and necessarily making noise. She was obliged either to step out on the platform to him or wait an indefinite length of time until he should look in her direction. We submit that under those circumstances almost any man or woman passenger would have stepped on to the platform to talk to the conductor. Did she under these circumstances exercise ordinary care on her part? We contend that circumstances were such that it presented a question of law for the court. This is not analogous to a case where a passenger deliberately rides on the rear platform when there is accommodation inside the car. The conductor’s neglect caused Mks. Henry to be on the platform and he was negligent in abruptly leaving her there unprotected. Considering the duty of the company to exercise the highest degree of care towards passengers and the fact that this passenger was a woman and that the ear was going at such a very high rate of speed, the conductor surely was not acting humanely in leaving her exposed to. that danger which she suffered. If he had remained on the jolatform she probably would not have fallen, and if she had lost her footing, he probably would have saved her from serious injury. Answering her abruptly and immediately going into the car without signalling for the car to stop or giving her any assurance that it tvould stop, he made it necessary for her to loosen her hold of whatever she had hold of and to turn around to go into the car again, and while in the act of so turning around she was thrown oft the ear. Any ordinary man seeing an aged woman on the rear platform of an interurban car going at such speed, would almost involuntarily assist the woman to a place of safety and yet this conductor deliberately hurried away from her. Can it be said that that is in law the exercise of the highest degree of care towards a passenger? And can it be said as a matter of law that because a woman who is carried beyond her destination and who can not otherwise attract the attention of the conductor, steps out on the platform to talk to him briefly, is guilty of negligence? She was called upon to act very quickly, by reason of the failure of the conductor to do his cfuty, and she could not be expected to weigh the question of how best to act as if she had had time to reflect and consider. Being a working woman she could not be expected to sit in the ear patiently and be carried an indefinite distance beyond her destination, perhaps without means to get back, or at least not able to get back in time to do her day’s labor. It seems to us a very harsh judgment to accuse her of negligence in doing .the only thing she could do to remedy the mistake of the conductor. As long as the conductor was within a foot of her on the platform there was not much danger to her because she had her protection and also the hand-hold of the door post, but when he left her abruptly he deprived her of both of those protections and made it necessary for her to let go in order to turn around to get into the car again. A passenger going to the conductor on the platform under those circumstances would naturally expect him to forthwith pull the bell rope and slow up and stop the car. If he had done that she would have been safe. He did not do that, but on the contrary acted in a way which naturally added to her embarrassment and doubt as to what he was going to do next. She had a right to wait a few moments to learn what he would do and then to turn around and see what he would do when he entered the.car.”

We must give, of course, and do give, credence to whatsoever the evidence in terms states, so far as it bears upon the issue to which it is addressed, and we are also to deduce all proper inferences flowing from the facts thus brought to bear.

Allowing these, and still how stands the case ? Whatever may have been the obligation of the defendant — whether contractual or imposed by law — not to carry its passenger beyond thé designated stopping place, it is certain in this case that, after that default was complete, the plaintiff — for whatever reason — left a place of safety 'within the car and voluntarily went to a place which, or in leaving which, turned out to be, under the circumstances, a place of danger, where she came to her injuries sued for.

Tt is quite possible, we think, to give loo much importance to the alleged abruptness of the conductor when the plaintiff told him her stopping place had been passed, or to put an unnecessarily unfavorable construction on what he then said to her. TTis tone of voice can not he reproduced on the record ; that is certain. But we are inclined to think — under the circumstances — that his words — “T did,” or “T have,” — were interrogatively meant. If this is so — and as a conjecture it is as good a one as one that would impute a want of feeling and derision of a poor woman’s just claim to considerate treatment at a conductor’s hands — then if is not unreasonable to conjecture further that he.in going forward in the car at that time, did so from a purpose of seeing whether the motorman'still could not do something to allow the passenger to alight as near to her point of destination as was then practicable, and so save her day’s work to her. We rather think this may have been the fact of the matter. But even so, or even otherwise, we can not regard this point as decisive of the breach of any legal obligation of duty from the. defendant to the plaintiff, at that exact moment of time; or on account of that matter, in any light in which we may look at the conductor’s act or conduct.' Certain it is that when the conductor left the plaintiff and went forward, she — having theretofore left a place of safety — was still in a place of safety, so far as appears, and which, had she not left that place of safety, for aught that is shown, would have continued to he a place of safety for her. When she changed that — when she abandoned her hold upon the door jamb of the car, and turned to resume her seat and place of safety, which she had in the first instance abandoned, and in so doing came to her hurts, the conductor was no longer where he could render to her the duty of humanity to safeguard her from an impending peril,, and the absence of which seems to be imputed to bim, and through him. to.'his employing company, as a possibly, actionable fanlt. . ■

It is to be remembered that this is not an action to recover for the breach of a contract to carry a passenger to her point of destination and to deliver her there safely, the violation of which resulted in' her bodily harm. Something, perhaps, might be said for that kind of a claim. But this is not a suit so founded. It is an action for the non-performance of an alleged legal duty, arising, so far as we can gather from the averments of the petition, from the charged fact that the conductor deserted the plaintiff while she was in a place of peril, and in extricating herself from which she received her injuries, as she says. The excessive speed of the car, acting in conjunction with the abandonment of her by the conductor, is not pressed in argument, and seems to have been pretty much non-existent, so far as to being a-contributing factor in the injury is concerned.

The consideration of humanity alone, as such, however commendable in ethics and fireside law, is a matter of no significance in a ease where obligations imposed by positive law are alone to be dealt with and enforced. ' •

' The most, we think, that can be said — if so much — is that perhaps, the fact that.-the conductor saw his already wronged passenger — that is, wronged-by being carried by her contractual point of stopping- — in a place which might by her leaving it, as she afterwards did leave it, become a place of danger, nevertheless left lier there withont warning, safeguard or precaution — - this, we say, might, possibly, he assimilated to 'the rationale underlying the doctrine of last chance, so as to make the. defendant amenable-1.0 the remedy which in such a ease — properly, such a case-^the law undertakes to' advance and administer to' effect; in accordance with the rights of the parties, issuahly presented and proved.

AVe are not saying that this case, upon its own facts, is within the purview of the principle of the last chance rule. AVe say only that at most it could amount to no more in any view and when properly invoking the aid of that remedy, AVe arc not called upon to say more.

The doctrine of last chance is not to be applied unless it is pleaded (Drown v. Traction Co., 76 O. S. 234). It was not pleaded in this case.

The authorities cited in the plaintiff’s brief, are- marshalled under two heads. The first is “Province of the Jury.” Upon that we have said all that we care to say.

The second is “Duty of Conductor to Protect and Assist.”

These terms suggest the. considerations upon which we have been remarking. No authority, it is supposed, can be brought forward to support- the claim that it was the conductor’s duty to prevent a passenger from leaving a place of safety of his own will, and going to one which .may prove to be dangerous, the passenger being of full age, compos mentis, and not disguised by drink. A conductor is not charged with the duty of being the advisor of the passengers riding in his car, at his peril .for giving bad advice, or for giving none at all in case it turns out through the act of the passenger alone that advice should have been given. Nor, under what we conceive to have been the circumstances of this case, do we think he was eharged with a duty of protection to the plaintiff, unless, as we already have intimated, seeing- her in peril his duty was not to recklessly or wantonly allow it to be visited upon help he having it within his power to prevent the foreseen and impending danger. In this case, if that duty was violated, it was because the conductor deserted his passenger when he saw her in a place of danger. But' it is at least questionable whether she was in a place of danger when the conductor left her, although the place in which she afterwards exposed herself became so, but not to his then knowledge. If, on the other hand, the fact- were uncpiestioned, as we have found already, the debt of duty, if due and unperformed in this case — which we do not say — the consideration is not before us or to be regarded, because the issue is not raised by the pleadings.

Upon a painstaking review of the record and all that has been said or printed by way of argument in the ease, vre can not say that there was any testimony fit to go to the jury upon the trial, because none of it tended to fasten upon the defendant an unperformed legal duty toward the plaintiff.

So finding, we find also that no error appears to have intervened in the case, and the judgment complained of is, therefore, affirmed. . •


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    DISMISSAL FOR. DEFAULT IN FILING PETITION.
    Circuit Court of Cuyahoga County.
    E. Talamini v. Solomon Ulmer.
    Decided, November 6, 1907.

      Practice — Court May Dismiss Case Appealed from a Justice l)y Defendant When Plaintiff is in Default for Petition.

    Where a defendant has appealed from a judgment rendered by a jus-' tice of the peace, and the plaintiff has failed to file his petition within the time prescribed by law after the filing of the transcript from the justice, the court may enter a judgment of dismissal-.

      H. Koblitz, for plaintiff in error.

      Fred. Desberg, contra.
    Marvin, J.; Winch, J., and Henry, J., concur.
    Talamini recovered judgment before a justice of the peace against Ulmer. Ulmer appealed to the court of common pleas perfecting such appeal by doing all things necessary, for that purpose.
   By Section 6583, Revised Statutes, it is provided that the justice, in case of an appeal to the court of common pleas from a judgment rendered by him, shall deliver a transcript and all original papers used on the trial before him, on or before the thirtieth day after the rendition of such judgment, and that the appellant shall, on or before such day file a transcript of the proceedings had before the justice.

The judgment in this case was rendered on the 4th day of February, 1907.

The transcript and original papers -were filed within ' the thirty days.

Section 6592, Revised Statutes, provides that:

“If the defendant appeal from any judgment rendered in favor of the plaintiff, and after having filed his transcript and caused such appeal to be docketed, the plaintiff shall fail to file a petition, or otherwise fail to prosecute the same to final judgment, the defendant in such action may file his answer setting up whatever claim or demand he may have against such plaintiff, and prosecute the same to final judgment, in which case, if the defendant shall recover judgment against the plaintiff, all costs which have accrued before the justice and in the appellate court, shall be adjudged against such plaintiff, or he may, on motion to the court, suffer judgment to be entered against him for the amount of judgment below, in which case all costs which have accrued before the justice and in the appellate court, shall be adjudged against such defendant.”

Section 6598, Revised Statutes, provides that:

“The rule day for filing petition in the court of common pleas in a case appealed from a justice of the peace shall be the third Saturday after the expiration of the time limited for filing the transcript; and the subsequent pleadings shall be filed within such times thereafter as is provided for the filing thereof .in eases commenced in that court after the return day of the summons.”

The time for perfecting the appeal upon a judgment rendered by the justice of the peace February-4, 1907, was March 6, 1907, and the third Saturday thereafter would be the 23d day of March. On the 25th day of March, which was the Monday next after the time for filing the petition the court entered the following order:

“The defendant comes and the plaintiff is in default of a petition and has failed in any manner to further prosecute this suit, it is therefore considered that said defendant go hence without day and recover of said plaintiff his costs herein. Judgment is rendered against the plaintiff for his costs herein.”

On the 19th of April, 1907, plaintiff filed a motion to vacate said'judgment of dismissal. This was heard on the 14th day of May, 1907, and refused, and it is this order of refusal to which error is here prosecuted.

The contention on the part of plaintiff in error is that the court should not have dismissed the original action without notice to the adverse party. It is said that there is some rule of the court of common pleas which requires notice to the adverse party before such cases be dismissed for want of prosecution. As .we can not take judicial notice of such rules we can not say whether or not any rule of the court was violated. Certainly no statute was violated in entering the judgment which was entered. . '■ - A ' -

Section 6592, Revised Statutes, provides for the case where the defendant having appealed, if plaintiff fails to file a petition within the time fixed by law, the defendant may file his answer, setting-up any claim or demand which he may have against the plaintiff, and prosecute the same to. final judgment.

Surely it would be most unsound reasoning to hold that there is any suggestion in this statute that, where the defendant has no claim against the plaintiff, he may not as well take advantage of the default of the plaintiff as he could where he had an affirmative claim against the plaintiff. The course pursued by. tne court in entering judgment of dismissal was in violation of no statutory or other right of the plaintiff.' He had-his right to file a petition; he neglected to take advantage of it.

: -It is not claimed that if the court was warranted in entering the judgment of dismissal, the motion to set it aside could be insisted upon as matter of right, but that- it would be addressed to the discretion of the court. A bill of exceptions.is here, from which nothing appears showing any abuse of discretion, and the judgment of the court below is affirmed.'


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    SUFFICIENCY OF AFFIDAVIT TO SET ASIDE A DEFAULT JUDGMENT.
    Circuit Court of Cuyahoga County.
    A. B. Katz v. J. Friedman.
    Decided, October 21, 1907.

      justice Court Practice — Affidavit to Support Motion to Set Asióte De-, fault judgment, "When Sufficient.

    An affidavit,-filed with a justice of the peace in support of a motion to set, aside a judgment rendered in the absence of the defendant, which, states that the defendant could not be. present at the .time set for trial and had instructed his attorney to.be present and attend to the matter and that the attorney was actually engaged in the trial of a' case in another Court at that hour and could not "he' present, Is sufficient- to- support an order setting aside said . : judgment.

      Feniger & Eastriner, for plaintiff in error..

      C. W. Noble, contra.
    Maiwin, J.; Winch, J., concurs'; Henry, J., not'sitting.
    Katz brought a suit against Friedman before a justice of the peace — summons made returnable at 2 p. m., October 11, 1905. On that day the defendant failed to appear, and the justice proceeding to act under authority of Section 6577, Revised Statutes, took the testimony of one witness on behalf of the plaintiff and rendered judgment in his favor.
   On the 13th of October, 1905, the defendant filed a petition to set aside the judgment thus rendered in his absence and in support of said motion filed the affidavit of defendant’s attorney. The hearing of this motion was continued once or twice, and finally the plaintiff filed a motion with the justice to overrule the said motion of the defendant. This was of course unnecessary. The defendant’s motion was on file and the court had it 1o rule upon, and if error was committed in this ease ii would have been committed in the same way without the filme of this lasl/ motion of the plaintiff. The result of the hearing' of the two motions was that the judgment taken b.y the plaintiff against the defendant on the 11th of October, 1905, was set aside and the case set down by the justice for hearing at a later day. The case is still pending before the justice.'

The plaintiff prosecuted error to the court of common pleas from the order of the justice setting aside the judgment of October 11. The court affirmed the action of the justice, and the plaintiff has now prosecuted error here to this judgment of affirmance.

The authority for the setting aside of a judgment by a justice of the. peace taken before him in the absence of the defendant agairst whom the judgment is rendered, is found in Section 6578, Revised Statutes. By this section all the steps to be taken and things to be done in order to have such judgment set aside, are specifically pointed out, and it is conceded that all these things were done, except the provision that the motion shall show under oath of -the defendant, his agent or attorney, a good and sufficient reason for the absence of the defendant at the time of the trial.

The only affidavit filed in support of the motion in this ease reads as follows:

“The State of Ohio, Cuyahoga County, ss.
“Conway W. Noble being duly sworn says that he is the attorney of J. Friedman, the defendant in the above case, and was such attorney at the return day in said case and on the day and at the time the same was set for trial, and was instructed by said J. Friedman to attend to the cause for him, as he could not be present; that at the hour set for trial, to-wit, 2 o’clock p. m., October 11, 1905, he was actually engaged in the trial of a criminal case in the police court of the city Cleveland, and could not be present before said justice.
“Conway W. Noble.
“Sworn to and subscribed before me October 12th, 1905.
‘.‘Yernon L. Sanford,
“(Seal.) Notary Public.”

A fair-construction of this affidavit is that the defendant was absent because he had entrusted the matter to his attorney, with information that he could not be present. He relied upon his attorney, who gives the reason for his absence, and, if we have fairly construed the affidavit, gives a reason for the defendant’s absence. ' '

The justice held the reason for the absence good and sufficient. We are not prepared to say that he erred in reaching this conclusion; the result is that the judgment of affirmance by the court of common pleas is affirmed. •

At the hearing’of this case it was suggested from the bench that there might be doubt as to the right to prosecute error in a cáse like- this, and this judgment does not commit us on this question. Had we found that the justice erred in setting aside the judgment, we should have felt bound to determine this question, but, as the plaintiff loses his ease whichever way we might decide that question, we do not care to consider it.


text:
    DETERMINATION AS TO APPEALABILITY.
    Circuit Court of Cuyahoga County.
    C. F. Dreher v. The W. M. Pattison Supply Co. et al.
    Decided, October 21, 1907.

      Appeals — Action to Cancel Stock Appealable.

    An action by s stockholder in a corporation against the corporation, its officers and other stockholders, wherein one relief asked is the .cancellation of stock alleged to have been wrongfully issued, is not an action for money only and is appealable.

      Frank, Higley, for plaintiff in error.

      Smith, Taft & Arter, contra.
    Marvin, J.; Winch, J., concurs; Henry, J., not sitting.
    This' case is h'ere on appeal from the judgment of the court of common, pleas, and a motion' is made by the defendants to dismiss the appeal on the ground that the case is not appealable.
   The statute fixing what cases may be appealed from the court of common pleas to the circuit court is Section 5226, and reads, so far as it need here be considered, as follows:

“ * # - * an appeal may be taken to the circuit court by a party or other person directly affected, from a judgment or final order in a civil action rendered by the common pleas court and of which it had original jurisdiction, if the right to demand a jury therein did not exist. ’ ’

The section which provides what cases may be tried to a jury is No. 5130, and reads in part, as follows:

“* * * issues of fact arising in actions for the recovery of money only, or specific real or personal property, shall be tried by a jury, unless a jury trial be waived, or a reference be ordered as hereinafter provided.”

Section 5131 reads:

“All other issues of fact shall be tried by the court, subject to its power to order any issue to be tried by jury, or referred.”

It is clear from these sections that unless there is an issue of fact in the case now under consideration wherein a recovery for money only, or specific real or personal property is sought, neither party was entitled of right to a trial by jury. There was in this case no claim for the recovery of specific real or personal property, so that the question to be considered is whether any part of the ease was for the recovery of money only. The case was tried upon a second amended petition and answer to such petition and a reply. The petition upon which the ease was tried was very lengthy, and sets out many facts, which, taken by themselves, would require the exercise of equity powers on the part of the court, and which would raise such issues as are not of right triable to a jury. It is urged, however, on the part of the defendants, in support of their motion to dismiss the appeal, that there are issues of fact involving the right to recover a judgment for the payment of money only, and that by reason of that fact the case is not appealable.

The plaintiff in his second amended petition alleges that he is a stockholder of the. defendant corporation and complains that the defendant, W. M. Pattison, and the other defendants who are natural persons, are the officers of the defendant corporation; that these natural persons, having the control of a large majority of the stock of the corporation, have so managed the affairs of the corporation as to pay to themselves salaries much in excess of such salaries as should have been paid; that they have so used the property of the corporation as to prevent the payment of dividends to the stockholders; that they have borrowed money from the corporation and used it for the purchase of other property, for which they have not accounted, and various other matters are set up in this petition, one of which is:

“That on January 2d, 1898, certificate number four for seventy-five shares of stock in the W. M. Pattison Supply Company was issued to defendant, Pattison; that on the same day certificate number 11 for twenty-five shares of said stock was also issued to said Pattison; that is all the stock that was ever issued to said defendant, Pattison. That said Pattison on January 4th, 1898, paid $5,000 in money to the company, and on December 31st, 1898, gave his note to said company, for $4,785.76 and charged his personal account with $214.24. That on said date, to-wit, December 31st, 1898, said Pattison charged his personal account with $5,000. That said note for $4,785.76 has never been paid, and no interest has ever been paid or charged thereon since 1900, the year the dividend was passed as hereinafter set forth. That said defendant, Pattison, was paid a dividend of six per cent, on stock standing in his name for the years 1898 and 1899, and interest was charged against his note of $4,785.76 at the rate of six per cent, for the year of .1898 and at the rate of five per cent, for the years 1899 and 1900.”

Similar allegations are made as to the other natural persons who are defendants in the action, and then follows this allegation :

“Plaintiff says that the stock issued to these different defendants without payment therefor, as hereinbefore set forth, was thus issued for the purpose of giving them the control of said the W. M. Pattison Supply Company, and for the purpose of obtaining the dividends thereon and to cheat and defraud this plaintiff and deprive him of his interest in said treasury stock.”

Later this allegation appears in the petition:

“That fifty shares of stock now standing in the name of the defendant, W. M. Pattison, has never been paid for, and was and is treasury stock, and no authority was ever granted by the board of directors of said the W. ML Pattison Supply Company, to dispose of any of said treasury stock, but was issued by said defendants to themselves to obtain and control a majority of the stock of said defendant company and for other reasons herein-above set forth.”

It is urged on behalf of the motion to dismiss the appeal that these allegations about treasury stock relate only to stock issued to the defendants Smith and Jones, but it will be noticed that 'the allegations are made directly as to all the defendants, including W. M. Pattison.

It is urged that with these allegations in the petition all that could be recovered under this claim would be recovery against Pattison. for the amount due upon his said promissory note. If that be true, then there would be here in this branch of the case, a straight suit for the recovery of money only; but if the allegations of the petition are true, that is not what the plaintiff, suing for himself and other stockholders, is entitled to, but to give him the relief which his allegations would seem to entitle him to and for which he prays, would require the cancellation of 50 shares of the stock which now stand in the name of Pattison, and hence, this part of the ease is not a suit for the recovery of money only, and therefore, it is not a suit in which either party would have a right to a trial by jury, but a suit in which an appeal may be taken from the judgment of the court of common pleas to the circuit court.

The allegations in reference to the other natural persons, defendants, are similar to those in reference to the defendant Pattison, and unless the defendant Pattison, under the allegations to which attention has been called, was entitled to have his case tried to a jury, then none of the defendants were entitled to have theirs tried to a jury.

Holding as we do, the relief to which plaintiff would be entitled, would be the cancelling of this stock.

Without taking up in detail the other allegations of the petition, it being conceded that the allegations are such as that the issues would not be of right triable to a jury, the result is that the motion to dismiss the appeal is overruled.


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    EVIDENCE IN AN APPROPRIATION CASE.
    Circuit Court of Medina County.
    The Wadsworth & Western Traction Co. v. John Hutchinson, Sr., et al.
    Decided, September 28, 1907.

      Practice — Appropriation Cases — Where View of Premises is Treated- as Evidence Reviewing Court Can Not Pass Upon Weight of Evidence.

    Where all parties acquiesce in a court’s instructions that the view of the premises is evidence in an appropriation case, it is impossible to include all the evidence in a bill of exceptions and a reviewing court can not therefore pass upon the weight of the evidence.

      Rogers, Rowley & Rockwell, for plaintiff in error.

      Andrew & Woods, contra.
    Marvin, J.; Winch, J., and Henry, J., concur.
    The action below was an appropriation proceeding in probate court, which resulted in an award and judgment of $600 for one-half acre taken and $1,250 damages to the residue of a mining leasehold estate. This award is complained of as excessive, but the point is made that we can not weigh the evidence on this or any other issue herein, because the bill of exceptions fails to exhibit all the evidence which was submitted to the jury’s consideration.
   A view was had under the statute; and, following a former decision of this court, all parties acquiesced in the court’s instruction to the jury to consider such view as evidence in making their award. The Supreme Court has since overturned this doctrine, in Zanesville, M. & P. R. R. Co. v. Bolen et al, 76 O. S., 376, declaring in the opinion that—

“Counsel is surely right in assuming that if the impressions obtained by the jury from the view are themselves evidence in the case, there is no way by which that evidence can be carried into a bill of exceptions, and hence it inevitably follows, as he insists, that there is not power in a reviewing court to pass upon the weight of the evidence.” ■ ■

Here, where the view was expressly made evidence, not indeed by force of the statute, but by what is equivalent to an express stipulation of the parties, it is manifest that the evidence before us in the bill of exceptions is incomplete and hence incapable of review.

The witnesses of the plaintiff railroad company should have been permitted to answer the questions put to them on direct examination, at pages 158 and 159, asking what was the fair value of the acre of land taken, and for error in sustaining objections to said questions (and for no other error, for we find no other in the record), the judgment of the courts below are reversed, and the cause remanded to the court of common pleas for a new trial.


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    DIVISION OF PROPERTY UNDER A WILL.
    Circuit Court of Cuyahoga County.
    The Bailey Company v. Morris A. Bradley et al.
    Decided, June 11, 1907.

      Testamentary Powers — Executors Clan Not Contract to Sell Land Except in Manner Provided in 'Will.

    Where a will directs the executors to have an appraisal made of all the property belonging to the estate at a certain date and gives to any devisee the right to take any one parcel of property, not exceeding his share in the estate, at its appraised value, the executors can not at a date subsequent to that fixed in the will contract to sell a certain parcel to a third person, without first having the appraisal made and offering the property to the devisees.

      Wm. B. RopMns and White, Johnson, McCaslin & Cannon,. for plaintiff.

      E. J. Blandin, T. R. Rogsett and R. D. Goulder, contra.
    Marvin, J.; Winch, J., and Henry, J., concur.
    In this case a petition and an amendment and supplement to such petition were filed-.. To. these .petitions a demurrer is filed by several of the defendants and the question, therefore, here presented is whether under said petition with the amendment and supplemental petition the plaintiff is entitled to any relief which a court of equity can give.
   The facts set out in these petitions are substantially as follows: The plaintiff is a corporation. One Alva Bradley, formerly a resident of this county, died on the 28th day of November, 1885, leaving a large amount of both personal and real estate. He left a will which was duly admitted to probate, by the terms of which ail the property of the said Bradley was bequeathed to the executes named therein, and their successors.

The defendants, Morris A. Bradley, George IT. Warrington, Norman S. Keller and Lesler A. Cobb, are now the executors and trustees under said will; the other defendants in the action are beneficiaries under said will, and three of said beneficiaries are minors.

Item No. 20-of said will reads as follows:

“It is my will, and my executors are directed at the end of twenty (20) years from and after my decease, or as soon thereafter as may be possible, to make a final distribution of my estate, of every kind and description, by causing an appraisal of each and every parcel of real and personal property to be made by three disinterested freeholders to be selected by my executors, and to cause the same to be sold at public or private sale in such reasonable time after said twenty years have expired, and on such terms as they shall deem best for my heirs, and so far as necessary and practicable to reduce all choses in action to cash, and to make a final distribution as follows:
“To pay each of my children who shall then be alive at such final distribution, one-tenth (1-10) of the total net proceeds of such estate; and that the i*esidue of my said estate be divided beween the children then living of my children Elizabeth M. Keller, Eleanor F. Grover, Minetta Morehouse and Morris A. Bradley, said grandchildren sharing equally in said division.
“And I direct that my said executors shall, before offering any part of my estate for sale to others, give to my own children then living, and to my grandchildren then living, the privilege of purchasing any part of said real estate at the appraisal, to an amount not exceeding the share that they may be entitled to respectively receive, and to have the same charged to such devisee as part of his or her share; but, if the same piece of property is desired by two or more of them, then the same shall be sold and disposed of at public auction, and all public sales shall be upon public notice in a newspaper published in the city of Cleveland, for not less than thirty (30) days, and for not less than two-thirds (2-3) of its value as so appraised. And I authorize my executors, as such trustees, to make to the purchasers and to my children and grandchildren respectively, all proper conveyances in fee simple of the real estate so sold and taken by them as fully as may be deemed necessary to carry out this will and without order or.intervention of any court.”

One of the parcels of real estate left by the testator is described in the petition, and it is averred that this described parcel is much less in value than the share of any one of the séveral beneficiaries, and on the 4th day of December, 1905, the trustees and executors under the will (there having been a change.of one of .the trustees since the date last named,, which,, however, in no wise affects,the question here under considera-’ lion), entered into a contract of sale of said described.parcel of real estate with one V. C. Taylor for' the sum of $230,000, of, which $5,000 was paid in hand; and that thereafter, said Taylor assigned his interest in the contract to this plaintiff; the terms of the contract of sale are not set out in the .petition, and it is averred that the plaintiff is now ready and willing to perform on its part all the stipulations of said contract to be performed by the vendee, and has demanded of the executors and trustees that they, carry out such contract of sale, which they refuse to do. ...

By a fair construction of the petition it appears that there liad been no appraisement of this pareel at the time, said contract of sale was entered into, but said pareel has since been appraised at the sum of $225,000. It is further averred in the petition that this contract of sale was made under and in pursuance of authority and approval of all of said defendants, except said minors. We think a fair construction of this allegation is that the parties whose authority and approval is spoken of, simply consented and agreed that so far as they were individually interested in said property, such, sale might be made by the executors.

Prior to.entering into the contract of sale set.opt in .the petition no opportunity had been given to any one of the beneficiaries to make an election, as is provided in the twentieth item of the will, whether to take said parcel at its appraised value or not. Indeed, no such election could have been made until after an appraisement.

It appears, however, from the supplemental petition, that Alva B. Keller, one of the beneficiaries, has elected to take the real estate described in the petition, to apply on his share of the estate, at its appraised value, and that Alva Bradley and Charles L. Bradley have together elected to take the same parcel at its appraised value, under the provisions of the item already quoted from the will. This election necessitates the sale of this.parcel at public auction, and it is manifest that the executors and trustees as such, can not carry out the provisions of the contract of sale. Their authority is fixed by this will, and under it they could piake no. sale as trustees without first having an appraisement, and next an opportunity on the part of the beneficiaries to elect,, and. when two or more beneficiaries have elected to take the same parcel their only course, so far as they derive their authority from the will, is to sell each parcel at public auction. It is said, however, that in the making of this sale they acted as the agents of those who assented to and authorized the sale. We have already said in this opinion how far we think that consent and authority made these trustees the agents of the parties authorizing and consenting. We hold that the allegation does not show that the parties thus assenting undertook to have a sale made which should be binding upon them, beyond a consent to have, their several interests thus sold. It did not put upon them the obligation of securing a title such as would enable them to convey a complete title to the vendee. It may be conceded that if they had bound themselves, through their agents, or otherwise, to convey to the vendee a complete title, the obligation might have been put upon them to obtain at the public sale which must be made of this property, such complete title, and so enable them to carry out the contract, but construing the allegation as we do, no such obligation was put upon them. It is certain that the executors and trustees can not purchase this property at their own sale when it shall be made, as it must be, because of the election which has been made. They, therefore, can not obtain a good title which they can convey to the plaintiff.

If it should be claimed that since seven-tenths of' this entire property is represented by the defendants who authorized the sale, they can be required to convey an undivided seven-tenths interest in this property to the vendee for a like fractional part of the agreed purchase price, the answer to this is that thereby great injustice might be done and probably would be done to the minors. They are entitled, under the will, to have this parcel sold as a whole and can not be compelled to have it sold in undivided fractional parts. It may well be said, if this plaintiff should have a complete title to seven-tenths of this property, that the remaining three-tenths would sell at public auction for much less than three-tenths of what could be obtained at public sale of the entire property.

The result of this reasoning is that the several demurrers are sustained.