text:
    EMINENT DOMAIN — EVIDENCE.
    [Hamilton (1st) Circuit,
    December 29, 1906.]
    Jelke, Swing and Giffen, JJ.
    Cincinnati Iron Store Co. v. Cincinnati So. Ry. (Tr.).
    1. Separate Trial in Appropriation Proceeding Waited by Joint Trial.
    A property owner who has submitted without, exception to a joint trial for the assessment of damages for various properties appropriated for railway purposes, cannot be heard to complain in the reviewing court that he was not given a separate trial.
    [For other cases in point, see 4 Cyc. Dig., “Eminent Domain,” §§ 705, 706.— Ed.]
    2. Month Sales Incompetent to Prove Future Losses.
    The amount of monthly sales and of freight transported over a switch track are incompetent as evidence, where offered for the purpose of proving loss of future business,
    [For other cases in point, see 3 Cyc. Dig., “Damages,'” §§ 123-127; 4 Cyc,-Dig., “Eminent Domain,” §§ 380-382. — Ed.]
    3. Admissibility of Plans and Maps in Appropriation Proceedings.
    Plans of a building and of machinery aro probably admissible in appropriation proceeding, but whether or not their exclusion was prejudicial can-ri.-t bn doteiT’i::; i vhce ihc plans are not attached fo the bill of exceptions.
    4. Cost ( f Transpon.'.ticx 7::i c : I.-< c.urrTENV to f.'rr.v V.u.in of í'"'wh Thai.;:.
    The cost of transporting mc-ciiundise by true’s <s not competent evi-’e^cn for the fixing of ibe value ci ;< switch track ns t!;a y-: ogerty condemned.
    [Per other coses in 'mint, seo -1 Cyc. Dig., “Eminent Domain,” §§ -650-636. —Ed.]
    Error to Hamilton common -plea» court.
    In this case a large amount of property was appropriated for railway purposes in a single action. As to many parcels agreements were reached, between tbe time of the filing of the petition and return of the verdict, whereby the amount to be paid to the owners was fixed. The value of the property of the present- plaintiff was determined by the jury, and tbe plaintiff being dissatisfied with tbe award prosecuted error.
    C. W. Baker and H. C. Busch, for plaintiff in error.
    J. W. Peck, for defendant in error.
   GIFFEN, J.

The question whether the condemnation proceedings should have been separate as to each individual property owner does not arise upon the record made, the Cincinnati Iron Store Co. interposing no objection in the trial court.

The amount of the annual sales of the company and the value of the goods transported monthly over the switch track on the company’s premises were sought _to be shown evidently for the purpose of proving the loss of future business, which is too remote, uncertain and speculative to be allowed. Lake Shore & M. S. Ry. v. Railway, 30 Ohio St. 604.

The- plans of the proposed beam or crane, if not those of the office building, were probably admissible evidence under the authority of Cincinnati & S. Ry. v. Longworth, 30 Ohio St. 108; but neither set of plans being attached to the bill of exceptions the court can not determine whether their exclusion was prejudicial. Palmer v. Yarrington, 1 Ohio St. 253.

In proving the value of a switch track upon the premises sought to be condemned the cost of transporting by trucks the same amount of merchandise as that handled over the switch is not competent evidence. Evidence of sales by other lot owners made by compromise is inadmissible upon re-examination, although on cross-examination the witness has been asked concerning voluntary sales in the vicinity.

The question and answer objected to on .page 52 of the bill of exceptions were not prejudicial, nor that on page 112.

Notwithstanding the wide difference between the values fixed by the witnesses for the trustees and those testified to by the company’s witnesses, none of which was binding upon the jury, we think they arrived at a fair and just valuation, and finding no error' in the record the judgment will be affirmed.

Jelke and Swing, JJ., concur.


source: Caselaw Access Project

author: GIFFEN, J.

license: Public Domain

text:
    ADVERSE POSSESSION — DEEDS.
    [Hamilton (1st) Circuit Court,
    June 9, 1906.]
    Jelke, Swing and Giffen, JJ.
    August Puntt v. John Zimmer.
    1. Construction of Division Dine Description of Deed.
    Where the description contained in a deed reads “n rth with the half section line,” the phrase denotes direction and not necessarily that the line intended is identical with the half section line, and the line connecting the corners and not the half section line must be taken as the dividing line.
    [For other cases in point, see 3 Cyc. Dig., “Deeds,” §§ 639-705. — Ed.]
    2. Effect of Construing Deed bt Parties.
    But where it was believed by the grantor and the grantee that the corners were located in' the half section line, and both have acted on that belief, the grantee acquires title by adverse possession to the strip lying between the half section line and the true line.
    [For other cases in point, see 1 Cyc. Dig., “Adverse Possession.” §§ 4-20.— Ed.]
    [Syllabus approved by the court.]
    Reemelin & Hosbrook, for plaintiff.
    Schorr & Wesselmann, for defendant.
    Plaintiff is concluded by the declarations made by Nathaniel Den-man second, his predecessor in title ■ when in possession, and when selling the roadway to Peter Ziipmerer, father of the defendant. Den-man pointed out a certain line as the half section line; said line marking his east boundary, and Instructed the purchaser to • begin at the line so designated and measure westwardly twenty feet, and gave the purchaser general warranty deed for the strip. Daggett v. Shaw, <~6 Mass. (5 Mete.) 223. See also -Abbott, Trial Ev. 899.
    Plaintiff is in privity with Nathaniel Denman second and succeeds to such title only as was in Nathaniel Denman second at the time of his death.
    The line so pointed out by Nathaniel Denman even though it be not the true half section line, was recognized as such and acquiesced in, and must therefore be considered as established and cannot now be varied. Baldwin v. Brown, 16 N. Y. 359; McCormick v. Barnum, 10 Wend. 104; Jones v. Smith, 64 New York 180; Tyler, Ejectment 571; Smith v. McKay, 30 Ohio St. 409; Bies v. Wolf, 9' Cire. Dec. 255 (18 R. 552).
    Even without the general warranty deed defendant is entitled .to the roadway claimed by him. He and his predecessors in title have held it adversely to Nathaniel Denman second and all other persons since June 17, 1874, the date of Denman’s deed. Yetzer v.' Thoman, 17 Ohio St. 130 [91 Am. Dee. 122]; Pavey v. Vance, 56 Ohio St. 162 [ +6 N. E. Rep. 898]; Gore v. Faupel, 24 W. Ya. 238.
    There has been no entry upon the land held by defendant and his predecessor in title of such a nature as to interrupt the continuity of his adverse possession. Johnston v. Fitzgeorge, 50 N. J. Law 470 [14 Atl. Rep. 762]; Young v. Withers, 38 Ky. (8 Dana) 165.
    Disconnected and clandestine assertions of title or acts of ownership will not avail to defeat a title acquired by adverse possession, Creech v. Jones, 37 Tenn. (5 Sneed) 635; St. Croix Land & Lumber Co. v. Ritchie, 78 Wis. 492 [47 N. W. Rep. 657]; Ransom v. Leíais, 63 N, C. 43; Jordan v. Lang, 22 S..O. 159; Stephenson v. Wilson, 37 AYis. 482.
    Ancient boundaries have been established by parol testimony; it has always been received, if pertinent and material between the parties. Taylor v. Fomby, 116 Ala. 621 [22 So. Rep. 910; 67 Am. St. Rep. 119|.
   GIFFEN, J.

The plaintiff commenced this action to enjoin the defendant from trespassing upon or using his land as a driveway, and from erecting and maintaining a fence on or across his property.

The road in controversy is located in the southwest quarter of section 22, town. 4, range 1, in the Miami Purchase. The land described in the petition and also in the deed offered in support of the plaintiff’s ownership, is east of and adjoining section 22, no part of the same being within the boundaries of such section. The description of the plaintiff’s land begins evidently by mistake at the southeast comer of the section instead of the southwest corner. It is manifest, therefore, that the plaintiff has failed to make out a case and his petition must be dismissed.

The defendant by answer, asks affirmative relief and prays that his title to said roadway, which was. defined by occupancy and user, and by the deeds conveying the same, be quieted against any and all claims of the plaintiff. The deed pnder which he claims title to the premises in controversy, contains the following description:

“Lying and being in county of Hamilton, state of Ohio, township 4, range 1, section 22 in the Miami Purchase, beginning at the northwest corner of Joseph Nicholas’s land; thence north with the half section line 264 feet to common corner of Dorkholtz and Denmons; thence west 20 feet on the line between Dorkholtz and Denmons; thence south .parallel with the former line 264 feet or to the center of the county road; thence east 20 feet to the place of'beginning.”

"When the two corners called for 'in the deed are ascertained the line joining them will be the east line of the tract conveyed independent of the half section line, the words, “with the half section line,”' denoting nearness or in the same direction as the half section line and not necessarily upon or along sneli line.

The testimony, however, tends to show that these corners were intended and understood to be upon the half section line, and the difficulty arises in the fact that at the time the deed for the strip of ground twenty feet in width was made, the commonly accepted half section line was about twenty feet west of the true half section line, and was so understood and recognized by all the adjacent landowners from 1874, the date of the deed, until 1902, when the plaintiff acquired title to his lánd. The defendant and his predecessors in title have been in adverse possession during all this time, believing that the accepted half section line was the true line, and have therefore acquired title by adverse possession. Yetzer v. Thoman, 17 Ohio St. 130 [91 Am. Dec. 122].

A decree may be entered quieting the title of the defendant against all claims of the plaintiff for the strip of ground twenty feet in width so used and accepted by the defendant, each party to pay one-half of costs.

Jelke and Swing, JJ., concur.


author: PER CURIAM.

text:
    LANDLORD AND TENANT — MASTER AND SERVANT — MEG= LICENCE.
    [Hamilton (1st) Circuit Court,
    June 1, 1907.]
    Swing, Giffen and Smith, JJ.
    Caroline Moulliet v. Emma M. Anderson.
    Landlord not Liable to Third Persons under 'Lease.
    The agreement of a property owner to repair premises, made with his lessee, does not inure to the benefit of others toward whom the owner sustained no relations growing out of the agreement.
    [For other cases in point, see 5 Cyc. Dig., “Landlord and Tenant,” §§ 273-327; 6 Cyc. Dig., “Negligence,” §§ 222-226. — Ed.]
    Error to Hamilton common pleas court.
    C. B. Smith and J. B. Shroeder, for plaintiff in error.
    Worthington & Strong, for defendant in'error.
   PER CURIAM.

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

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

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

We find ho error in the judgment and proceedings below. Judgment affirmed.


text:
    MISAPPLICATION OF FUNDS—TRUSTS AND TRUSTEES.
    [Hamilton (1st) Circuit Court,
    January 5, 1907.]
    Jelke, Swing and Giffen, JJ.
    In re John H. Koehnken, Deceased.
    Acquiescence of Misapplication, with Knowledge oe Use.
    Where the evidence compels the belief that a mother acted with full knowledge of the essential facts when she acquiesced in the misappropriation of her trust estate by her son while acting as her trustee, the law will uphold her act, but without sanction of his breach of trust.
    [For other cases in point, see 1 Supp. Dig., “Trusts and Trustees,” § 53.— Ed.] •
    Error to Hamilton common pleas court.
    O. W. Kuhn, for plaintiff in error :
    Albert Bettinger and Jacob Shroder, for defendant in error,
   GIFFEN, J.

This cause was remanded for a new trial at a former term of this court, the judgment being reversed because not sustained by sufficient evidence. Koehnken, In re, 27 O. C. C. 840.

The evidence at the last trial is even more convincing that Anna C. Koehnken had full knowledge of the wrongful act of' her son before ratifying or acquiescing in the same.

Counsel confuse this ratification of an obviously wrongful act with that of an apparently fair one. There is no pretense that the transaction was fair to the mother, nor that any independent advice would have made the wrong more obvious. She was not influenced by any consideration of his ability to repay her, nor was she incapable of understanding the gravity of his offense, but her sole purpose seems to have been to shield and aid an erring son. This was her choice in the matter, and is only typical of a mother’s sacrifice for the benefit of her child. The law does not release Herman Koehnken from the obligation to reimburse the estate of his mother, nor sanction his breach of trust, but it does uphold her act done with full knowledge of the essential facts.

Judgment reversed and cause» remanded for a new trial.

Jelke and Swing, JJ., concur..


text:
    ASSESSMENTS—EXECUTORS AND ADMINISTRATORS.
    [Hamilton (1st) Circuit Court,
    July 28, 1906.]
    Jelke, Swing and Giffin, JJ.
    William G. Roberts, Admr. et al. v. St. Bernard (Vil.) et al.
    1. EXECUTORS OWNERS ON WHOM ASSESSMENT NOTICE TO BE SERVED.
    Executors under a will which directs them to hold and manage real estate for a term of fifteen years, pay the taxes, etc., and at the end of said term sell and convey the same and distribute the proceeds of sale, are the “owners of the land” upon whom service of notice should he made, under the statute providing for street improvements.
    2. Actual Notice by Executor or Improvement Assessment is Sufficient.
    An executor of a will, residing in the county and entitled to a written notice of the adoption of a resolution, providing for a street improvement, is hound by a notice addressed to the heirs of the testator, where it appears that the notice was left at his residence, and was actually received and examined by him and was submitted by him to his' attorney.
    [For other cases in point, see 1 Cyc.- Dig., “Assessments,” §§ 196-222; 4 Cye. Dig., “Executors and Administrators,” §§ 338-343. — Ed.]
    W. G. Roberts and David Davis, for plaintiffs'.
    S. B. Hammel, for defendants’.
   GIFFEN, J.

This action was commenced to restrain the collection of certain street assessments levied upon the property of the estate of Noah Babbs, deceased, and of the grounds relied upon, we deem it unnecessary to consider any except first, that the executors of the last will and testament of Noah Babbs, deceased, were not the owners of land upon which the assessment was levied, within the meaning of original- Rev. Stat. 2304 (See Lan. 3602; B. 1536-211); second, if they were such owners, they were not served with notice, as required by that section.

Item third of the last will and testament of Noah Babbs, deceased, whereby the real estate in question was disposed of, is as follows:

“Item Third. I order and direct that my real estate in Hamilton county, Ohio, consisting of two farms, one of forty-five acres in Springfield township, and the other of thirty-two acres in Millcreek township, be held by my executors for the term of fifteen years from the date of my decease, and at the expiration of the said term of fifteen years, I order and direct that said real estate be sold by my executors and converted into money, and the proceeds of the same, after deducting expenses, I give and. bequeath to the following named persons, viz.: To my son, William Babbs, one-sixth; to my son, John Babbs, one-sixth; to my daughter, Emeline Stratton, one-sixth; to my daughter, Delia Virginia Voorhees, one-sixth; to my stepson, Sylvestor Ralston, one-sixth, and to my grandchildren, Bell Babbs and Charles Babbs, children of my deceased son, Charles Babbs, one-sixth, to be equally divided between them, and shall be distributed to them, my said legatees, by my executors as the same comes into their hands.
“During said term of fifteen years, I order and direct my executors to manage and control said farms for the best interest of my estate; to lease and rent the same from time to time, bn such terms as they may see proper, collect the rents and profits thereof, and out of the same pay taxes and necessary repairs, so said property shall be kept from suffering waste, using their judgment in said matter, and deducting such expenses and the expenses of the management of the' same, the-balance of such rents and profits they shall distribute among my said legatees, named in this item, in the same manner as provided for the distribution of the proceeds of the land when sold, and they will distribute such rents as they conveniently can after being received by them; provided, however,-if my executors desire to use any part of the income of said farms to pay the annual sums to my wife named in the second item of this will they are directed to do so.”

It is plain from this provision of the will that the executors' were vested not merely with a naked power to sell the land and distribute the proceeds, but that it was coupled with an interest in, and control over, the land itself. In the case of Boyd v. Talbert, 12 Ohio 212, the first proposition of the syllabus is as follows:

If a testator bequeath to his wife, all his estate, real, leasehold and personal, and all moneys and proceeds which may arise from the same, and direct his' executors to lease certain premises, and after paying ground rents and taxes, pay the proceeds to his wife, the title to the premises is held in the executors.”

And in the ease of Williams v. Veach, 17 Ohio 171 [49 Am. Dec. 453], the syllabus is as follows:

“Where, in a will, the testator confers power upon his executors, in form following: ‘Giving them full and complete power as I myself possess, after my decease, to dispose of all my estate, real, personal and mixed, in the way and manner they may think best calculated to carry into effect all the purposes specified in this, my last will and testament, except that no part of my estate shall be sold at public sale,’ — it is a power coupled with interest * * * and will be so construed, if the other parts of the will seem to to require it, in order to carry out the intention of the testator.”

The facts in the case before us bring it within the principle announced in these cases, all of which may be distinguished from the case of Elstner v. Fife, 32 Ohio St. 358, as pointed out by Day, J., at page 369. We think, therefore, that the executors were the owners of the land upon whom service of notice should be made under the statute.

Was the notice legally served upon the executors? One of the executors resided in Indiana and the other upon the land assessed. There being no newspaper published in the village of St. Bernard, written notices of the resolution declaring the necessity of the improvement were posted in twelve public places in the village, which' is the only way provided by the section for service upon a nonresident. A proper notice in writing was left at the residence of the executor living in Ohio addressed to “Noah Babbs’ Heirs,” but was in fact received by such executor, and by him submitted to his attorney. Notice should have been addressed to the executor, but having received a notice containing all the facts required by the statute, and having submitted the same to his counsel, the executor received all the information required in the notice by the statute, and is bound thereby, as he had an opportunity to be heard and to protest or submit objections to the work if he so desired.

A like decree to the one rendered by the court below may be entered in this court.

Jelke and Swing, JJ., concur.


author: COOK, J. BURROWS, J.,

text:
    INTEREST AND USURY.
    [Columbiana (7th) Circuit Court,
    April Term, 1907.]
    Burrows, Laubie and Cook, JJ.
    Solomon J. Firestone v. John A. Dellenbaugh et al.
    Annual Interest at ’8 Per Cent to be Paid Semiannually is not Usurious.
    A promissory note which provides “that it shall be payable one year alter date with 8 per cent interest, to be paid annually, interest and principal after maturity to bear 8 per cent annual interest, to be paid semiannually,’5 is not usurious.
    [For other cases in point, see 5 Cyc. Dig., “Interest and Usury,” §§ 337-341. — Ed.]
    [Syllabus approved by the court.]
    Error to Columbiana common pleas court.
    Potts & Wells, for plaintiff in error:
    By tbe common law, parties may contract for any rate of interest. Biddle v. Canty, 2 Dec. Be. 586 (4 W. L. M. 124) ; Watkinson v. Boot, 4 Olio 373; Beddish v. Watson, 6 Ohio 510.
    Construction of usury statute in this state. Iron By. v. Furnace' Do. 49 Ohio St. 102 [30 N. E. Bep. 616]; Bice v. Eassenpfhig, 45 Ohio St. 377 [13 N. E. Bep. 655]; McClelland v. Sorter, 39 Ohio St. 12.
    The tendency of courts in modern times is to extend the right to recover interest. Watkinson v. Boot, 4 Ohio 373; Wilson v. Troy, 135 N. Y. 96 [32 N. E. Bep. 44; 18 L. E. A. 449; 31 Am. St. Bep. 817].
    An agreement to pay interest upon interest, after the interest has accrued is not usurious. ’Foies y. Cantfield, 3 Ohio 17.

      The. following authorities' 'Were. also cited and commented' upon.. ’Áhdefsóii'’s íiaw Diet; 563"" l074(; 3'Pahsons, ‘Contracts 150-153 ;• Guernsey' vl'^Éexfofd, ’63 ,'Ñ.’ Ya631X''Graig' A.']MóCblldcJil'‘20‘W,í :Ya'.J 148; ''Ét'ewárt'v. PétrVe, éé'N. 'Y; .621 [14 Am.' Rep."35áj 'f^ÁnUeteí^: Con'verse, 17 Obio' ‘St.L ÍÍ";}’91 Ám* DécV:,lT5]-Marietta Ir ón^W dries-Lotti-Ohio St. 621; Dunlap v. Wiseman, 13 Dec. Re. 244 (2 Disn.. 398)";-Ctfamér \l:''Lep¥>er;'2$''Qláib 'Sf. 59"'[120':Aa.'-Rep.f756] fCvok vi. ICourtUghty'AO-'- DMo'-fít-, 248 >‘f48;'Am."sRép.1 681}"; '-'Fobes -v-. ■ Cunífield-,. *3'Ohio 1 iGtfhylóVW. meÉtúnttyáWOIáb ,Stl .34SJ’[20 <Nt Efí&ep.í 345].
    l-' ■ 4?' i i . J. R, Carey,and O. T. Farrel, for defendants in error:
    . ' Dúé'aiiS unpaid','interést''upon‘principal inay draw ihtérbsf; _ In¡-'tefesf‘upon]1 interest ‘shall nót draw' interest.,' Xnleet'el v.Converse, 17 íO'ÍY'ó.^0,ñ''t^l_:^mí‘Déb‘.:il&Í; 16 Am. '& Eng. E'riB."'Law‘(2 ed!)1.078- & Éng. Ene. LaV‘(2'‘ed4. 492; Drury V. Wolfe, 1341'].1.'!£94 ’[2b N. E. Rep. 626] ; Burns v. Anderson, 68 ’Ind. 181; Brown v. Crow, 29 S. W. Eep. 653 (Tex.- Civ> App.)T ' ' ■ ■ ■ ¡ ;
    , The question is not what the general assembly intended to enact but what 'is 'the meaning of' that "which it did etíaet.' -'Siingluff v. ■yVe'aveA,'<S§ Ohio St. 621 [64 N. E. Rep. 574], ■ : "'
    The natural ineáriing' if 'evident and in clear'tériñá, needs nb interpretation. Conjectures to restrict or extend are..but attempts to evade. Lawler v. Burt, 7'Ohio'St.' 340.' ' ' '
   COOK, J.

The action,below was.forthe fo.reclpsur.e'of a.chattel mortgage given ■¡by.Jjohn A>. Dellenbaugh-and Sarah A.'.Dellenbaugh,--his ¡^yifpy to-Fire-i; stone .Brothers,; of; yhoni; S.oloinpn J, Firestone/is the^upcessoiy tp^seenre .¡the payment of; several-promissqry notes^-all Qf the^arne character — of ;which¡the;foJlqwing ista.-copy oft®ne of-the/nutes-ii.-* ,i ,v ^

‘^Ñew Lisbon, t)hio,'February "Í,' 1888'.

“On op before-year, after .date .we. or..either of us promise tp ..pay Firestone.Brothers .or. .order..at,,,the.banking house of Firestone , Brothers, New. J/isljon,. Ohiq, ,the fum of $5.00 .with,8. per cent, interest to be paid annually,^. Interest and principal aiftempiaturity to..beaiy8 per centcannual interest to be paid'Semiannually.”,1,,, .• . ,- , . .

éfetw'eéii"Í888',"án'd 'the' tirite, of bringing1 ále"'súit '‘sofne plincipdl and a iarge aiii'ouiit of interest'hád been 'páid upoh the notes. The manner of'computing the interest aítéh nfktürítf1 by consent of both parties to compute interest upon the prmeipár at '8 per cent, payable semi-was "annually; anddhe interest up ón thó'-in4éf,ést’bvierduéJupfei lire" noté ■ uir-paid at 8 per cent payable semiannually, and upon the interest upon interest which was unpaid at 6 per cent, simple interest, up to the time of computation and settlement. " - (

The question made by the defendants before the referee in ascertaining the amount due upon the ipptes, was, that the notes were usurious and that only simple interest at 6 per cent was all that could be collected upomthe notes/' --The ¡referee held, against? the 'contention of the defendant, that the notes were not usurious; that the manner that the parties had computed the interest' niád'é in their various settlements, was correct and found for the plaintiff in the sum of about $12,000.

Upon'"his .report’s being made' exceptions were taken and the court confirmed the report in every respect except upon the finding that the notes were not usurious, and" held that they were; and rendered a judgment and decree for about $6,000 instead of $12,000. The question made upon error is, Who was right, the referee'or the court?

Revised Statute 3179 (Lan. 5095)., which was in force when the contract was made provides:

“The parties to a bond, bill, promissory note, or other instrument of writing for the forbearance or payment of money at- any future time, may stipulate therein for the payment of interest upon the amount thereof at ¿ny rate not exceeding 8 per cent per annum, payable annually. ”

While it would "seem from the text of the statute that the intent of the legislature was, that money should .in-no case earn. morg. than 8 per cent per year, yet it is now well settled that such is not the fact, and that although the statute provides that interest may be reserved at 8-per cent “per. apnum, payable.:annually,”, the words “payable annually” have no effect in qualifying, the language of the statute whatever, and that it should be ‘re,ad the same as if the words were eliminated. Cook v. Courtright, 40 Ohio St. 248 [48 Am. Rep. 681].

In that case it was íield that under the act of May 4, 1869 (66 O. L. 91; Rev. Stat. 3179; Lan. 5095):

“A promissory note stipulating for the payment of the principal at a future time,‘with interest therein at 8 per centum per''annum, payable semiannually until'"paid’ is no,t usurious.” '

In the opinion, on page 251,' it is said:

. “Tippler a'contract to,' pay ,8'pef .ceptum per'anpunp,páyable semiannually,' upon a given principal, ¡ the interest to be paid, upon that principal, is precisely the same as under a contract to pay *8'per centum per annum payable annually, ’ -upon" the 'same principal! If the installment'of interest falling due at the end of six months should not- be paid, and the law would permit interest to run upon it at 6 per cent until paid, no part of that 6 per cent interest would be interest upon the principal named in the note. And such interest upon interest, if collectible, would not form any part of the interest ‘stipulated for.’ If collectible at all it would be because of the other sections of the same statute.
“The third section applies to ‘all cases other than those provided for in the first and second sections of this act. ’ The first section we have ■quoted in full. The second applies to judgments, decrees and orders Tendered upon any contract made under the first section.' As the first section relates only to contracts for interest upon the principal, a suit for interest upon overdue interest may be considered a case ‘other than’ those provided for by said section, and is therefore collectible under said third section. And, if separately suéd for, the judgment obtained would draw interest under the fourth section.”

In the case of Taylor v. Hiestand, 46 Ohio St. 345 [20 N. E. Rep. 345], it is held:

“A promissory note bearing interest at the rate of 8 per cent per .'annum, payable semiannually, is not usurious, although it stipulates that the semiannual installments of interest shall bear interest at the same rate if not paid when due.”

And in the opinion, in referring Cook v. Courtright, supra, it is said, page 347:

“This statute was under consideration in Cook v. Courtright, 40 Ohio St. 248 [48 Am. Rep. 681], and the court there held, first, that a promissory note is not usurious though it contain a stipulation for the semiannual payment of interest at the rate of 8 per cent per annum; and second,' that the semiannual installments of interest will bear interest at the rate of 6 per cent per annum from the day they fall due, but form no part of the interest stipulated for ‘upon the amount of the note. ’ This decision has become a rule of property, and we see no sufficient reason to disturb it now; and it furnishes a rule by which the rights of parties to this action can be ascertained. It establishes the doctrine that the payee of a promissory note may receive at the end of the year, as interest, a sum of money equal to 8 per centum on the face of the note, with 6 per centum for sis months on the first installment of interest added thereto. Therefore, the fact that it is apparent on the face of a promissory note that it will earn in any one year, as interest, a sum of money greater than 8 per cent on the principal sum, will not necessarily render it usurious. The court says in that connection, Cook v. Courtright, supra, ‘No part of that 6 per cent interest would be interest upon tbe principal named in the note. ’ This is equally true of the note here, and the only difference in this respect is, that in that case the unpaid installment bears interest at 6 per cent and in this case at 8 per cent. In either case the promissory note on its face earns more than 8 per cent per annum on the principal.
“It is said, however, that in the case here, there is an expressed stipulation for interest on the several installments of interest as they respectively fell due, whilst in the case of Cook v. Courtright, supra, there was none, but that the installment bore interest by operation of law; and this distinction seems to have been in the mind of the judge who wrote the opinion in that case; but it does not appear to be the principle on which the case turned. The judge there must have referred to an express stipulation, for surely the interest on the installment in that case was the result of the stipulation for the semiannual payment of interest. v If there had been no such stipulation, there could have been no interest on interest. And it cannot be important whether the interest on the installments resulted from an express stipulation for its payment, or necessarily, by operation of law, from another stipulation; in either case the result was,apparent on the face of tbe paper.”

It is said that the note in this case differs in an essential particular from the notes that were before the Supreme Court in the cases referred to, in that it provides “interest and principal after maturity to bear 8 per cent annual interest to be paid semiannually”; that this provision makes it a compound interest-bearing note. We do not think so. There is no distinct provision in the note for rests at stated periods at which time the interest should be added to the principal and to bear interest in the same manner as the principal sum; and if a compound interest-bearing note at 8 per cent in this state is usurious, about which there might be some doubt, this is not such a note and we can see no substantial difference between this note and ones referred to. Especially the note in the case of Taylor v. Hiestand, supra.

In the case of Cook v. Courtright, supra, it was said that if interest could be collectible at all on the semiannual payments of interest, only 6 per cent could be collected and that by operation of law, under Sec. 3 of the statute which is now Rev. Stat. 3181 (Lan. 5097), but that was doubted in the case of Taylor v. Hiestand, supra, and it was held that a note of 8 per cent per annum payable semiannually is not usurious, although it stipulates that the semiannual installments shall bear interest at 8 per cent if not paid when due.

What material difference is there under these decisions between interest bearing interest at 8 per cent payable annually and payable semiannually? In either ease the interest upon the interest could only bear simple interest at‘6, per cent, which was charged and paid in this case. Anketel v. Converse, 17 Ohio St. 11 [91 Am. Dec. 115].

Indeed, what difference is there between the note specifying that the note shall bear interest at 8. per cent payable sémíánnuálly and that the interest sháíLbear interest at, 8 per cent payable semiannually? In eifher case’ more than 8 per cent per annum payable annually' is charged for the use of the money. ^.' '. . i .

In 16 Am. & Eng. Enc. Law (2 ed.) 1085,, in summing up the, authorities upon this question, it is said:

“But it is believed to, be. a safe statement, as a loose general rule, that interest on interest at a rate not greater than the statute permits should mover be held .usurious where payment of the interest installments. was actually contemplated on the dates fixed, although the aggregate of interest op. interest would, if contracted for on the original principal, exceed the rate allowed by law.” , • . .

"We-are of opinion that the referee was right and that the court ■erred in sustaining the exception -to his, report. Judgment of court of common pleas will be reversed and, this court rendering the judgment the common pleas should have rendered, the report of the. referee is confirmed.

BURROWS, J.,

concurring.

I desire briefly to give the reasons that have induced me to decide in favor of a reversal of the judgment of the court below. I have been brought to the conclusion that the notes in-suit are not-usurious against my preconceived notions and prejudices. I 'had the impression that a contract wherein- interest in excess of 8 per cent per annum is stipulated for was usurious; especially where such excess was the result of allowing interest upon interest to bear interest. These notes, according to their express terms, contain the stipulation that after maturity interest upon principal and interest shall bear interest at 8 per cent to be paid semiannually.

If these notes do not provide for the compounding of- interest semiannually after maturity it is difficult to conceive what language could be used to accomplish that purpose.

Counsel for plaintiff in error contend that they do not so provide; and contend further, that a contract to pay more than 8 per cent per annum for a loan of money, and for the payment semiannually at the same rate of interest upon accrued interest overdue is not usurious in this state; and in support of their contention they cite Cook v. Court right, 40 Ohio St. 248 [48 Am. Rep. 681], and Taylor v. Hiestand, 46 Ohio St. 345 [20 N. E. Rep. 345].

Revised Statute 3179 (Lan. 5095) provides:

“The parties to a bond, bill, promissory note, or other instrument in writing 'for the'fdrÜeáfahce or payment of money at.any future time, may stipulate therejin for the payment of interest upon .the amount thereof at any rate not'.exceeding 8 per centum per annum, payable, an-. nually.”’ ' ' ' , .

In Cook v. Courtright, supra, it is held by the Supreme Court commission that it is not usurious to stipulate in a promissory note, due one year after date, for. the payment of'interest semiannually at the rate of 8 per cent per annum, whereby the holder of the note would He entitled at its maturity to 8 per cent interest on the sum'loaned for twelve months and also 6 per "cent interest for six months on the semiannual installment of interést..

It is .plaip., that the holder pf an 8 per cent promissory note given '“for the. forbearance or payment of money-at, any future time” will receive.more than 8 per cent per annum for the use of his money if .any part of said interest is paid or to be paid prior to the expiration of said "future time,” except, of course, where the interest is made payable annually.’ .. . ' '

It is idle to attempt to .criticize the validity of the reasoning .upon which Cook v. Courtright, supra, is grounded, - as that decision seven years later was’approvéd by, the Supreme Court on the ground that.“It had become a. rule of property.” ..

In the case of Tayolr v. Hiestand, supra, the question, of the validity •of a stipulation to pay* intpresf ,at 8 per cent, semiannually, on a note payable three years after date, with interest at the same rate on install-ménts of interest overdue, was,'fully considered, and, a precise and comprehensive rulé éstablishéd) for, such eases. .

It is theretheld.th,at whaievey. stipulations may legally be. put into a new contract between^ the .parties maple after -any, installment of .interest has been paid .in respect thereof ..may .be made-in • advance and in the original.promissory.note..,,

This rule and the reasopg.. fyr jt .^e giyen at page 348:

.“Take ’another!view.„of the, subject: If. the first. installment, jmd be|n paid, it is ylear thaf h new.,Io,qp; could have been made between the parties qf the money at the rate of 8 per cent per annum.,. If 'it was not paid,( a right of action to recover it would at once accrue to the payee-/'aiid we1 thiiik'it clear the parties would be clothed" with full power, under the statute, to stipulate for its payment at a future day with interest at 8 per cent per annum. If this can be done after default in the payment of an installment, no reason is apparent why the parties in the first instance might not anticipate and provide in advance for the contingency of a default. This we think may be done, and is what the parties to the note, in fact, did in the case before us.”

Under this rule no good reason can be given why parties may not stipulate in a promissory note payable at a future time that interest upon interest may be made to bear interest indefinitely with such periodic rests as may be agreed upon, for surely they could so stipulate in a new contract as to such interest, in case the same had been paid. If we understand this rule correctly, the ease we have in hand is easy of solution.

The claims that more than 8 per cent interest per annum was agreed to be paid, and that interest upon interest is to bear interest to be computed with semiannual rests, become immaterial incidents, so long as only an 8 per cent interest rate is applied and reapplied to the interest •upon interest as it periodically falls due.

It is of no importance that we think this rule of decision indefensible and that it virtually ignores the evident intent of Rev. Stat. 3179 (Lan. 5095), which in terms permits an 8 per cent rate of interest per annum to be received and no more on the sum loaned from the date of the loan till the time the loan is paid. Nor is it important that we think that a provision for compounding the interest on a loan was not contemplated by the legislature in passing this or any other statute relating to interest; but we must adopt and apply the interpretation placed upon the statute by the Supreme Court; and this interpretation, as we understand it, leads the majority of the court to hold that the notes in suit are not usurious.

Laubie, J., dissents.


author: HURIN, J.

text:
    INJUNCTION — LIBEL AND SLANDER.
    [Erie (6th) Circuit Court,
    April 8, 1907.]
    Haynes, "Wildman and Hurin, JJ.
    [(Judge Hurin, of the third circuit, sitting in place of Judge Parker.)/
    Charles A. Judson v. Edmund Zurhorst.
    Libel cann*t be Enjoined.
    A court of chancery has no jurisdiction to restrain the publication of a lewd, obscene and lascivious pamphlet merely because it is libel, and will injure plaintiff in his reputation and cause the public to believe he¡ is unfit to hold office.
    [Syllabus approved by the court.]
    Error to Erie common pleas court.
    H. L. Peeke, for plaintiff in error’.
    H. C. De Ran, for defendant in error;
   HURIN, J.

The sole question before this court is:

“Has a court of equity power to enjoin a threatened libel, when— as in the ease at 'bar — it is alleged that the pamphlet whose printing and circulation is sought to be enjoined, is false and untrue and is of an obscene, lewd and lascivious character, known to be such by the defendant, and tending to corrupt the morals of the community and that its publication will irreparably injure the complainant in his reputation, official position and property rights, for which injury he has no adequate remedy at law, there being no way of stopping the circulation of said circulars when once commenced and the defendant being utterly insolvent and a judgment against him uncollectible.”

This question is raised by demurrer to the second amended petition, defendant objecting especially to the jurisdiction of the court over the subject-matter and that the petition fails to state a cause of action.

The defense is based on the constitutional protection of freedom of speech and of the press.

Article 1, Sec. 11 of the Ohio constitution declares that:

“Every citizen may freely speak, write, and publish his sentiments-on all subjects, being responsible for the abuse of the right; and no law shall be passed to restrain or abridge the liberty of speech, or of the press. In all criminal prosecutions for libel, the truth may be given in evidence to the jury, and if it shall appear to the jury that the matter charged as libelous is true and was published with good motives, and for justifiable ends, the party shall be acquitted.”

It is clear-that the constitution here provides for the fullest liberty of. speech, but' subject- always to .the proviso that every citizen must be held responsible for.his ubjise of the right.

; The, defendant claims that this responsibility extends only to the criminal' liability" referred to’ in- the'latter part of Sec. 11,. and to. the civil liability to -respond -in- damages for the abuse of the right of free speech."

< Plaintiff, -however*- claims--that-this, responsibility goes, further,and includes the-liability .to.bp shut off .'from a future abuse of that right, where "It--isshown--tbat such-future abuse is contemplated, .and that, neither -a -©ri-njinar.action np^.a.suit in. damages will adequately, protect, a complainant or-compensafe him for the threatened wrong.. He-therefore asks an, in junction restraining, defendant from guch abuse, ...

The question; appears'to,be a somewhat novel, one in Ohio,, never authoritatively "settled by the Supreme Court.

• In other states, the great preponderance of authority is against the power of courts to restrain-threatened libels and the same may be said of the restraint of threatened crimes. For both libel and crime are supposed to be so guarded by other forms of procedure that courts of equity will not assume the unnecessary prerogative of forestalling and preventing their commission. Yet the courts and legal authorities are by no means unanimous in repudiating this prerogative. In England, the •courts for a long time refused to assume mch power, though occasionally a chancellor hinted at his right to do so. Now, by reason of powers •specially conferred by statute and, independently of statute, by reason of a broader view of the subject the English courts do restrain the ■publication of libelous matter and, especially when property rights are involved. , , ¡ .

In this country the older English rule was formerly universal, but in recent years, the courts have shown a-tendency to break away: from it and to assume the power to prevent injuries at least to property by libelous publications, though usually giving other reasons than that of the mere libel in support of their -decrees.

- So great an authority as Story, in,. 2 Story, Eq. Jurisp. Sec. 948a, said: Courts “have never assumed, .at. least, since .the destruction, of , the court of Star Chamber, to restrain any publication which purports to be a literary work, -upon the mere gro.dnd that it .is of a libel- , •ous character, and tends to the degradation, or.,injury o,f the reputation . oy business of the plaintiff, who seeks relief against such publication. Fpr ,fnatters of this sort do not properly fall within the,jurisdiction of courts of equity to redress, but are cognizable’in’a civil or criminal suit at law.”

And 6 Pomeroy, Equity Jurisp. Sec. 629, says:

“A libel occupies' much the samé relative position as a crime in considering the remedy'of injunction:' 'Equity will not restrain by in-.junctidri'-the thréatened--publication-of- a libel, as such, 'however1;gréat ■the injury to property; may appear to be, This is the universal rule in the United States, and was formerly the rule in England. The présent 'rulé' in'Englah'd- ’contra, rests on statute.”

But/iri Sec. 630, the jsame’author says:

“But while the libel as such'.will not he .restrained., just as. a, crime ■will not be presented by equity, yet when there is other legitimate ground for equityLfo'issue the'injunction the fact that the publication is also a..libel will not prevent-the injunction’s being issued, even if there is a constitutional provision forbidding injunction against libels, as an interference with the right of free speech.”

And in support’of'‘this dbctrme'the author cites Beck v. Protective Union, 118 Mich. 497 [77 N. W. Rep. 13; 42 L. R. A. 407; 74 Am. St. Rep. 421], where the; court says:

“It is urged• that ’courts of equity will not restrain -the’ publication of a libel,, and that .this boycotting circular is a libel, the publication ■and circulation of which Cannot be enjoine’d. The same claim was. made 'that courts'of equity have-no jurisdiction "to-restrain the commission, of .a crime.-' But. the answer is, and, always has been, that parties-cannot interpose this .defense-when the. acts are accompanied. by threats, ex-* press or covert, or- intimidation and coercion, and the'- accomplishment •of.the purpose will result-,in irreparable injury to, and the destruction •of,- property.- rights: * Its--purpose” (this' libelous-■ circular) '“was not-aloneitq libel eomplainant’s'business, but to use it for the purpose of intimidating and ¡preventing the public from -trading with the-complainants.- It called upon them-to protect them: ” ;. " ..

■ And. .so. for-other-.reasons libelous publications-have been enjoined, as in Emack v. Kane, 34 Fed. Rep. 46, whére one manufacturer was. eri-joined- from sending, out. circulars to customers of another, threatening them with litightion,-. tending it© intimidate'them arid prevent their dealing with'plaintiff.

Sed also Farquliar Co. v. Harrow Co. 102 Fed. Rep. 714, [42 C. C. A. 509, 49 L. R. A. 755], where-the-ibá'd - tfáStlu ®f defendantrint's'ending out damaging:>eirculars ■•’regarding. pláintiíf?s- business ¡'was one element • leadingrto the granting of-the injunction. -Pomeroy‘cites Lord Cairns’ -T statement-in thércase-of Prudential Assur. Co. v. Knott, 10 Ch. App. 142, which ,id.‘ perhaps .th®.iclearest:statement of the rule that can be found. It was announced in a case decided in 1874 before the change» in the statutes of England, and is as follows: ,.

“It is clearly settled that a court of chancery has no jurisdiction to-restrain the publication merely because it is a libel. There are publications which a court of chancery will restrain, and those publications as to which there- is a foundation for the jurisdiction of the court to-restrain them, will not be restrained the less because they happen also to-be libelous.” 1

This may fairly be said to be the rule followed by the vast majority of the courts of this country.

We are thus led to inquire whether there is anything in the libel complained of in the ease at bar which — aside from its libelous character — justifies the interposition of a court of equity.

We have «seen that courts have found publications containing various forms of intimidation proper subjects for the exercise of injunction-power. Threats of the boycott and threats of litigation, circulated by means of pamphlets have been thus enjoined, not because the statements; of the pamphlets were false or libelous and not merely because they tended to injure plaintiff in his business, but because they tended to-intimidate others and prevent them, through fear, .from dealing with complainants, thus, interfering with the-rights of the public to freedom, of choice in dealing with plaintiff and interfering with plaintiff’s right, to the benefit of that freedom of choice. And so where officers of a trades union gave notice to workmen by means of placards and advertisements that they were not to hire themselves to plaintiffs, pending a suit between the union and the plaintiffs, it was held, upon demurrer, that, the acts of the defendants as. alleged by the bill, amounted to crime, and that the court would interfere by injunction to restrain such acts, inasmuch as they also tended to the destruction or deterioration of property. Springhead Spin. Co. v. Riley, L. R. 6 Eq. 551; Consolidated Steel & Wire Co. v. Murray, 10 O. F. D. 205 [80 Fed. Rep. 811]; Debs, In re, 158 U. S. 564 [15 Sup. Ct. Rep. 900; 39 L. Ed. 1092].

But in the case at bar, no such claim is made.

Plaintiff does say in his petition that he is a public office holder- and enjoys a property right in the emoluments of his office and that the-circulation of the pamphlet complained of, is an injury to the reputation of plaintiff and to his property rights in said office by causing people to believe that he is. unfit to hold said office.

But here we find no allegation that people are intimidated or in-any ’ other way prevented from dealing with him in his said office, or even that his tenure of said office is threatened or likely to be interfered with because of defendant’s acts. The charge thus made is in effect, merely another form of the statement that plaintiff’s reputation will be injuriously affected by defendant’s circulation of said pamphlet. In reality, there is no allegation that the property rights of plaintiff will be at all interfered with, but only that' people will believe that he is unworthy of enjoying them. •

No destruction or deterioration of these property rights is even suggested in the pleadings of plaintiff. He fails to bring his case within any of the rules laid down in any of the cases so far referred to.

The only other ground on which irreparable injury to plaintiff himself is claimed is that of damage to his reputation by reason of the fact that this obscene, lewd and lascivious pamphlet will injure him in his reputation and cause the public to believe that he is unfit to hold office. ,)

It is argued by counsel for plaintiff, and with great plausibility, that, when the obscene character of the pamphlet is known, plaintiff ought not to be compelled to sit still and allow such a thing to be published concerning him and trust to the doubtful result of an action for damages to reimburse him in money for an injury to his reputation for which no money judgment can ever compensate him, and for which no punishment, which, under the criminal law, can be • inflicted on the defendant, can ever sufficiently atone. There is much reason and sound sense in this statement of the case.

Were we empowered to formulate original principles of law and lay down new rules by which courts of equity should be guided, such an argument would appeal strongly to our consciences, and judgment. But we have no such power. We must be guided solely by principles already enunciated and accepted as sound by courts generally throughout this country and in England.

It may be admitted at once that, no self-respecting man would willingly suffer his reputation for morality to be sullied for any amount of money damages, even though such amount were assured him. From an ethical standpoint the action for damages is never an adequate remedy in such cases, yet it is the only way known to the law for compensating a man for an injury done him, and in a legal sense it is and must be considered an adequate remedy where available at all.

The criminal punishment of the offender has another purpose than compensation, but it would not necessarily follow that because this bind of a remedy is open to defendant for an injury already done, he is therefore without the right to prevent future injuries of like character. The difficulty is to find some authoritative case where a court of equity has in this country exercised the power of preventing such injuries— that is, to the reputation of an individual.

A somewhat extended search has failed to disclose such a precedent and in the absence both of statute and of precedent, this court is not at liberty to assume a power whose exercise would b’e of such far-reaching-consequences." " '

While it is pl'aintifPs misfortune that defendant is not'responsible financially and fheréfofe cannot be 'made to- respond in damages even ''should a' vefdib't be obtained a'gainst him; yet, if the injunction, power is-hot applicable to ah injury pi this'kind 'generally," Ühte ih'ere'insblvency 'óf tble defendant1 will' Hardly "afford'd júdiéial réason for its' arbitrary-"¿'¿erbise. '' ' "' ! ’' " ■' ‘ "

'■ “ 'There remains''one contention" for the* gránting of this injunction oír the facts 'alleged'in the petitiofi: That' iá' ¿¿ the alleged indecbncy of the pamphlet: The law does not favor obscenity orindebency.

In a propef case instituted by onfe legally authorized to represent the public, the public exhibition of’ lewd pictures, immodest statuary, 'or immoral plays, would unquestionably be enjoined, or otherwise suppressed; and for the same reason’an obscene book or pamphlet is prohibited transit through the United States mails. The case presented to-us, however, is not of that character and does not authorize the- relief' sought.

For these reasons the demurrer to thé second amended petition; should be sustained. • . ‘

Haynes and Wildnian, JJ., concur.


text:
    WILLS.
    [Ashtabula (7th) Circuit Court,
    January Term, 1907.]
    Burrows, Laubie and Cook, JJ.
    F. Clement Crosby et al. v. John C. Crosby et al.
    INTENTION TO 'REVOKE" WILL PRESUMED EROM ERASURE OE TESTATOR’S NAME.
    Where a will,.after.-its execution, rerhains in the,possession--of the;-testator until his death, at which time it is found among.,h,is papers with his • name eraéed; Üi'e: presumption is, that the* testator erased' Hi's name, and ; ■ that he did so with.thp jjitention of revoking it. • •
    [Por other cases in point, see 7 Cyc. Dig., “Wills-,’.’ §§ 138-162. — Ed.]
    [Syllabus by the court.]' ,
    ERROR to Ashtabula common pleas court;.
    B. A. Rickard and Hoyt,- Munsel &' HaIIt for plaintiffs in error.
    Calvin, Hogue, Goddard- & Starkey, for defendants- in error-.
   'CO.Óirt

it? !l&8®ctioh below was the contest 'ofá will.’ The principal ground 'of'-^^test was, that the testator intentionally revoked the - will-before-Tris death by canceling and obliterating the same.

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The evidence is’very conflicting upon the/question .as to liów the erasure of the original name came to be made, whether it was done-for the purpose of simply correcting 'the signature and before execution or whether it was’doné with the intention,of revoking the will.

The jury found it was done 'with the intention,of revoking it and' we feel the jury was. fully justified'in'so Ending and 'the* trial court-in confirming the verdict. . ... .. .. - . „

The. important question in the ease,. however, is "upon the charge of the court. The court charged' the. jury that if they, should fin'd‘that the will remained in the possession, of the testator, from the time of its execution until his death, then jit would be presumed that the testator himself erased, his name and thát he did so with the ihtentioú of revoking’the will. Was this correct? , . , , . ,

, While, so far as we. aré aware, there is no case.in Ohio directly, .bearing upon this question, yet'many ’decisions in other ,'statés support the charge.of the court and we.think was'correct, ‘ '

In the case of Smock v. Smock, 11 N. J. Eq. (3 Stock.) 156, it was held:

c 1. ..A writing s.ought to be. prqyed last will of decedent, was executed by him' as his will in due, form of law, in\-1846, . After fektator’s, death in - it was found, on theAay.of his funeral, by'his widow and.two of his .sons, in a private, desk of decedent, It .was wrapped up, in a newspaper, ...íhe^name of testator ,ahd the seal were cut off; with,a sharp .ihstrupient,.leaving, only the letter"B — . the first-letter'of .testatpr’s name — partly .'remaining.Iffeld,..that.the testator is presuméd to have done the act, and that the law further pr^- . ’ ' ’ V dt (. ■ .1 5 , V1 ' <J sumes he did it amyio revocando,” „ . ... A n t

.. v'. '■> ¿j.,.- CA. f j.u ill ])- ft W ITL philxl The will was m the custody oi the testator during his lire JO. and upon bis death it was found among bis depositories, canceled, with bis name and seal cut oft. Under such circumstances, the testator himself is presumed to have done the act, and the law further presumes that he did it animo revocandi. 1 Williams, Exrs. & Admrs. 78. In a late case, decided in the prerogative court (afterwards taken up on appeal to the delegates, where the decision below was affirmed), a will was found in the repositories of the deceased, and it appeared that some one had carefully cut out, apparently with the scissors, the whole of the instrument from its marginal frame; the attestation clause was also cut through, but no other part of the writing; and it was held that the court was bound to construe the act as one done by the testatrix for the purpose of canceling, revoking, or destroying the validity of the instrument, and consequently that it was thereby revoked. Moore v. Moore, 1 Phillim. 375; 1 Williams, Exrs. & Admrs. 74. The same principle will be found established by the following cases: Freeman v. Gibbons, 2 Hagg. Ecc. 328; Bumgarten v. Pratt, 2 Hagg. Ecc. 329; Richard v. Mumford, 2 Phillim. 23; Loxley v. Jackson, 3 Phillim. 126: Wilson v. Wilson, 3 Phillim. 552; Davis v. Davis, 2 Add. Ecc. 223; Colvin v. Frazer, 2 Hagg. Ecc. 266; Holland v. Ferris, 2 Bradf. (N. Y.) 334; Bulkley v. Redmond, 2 Bradf. (N. Y.) 281, 282; Betts v. Jackson, 6 Wend. 173, 180.”

In White, In re, 25 N. J. Eq. 501, it is held:

“The tearing out of the seal affixed to a will, and of part of the testator’s signature, and the obliteration of the rest of his name and of the names of the witnesses, are a cancellation of the will.
“From the finding of a will in testator’s box thus canceled, the presumption arises that the cancellation was his act, done animo cancellan-di, and that, by that act, he intended to render the will null and void.

In the opinion it is said:

“The will bears clear evidence of the intention to revoke it. The tearing out of the seal and of part of the signature of the testatrix, and the obliteration of the names _ signed to the will, are a cancellation of the will. Avery v. Pixley, 4 Mass. 460; Hobbs v. Knight, 1 Curteis 768; Goods of James, 7 Jur. N. S. 52; Price v. Powell, 3 H. & N. 341; Smock v. Smock, 11 N. J. Eq. (3 Stockt.) 156. And from the fact that the will was found in the'possession of the testatrix, in her repository, thus candeled, the presumption arises that the cancellation was her act, done animo cancellandi, and that, by that act, she intended to render the will null and void. Smock v. Smock, supra; 4 Kent’s Commentaries 532; Davies v. Davies, 1 Lee 444; Lambell v. Lambell, 3 Hagg. 568; Baptist Church v. Robbarts, 2 Pa. St. (2 Barr) 110.”

Judgment of court of common pleas affirmed.


author: WILDMAN, J.

text:
    BILL OF EXCEPTIONS — DEPOSITIONS—EVIDENCE—ERROR.
    [Lucas (6th) Circuit Court,
    March 22, 1907.]
    Haynes, Parker and Wildman, JJ.
    Pullman Co. v. William Washington.
    1. Time foe Adveese Party' to Examine Bill of Exceptions.
    While counsel should be granted the full ten days allowed by statute for examination of a bill of exceptions and the making -of objections thereto, a miscalculation by the clerk of court as to the time to which counsel were entitled for examination of the hill, and the premature delivery of it by the clerk to the trial judge for his signature, is not such an irregularity as will deprive a reviewing court of jurisdiction, where it appears that the hill was filed in time by the plaintiff in error and no substantial injury will result from disregarding the irregularity.
    [For ’other cases in point, see 1 Cyc. Dig., “Bill of Exceptions,” §§ 358-436. —Ed.]
    ‘2. Necessity of Masking Depositions at Trial.
    Failure properly to mark for identification certain depositions which were used at the trial below, or to attach them to the bill of exceptions, does not prevent their being treated as a part of the bill of exceptions, when it is reasonably certain-that they are the same depositions which were used in the court below, and that it was intended they should be made a part of the bill of exceptions but, owing! to an inadvertence, were not attached but filed with the original papers in the appellate court.
    [For other cases in point, see 1 Cyc. Dig., “Bill of Exceptions,” §§ 300-305; 3 Cyc. Dig., “Depositions,” §§ 171-175 — Ed.]
    3. Erroneous Interrogatories not Prejudicial, when.
    Where interrogatories are submitted to a jury relating to matters of an evidential nature rather than to ultimate facts, no prejudicial error can be based on the receiving of a verdict in which some of the answers to the interrogatories are neither affirmative nor negative, but simply the words “don’t know.”
    4. Sufficiency of Evidence in Negligence Case.
    A verdict for damages in- a substantial amount for an injury alleged to be due to defective apparatus can not be based on evidence that is vague, speculative and theoretical; and where a verdict is based solely on such evidence, the judgment thereon should be reversed and a new trial granted.
    [Syllabus approved by the court.]
    ERROR to Lucas common pleas court.
    Potter & Potter, for plaintiff in error.
    C. A. Thatcher, for defendant in error.
   WILDMAN, J.

This is a proceeding in error to reverse the judgment rendered in the court below in farvor of the plaintiff below, William Washington, for tbe sum of $5,000. The petition is based upon a claim of personal injuries sustained by Washington in the burning of a Pullman car of which he was porter. The petition charges various matters of claimed negligence, but upon the final trial of the case they were, in the judgment of the trial court, reduced to but one claim of defect in the heating apparatus of the car.

The questions which meet us at the outset of our inquiry are as to-the validity of the bill of exceptions, and as to whether or not certain depositions offered upon the trial below are to be treated as a part of the bill. A motion was made to strike the bill of exceptions from the files upon the ground that after its filing in the court of common pleas within the time required by statute, it was prematurely delivered by the clerk to the trial judge for his examination and signature. 'The clerk in this ease and in another which we have had occasion to examine seems to have miscalculated the time allowed by law' for the filing of objections to the bill of exceptions by adverse counsel, and upon the tenth day of such period, a day which belongs to the adverse counsel for the purpose of examination and filing such objections, the bills were handed to the trial judge.

Our judgment, from an examination of the various statutes, without referring to them more specifically, is, that counsel should have the full ten days for examination of the bill and making objections to it, and until the expiration of that period the bill should not be handed to the trial judge. It does not follow, however, that this irregularity of the .clerk is such an irregularity in a jurisdictional matter as will destroy the bill of exceptions. In the legislation in this state with reference to bills of exceptions, and the adjudications of courts thereon, much difficulty oftentimes of a seemingly technical character has been placed in the way of perfecting proceedings in error, by which the review of decisions of lower courts has been sought to be obtained in the court of last resort, or in' the intermediate appellate courts. At almost every session of the legislature some changes have been made as to the time of' filing bills of exceptions, or various steps of procedure to get them upon the record or to bring them to the consideration of the appellate court; but we are glad to discover in a very recent case decided by the Supreme-Court, the case of Davies v. Railway, 71 Ohio St. 325 [73 N. E. Rep. 213], that some of these matters which have heretofore been deemed jurisdictional are not now so considered by the Supreme Court, and that greater liberality is obtaining in the methods of perfecting bills of' exceptions. I read from the syllabus on page 325:

“1. Under the provisions of section 5301 [Lan. 8813], Revised Statutes, as passed October 22, 1902, it is incumbent upon the party tak--ing a bill of exceptions, to file tbe same in the cause with the clerk of the court within forty days after the overruling of the motion for neW trial, or the decision of the court excepted to, where a motion for a new trial is not filed, and having done this he has performed all the duties-imposed upon him by the statute.”

I will not stop to read the second paragraph or the third, which' bear more closely upon other claimed irregularities in the case which were considered by the Supreme Court. I read from page 332 of the 'opinion of Judge Price:

“What could have been shown to defeat the bill? It is not con' tended that the document filed with the clerk as a bill of exceptions-on the fifteenth of August, lost its identity in any way, or, that it was-tampered with by anyone during the interim of seven days.” [It ap' pears that the time of receipt of the bill by the judge was some seven days after the time when it was said to have been delivered to him by' the clerk.] “The temporary absence of the trial judge might account-for the bill’s coming into his hands on the seventeenth of September. Whatever it was that caused this lapse of time, it was not the fault of the party filing the bill. He has done his part toward its perfection, and the remaining steps are to be taken by the clerk and trial judge or judges. While the statute commands the clerk to transmit the bill to the trial judge within a certain number of days, and as to the officer the’ duty is mandatory, yet his neglect to do so within the period prescribed, would not lose the bill, provided it reached the trial judge in time ta enable him to allow, sign and return it within the time, prescribed for' that duty, and it is so allowed, signed and returned. What would be-the result if the trial judge should neglect to sign and return the bill within the time fixed by statute ? is another and different question not raised in this record and we express no opinion concerning it.”

The important part of this reasoning and language of the judge is, that he is treating the filing of the bill with the clerk as the only duty imposed upon the party, the remaining duties being those of the clerk in transmitting the bill to the judge and of the judge in considering and signing and returning it; and Judge Price seems to indicate by the language of the opinion that the bill would not be rendered invalid by the failure of the clerk to perform a ministerial duty, and that it possibly cannot be defeated even by the neglect of the judge to sign it within the statutory time, although this is left as an undisposed of ques* tion. On page 334 of the opinion, Judge Price says:

“All the objections made to the bill in the circuit court, as well &S those presented to us by counsel for plaintiff in error, are purely technical, and under our present law, are not valid. Under our former Statutes, several things were required of the excepting party in order to obtain a review1 of his case. Some of these were held in former decisions to be mandatory and jurisdictional, and if not) complied with the bill could not be considered.
“We-hope that day is now past. The former practice furnished a yawning sepulcher, wherein were swallowed up the honest efforts of litigants to have their controversies reviewed by a higher court. These lost rights made earnest protest to the general assembly, until it finally acted, and has adopted a more simple method of relief, and has attempted to utterly cast out some, of the difficulties which formerly hedged the way to a reviewing court. The legislative intent is plain in the present' statutes, and we aré not now required to follow as precedents all decisions of the court made under the former legislation.”

We think that the spirit of this reasoning justifies the holding of the bill good so far as this one question is concerned, although the clerk did hand or send the bill to the trial judge a day prior to the time when it should have been so transmitted. If probable prejudice to the defendant in error had been shown as a result of the clerk’s irregularity, it might be such a matter as would justify a rejection of» the bill. But nothing of that kind is indicated in this case. Indeed, it clearly appears that even after the bill passed into the hands of the trial judge, counsel for defendant in error had ample opportunity to examine it, and unquestionably, if the attention of the trial judge had been called to the fact that it was in his hands prematurely, or, without that, if his .attention had been called to matters which demanded correction in the bill, he would have given his attention to them and would not have signed the bill without propér correction. But nothing of this kind is claimed. It is not intimated to us in the arguments of counsel or otherwise that there was any objection to the bill as such — that is to say, that it demanded correction in any way — unless perhaps in one instance, in the omission to attach certain depositions, to which I will refer later, and as to those counsel for defendant in error is now insisting that they should, not be attached rather than that the bill should be corrected by attaching them.

Should these depositions be treated as a part of the bill? This is another important and possibly vital question involved in the present case. I should say that the depositions had been on file at some time prior to the trial of the case, and remained on file so far as appears on January 26, 1907, when the petition in error was filed in this court. The clerk then, seemingly taking it for granted that depositions were to be treated as original papers in tbe case, so indicated by lettering them and filed them with the other original papers and pleadings. On February 5 the bill of exceptions was filed in the court of common pleas. The' depositions should properly have been still on file in that court, but in. this instance as in the othér it was the inadvertence of an officer of the court rather than of a party that caused the depositions to be filed in the circuit court. I do not mean that it was the inadvertence of the clerk that the depositions were not attached to the bill of exceptions,, because it was no part of the duty of the clerk to attach the deposition» to the bill. That was the duty of counsel preparing the bill of exceptions or such agent as counsel might instruct to prepare the bill.

It does not seem, however, to have been deemed absolutely essential, even before this somewhat wide departure from former practice indicated by Judge Price in the case which I have cited, that the exhibits should be in all cases attached to the bill of exceptions. In a case tried by this, court before I was a member of it, Huron Dock Co. v. Swart, 24 O. C. C. 504, in the Erie circuit court, some exhibits were treated as a part of a bill when sufficiently identified by it, although they were not attached to it. The case was carried to the Supreme Court, and the court went a little beyond the decision of the court of common pleas .and .held as a part of the bill still another exhibit which had not been attached to the bill in the court below. The citation is Swart v. Dock Co. 69 Ohio St. 574. The court decides as follows:

“Judgment affirmed on authority of Busby v. Finn, 1 Ohio St. 409, the map and blue print being filed with the bill of exceptions and so described as to leave no doubt of their identity, and the same are therefore held to be a part of the bill of exceptions. ’ ’

To our minds there is not a particle of question, from the intrinsic* evidence of the depositions themselves and also the way in which they were mentioned in the bill and referred to as a part of it, that they were intended to be a part of the bill, that they were introduced in evidence and used upon the trial, and that it is a mere inadvertanee that they" have not become attached to the bill. It is urged that they are neither attached nor marked as the bill says they are marked, but it is so common a practice to refer to exhibits during the progress of a trial as marked by letter or number when they have not already been so marked before the statements are made that we conclude that the marks which were mentioned during the trial had not been placed upon the depositions, but that those marks were intended to be placed there before the making of a record.

As I have said, the intrinsic evidence afforded by an examination of the depositions themselves in connection with the statements in the bill of exceptions as to what occurred upon the trial, and what was shown, is sufficient to justify the conclusion that they were the same depositions that were used upon the trial, if indeed anything to the contrary were claimed by counsel. It is not asserted to us that they are not the same depositions. It is claimed by counsel for plaintiff in .error that thy are the depositions that were offered, and while we can-.mot amend a bill of exceptions, or take oral testimony to supplement one -or supply an omission in it, still we think we are justified under all jthe circumstances in concluding 'that these are the depositions that were intended by the bill of exceptions and that they are as clearly identified as were the exhibits in the Swart case. I am speaking now from information received from my associates who were members of the court at that time and I am not depending upon any recollection or knowledge of my own, although the facts in the Swart case finally decided in 69 Ohio St. 574 are fully set forth in the reported opinion of the circuit court, Huron Dock Co. v. Swart, supra.

This brings us to a consideration of the record as disclosed by the bill of exceptions. There are two or three claimed errors. So far as the charge is concerned and the special instructions given by the trial judge to the jury, we find no exceptions in the bill. Some earnest protest is made against the receiving of the verdict; or rather the .answers of the jury to some interrogatories by the statement that •they did not know. The words “don’t know” are given as an an•swer to some of these interrogatories, .and it is claimed that it was .error to receive these findings — that the jury should have been required to answer either in the affirmative or negative, or other definite .arid positive form, the interrogatories put. ~We think, however, that the .matters to which these questions were addressed were of an evidential nature rather than involving ultimate facts, and that it was proper .enough for the jury to answer as they did. At any rate, no claim of prejudicial error can be based upon answers of this kind where the interrogatories are not such as are contemplated by the statute as to ultimate facts necessarily involved in the conclusions to be embodied in the general verdict.

The important matter presented by this entire record and one which has demanded and has received at our hands several days of earnest consideration and discussion, is the question whether the verdict for $5,000 obtained by the plaintiff in the court below is justified by the evidence. It would not be profitable to attempt any extended review of the evidence disclosed in this, bulky package before me. The trial probably took a considerable time and the testimony and other evidence made a.very voluminous record; but our judgment, from an examination of it all from cover to cover, is, that the verdict is not justified by the evidence. There is a conflict of evidence, to be sure, and one which clearly entitled the plaintiff below to have the case go to the jury for its determination; but the matter is still left in the hands of a reviewing court to determine whether the verdict is or is not manifestly against the weight of the evidence.

The claims of the plaintiff, as I have said, were finally reduced by the consideration of the trial judge substantially to one, that there was a defect in a so-called drip valve, which was a part of the apparatus for the heating of the car, and that by reason of that defect there had been an escape of water unnoticed, but nevertheless a substantial and considerable escape of water, from the coils which were found within the heater; that upon a fire’s being kindled in the heater, the result of the ■noils’ being empty of water, was such that more heat was disseminated through the iron of the heater and communicated to the combustible materials in the ear; that a conflagration was thereby caused, and that the injuries received by Mr. Washington, the plaintiff, in his escaping from the ear or being burned while in the car were the proximate result «of this first defect to. which I have referred.

The evidence offered in support of the theory that the heater was defective in some way is perhaps cogent. There is the evidence in the ■depositions to which I have referred, and the testimony of the witness, Demay, that there was a defective condition in this heating apparatus which had existed for some time prior to the injury. It does not seem to have been indicated to anyone’s mind at that time that the defect was of a,character that would cause anything but discomfort to passengers. It was not such a defect perhaps as would load to the idea that there would be danger to the car itself by its destruction from fire; but merely one which lessened the heating capacity of the apparatus.

We are not prepared to say, however, that a defect of this character was not such as to justify a claim that the attention of the company should have been called to it so as to endeavor to remedy the defect, to ¡save the comfort of passengers, and that in so doing they might have ■discovered the specific defect, the cause of the failure to heat the car sufficiently, and might thereby have been led to a reasonable apprehension that there might be danger to the car itself. But this view is somewhat vague and uncertain. The whole evidence of the plaintiff, when we get .beyond the mere fact that there was some defect in the heating apparatus itself at some time prior to tbe burning of tbe car, is equally vague, speculative’ and tbeoretical, There is more or less theorizing on the ether side, but our view is, that there is some testimony, which; unless it be capriciously and arbitrarily rejected, is of sufficient significance to justify the finding that immediately after the conflagration and immediately before there was such quaptity of water in what is known as the expansion drum attached to this heater as to prove conclusively that the coils themselves must also have contained water.

It is very forcibly argued by counsel for the defendant in error that the defect to which Mr. Demay had called attention, if it be a defect, which is denied by some of the experts called on the other side, consisted of a three-sixteenth-inch, aperture in the drip valve instead of one-eighth of an inch, or two-sixteenths, which would result in a loss of water through this drip valve to a considerably larger extent than would be indicated at first blush to a nontechnical mind; in other words, that the proportion of loss is as nine to four, the' area of the circle increasing with the square of the diameter. And it might be added to reinforce this suggestion, a matter which has occurred to me and which I think is susceptible of scientific demonstration, that the smaller the aperture the greater the friction, so that with a larger diameter not only would there be a larger capacity for escape but also a chance for a more rapid flow. But however this may be, we are not inclined to think that the other evidence, somewhat connected with this, as to the amount of water that was drawn from the heating pipes of the car immediately after the fire, is at all satisfactory or conclusive in the way suggested by counsel for defendant in error. It seems that two plugs were opened,, or two holes were opened to enable the draining of these pipes after the fire, and the amount of water that was so drawn off is to be determined only from the estimates or guesses of the witnesses as to the time which it took for the water to escape, something that is as unreliable almost as any kind of evidence, unless it be the evidence of witnesses as to conversations.

Immediately after the fire, and immediately before, according to the testimony of witnesses, an examination was made of the expansion drum attached to the heater, and it is said to have been found about half full of water. I have already stated that if that be true, it is inconsistent with the theory of the defendant in error that the coils were empty at the time of the fire. There is other evidence, practically undisputed, that the zinc bounding or defining the enclosure in which the furnace part of the heater was placed was either burned or melted away in patches at some places, and there is some evidence, theoretical to be sure, that before tbis could be accomplished, the coils themselves, if they were empty of water, would have been melted. "We do not deem this evidence very conclusive one way or the other, but we do feel that there-should not be an arbitrary and capricious rejection of the testimony of witnesses, which stands unimpeached and consistent with itself, that-there was water in the expansion drum in such quantity as to evidence that the coils themselves were supplied with it. We think this evidence-should have been considered by the jury, and taking the evidence in its entirety, and without further comment upon it — and very much more-might be said — we think that the verdict is not justified by the evidence. For this reason and no other the judgment of the court below will be-reversed and the case remanded for a new trial,

Haynes and Parker, JJ., concur.


author: PARKER, J.

text:
    JUDGMENT AND DECREES.
    [Wood (6th) Circuit Court,
    April 27, 1907.]
    Haynes, Parker and Wildman, JJ.
    Frank Frazier et al. v. William Walker.
    1. When Judgment Mat be Set Aside’ at Subsequent Term.
    A motion to set aside a default judgment and revive the cause for further-hearing can he heard at a subsequent term t-o that of the entry of the judgment only when the motion has been filed during the term of the.: entry of the judgment and continued.
    [For other cases in point, see 5 Cyc. Dig., “Judgments and Decrees,”! 395. —Ed.]
    2. Appellate Court Can Dismiss Action and Adjudge Costs when Appellant-is in Deeault fob Petition.
    Under Rev. Stat. 6589 (Lan. 10171) the appellate court has authority to dismiss an action and adjudge the costs against the appellant on its. own motion when the appellant, who is the plaintiff, is in default for a. petition.
    [Syllabus approved by the court.]
    Error to Wood common pleas court.
    Baldwin & Harrington, for plaintiff in error.
    Eugene Rheinfrank, for defendant in error,
   PARKER, J.

William Walker sued Frank Frazier and Richard Priest before a. justice of the peace on November 8, 1905, in an action for fenoney. The verdict of the jury upon the trial was against and judgment was. entered on this verdict on December 11, 1905'; he gave notice of appeal and perfected his appeal to the court of common pleas by giving bond. and filing bis transcript in that court on January 15, 1906. The trans-.script was due January 15, 1906; it was in fact filed upon January 4, 1906, so that it was filed in due time. The petition was due on the third Saturday after January 15, which would be upon February 3, 1906. No petition "was filed at that time or during that term, which was the January term. No petition was filed at the following term which was. the April term, and on May 7, 1906, the action was dismissed.

The journal entry dismissing the case reads as follows:

“This day this cause came on for trial and it appearing to the ■court that the plaintiff has failed.and neglected to file his petition herein and has neglected to prosecute said cause to final judgment, and that the time has long since passed for the filing of said petition, it is hereby ordered and adjudged that the said cause be dismissed and that plaintiff pay the costs herein taxed to $-- and execution is hereby .awarded.”

It does not appear that any action was taken by the defendant, .Frazier, to bring about the dismissal of this cause; so far as appears the court proceeded upon its own motion, upon the matter being brought in some way to its attention.

It is suggested that there was some irregularity in this proceeding, because it should have been based upon a motion, and Walker •should have received notice of the motion in due time so as to be present .and resist it. Rev. Stat. 6589 (Lan. 10171) provides:

“If the plaintiff, in the action before the justice, shall appeal from .any judgment rendered against such plaintiff, and after having filed his transcript and caused such an appeal to be docketed, according to the provisions of this chapter, shall fail to file a petition, or otherwise neglect to prosecute the same to final judgment, so that such plaintiff .shall become non-suit, it shall be the duty of the court to render judg.ment against such appellant, for the amount of the judgment rendered against him by the justice, of the peace, together with interest accrued thereon, and for costs of suit, and to award execution therefor, as in ■other cases.”

We. think that necessarily includes authority, where there is no judgment to be rendered against the plaintiff except a judgment for costs, to dismiss the action for want of prosecution and render judgment against the appellant for costs, and that this may be done by the ■court upon its own motion because of the nonprosecution of the action, .so we hold that there was no irregularity in that proceeding.

■At the April term, to wit, June 11, a motion was filed by Walker to have this judgment of dismissal set aside; the ground of the motion was that he was prevented by an unfortunate casualty from looking after bis ease, that he had received an injury about the time his petition was due and that he has been disabled and confined to his louse ever since so that he could not look after his case. The motion was not verified. It does not appear that any notice of the filing of the motion was served upon anybody, though it is stated in argument •and we will assume that it is correct, that counsel for Frazier were advised of the motion and were present to resist it at the April term. There is nothing in the record however disclosing whether that is so. but that we regard as immaterial. No action was taken upon this motion at the April term. The next thing that appears in the record is' an entry under date of November 16, 1906, which was- at the September term, as follows:

“This day this'cause came on to be heard upon plaintiff’s motion filed ai the preceding term of this court to set aside the judgment by default rendered at said term on account of failure of plaintiff to file his petition herein and for leave to plaintiff to file a petition in said cause, and, on due consideration thereof, and of the affidavits and all the proceedings in said cause and being fully advised in the premises, the court does grant said motion. It is, therefore, ordered and- adjudged that the judgment by default heretofore rendered in this cause, be, and the same hereby is, set aside and held for naught, and the plaintiff is hereby granted leave to file his petition herein by November 24, 1906, to all of which the defendant excepted. ’ ’

Now Frazier prosecutes error in this court to reverse this action of the court of common pleas in setting aside the judgment of dismissal and reinstating the cause and giving the plaintiff leave to file his petition.

We are of the opinion that the’court of common pleas erred. That it had no authority in the premises to make this order. We do not quite agree upon all points — that is to say, we do not all arrive at this conclusion by the same process of reasoning,, but we are all agreed in the conclusion, which is after all the material thing. The question has been debated before us and by us whether this motion filed during the term at which the judgment was dismissed, could keep alive the matter with respect to which it had invoked the action of the court— whether thereby the matter could be kept pending in court until another term so that the court might at such subsequent term hear and act upon the motion. About that we have differed somewhat; some of us being of the opinion that by a specific or a general order of continuance it might have been kept pending so that it could have been lawfully acted upon at a subsequent term, but those of us entertaining that view also en-tertain the view that it was not so kept pending, because there was no order of continuance either special or general, and we are of the opinion that a matter of that kind, a proceeding to vacate a final judgment which has finally disposed of a case, differs essentially from an undetermined cause, which will remain pending until it is disposed of that this proceeding cannot be kept alive from term to term without an order of continuance of some description, either general or special. One-member of the court is inclined to the opinion that if it could be acted upon at all at a subsequent term as a motion, it might be continued by operation of law or might be regarded as still pending until disposed! of. Those of us entertaining the opinion that it could have been continued are of the opinion that if continued it might have been acted upon at a subsequent term as a motion, while the member who is of the-opinion that it might have been continued by operation of law is of the further opinion that even if that were done, it could not as a matter-of law be acted upon at a subsequent term by reason of the provisions, of Rev. Stat. 5354 to 5357 (Lan. 8880 to 8883) and especially Rev. Stat. 5358 (Lan. 8884). These sections are in a chapter upon the subject of new trial and other relief after a term at which the judgment is entered, and Par. 7 of Rev. Stat. 5354 (Lan. 8880) has reference to the rule for relief from the consequence of unavoidable casualty or misfortune, preventing a party from prosecuting or defending an action and Rev. Stat. 5358 (Lan. 8884) provides that proceedings upon that account must be-by petition, duly verified, whereas in .this ease there was no petition and no verification of the application.

I have said enough perhaps to indicate the conclusion of the court,. i. e., that if the application could have been heard and granted upon a motion at a subsequent term it must be by reason of the motion being-filed during the term and duly continued, and a majority of the court are of the opinion that it might have been done in that way. And we are-of the «opinion that if it could not be acted upon at the subsequent term as a motion — if the failure to continue amounted to a discontinuance of the motion, no petition having been filed, then it follows that the action of the court was erroneous; and we all agree that upon one or the other of these grounds, the action of the court' was erroneous, and therefore it is reversed, with costs.

Haynes and Wildman, JJ„ concur.