author: Carpenter, J.

text:
    TITLE TO A BANK DEPOSIT.
    Court of Appeals for Cuyahoga County.
    In re Estate of Ellen Morgan.
    Decided, January 21, 1918.

      Banks and Banking — Purpose of Section 9790-1, is for Protection of Banks — Title to a Deposit Not Determined Thereby — Funds Belonging to Mother But Deposited in Names of Mother and Daughter Jointly — Held to Pass on Death of the Mother to Her Personal Representative.

    1. The provisions of Section 9790-1, having reference to hank deposits made in the names of two persons and payable to either of them or the heir of either of them, is for the protection of hanks receiving such deposits, and while payment may he made under the authority of this statute to the survivor of either, such payment does not determine the question of title to ithe fund.
    2. The direction given by a mother to the hank in which she was depositing a fund, that it should he paid -to herself or her daughter L or the survivor of either of them, was not a gift inter vivos to the daughter, nor in any way a testamentary disposition of the fund, and upon the death of the mother title to the fund passed, not to the daughter, hut to the personal representative of the mother.
    W. J. Hamilton, for plaintiff in error.

      E. J. Thobaben, contra.
   Carpenter, J.

This case is here on error from the common pleas court.

From the statement of facts, it appears that Ellen Morgan, having a deposit of $1,038.88 with the Society for Savings, went with her daughter, Lillie Morgan Fetzer, to Society for Savings and said to the officer in charge that she wanted her daughter to have this money, and that if they would agree to pay to said daughter whatever might remain in said account at her (the mother’s) death, provided she should die first, that she (Ellen Morgan) would leave such account with the bank subject to the right of withdrawal by either daughter or herself until the death of either herself or said Lillie Morgan. The bank having assented to this - proposition, said Ellen Morgan caused the name of her said daughter to be added to her own on said bank boob, to which was added the words, “Mrs. Morgan or Lillie Fetzer, payable to either or the survivor.” The record of the account, as kept by the bank, used this language. The mother placed the book in a safe deposit box to which the mother alone had access, and it was found there at the time of her death.

The common pleas court, on appeal from the judgment of the probate court, rendered judgment against the plaintiff, Lillie M. Fetzer, holding that the money in said deposit belonged to the estate of said Ellen Morgan. The ease is here to reverse this judgment. We find no error in this case to the prejudice of the plaintiff.

Section 9790-1, General Code, provides that where a deposit has been made in any bank, savings bank, etc., in the names of two persons, payable to either, or to either or the- survivor, such deposit or any part thereof or any interest or dividend thereon may be paid to either of said persons, whether the other be living or not, and the receipt of the person so paid shall be a valid and sufficient release and discharge to the bank for any payment so made.

It is evident that this statute was enacted solely for the benefit of the bank, and not for the depositor. It will be observed that it relates to the payment only, and protects the bank from further obligation and avoids suits that would otherwise -be likely brought .against it. It would scarcely be claimed by any one that this statute related in any manner to the title to moneys on deposit at the death of the depositor. It is -claimed, however, that inasmuch as the bank agreed to pay to either said Ellen or her daughter Lilly, as above set forth, on the consideration that the deposit would be allowed to remain subject to withdrawal by either, that thereby the bank became obligated under the doctrine that an agreement made on a valid consideration by one person with another to pay money to a third can be enforced by the latter in his own name, ,and therefore the title to this property at the death of Ellen passed or devolved by operation of law to Lilly. .The statement itself shows the absurdity of the claim. The fallacy is discoverable in that it assumes payment creates title. The bank held the money, the title of which was in the mother, ,and the agreement of the bank to pay, even on consideration, could not change the title. True, if Lilly had drawn out any or all of this money and had spent it, which she had full right to do, there would be nothing left to which title could be asserted. But as to the title to the money remaining in the bank during the life of the mother there can be no question, for it is conceded that Lilly had not contributed to the fund; being the mother’s at the time of her death, it would descend as a part of her estate unless the transaction at the bank created a right of title at the death of Ellen. It is not claimed that the transaction amounted to a testamentary disposition. As between Lilly and her mother there passed no consideration. It could not be said that it was a gift inter vivos, because there was not an irrevocable delivery; in fact there was no delivery. The donor retained the right to its use. And there is no claim that it was a gift causa mortis, or a testamentary disposition.

In our opinion the plaintiff utterly fails to make her ease, and we therefore affirm the judgment.

Grant, J., and Lieghley, J., concur.


source: Caselaw Access Project

author: Chittenden, J.

license: Public Domain

text:
    ALIMONY AWARDED TO A HELPLESS HUSBAND.
    Court of Appeals for Lucas County.
    Mary A. Albert v. George W. Albert.
    Decided, April 21, 1916.

      Husband and Wife — Blind Husband Deserted by Wife — His Petition for Divorce Denied — But Division Ordered of Property Acquired and Placed in Wife’s Name During Coverture.

    1. Where a husband files a petition for divorce and alimony, and upon trial the court refuses to grant a divorce, alimony may be awarded to the husband.
    2. Whether a husband can begin and maintain an action for alimony alone — Quaere. - • •
    3. Under -Sections 7995 and 7997, General Code, a husband, unable to support himself, may compel his support by the wife regardless of any right to maintain an action for alimony alone.

      Marshall Fraser, for plaintiff in error.

      W. W. Campbell and B. F. James, contra.
   Chittenden, J.

■Error to the court of common pleas.

This is a proceeding in error from a decree of the common pleas court awarding alimony to the defendant in-error.- The ease was tried upon the amended petition and an amendment and supplement to the amended petition of the plaintiff, George W. Albert, and the answer thereto of the defendant, Mary A. Albert. The. prayer of the plaintiff was for divorce and • alimony. ■ The court found from the pleadings and evidence that- certain property described in the journal entry was acquired by the parties during coverture and paid for from the earnings of the plaintiff, and that title was taken in the name of the defendantT The court further found that the plaintiff was not entitled to a divorce and his prayer for that relief was denied. It was further found that the parties are living separate and apart; that the plaintiff is totally blind; and that the defendant has refused to live with or eare for the plaintiff. The entry thereupon recites that the plaintiff is entitled to alimony from the said defendant and that the defendant should convey to the plaintiff as and for alimony an undivided one-half of all the real estate. The decree further provides that the defendant shall execute a conveyance to the plaintiff for such undivided one-half interest and that upon her failure so to do the decree shall operate as such conveyance. To all of which findings and decree the defendant excepted. No bill of exceptions is filed in this court, and the only question submitted for decision may be stated as follows:

Where a husband files a petition for divorce and alimony, and upon trial the court refuses to grant a divorce, can a decree for alimony be awarded to the husband?

This requires an examination of the statutes relating to that subject. The decree is said to be based upon the provisions of Section 11992, General Code, which reads as follows:

“When it appears to the court that the husband is the owner of little or no property and the wife is the owner of lands or personal estate, or both, the court may adjudge to the husband such share of her real or personal property, or both, or may decree to him such sum of money out of her estate, payable in gross or by installments, as it deems just, having due regard to all the circumstances of the parties.”

This section by its terms seems to be ample authority for the granting of the relief given in this case, but plaintiff in error contends that it is not applicable to a situation such as is disclosed by the record. Attention is called to the fact that the section just cited was a part of Section 5699 of the Revised Statutes, which section, by the adoption of the General Code, was divided into three sections and numbered 11990, 11991 and 11992. That part of the section of the Revised Statutes now found in Section 11992 was an amendment to Section 5699, Revised Statutes, passed by the General Assembly May 19, 1894 (91 O. L., 348). Prior to this amendment there was no provision for the granting of alimony to a husband when a divorce was granted to- the wife upon the aggression of the husband.

Reliance is had upon the case of DeWitt v. DeWitt, 67 O. S., 340, and attention is called to the language of the court in the decision of that case, found on page 353, a portion of which we quote:

"The amendment, if taken unqualifiedly, is contradictory to the earlier part of the section, and if the defendant desired to avail himself of its provisions, he should have made a case justifying its application. The purpose of the amendment probably is to place the erring husband in a position respecting property akin to that given an erring wife by the succeeding section, but the language is less general and noticeably more guarded.”

In that case a divorce, had been granted to the "-'~- the aggression of the husband, so that the exact question now under consideration was not before the court. It appears from an examination of that case that the husband was possessed of con7 siderable means at the time of the decree, and we have no doubt that what the court meant by the language "and if the defendant desired to avail himself of its provisions, he should have made a case justifying its application,” was that he had not shown to the trial court that he was the owner of little or no property and that his wife was the owner of lands or personal estate. This case is in no way decisive of the one at bar.

The doctrine of alimony, as stated in 14 Cyc., 743, is based upon the common law obligation of the husband to support his wife, which is not removed by divorce obtained by her for his misconduct. As stated by Judge Davis in Fickel v. Granger, 83 O. S., 101, on page 106:

"Alimony is an allowance for support, which is made upon considerations of equity and public policy. * * * It is based upon the obligation growing out of the marriage relation, that the husband must support his wife, an obligation which continues even after a legal separation without her fault.”

Many other cases might be cited showing that the courts have ever recognized that the doctrine of alimony rests upon either the common law or the statutory obligation of the husband to support -the wife. It is -unnecessary to review the history of the legislation of this state whereby the rights of married women have been gradually enlarged until, for .some years, they have been the same as the property rights of a feme sole. After having established this status, it was further provided by an act of the General Assembly, Section 7995, General Code, “Husband and wife contract toward each other obligations of mutual respect, fidelity and support.” Section 7997, General Code, provides that, “The husband must support himself, his wife and his minor children out of his property or by his Labor. If he is unable to do so the wife must assist him so far as she is able.” By the first of the above cited sections husband and wife mutually contract for each other’s support. By the latter section the duty of support is place primarily upon the husband, but with the obligation upon the wife to assume her contractual burden in case of his disability. In view of their legal status as thus stated, every reason exists why the right of the husband to the support of his wife, under the conditions named in the statute, .should be enforced by legal proceedings. We do not have before us the question as to whether or not a husband can begin and maintain an action for alimony alone, as no such case is presented by the pleadings, for in this ease the action, as has been stated, was for divorce and alimony.

If we examine Section 5699, Revised Statutes, as it is insisted we must do in order to correctly construe Section 11992, General Code, we find th,at the amendment begins with these words, “But in any case” when it appears to the court that the husband is the owner of but little or no property, etc. It is significant that the amendment did not read, “But in any case when a divorce is granted.” We think it an entirely reasonable construction of the section of the Revised Statutes that it was intended by the Legislature to empower the court, in any case — that is, any case in which a divorce was sought — to grant alimony to the husband if the facts and circumstances required it. We find that when it, came to codifying the laws of Ohio this section was divided into three separate sections, and that the Legislature adopted the code with these three sections standing as independent sections. Wé are Of opinion that one of the purposes in doing this was to make the intent of the Legislature with reference to the ■ granting of alimony to a husband more clear and definite. The General Code is to be construed in the form in which it is now found. While it is often proper and perhaps necessary to trace the history of legislation and to examine the original form of a law to ascertain the true intent and meaning .and to properly construe it, yet the form of the statute as it existed prior to the codification is not necessarily controlling. State v. Toney, 81 O. S., 130. We quote from the language of Judge Spear, beginning on page 139, as follows:

“Nor is it accurate to treat the change in'the statute as the work of the codifying commission. Their codification was submitted to, considered by, and adopted by the law making body of the state, the General Assembly. It should not receive any less respect because the change may have been recommended by three commissioners learned in the law instead of being proposed in the first instance by some single member of the General Assembly, and after all is said, the enactment receives its vigor and force as law by reason of its enactment by the General Assembly, no matter from what source the inspiration came.”

We are unable to hold that the operation of Section 11992, General Code, is limited by Section 11990, and that a husband can not be awarded alimony unless a divorce is granted to the wife because of his aggression. If the legal duty devolves upon the wife to support the husband when she is able to do so, and he is disabled, and if that right can be enforced upon the granting to her of a decree for divorce, it would seem by every rule of logic and common sense that she should certainly be required to furnish such support while the marriage is still in force.

We are strengthened in our view of the plain intent of the Legislature to provide for the granting of alimony to a husband, by Section 11992, General Code, by a consideration of Section 11994, which provides, in substance, that the court may grant temporary alimony to either the husband or wife “during the pendency of the action for divorce, or alimony alone.”

An examination of the legislation to which attention has been called plainly shows that the Legislature attempted to give a husband and a wife equal property rights, and to impose upon them mutual obligations, and to furnish means for the enforcing ’ of these obligations, and we think that the court had the power to make the decree to which error is prosecuted.

Aside from all questions of the power of the court to grant the relief that it did, as alimony and by virtue of the statutory enactments relating to that subject, a majority of the court are of opinion that, with the record as we find it, that is to say, upon an examination of the pleadings and the finding and decree of the court, there being no bill of exceptions presenting the evidence, the decree may be and should be sustained upon an additional ground. Sections 7995 and 7997 quoted above impose the positive legal duty upon the wife to support or assist in the support of the husband when he is unable to support himself. The Circuit Court of Pike County, in Hickle v. Hickle, 6 C. C., 490, held that under these statutes a husband might compel his support by the wife regardless of any right to maintain an action for alimony alone. The court made an exhaustive examination of the cases bearing upon the subject, and entered a decree in favor of the husband, requiring the wife to support him. The decree herein was evidently not based upon the sections quoted above, for the decree in this ease is that the plaintiff is entitled to alimony ,and the defendant is ordered to convey to the plaintiff an undivided one-half interest as and for alimony. In view of the fact that the petition contained all of the allegations necessary to present a case compelling the wife to furnish support to her husband, we deem it immaterial that the trial court denominated the award as alimony. The character of the allowance is not changed by the fact that in the decree it is designated as alimony. Kelso v. Lovejoy et al, 9 C.C.(N.S.), 539, affirmed by Supreme Court, without report, 76 O. S., 598; Webster v. Miller, 18 C.C.(N.S.), 272, affirmed, without opinion, 83 O. S., 473.

The decree is in this court attended by every presumption of its regularity and correctness, and the burden is upon the plaintiff in error to show prejudicial error. This she has failed to do.

The court, while not in entire accord on grounds for affirmance, is unanimous in its conclusion that the judgment should be affirmed.

The decree will be affirmed.

Richards, J., and Kinkade, J., concur.


author: Farr, J.

text:
    RESTRICTION IN THE PRIVILEGES OF A THEATER ON ACCOUNT OF COLOR.
    Court of Appeals for Jefferson County.
    Malinda Guy v. The Tri-State Amusement Company.
    Decided, December Term, 1917.

      Damages — Infringement of Civil Rights — Color or Race Discrimination — Place of Public Amusement — Proprietor Liable Under Section 12941, General Code, When.

    The proprietor of a picture show who refuses another the right or privilege of sitting in a certain or particular part of the theater or auditorium during the performance or display of pictures, and such refusal is on account of race or color and for no other reason, is liable to be penalized under Section 12941, General Code.

      Edward McKinley and E. DeWitt Erskine, for plaintiff in error.

      Harry L. May and W. C. Brown, contra.
   Farr, J.

This is a proceeding in error brought to reverse a judgment of the court, of common pleas of this county, and the parties sustain the same relation here as in the court below. On the 17th day of December, A. D. 1916, Malinda Guy, the plaintiff in error, filed her petition in the court below seeking to recover from the Tri-State Amusement Company for an alleged violation of Sections 12940 and 12941 of the General Code, which provide that there shall be no denial of privileges at inns and certain other places to a citizen, by reason of color, except for reasons applicable alike to all citizens regardless of color.

The plaintiff alleges in her petition that on or about the 1st day of August, A. D. 1916, she went into the Olympic Theater in the city of Steubenville in company with one Isaac E. Stady, a colored man, and a theological student of Wilberforce University, she herself being a colored woman. She further alleges in her petition that she purchased two tickets at the price of ten cents each; that she surrendered the tickets to the person at the entrance, passed into the theater, and was seated in the fifth row, the second seat in, in the center tier of seats; that the usher approached her and requested her to abandon her seat and be seated on the right-hand side or in the right-hand tier of seats in said theater.

It is further alleged in the petition that she left said theater, surrendering her tickets at-the window where she had received them. To this petition an answer is filed by the defendant company, the defendant in error here, stating or admitting that it had rules and regulations providing for the conduct of people within said theater, and that it was the duty of its usher or ushers to show people to their seats in said theater, but denying that there had been any discrimination against Malinda Guy, or Isaac E. Stady by reason of their color. The cause came on to be heard and was tried to a jury. There was a verdict for the defendant and judgment upon the verdict, to which error is prosecuted in this court.

As above stated the action below is predicated on Sections 12940 and 12941 of the General Code. The former section reads as follows:

“Whoever, being the proprietor or his employee, keeper or manager of an inn, restaurant, eating house, barber-shop, public conveyance by land or water, theater or other place of public accommodation and amusement denies to a citizen, except for 'reasons applicable alike to all citizens and regardless of color or race, the full enjoyment of the accommodations, advantages, facilities or privileges thereof, or being a person who aids or incites the denial thereof, shall be fined not less than fifty dollars nor more than five hundred dollars or imprisoned not less than thirty days nor more than ninety days, or both. ’ ’

And the latter section provides as follows:

-“Whoever violates the next preceding section shall also pay not less than fifty dollars nor more than five hundred dollars to the person aggrieved thereby, to be recovered in any court of 'competent jurisdiction in the county where such offense was committed. ’ ’

The petition below sought to recover under and by favor of this latter section. Mrs. Guy says that she purchased said tickets for admission on said evening of August 1st; entered said theater, surrendered the tickets, went down five rows from the rear of the theater, and sat down in the second seat in from the aisle in the center section of seats; that soon after she had taken her seat she looked back and saw her companion, Mr. Stady, conversing with the usher, Mr. Russell, who came to her a few 'minutes later and asked her in a genteel manner to take a seat on the other side, designating the right-hand side of the theater; that she asked the usher why, and he said again, “Will you kindly take a seat on the right-hand side of the theater?” She again interrogated him to know why, and he said, ‘ ‘ On account of your color.” This testimony is substantially corroborated by Mr. Stady. He says that he had a conversation with the same usher and was going to sit with his companion, Mrs. Guy, when the usher forbade him to do so, and- he then said he had gone to the theater in company with her and he wished to sit with her. The usher said that he could not do so in the center section, and that he must be seated on the right-hand side of the theater. Mrs. Guy then returned to where Mr. Stady was, and the two left the theater together, but later returned in company with a friend who had some conversation with the usher with reference to the matter, and it is not denied that the usher stated that he had invited the two colored persons to be seated on the right-hand side of the theater on account of their color.

If there were any denial of that fact the record settles it once and for all at page 36, in the examination of Mr. Russell, who was the usher on that occasion. He says: “ I said, kindly remove to the other side of the house. She said, Why? I said, On account of your color.” So that Mr. Russell admits that the request for the removal to the right side of the auditorium was because they were colored persons.

It is urged in argument that the Tri-State Amusement Com-, pany, operating this theater, had the right to make such reasonable rules and regulations as they saw fit to make with reference to the seating of persons in their theater, and that they were permitted to make a rule authorizing or requiring their usher to show people to seats within their theater. There can be no question but what such rules would be permissible under the law of this state. However, it must be noted by said Section 12940 that it is provided that .all citizens, regardless of color or race, shall have the full enjoyment of the accommodations, advantages, facilities or privileges thereof, that is, at inns, places of amusement and other places enumerated in said statute.

The matter of these people being seated within the theater was a privilege, and if this section of the General Code is rightly understood, it is not simply a privilege of seeing the pictures or hearing the music or meeting and greeting their friends, but all patrons are entitled to fully enjoy aKke all the privileges accorded to patrons within the theater.

It might be contended here that these persons had just as good an opportunity to see the pictures or vaudeville performance, if such there may have been, seated on the right-hand side as if they were seated in the center section. However, if these colored people were required to be so seated they would only be allowed partial enjoyment of the privileges of that theater, because white persons were permitted to occupy the center section as well as tire other parts of said auditorium; that is to say, they could enjoy the privilege of seeing the pictures, they could enjoy the privilege of hearing the music, they might enjoy the privilege of greeting their friends and acquaintances within the building, yet at the same time they were certainly denied some of the privileges that were given to persons of the white race, because the latter might enjoy the additional privilege of the center section of seats.

For instance, if two persons of the white race had purchased tickets for a like consideration and seated themselves in the center section of seats, under the rules and regulations of this theater they would not have been called upon to have- taken seats on the left-hand side or right-hand side. Therefore, these colored people were directed to sit upon the right-hand side of the theater, which was a place set apart for their use and they were not permitted to sit in other parts of said auditorium. It is urged, and with considerable force in argument, that theater managers have a right to make such reasonable rules and regulations for the conduct and control of people within their theater as may seem to them necessary; however, the provisions of said Section 12940 must be kept in mind, wherein it is provided that privileges shall be extended alike to persons of 'all races. Therefore, no rules or regulations can be made in violation' of or that would contravene this section of the statute.

Somewhat helpful is a well considered case from this immediate jurisdiction; it is The Youngstown Park & Falls Street Railway Co. v. Tokus, 4 Ohio Appellate Reports, 276; 22 C.C. (N.S.), 417. This was a case where two young colored persons, Tokus and his sister, attended a Sunday school picnic; having purchased tickets they went upon the floor of the dancing pavilion, and after having been there some time they were bidden by the person in charge of the platform to leave, which they did.

Suit was brought, and in passing upon the case it is held:

“A proprietor of a public dancing pavilion, who ejects another therefrom after he had been admitted thereon, on account of his color or race and for no other reason, is liable to pay0.a penalty, under Section 12941 of the General Code.”

The very section upon which suit is predicated here.

Tokus and his sister were well behaved and orderly colored persons. It was hinted and even suggested that by reason of greater grace of movement on the dancing floor than some of the other dancers, jealousy of persons of the white race was excited, and for that reason their dismissal was brought about.

What are the circumstances in this case? Here was this young theological student and this lady, both persons of good character. Was there any reason why they should be discriminated against? Is it not true that under the provisions of the foregoing sections of the statute they were discriminated against ? To hold otherwise would be to render these sections as sounding brass. Said sections were passed by our Legislature, not for any imaginary, but a real purpose. A little more consideration, a little more willing obedience to these laws on the part of' the people of the white race might render some of the problems which have arisen a little less perplexing.

The charge of the court below was clear, concise and explicit. The jury certainly did not comprehend it. The record clearly discloses a violation of these sections of the statute; that the plaintiff in error here was entitled to recover under said Section 12941 there can be no question.

It follows, therefore, that by reason of the jury failing to comprehend the instructions of the court, that the case must be reversed and remanded for a new trial, which is done accordingly.

Pollock, J., and Metcalfe, J., concur.


author: Kunkle, J.

text:
    IMPRISONMENT AS A PENALTY FOR FAILURE TO PAY FINE AND COSTS.
    Court of Appeals for Darke County.
    Percy Witters v. Lynn Browne, Sheriff of Darke County.
    Decided, January 7, 1918.

      Sentence — Suspension of — Remedy in Case of Refusal to Pass on Motion for a New Trial — Delay in Enforcing Sentence Not a Bar to Its Execution, When.

    1. The effect of the overruling of an application for a nunc pro tunc entry suspending sentence is to adjudicate conclusively that no order of suspension was ever made. The remedy is a proceeding in error, or in the event of the court refusing to pass on the motion for a new trial the remedy is to compel action by a writ of mandamus.
    2. Where no fixed term of imprisonment is named, and it is provided only as a means of enforcing collection of a fine and costs, delay in its enforcement does not prevent the issuing of a writ of execution.

      John Maher, for plaintiff in error.

      George F. Crawford, contra.
   Kunkle, J.

This .action was brought by plaintiff in error to enjoin defendant in error, as sheriff of Darke county, Ohio, from proceeding under an execution issued by the Probate Court of Darke County in a criminal action wherein plaintiff in error was adjudged to pay a certain fine and costs.

Plaintiff in error claims that the probate court, at the time the sentence was imposed, ordered the same suspended but neglected to enter the same of record.

It further appears from the petition that a motion to enter such order of suspension mino pro tunc was overruled and that a motion for a new trial was filed within three days after such refusal and is still pending.

A demurrer was filed and sustained to the petition, and the plaintiff not desiring to amend a final judgment was entered dismissing the petition. From said judgment plaintiff in error prosecutes error to this court.

The only question for consideration relates to the sufficiency of the petition.

Two questions were presented:

1. As to the alleged suspension of the sentence.

2. As to the delay in the enforcement of the sentence.

As to the first proposition, it is conceded that an application was made to the probate court to enter such order of suspension nunc pro tunc, and that such application was refused. The effect of such refusal was to adjudicate conclusively that no such order of suspension was made.

If such adjudication was erroneous, the remedy of plaintiff in error was to prosecute error therefrom. Such adjudication can not be impeached collaterally. The filing of the motion for a new trial and the failure of the court to pass upon the same does not operate to annul the finding and judgment upon the application for a nunc pro tunc order.

Plaintiff’s remedy in case the probate court refused to pass upon such motion for a new trial was to compel action thereon by a writ of mandamus.

We have carefully examined the authorities presented as to the second proposition and are of opinion that in Ohio the mere failure to issue an execution upon the judgment in question, under the circumstances set forth in the petition, is not a bar to an execution issued thereon and now in the hands of defendant in error as sheriff.

Considerable stress is laid upon the decision of Judge Houck of the Fifth District in a recent decision. We have carefully considered this decision and are of opinion that the case at bar is clearly distinguishable from the one decided by the Fifth Appellate District.

The ease decided by Judge Houck involved a sentence of imprisonment for a fixed term, and that court merely held that under Section 13714, General Code, thé trial court could not revoke a suspended sentence and proceed to execute the sentence after the expiration of the longest period for which the defendant might have been sentenced. The case at bar contains no fixed sentence of imprisonment, but merely provides for imprisonment as a means of enforcing the collection of the fine and costs, and there is no special statute limiting the time for executing the sentence under consideration.

The demurrer having been properly sustained, the judgment should be affirmed.

Execution of sentence may be suspended for thirty days if counsel desire to secure the judgment of the Supreme Court upon this case.

Allread, J., and Ferneding, J., concur.


author: Allread, J.

text:
    MAINTENANCE OF AN OVERHANGING CORNICE ENJOINED.
    Court of Appeals for Shelby County.
    Henry F. Young et al v. Ignatius Henry Thedieck.
    Decided, February 13, 1918.

      Overhanging Cornice — Party Wall — Easement—Mandatory Injunction Against Maintenance of Cornice — Property Bights Above the Same as Those on the Surface.

    1. The construction and maintenance by one lot owner, of a cornice extending beyond the party wall over the lot of an adjoining proprietor without his acquiescence or consent is a violation of the latter’s property rights.
    2. The establishment of a party wall does not by implication give one proprietor the right to extend his structure over the adjoining lot.
    3. The fact that the overhanging cornice is constructed above the present building on the adjoining lot and does not affect the present use thereof is no defense.
    4. Mandatory injunction is an appropriate remedy to enforce the property rights so violated.

      D. F. Mills, for plaintiff.

      Hess & Hess, contra.
   Allread, J.

This action was brought to obtain a mandatory injunction to compel the removal of .an overhanging cornice.

' The pleadings and agreed statement of facts show that in the construction of a four-story building, the defendant extended the cornice some two or three feet over the premises of plaintiff. It appears that the cornice is above the plaintiff’s building and does not interfere with the present use of the plaintiff’s property.

There is a party wall between the buildings of the respective parties which has been extended upward to accommodate and form part of the defendant’s structure.

The question involved is as to the defendant’s right to maintain the overhanging cornice.

We are of opinion that the defendant’s easement in the party wall does not extend beyond the wall itself, and that the construction and maintenance of the cornice extending over plaintiff’s premises is a violation of his property rights. Harrington v. McCarthy, 169 Mass., 492; Nash v. Kemp, 49 Howard Pr., 523, 12 Hun., 592; Marion v. Johnson, 23 La. Ann., 593.

We have examined the cases cited by counsel-for defendant involving windows, chimneys and upward extensions of party walls. In none of those cases do we find any overhanging structures extending beyond the partition wall. We think all the cases may be distinguished upon that ground.

We are also of the opinion that the fact that the cornice does not now interfere with plaintiff’s use of their property does not affect the question. The plaintiff’s property right extends upward indefinitely and those rights may be enforced against invasion to the same extent as surface rights.

A mandatory injunction will, therefore, be issued requiring the defendant to remove the cornice and overhanging structure within six months .and defendant will be required to pay costs..

Decree accordingly.

Kunkle, J., and Ferneding, J., concur.


author: By the Court

text:
    RAILWAYS OUSTED FROM CONTROL OF COMPETING LINES.
    Court of Appeals for Franklin County.
    State of Ohio, on Relation of Timothy S. Hogan, Attorney-General, v. The Hocking Valley Railway Company et al.
    Decided, August 22, 1917.

      Restraint of Trade — Brought About Through Railway Control — Stoclc Oionership Permissible in Kindred But not in Competing Lines— Railioays Ousted from Control Provided for Under the Agreement of 1910.
    1. The Zanesville & Western Railway is a feeder and therefore a kindred rather than a competing line of the Toledo & Ohio Central, and no legal impediment exists to the holding of its stock by the Toledo & Ohio Central or the Lake Shore & Michigan Southern. Neither is there objection to the holding of Toledo & Ohio Central stock by the Lake Shore & Michigan Southern or to the holding of Hocking Valley stock by the Chesapeake & Ohio.
    2. The agreement of March, 1910, providing for the acquisition by the Lake Shore and Chesapeake & Ohio of stocks of certain coal companies, and for the exclusive control of the Toledo & Ohio Central by the Lake Shore, and the Hocking Valley by the Chesapeake & Ohio, with a trusteeship over the Kanawha & Michigan, with a tonnage agreement and arrangements for interchange of transportation facilities, was inconsistent with the decree of the Circuit Court of Franklin County of January, 1910; and notwithstanding action has been taken by the Federal Court requiring disposition of the stocks so acquired and surrender of control in so far as it affects interstate commerce, this court holds1 that the state is entitled to the benefit of additional relief with respect to intrastate business, and grants a decree of ouster with reference to control of coal mining stocks and the right to continue in the enjoyment of tonnage agreements and the interchange of transportation facilities complained of.
    3. The New York Central as the successor to the Lake Shore in control of the Toledo & Ohio Central is properly a party to the decree, but so much of the supplemental petition as is involved under the ■averments as .to competition between the New York Central and the Toledo & Ohio Central is dismissed without prejudice.

      Joseph McGhee, Attorney-General of Ohio; Frank Davis, Jr., special counsel, E. C. Morton, M. A. Daugherty, Weller, McCoy & Jones and R. J. O’Dell, of counsel for state.

      Lawrence Maxwell, A. C. Reavitt and Wilson & Rector, for the Chesapeake & Ohio and Hocking Valley railway companies.

      Doyle, Lewis, Lewis & Emery, for the New York Central, the Lake Shore & Michigan Southern, the Toledo & Ohm Central, the Zanesville & Western and the Kanawha & Michigan railway companies.
   By the Court

(Kunkle, Allread and Ferneding, JJ., concurring) .

The state charges the defendants with a combination and conspiracy in restraint of trade in respect to intrastate traffic.

The alleged combination attacked by the state in the present action originated in the Morgan plan of reorganization of the blocking Valley Railway Company which contemplated and subsequently embraced control of the Toledo & Ohio Central, the Kanawha & Michigan, and the Zanesville & Western railway companies. These companies were largely engaged in the transportation of bituminous coal from the Ohio and West Virginia coal fields to the cities and markets of Ohio and to the Great Lakes.

In the process of the financial development of this combination, there was acquired a controlling stock interest in certain coal mining companies operating the Ohio and West Virginia districts, and the stock of the blocking Valley Company (which was then the holding company) fell into the hands of what is called the Trunk Line Syndicate, composed of the five trunk lines controlling the transportation of coal from the entire Appalachian mining district into the markets of the middle west.

At this juncture, the state filed a petition in quo warranto in the Circuit Court of Franklin County, which resulted in a judgment entered January 18, 1910 (12 C.C.[N.S.], 49 and 145), ordering a dissolution of the Morgan combination between the blocking Valley on the one hand and the Toledo & Ohio Central, the Kanawha & Michigan and the Zanesville & Western upon the other; and also ordering a dissolution of the stock-holding connection between the Hocking Yalley Railway Company and the various coal mining companies controlling mines along the line of said railway in the Hocking Yalley district in the state of Ohio.

Following the final judgment of the Circuit Court of Franklin County, there was executed what is known as the March, 1910, agreement between the Lake Shore and Chesapeake & Ohio railway companies and acquiesced in by the other railroads forming the Trunk Line Syndicate.

Without going into unnecessary detail, this contract provided for the acquisition by the Lake Shore and Chesapeake & Ohio companies of the stock held by the five companies composing the Trunk Line Syndicate. It also provided for the transfer of the Hocking Yalley stock exclusively to the Chesapeake & Ohio and of the Toledo & Ohio Central stock exclusively to the Lake Shore Company. The contnact further provided for the transfer of a portion of the stock of the Kanawha & Michigan to the Chesapeake & Ohio and for the trusteeing of the majority of the controlling interest in the Kanawha & Michigan Company for the joint benefit of the Lake Shore and the Chesapeake & Ohio companies.

By this plan, the Hocking Yalley Company was, through stock ownership, practically acquired by the Chesapeake & Ohio Company and by similar means the Lake Shore Company practically acquired the Toledo & Ohio Central and the Zanesville & Western; while the Kanawha & Michigan, which paralleled the Chesapeake & Ohio in West Yirginia and the Hocking Yalley in Ohio, and connected with both the Toledo & Ohio Central and the Hocking Yalley, was made subject to joint control by the Chesapeake & Ohio and the Lake Shore companies. This contract provided for the disposition and trusteeing of the stocks in the coal companies which the Hocking Yalley Railroad Company had been ordered to dispose of by the decree of the Franklin county circuit court.

The contract contained a provision for the joint use of the western division of the Toledo & Ohio Central and of the Hocking Valley main line for the transportation of coal cars at the option of either company. '

There was a further provision for an arrangement for the distribution of the business of the coal companies whose bonds had been guaranteed by the Toledo & Ohio Central and the Hocking Valley Railway Company, to protect the railway companies upon such guaranty. There was evidently an arrangement for an equal division between the Hocking Valley and the T. & O. C. of the tonnage originating on the K. & M.

Following the March, 1910, agreement and the re-organization and operation of the railway and coal companies thereunder, this action was brought.

Subsequent to the bringing of this action, the United States Government brought an action in the United States Court at Cincinnati to enjoin the various railway companies from carrying out the March, 1910, agreement upon the ground that the same and the operation of the railroad companies thereunder was in violation of the federal anti-trust act. This action was finally decided in favor of the Government, and the defendants were ordered to dispose of their interest in the said coal companies, and the Chesapeake & Ohio was ordered to dispose of its interest in the Kanawha & Michigan Railway Company. This order has been carried out to the approval of the United States Court.

1 At the instance of the Attorney-General of Ohio, who appeared as amicus curiae, the United States Court reserved the question of the corporate power of certain of the railroad companies to hold stock in the other railroad corporations.

The railroad now owned and operated by the Zanesville & Western was probably intended by the original promoters to be an independent competing company for the transportation of bituminous coal. But as now existing, its railroad extends only from Thurston, a small village on the Toledo & Ohio Central, into the coal mining district, and does not reach the coal markets either directly or by any connections independent of the Toledo & Ohio Central.

We have reached the conclusion that the Zanesville & Western is a feeder rather than a competitor of the Toledo & Ohio Central and, therefore, that there is no legal impediment to the right of the Toledo & Ohio Central or the Lake Shore & Michigan Southern to hold the capital stock of the Zanesville & Western.

The New York Central Railroad Company, the successor by consolidation, of the Lake Shore Company, was brought in by a supplemental petition charging, among other things, that the New York Central Company was a competitor of the Toledo & Ohio Central Railroad Company.

The question of the right of one railroad company to acquire and hold the stock of another railroad company under Sections 8683 and 8784 of the General Code is now settled by the recent decision of our Supreme Court in the case of Pollitz v. the Public Utilities Commission of Ohio, 96 Ohio State, page —.

The only condition, therefore, affecting the right of the holding company to acquire the stock of other railroad companies is that the two companies are kindred .and not competing.

We think the evidence shows that the Lake Shore Company aiid the Toledo & Ohio Central Company were connected so as to permit the passage of trains from one railroad to the other. The Chesapeake & Ohio was not, at the time this .action was brought, or the case tried, physically connected with the Hocking Valley, but we think that makes no difference in view of the decision in the Pollitz ease. We find, as a fact, that the Hocking Valley Railway Company and the Chesapeake & Ohio Railway Company were not competitors for intrastate business. Idle United States Court held, by necessary inference if not directly, that those companies were not competitors for interstate business and the action of the United States Court is the last word upon the subject of interstate business. We, therefore, follow the .action of the United States Court in respect to interstate commerce, and find no legal impediment to the Chesapeake & Ohio Company holding the stock of the Hocking Valley Company, nor do we find that .the acquisition and holding of the stock of the Toledo & Ohio Central Railroad Company by the Lake Shore Company, was illegal.

The state contends, and we think correctly, that the March, 1910, agreement and the operation of the railroad companies thereunder, down to the time when the relief granted by the United States District Court was put into effect, was not a compliance with the order of the Circuit Court of Franklin County, but amounted to a continuance of the unlawful combination previously existing.

The March, 1910, .agreement and the operation of the railroad companies thereunder did not terminate the railroad ownership of the stock in the coal mining companies nor the guaranty of bonds of such companies and the consequent control over the business of such companies. The provision of the March, 1910, agreement for the joint control of the Kanawha & Michigan Railroad Company, which was a competing company with both the Chesapeake & Ohio and the Hocking Valley, and the tonnage arrangement with reference to shipments arising thereon, together with the optional exchange of transportation facilities between the Hocking Valley Company and the Toledo & Ohio Central Company as to its western division, was inconsistent with the complete divorcement of the Chesapeake & Ohio and the Hocking Valley and the Toledo & Ohio Central and the Kanawha & Michigan as competing systems of transportation.

It would, therefore, follow that the combination following the March, 1910, agreement, and in existence at the time the present action in quo warranto was brought, was illegal and inconsistent with the decree of the Franklin county circuit court.

It is contended, however, that since the judgment of the United States District Court, and the disposition of the coal company and railway stocks under the approval of said court, this ease becomes a moot case and that no order can be made or relief granted.

The case of United States v. Hamburg-American Company, 239 U. S., 466, is cited.

We think, upon a consideration of the authorities, that the rule that a court should not decide a moot question does not apply to the present case.

First. Because the question is not entirely moot. This court finding it proper to grant additional relief.

Second. Because the subject of the present action involves intrastate traffic which was not involved in the federal action; and

Third. Because the state should be entitled to the benefit of the judgment as to intrastate traffic over which it has exclusive control.

The judgment of the United States District Court does not assume to control intrastate traffic,' and whether the defendants would observe the regulations of the United States District Court as to intrastate traffic depends upon their volition and not upon the force .and effect of the order of the United States Court. State v. Cox, 87 O. S., 335. (See opinion of Donahue, J.)

It is true that the stocks of the coal companies and the Kanawha & Michigan Railroad Company have been actually disposed of under the supervision of the United States District Court, but the state is entitled to have the dissolution made permanent as to intrastate traffic and to have a supervision over 'the future conduct of the defendants in respect thereto.

"While some reference was made in the majority opinion of the judges of the United States District Court to the optional exchange of facilities between the Hocking Valley and the Toledo & Ohio Central as to its western division, no relief was granted in that court.

We think it is important that the two competing systems, to-wit: the Chesapeake & Ohio and the Hocking Valley on the one hand, and the Toledo & Ohio Central and the Kanawha & Michigan on the other, be completely divorced, and that such optional exchange of facilities is inconsistent, especially in view of the prior relationship and the tendency of these competing companies towards trade restriction.

It therefore follows that there should be a decree ousting the original defendants from the right to own or control the stocks of coal mining companies or continue the guaranty of bonds of such companies; that the defendants should also be ousted of the right to continue the exchange of facilities between the Hocking Valley and the Toledo & Ohio Central as stipulated in the March, 1910, agreement, and that the Chesapeake & Ohio should be ousted from the right to own, control or have an interest in the eaptial stock of the Kanawha & Michigan Railroad Company.

The New York Central Railroad Company was properly made a party and the decree should operate against it as the successor of the Lake Shore & Michigan Southern Railroad Company.

The averment of the supplemental petition against the New York Central Company to the effect that that company is a •competitor with the Toledo & Ohio Central, is in the nature of an original cause of action against the New York Central Company.

The chief contention upon this issue being that the Lake Erie, Alliance & Wheeling, operating in mining district No. 8, and now controlled by the New York Central Company, is a competitor of the Toledo & Ohio Central Company. It is true that the Lake Erie, Alliance & Wheeling Company was one of the transportation lines involved in the Morgan plan, and if the original Morgan plan was still in operation, or should be revived, the situation as to the Lake Erie, Alliance & Wheeling Company might be important, but in view of the relatively small amount of competition possible between the Lake Erie, Alliance & Wheeling and the Toledo & Ohio Central Company, and also in view of the fact that the New York Central did not stipulate as to the evidence brought into the record from the United States Court, we think so much of the supplemental petition as is involved under the averments as to competition between the New York Central Company and the Toledo & Ohio Central Company should be dismissed without prejudice.

Decree of ouster accordingly.


author: Metcalfe, J.

text:
    EFFECT OF FAILURE OF NEW ADMINISTRATOR. TO GIVE NOTICE OF HIS APPOINTMENT.
    Court of Appeals for Lake County.
    The Croxton Mining Company v. Sterling W. Hubbard, Administrator With the Will Annexed of John H. Bartow, Deceased.
    Decided, March, 1918.

      Estates of Decedents — Purpose of Notice of Appointment of Administrator — Failure to Give Notice Prevents the Running of the Statute of Limitations — Loss, if Any, Falls on Heirs Rather Than Creditors.

    By Section 10757, General Code, a new administrator is required to give notice of his appointment, and where he fails to do so, the limitation provided by Section 10722 will not avail as a defense to an action brought more than six months after the rejection of the claim.

      Squires, Sanders & Dempsey and Harry E. Hammer, for plaintiff in error.

      Holden, Masten, Duncan & Leckie, contra.
   Metcalfe, J.

This case was certified to this court from Lake county. Plaintiff here was plaintiff below and seeks to recover from the defendant, as administrator, etc., upon two promissory notes aggregating about $18,000. These notes were executed by the firm of Drake, Bartow & Company to the plaintiff, the Croxton. Mining Company.

The facts necessary to an understanding of the question be-, fore us are substantially as follows: The plaintiff is a mining company operating in Minnesota. The firm of Drake, Bartow & Company were dealers in iron ore and as such firm executed the notes in question to the Croxton Mining Company some time in the year 1910. In 1912 Mir. Drake died and by his death the firm was dissolved, and soon afterwards an action was brought by the plaintiff upon these two notes against John PI. Bartow, as one of the members of the firm of Drake, Bartow & Company.

Before the case was tried Mr. Bartow died and the action against him was dismissed. After the death of Mr. Bartow, Pauline L. Bartow was appointed executrix of his will. The plaintiff’s claim was then presented to Pauline Bartow, as such executrix, but, before she had acted thereon, she died and the defendant, Sterling Hubbard, was appointed administrator with the will annexed, and on the 4th day of December, 1913, he rejected the claim.

After Mr. Hubbard’s appointment as such administrator with the will annexed, he failed to give notice of his appointment and has never given such notice. Before the expiration of six months following the rejection of the claim a petition was filed against Hubbard, as administrator, and summons issued, which was returned not served, the defendant not being found in the county. No alias summons was issued until about seven months after the rejection of the claim, when such summons was issued and served upon the defendant.

It is claimed that by reason of the fact that more than six months passed from the date of the rejection of the claim until summons was served upon the defendant that the action was barred by the statute of limitations. That is the only question we have to determine, and such determination depends entirely upon the construction to be given to the language of Section 10757, General Code.

Section 10722, General Code, provides:

‘ ‘ If a claim against the estate of a deceased person be exhibited to the executor or administrator before the estate is represented insolvent and be disputed or rejected by him, and has not been referred within six months after such dispute or rejection, if the debt, or any part of it, be then due, or within six months after some part becomes due, the claimant must commence a suit for the recovery thereof or be forever barred from maintaining an action thereunder. No action shall be maintained thereon after such period by a person deriving title thereto from such claimant.”

It would seem to be an indisputable proposition that under the provisions of this section the plaintiff is barred, unless there is some saving clause in the statute which would relieve him from the necessity of beginning his action within six months from the date of the rejection of the claim.

It is claimed that such saving clause is found in the following provision of Section 10757:

"The new administrator shall give notice of his appointment in the manner prescribed with respect to an original administrator. If he fails so to do he shall have no benefit of the limitations herein provided.”

Mr. Hubbard did not give notice of his appointment as new administrator of Mr. Bartow’s estate, nor was such notice given by the probate judge.

The language of this section is plain and unequivocal, "If he fails to do so, he shall have no benefit of the limitations herein provided.” This does not merely grant to the plaintiff a right, but it is an absolute prohibition to the administrator a,nd takes away his right to plead the limitations "herein provided.” As before stated, such notice was not given, but it is claimed that under the present provisions of the law such notice is not now required. As the law formerly stood, the administrator was required to himself publish notice of his appointment. Revised Statutes, 6097.

That section of the Revised Statutes has been amended and as it now stands in the General Code, as Section 10712, provides that within one month after bond has been given by the executor for the discharge of his trust, the probate judge shall cause notice of the appointment to be published in some newspaper of general circulation in the county in which the letters were issued, for three consecutive weeks.

Section 10757, however, remains unchanged, but it is urged that the requirement of that section that the "new administrator” give notice of his appointment is of no effect because the original administrator is not now required to give notice himself, but the duty to give such notice rests upon the probate, judge.

What is the object of requiring notice to be given of the appointment of an executor or administrator? It is not for the benefit of the administrator. Plainly, it is for the benefit of the creditors alone that they may know within what time their claims must be presented. The object of the statute is not to require some particular person to give such notice, but to make sure that such notice shall be given. The fact that when the Legislature saw fit to amend Section 10722 it did not amend Section 10757 could not affect the manifest purpose of the statute. The reason for the requirement of that notice be given upon the appointment of a new administrator is just as apparent as the reason for giving notice of the appointment of the original administrator. The creditors have a right to presume that after the death or removal, as the case may be, of the original administrator, matters regarding the estate will remain in statu quo until notice is given of the appointment of the new administrator. The language of the statute is clear, plain and unequivocal, and to hold that upon the appointment of a new administrator no notice is required to be given is to ignore its provisions.

The limitations “herein provided” we think, plainly refer to the limitations upon the bringing of suits provided for in Chapter III, Title III, General Code; and the language of Section 10757 is controlling as to all such limitations.

In Pollock v. Pollock, 2 O. C. C., 140, it is held that it is error for the court to render judgment on a claim against the estate of a deceased person where the claim had been rejected more than six months before the action is commenced, and the failure of the executor to plead the statute did not give a right to a judgment. This decision only relates to the effect of the six months limitation where the fact which under Section 10757 suspends the operation of Section 10722 does not exist.

In the case of Miller v. Ewing, 68 O. S., 976, the only question, so far as it 'bears upon this case is, whether an unequivocal statement made by an administrator to a claimant that the claim was rejected and he would get nothing on it unless at the end of a law suit, was such a rejection as would set the six months limitation to running? The court held that it was, but no question of tbe suspension of tbe limitation was raised, and so in the ease of Harris v. O’Connell, 85 O. S., 136, there is no question raised as to the suspension of the statute by the failure to give notice.

In the case of In re Estate of Mary Ward, 21 O. C. C., 153, the question is raised as to the right of the administrator himself to take advantage of the failure to give notice- of the appointment in the prosecution of a claim in his own favor, the court say:

“Now, if he fails to give notice, he being the executor himself, if he fails to perform this duty which the statute imposes upon him, we .are of the opinion that he can not take advantage of his own wrong. * * * He can not take advantage of his own neglect to publish notice.”

In Ardey v. Shell, 77 O. S., 218, the holding is to the effect that the proof of publication of the notice of the appointment of the executor or administrator forms no part of the notice to creditors, and is not for the benefit of creditors; and that where the notice is given by publication as required by law, but, the proof of such publication is not filed for more than a year after giving bond, the two years limitation provided by Section 6113, Revised Statutes (10746, General Code), will begin to run from the date of the giving of the bond. No other question appears to have been raised in the case and we do not see how it has any • application here. Plainly, to us none of these cases sustain the contention of the defendant in error.

We are unable to find that the question here involved has been passed upon in Ohio. We do, however, find some enlightening decisions from other states. In Whiggins v. Admr. of Estate of Lovering, 9th Mo., 259, the first paragraph of the syllabus is:

“The limitations of three years does not apply to demands against an estate unless' the executor or administrator give notice of the grant of letters of administration as required by law. ’ ’

And in the opinion, page 264:

“But although an executor or administrator can not waive this bar or - destroy its effect, yet he may by his negligence in giving notice of his appointment prevent its accruing, and in such ease if either of the parties suffer a loss it must be the heirs or devisees and not the creditors.”

In Emerson v. Thompson, 16 Mass., 428, the court say on page 431:

“* * * If either of the parties suffer a loss it must be the heir or devisee and not the creditor; it is contrary to the plain words of the statute to bar the creditor unless the notice is given as therein prescribed.”
‘ ‘ It is the duty of an administrator de bonis non to give notice of this appointment the same as a general administrator.” 1 Rockwell, Ohio Probate Practice, pages 160-166.
“The failure of the administrator to publish notice to the creditor of his appointment as required by statute is generally fatal to the interposition of this plea.” (The Statute of Limitations, 2d Woerner’s American Law of Administration, page 841.)
“Tibe executor or administrator can not avail himself of the six months statute of limitations unless he has strictly complied with tfre statute requiring him to obtain an order of the surrogate for the publication of a notice to creditors to present their claims and has published the proper notice.” Hardy v. Ames, 47 Barb., 431; Elliott v. Cronks, Admr., 13 Wend., 35; Wickmore v. Foos, 1st Denio, 59; Byron v. Monday’s Admr., 17 Mo., 557; Gardner v. Estate of Callaghan, 61 Wis., 54; Sewell v. Ballantine, 23 Mass. (6th Pick., 276); Corliss Steam Engine Co. v. Schumacker, 109 Mass., 417.

We think these decisions clearly show that the purpose of the statute requiring the giving of notice is to advise creditors of the fact that an administrator has been appointed, and that if any negligence exists in the failure to give such notice, the loss, if any, occasioned thereby must fall upon the heirs and not upon the creditors. That the creditors have the right to rely upon the plain provisions of the statutes, and the failure to give notice prevents the administrator, or a new administrator as the ease may be, from setting up the bar of the statute of limitations “herein provided.”

It is the fact of the failure to give notice that suspends the bar to the statute.

Pollock, J., and Farr, J., concur.


author: Richards, J.

text:
    EJECTMENT AGAINST A PUBLIC SERVICE CORPORATION.
    Court of Appeals for Sandusky County.
    Ferdinand Saner v. The Lake Shore Electric Railway Company.
    Decided, October 6, 1916.

      Ejectment — Removal Ordered of High Tension Electric Wires — Maintained Over a Lot Not Adjacent to the Company’s Trades.

    An owner of real estate not adjoining an electric interurban railroad - may maintain an action of ejectment to require tbe removal of high tension electric wires which the company has erected over his land without his consent and uses for the transmission of power in the operation of its cars.

      D. B. Love, for plaintiff in error.

      O’Farrell & Rimelspach, contra.
    Error to the court of common pleas.
   Richards, J.

This ease was in this court once before and on that occasion the judgment in favor of the railroad company was reversed on April 22, 1915, and the ease remanded to the court of common pleas. After the ease was remanded to that court the plaintiff filed an amended petition abandoning the claim for damages and ashing only that the defendant be ejected from the premises.

The plaintiff is the owner of a portion of out-lot No. 156 in the city of Fremont, on which lot he had erected a foundation preparatory to the construction of a dwelling-house. The defendant has constructed across his lot and over the foundation three high tension wires, each carrying approximately eighteen thousand volts of electricity used in the operation of its electric railroad. After the plaintiff rested his case, the court directed a verdict for the defendant on the ground that the plaintiff had a remedy by compelling the defendant to appropriate an easement over the lot for the construction and maintenance of its wires, and the sole question in this ease is whether under these circumstances the plaintiff has the right of ejectment.

It is said that the owner of the life estate had granted the right to the railroad company to erect and maintain these wires; but however that may be, on the expiration of the life estate the right granted no longer existed.

We have had some difficulty in this ease over the right of a person to maintain ejectment against a public service corporation engaged in the transportation of passengers and freight, and we are aware of the decisions which prohibit the sale of a portion of a railroad and likewise prohibit ejectment of a section of a railroad from a given piece of land, and holding that the remedy is to cause, in the one ease, a sale of the whole road, and that the remedy in the other is damages. But in the case now under consideration the claimed right of the company is simply for the maintenance of these three high tension wires, and we think the rule thus announced ought not to be extended or made applicable to this kind of a ease, especially in view of the fact that these wires make a circuit of a considerable distance through the northerly portion of the city along a route away from the right-of-way of the defendant company. It is clearly no objection to the right to maintain ejectment that no poles have been or will be actually erected by the defendant company upon the land of the plaintiff, for his land extends to the sky above and his right to maintain ejectment is the same as if poles had actually been constructed and were being maintained upon his land.

Holding that among the rights of the plaintiff is the right to maintain ejectment, the judgment will be reversed and the case remanded to the court of common pleas for further proceedings. AVe may suggest that if an order of ejectment should be granted in this case, its execution should be suspended for such reasonable length of time as will allow the defendant company to readjust or reconstruct its lines of wires.

Chittenden, J., and Kinkade, J., concur.


text:
    COMPETENCY OF TESTIMONY IN A WILL CASE.
    Court of Appeals for Clark County.
    Milton J. Baird et al v. Caroline E. Detrick et al.

    Decided, June 29, 1917.

      Wills — ■Action to Contest- — Testimony of Attorney Not Incompetent— By Reason of the Fact that He was a Subscribing Witness — Incompetency of Declarations Made by a Deceased Subscribing Witness.

    1. Where a testator procured his attorney to become a subscribing witness to his will, he thereby expressly consents that said attorney may testify as fully as any other subscribing witness concerning declarations made to him by the testator at or near the ■ time of execution of the will, and must be regarded as having waived the exemption of Section llé94, as to privileged communications.
    2. Declarations made by a witness to the will immediately after leaving the room in which the will was' executed do not constitute any ■ part of the res gesta, and said subscribing witness having since deceased testimony as to the statements which he then made is . incompetent.
    3. Where from the nature of the remarks of counsel which are complained of it is possible that they may have been provoked by remarks of opposite counsel, a reviewing court will not reverse a judgment upon the ground of misconduct of counsel in the absence of the record showing so much of the statements of opposite counsel as would be necessary to disclose whether the remarks complained of were or were not provoked.

      Stafford & Arthur, McGrew & Laybourne, William M. Rockel and W. Y. Mahar, for plaintiffs in error and certain defendants in error.

      Zimmerman & Zimmerman, C. S. Olinger, for contestees of will.

      Motion to require the Court of Appeals to certify its record in this case overruled by the Supreme Court, October 23, 1917.

   Kunkle, J.

This is an ¡action in wbicb plaintiffs in error seek to set aside tbe last will and testament of Clara J. Mills.

An issue was made up in the court of common pleas and the grounds relied upon for setting aside such will were, mental incapacity and undue influence.

The trial resulted in sustaining the will by the concurrence of nine members of the jury.

Motion for a new trial was overruled, and judgment rendered on the verdict.

Error is prosecuted to this court from such judgment.

Various grounds of error are assigned.

We have read the record in this case and have carefully considered the authorities cited in the very helpful and exhaustive briefs which have been filed by counsel.

■ We shall not attempt to quote from the record in detail nor to discuss the various authorities relied upon by counsel. We will merely announce the conclusions at which we have arrived after a careful examination of the record and such authorities.

Plaintiffs in error claim that C. S. Olinger, who was the attorney for the testatrix and a subscribing witness to the will, should not have been permitted to testify concerning certain declarations of the testatrix made to him at and near the time of the execution of the said will.

Upon this question we- find there is some conflict of authority, but we think the weight of authority and the better reasoning upon this subject supports the ruling of the lower court. (See American and English Encyclopedia of Law, Vol. 23, page 79; Thompson on Wills; Page on Wills and various other authorities cited by counsel.)

The privilege conferred by Section 11494, General Code, is solely for the benefit of the client and may be waived by .the client.

We think when a testator procures his attorney to become a subscribing witness to his will that he thereby expressly consents that such attorney may testify as fully as any other subscribing witness, and thereby waives the exemption of Section 11494, General Code.

The testator knows that his will is not to take effect until his death, and when he instructs his attorney to prepare a will along certain lines and requests him to sign the same ,as a witness, it is presumed that he expects the attorney to testify generally as a witness in establishing such will.

The testa.tor’s requesting the attorney to act as a witness is equivalent to his calling him as a witness for the purpose of establishing the instrument so witnessed as a valid will.

It is also urged with much force that the trial court erred in refusing to permit plaintiffs in error to prove certain declarations alleged to have been made by Dr. R. B. House shortly after the execution of the will. Dr. House was one of the subscribing witnesses to the will. He testified at the time the will was probated, but died before the trial in the lower court.

The rule is well established that the testimony of a witness can not be impeached by showing contradictory statements, unless the attention of the wdtness is first called to such alleged statements and the opportunity is afforded the witness of either admitting, denying or explaining the same.

This rule is not changed by the subsequent death of the witness. (See 15 O. S., page 1.)

It is claimed, however, by counsel for plaintiffs in error that, as to the witness Mrs. Everhardt, the alleged statements of Dr. House were made immediately after coming out of the room in which the testatrix executed her will, and that such statements of Dr. House, one of the subscribing witnesses to tire will, constituted part of the res gestae.

The res gestae consisted of the execution of the will in question and that was accomplished before Dr. Iiouse left the room in which the wall was executed.

We do not know just how long the will had been executed before the Doctor left the room, but in any event, we are of opinion that Dr. House’s alleged declarations to Mrs. Everhardt did not form any part of the res gestae.

It is claimed that the trial court erred in excluding, in chief, the testimony of Mrs. Jauck and others as to certain declarations alleged to have been made by Mr. Olinger, who drew the will.

Substantially all of this testimony was admitted in rebuttal and we are of opinion that the trial court properly excluded the same as testimony in chief.

It is further claimed that the trial court abused its discretion in various respects, such as in interrupting certain witnesses; in conducting the examination of certain witnesses to an unwarranted extent; and also in absenting himself from the bench during a considerable portion of the trial.

Before we could reverse the judgment in this case upon any of the above grounds, we would be required to find that the court had clearly abused its discretion in one or more of such respects and that the court had thereby prejudiced plaintiffs in error in the proper presentation of their case.

We concede that even in the trial of a civil case the parties are entitled to the presence of the trial judge during the trial and that it might be embarrassing to counsel to object to the court’s absence from the court room, yet in order to predicate reversible error in the trial of a civil suit upon the absence of the trial court from the court room during a portion of the time it should appear that objection was made to such absence or that the absence of the trial judge clearly prejudiced the rights of plaintiff in error.

We also concede that the trial court should not unduly interfere with the examination of witnesses to the prejudice of either party, yet the trial court has a right to guide tire trial, and if necessary, develop the facts requisite to a fair presentation of the ease.

From a careful examination of the record, we would not feel warranted in finding that the.trial court clearly exceeded its authority in any of the above respects and to the extent of preventing plaintiffs in error from having a fair trial.

Exception is also taken to the admission and rejection of certain testimony.

We have considered all the objections of this nature complained of in the briefs of counsel for plaintiffs in error. In some of these -instances the substance of the testimony either had already been or was subsequently admitted; in other cases the questions were not proper in form and in still other eases the evidence sought to be introduced was incompetent.

We find no error in these respects which we consider prejudicial to plaintiffs in error.

It is further claimed by counsel for plaintiffs in error that counsel for defendants in error were guilty of misconduct during the argument of the case to the jury.

We have doubt as to whether the alleged misconduct of counsel for defendants in error has been brought in the record as required by the decision of our Supreme Court in the case reported in 77 O. S., page 529.

Assuming, however, that the evidence of alleged misconduct is properly before the court, it appears that only a portion of the arguments of counsel are presented. The record does not disclose what remarks, if any, were made by counsel for plaintiffs in error which may have provoked some of the remarks now complained of.

In the absence of a full report of the arguments of counsel we would not feel justified in holding that the alleged misconduct of counsel for defendants in error was such as would justify a reversal of the judgment.

Counsel for plaintiffs in error also insist that the trial court erred in giving to the jury in advance of the argument special instruction No. 2 as requested by counsel for defendants in error. This special charge is not as complete as it should have been, but nevertheless it is practically the same, in the respects complained of, as special charge number five, which was given by the court to the. jury in advance of the arguments ,at the request of counsel for plaintiffs in error.

Special charge No. 5 being given at the request of counsel for plaintiffs in error we can not see how it could be prejudicial to also give special charge No. 2 as requested by counsel for defendants in error.

It is admitted that this phaze of the case was properly stated by the court in the general charge to the jury.

We are also of opinion that the alleged misconduct of the jury is not supported by the weight of the evidence.

The newly discovered evidence referred to was largely cumulative and we think the trial court did not err in refusing to grant a new trial on the ground of newly discovered evidence.

There was a sharp conflict in the testimony. A number of witnesses called by defendants in error testified to a state of facts which, if believed by the jury, would have justified the verdict which was returned. It is equally true that a number of witnesses called by plaintiffs in error testified to a state of facts which, if believed by the jury, would have required a different verdict.

The decision of the case was largely a question of determining the credibility of the various witnesses and the weight which should be given their testimony. These are questions which are peculiarly within the province of the jury and from a careful consideration of the entire record, we would not feel warranted in disturbing the judgment upon the ground that the verdict is against the manifest weight of the evidence.

We have considered all the assignments of error urged by counsel for plaintiffs .in error in their briefs but finding no error in the record which we think constitutes error prejudicial to plaintiffs in error, the judgment of the lower court will be affirmed. '

If desired, a suspension of the execution of the judgment for twenty days will be allowed, so as to enable counsel to present the case to the Supreme Court.

Allread, J., and Ferneding, J., concur.


text:
    FORCIBLE ENTRY AND DETAINER. BEFORE A JUSTICE OF THE PEACE.
    Court of Appeals for Mahoning County.
    Marko Bucilli et al v. Emil J. Hoffman et al.
    Decided, 1918.

      Jurisdiction — Of a Justice of the Peace in Forcible Entry and Detainer Oases — Sections 10223 and 10224.
    1. In actions of forcible entry and detainer the jurisdiction of the justice of the peace is co-extensive with the county, but such jurisdiction must be exercised in the township in which he is elected.
    2. Where a justice of the peace issues summons in a case of forcible entry and detainer, returnable in a township of the county other than the one in which he is elected and hears the case and renders judgment in such other township, the judgment is void.

      J. M. Moderrelli, for plaintiff in error.

      David Steiner, contra.
   Metcalfe, J.

The plaintiff in error seeks to obtain an injunction against the defendants in error to prevent the enforcement of a judgment of eviction in a case of forcible entry and detainer, claiming that the judgment is void for want of jurisdiction in the justice of the peace to render the same.

The plaintiffs are lessees of the property in question, which is situated in the township and city of Youngstown, and the defendant, 'Hoffman, is the lessor. This action was brought by Hoffman in the court of the defendant Brown, a justice of the peace. Brown w,as elected to such office of justice of the peace in the township of Boardman, Mahoning county, but maintained an office in the city of Youngstown.

The summons in this ease was issued by the justice returnable at his office in the city of Youngstown, and the case was tried and judgment rendered therein in the city of Youngstown, ,and not within the limits of the township of Boardman.

The only question we have here is: Did the justice of the peace, in an action in forcible entry and detainer, have the right to hold court and render judgment in a township other than the one in which he is elected ? This court has held in the case of Railway Co. v. Skipp (unreported), that he may do so in .a criminal ease, and the Supreme Court have decided the same thing in Steele v. Karb, 78 O. S., 376, in both of which cases it is held that in criminal cases the jurisdiction of the justice is co-extensive with the county containing the township in which he was elected, and that he may hold court anywhere within the county. His power is granted under Section 13422, General Code, which provides that he shall be a conservator of the peace, and that he may upon view or information cause the arrest of a person and issue a warrant commanding him to be brought before himself or before some other justice of the peace within the county.

We do not think, however, that such is the case in any civil action. By Section 10223 it is provided:

“Unless otherwise directed by law the jurisdiction of justices of the peace in civil cases is limited to the township wherein they were elected and wherein they reside. No justice of the peace shall hold court outside of the limits of the township for which he was elected.”

This provision is perfectly clear and prohibits a justice from holding court in all civil eases outside of the limits of the township for which he was elected, unless otherwise directed by law.

It is claimed here that he is otherwise directed by Section 10224, General Code, Paragraph Y, which confers upon the justices of the peace jurisdiction, to try forcible entry and detainer, cases throughout the county, that is to say, his jurisdiction to try that class of cases is eo-extensive with the county, but thaf¡ does not confer the right upon him to go outside of his township, issue summons outside, returnable outside, and hold court and render judgment outside in view of the explicit provisions of Section 10223 that no justice shall hold court outside of the township in which he is elected.

We think that such action is entirely unwarranted and that the defendant, Brown, could not exercise the jurisdiction of a justice of the peace outside of the township in which he was elected, but plainly has the right to bring the defendant in such ease into the township where he was elected.

Judgment for plaintiff.

Pollock, J., and Farr, J., concur.