author: ALLREAD, J.

text:
    DEEDS — EVIDENCE—POWERS—WILLS
    [Clark (2nd) Court of Appeals,
    December 28, 1915.]
    Ferneding, Kunble and Allread, JJ.
    Anna Lanham v. E. O. Bowman et al.
    1. Running of Statute of Limitations not Stopped by Transfer of Property by Ancestor.
    When an interest in realty vests upon the death of the life tenant, the running of the statute of limitations against the assertion hereof is not stopped by the transfer of the property by an ancestor.
    2. Recital in Old Deed of Power of Executrix to Sell to Pay Legacies, Admissible, Original Records being Destroyed.
    A deed made by an executrix almost fifty years ago, containing the recital that the executrix was given full power to convey, but without a specific statement of such power as contained in the will, is competent as evidence of -such power, when the original records have been destroyed and the possession of the property has been consistent with the terms of the deed; hence, such proof is sufficient to sustain a title depending upon the existence of such power and casts the burden upon those seeking to impeach it.
    3. Inference of Necessity to Sell Real Estate to Pay Pecuniary Legacies.
    The evidence in this case creates a strong inference that a necessity arose to sell real estate belonging to the testator in order to pay pecuniary legacies and prevents a reversal of the judgment by a reviewing court as against the weight of the evidence.

      Charles Broadwell and William II. Cow gill, for plaintiff in error.

      J. E. Bowman, for defendants in error.
   ALLREAD, J.

Anna Lanbam brought suit in tbe court of common pleas to recover an interest in certain real estate.

The will of William Honroth, probated in Hamilton county, November 6, 1868, is the common source of title.

The plaintiff, as daughter of Louisa Schmidt, claims as devisee in remainder under the following item:

“Ninth. After the decease of my said wife the property then unconsumed by her shall be equally divided into two parts, the one part or half I give and devise unto my daughter, Louisa Schmidt during her natural life and after her decease to her child or children forever. The other half I give and devise to the trustees for the time being of Zions Society (Zions Ger-mania) corner of Bremen and Fifteenth street in said city of Cincinnati,” etc.

The defendant claims through mesne conveyance under a fee simple deed, dated July 1, 1869, from Christina Honroth, as executrix of William Honroth, deceased, to J. B. Seegar.

The authority supporting the latter deed is found in item twelfth of the Honroth will, which is as.follows:

“Twelfth. My executor hereinafter named is hereby authorized and empowered in case there should not be a sufficient amount of personal property to pay the legacies above named to sell at public or private sale at not less than two-thirds of its value so much of my real estate as may be sufficient for that purpose and give a good and sufficient deed or deeds therefor and reinvest any surplus and enjoy the income thereof as above stated to the benefit of my said wife.”

Christina Honroth, who held the first life estate, died in February, 1877.

Upon her death the devises in item ninth in favor of Louisa Schmidt and the Zion’s Society became available.

Louisa Schmidt died on December 23, 1908, and thereupon • the devise in remainder to her children ripened into an estate in possession.

J. B. Seegar was joint owner with William Honroth of the real estate in controversy, and the deed of the executrix therefor only purported to convey the undivided half thereof, subject to an existing mortgage which was assumed by J. B. Seegar.

Since July, 1869, J. B. Seegar and his successors in title have held open, peaceable and undisputed possession of the real estate conveyed until about August 4, 1913, when this action was begun.

Upon the death of Christina Honroth in 1877, the cause of action in favor of the Zions Society under the devise in item ninth arose and the statute of limitations began to run. Such claim is therefore barred by the statute of limitations and the fact of the transfer to plaintiff’s ancestor does not affect the running of the statute.

The remaining question therefore relates to the direct devise to plaintiff as to which the cause of action arose upon the death of her mother, December 23, 1908. The plaintiff’s title under the devise to her in item ninth not being barred by the statute of limitations would be valid, unless superseded and overthrown by the deed of the executrix.

Practically, therefore, the ease turns upon the validity of the last named deed.

The twelfth item of the Honroth will conferred upon the executrix the power of sale upon condition that the personalty was insufficient to pay the pecuniary legacies, amounting to $13,600. The testator had specially provided for the payment of his debts. The debts and costs of administration, under the will as well as the law, would be a charge upon the personalty. The personalty not required to pay debts and other necessary legal charges would next be chargeable with the pecuniary legacies. The will evidently intended to confer upon the executrix the power of sale in case the personalty remaining after the payment of debts and other legal charges was insufficient to pay the legacies referred to.

The validity of the deed therefore rested upon the question as to the sufficiency of the net personalty to pay such legacies.

Preliminarily, the competency of the deed without extrinsic proof as to insufficiency of the personalty is raised.

The deed recites that the executrix had full power to con- ' vey; and this, we think, is sufficient without a more specific recital of the power contained in the will. Bishop v. Remple, 11 Ohio St. 277.

The trial court admitted the deed as an ancient document and as prima facie proof of title. There is a contention as to whether the common law rule in respect to ancient documents is in full force in Ohio. We think the recent case of Wright v. Hull, 83 Ohio St., 385 [94 N. E. 813], upholds the common law rule in this respect, except that such ancient documents are subject to preliminary proof: (1) of genuineness of signature; and (2) of lawful custody.

Both of these preliminary facts are conceded in the case at bar and we are therefore at liberty to apply the common law rule as to ancient documents.

The deed offered in evidence is clearly proven (1) genuine; (2) ancient; (3) to have been in lawful custody; (4) to have been recognized as a muniment of title; (5) the grantees and successors have been in peaceful possession for more than thirty years; and (6) the records presumably containing material evidence as to the validity of the deed have been destroyed.

Subject to the modification in Ohio of the common law rule as to ancient documents, the following from the case of Wilson v. Snow, 228 U. S. 217 [33 S. Ct. 722; 57 L. Ed. 807], is applicable :

“The rule that an ancient deed to property in continuous possession of the person producing it proves itself, on the theory that the witnesses are dead and it is impossible to produce testimony showing execution by the grantor, is broad enough to admit without production of power of attorney ancient deeds purporting to have been signed by agents.
“The other necessary facts being present and the possession of the property being consistent with its terms and the original records having been lost, a deed, over forty years old, containing recitals that it was executed by an administrator under power of sale given by order of the court, will be presumed to have been executed in accordance with such recitals.” See also, Reuter v. Stuckart, 181 Ill., 529 [54 N. E. 1014],

In the case of Haren v. Block, 29 O. C. C. 460 (9 N. S. 328), it was held that a conveyance by an executrix under a power in the will somewhat similar to the one at bar was prima facie valid, and that the burden of proof rested upon those assailing the deed.

This case did not involve an ancient document, and if followed would lead to the conclusion that independent of the rule of ancient documents, the deed would be admissible. We are clearly of the opinion that the court properly admitted the deed of the executrix in the case at bar as evidence, and that without other proof it was sufficient to sustain the defendants’ title and to east the burden of impeaching it upon the plaintiff.

' This brings us to the evidence tending to impeach the power of the executrix to make the deed. The court house records were burned in the year 1884. The devise in favor of Louisa Schmidt, plaintiff’s mother, and of the Zions Society, under item ninth, became available in 1877. This was at least seven years before the records were destroyed. No'step to recover the property in controversy was ever taken by Louisa Schmidt, or the Zion Society.

Upon the death of Louisa Schmidt, the plaintiff in 1908 consulted counsel, but did not determine to bring suit until the year 1913. The inventory in the Honroth estate miraculously escaped the fire, and a certified copy is produced. This inventory shows personalty to the amount of about $26,000. There is no showing of record of the debts and costs of administration, nor is there any showing of record of the amount of personalty actually collected. These facts would naturally appear more definitely in the accounts current, which are not available. From the record evidence alone the court would not be justified in impeaching the deed of the executrix.

Charles Schmidt, surviving husband of Louisa Schmidt, was examined as a witness. He testifies that he was familiar with the financial affairs of William Honroth; that said Honroth paid cash for all supplies, was sick but a short time, and left practically no debts. There are circumstances, however, brought out in cross-examination, and also by evidence of the records of the Zions Society which raise a serious question of credibility, and the fact that the witness’ wife, Louisa Schmidt, with whom he lived, made no attempt to impeach the deed, nor did the witness himself appear to have ever urged her to recover the property, are quite important circumstances to be considered as to whether in his testimony in the present case, Schmidt is not mistaken. Thé records of the Zions Society of the payments made upon the pecuniary legacy of $8,000 is quite important. This was the chief .pecuniary legacy for which the real property might be sold. But $3,000 had been paid upon this pecuniary legacy at the time of the execution of this deed, and it appears that only $7,500 of the $8,000 has, in fact, been paid. This raises a strong inference that the personalty was not sufficient to pay the pecuniary legacies.

Upon the question of fact as to- the credibility of the witness, Charles Schmidt, and as to the finding of the court upon all the evidence, as to whether there was a deficiency of the personal estate, the court of common pleas, as the trial court, was charged with the first responsibility, and the findings of such court will not be disturbed unless manifestly against the weight of the evidence. Dean v. King, 22 Ohio St. 134.

We are not convinced that the judgment of the court of common pleas is contrary to the manifest weight of evidence. It therefore follows that the judgment of the common pleas court should be affirmed.

Kunkle, J., concurs.

Ferneding, J., not sitting.


source: Caselaw Access Project

author: BY THE COURT.

license: Public Domain

text:
    WILLS — WOEDS AND PHEASES
    [Hamilton (1st) Court of Appeals,
    January 17, 1916.]
    Hamilton, Jones and Gorman, JJ.

      Mayme Kolb Schinkal et al v. Cynthia Kolb, et al.
    “The Income” Construed to Mean all Income from Testator's Estate.
    Tlie bequest “the income hereinafter devised to my said wife in lieu of her dower and all other interests in my estate as widow,” in the absence of any reference to any income to accrue to the trustees or any direction as to its investment or disposal, is construed as importing an intention to give all the income to the widow during her lifetime.

      Henry T. Hunt, for Caroline Kolb Shropshire and Naomi Kolb Sheridan.

      John J. Aeomb and Frank B. Gusweiler, for Cynthia Kolb, as widow and as executrix, and for Joseph Kolb, individually and as trustee.

      MaWhetus & Klein, for ■ Josephine Kolb Schell.

      C. W. Baker, for Mayme Kolb Schinkal and Daniel Kolb.

      Motion to certify overruled by Supreme Court, February 15, 1916.

   BY THE COURT.

After much discussion of this case, and delay caused by doubt and prolonged deliberation, we have concluded that there is an implied bequest to the widow, of the income during her lifetime, as held by the court below.

In the second item of the will the widow is given household furniture, books, etc., and following that bequest the testator says:

“This bequest and the income hereinafter devised to my said wife in lieu of her dower and all other interests in my estate as widow,” etc.

The words “the income hereinafter devised” import an intention to give to the wife all the income. The word “all” is not necessary. Where no word of restriction or limitation is used, the words “my income,” “the income” and the like include the entire income. If it had been intended to later give to Mrs. Kolb a portion of the income, or the income from specific property or securities, it must be presumed that in this item the testator would have used the words “the portion of the income” or some other words of like import.

It is contended that Kolb died intestate as to the income during the lifetime of his wife. With this contention we can not agree. If there were no implied bequest of the income, it would go to the trustees named to take charge of the property from which the income was to be derived and would accumulate and remain in their hands. Such being the ease, the fact that the will contains no reference to any income to accrue to the trustees, nor any discretion as to its investment or disposal, coupled with the disposition of the income after the wife’s death, as found in item five of the will, makes all but irresistible the conclusion that at the time the will was made testator intended to and thought he had bequeathed all the income to his wife.

We deem further comment useless. There will never be another will like this one. The peculiar provisions of this will and the rules of construction applicable thereto are ably discussed in the briefs. There is no new question involved, and a long opinion could benefit neither litigants nor counsel in future cases. The general rules on construction of wills are so familiar and so universal in application and operation as to forbid elaboration here. Applying these rules we are convinced that taking the will as a whole, an intention is manifest to give all the income to Mrs. Kolb during her natural life.

The judgment of the common pleas court is therefore affirmed.

Hamilton, Jones and Gorman, JJ., concur.


author: POWELL, J.

text:
    APPEAL — DRAINS AND DITCHES
    [Licking (5th) Court of Appeals,
    March Term, 1916.]
    Shields, Powell and Houck, JJ.
    C. S. Davidson v. Allen Frost et al.
    Time for Perfecting Appeal When Ditch Claims for Damages have been Rejected Runs from Date of Order of Location.
    An appeal from the order of a joint board of township trustees, rejecting claims on account of land taken and other damages on account of the construction of a proposed township ditch, should be filed within eight days from the entering of the order locating and establishing said ditch, and is rendered ineffective by construing the time for perfecting said appeal to be within eight days from the date of the order apportioning the construction among the parties interested.

      L. C. Stillwell and J. R. Clutter, for plaintiffs in error.

      Martin & Martin, J. W. Homer, Pros. Atty. and Fitzgibbons, Montgomery <& Black, for defendants in error.
   POWELL, J.

The question presented by the record in this case is whether or not an appeal was properly perfected to the action of the defendants, constituting the joint board of trustees for Hilliar township, Knox county, and Hartford township, Licking county, in the location and construction of a township ditch.

The record discloses that the said defendants, acting as such joint board, entered an order for the construction of the joint township ditch for said townships on April 17, 1915; that after such order was entered an adjournment was had until April 24, 1915, on which date a hearing was had upon claims for compensation for property taken and damages which would be sustained by the construction of said ditch; that at said meeting of April 24, the claims of the plaintiffs in error for compensation and damages were rejected and disallowed. That afterwards, on June 17, 1915, at a meeting of said joint board, such ditch so ordered was apportioned among the several parties liable for the construction thereof by said board; and that afterwards, within eight days, plaintiffs attempted to appeal from the order of the joint board of trustees by giving written notice and filing a bond, as provided by the statute.

The question presented is whether or not such appeal was perfected at the time and in the manner prescribed by law.

It is contended on the part of the defendants in error that such appeal was not perfected within the time required by law, viz., within eigth days after the decision of the trustees, as provided by Secs. 6625 and 6648 G. C. The last named section applies to joint township ditches, such as the one under consideration in this ease, and provides that such appeals ‘ ‘ shall be taken to the probate court of the county in. a like manner as heretofore provided in this chapter, ’ ’ the provision referred to being found in Sec. 5625. It is provided by this section that a person interested in the location of such ditch, or in the amount of compensation and damages determined upon by the trustees, may take an appeal to the probate court of the county “by giving written notice thereof to the clerk of the township within eight days after the decision of the trustees, and by filing with the clerk a bond with two or more sufficient sureties conditioned for the payment of all costs made upon the appeal if the decision of the trustees is sustained in the probate court.”

It is not contended here by the defendants in error that such notice was not given or bond filed, but it is claimed that they were not given and filed within eight days after the decision of the trustees. It is admitted that such notice was given and bond filed within eight days after the order of June 17, 1915, apportioning the construction of said ditch among the parties interested.

Was the giving of the notice and the filing of the bond at this date sufficient? We think not. By analogy to the provisions of the statute relative to appeal from the proceedings of county commissioners, in reference to county ditches, we think such notice should have been given and bond filed within eight days after the order for the location of such ditch and the order refusing compensation and damages had been made.

The Supreme Court has passed upon the statutes relating to appeals in county ditch proceedings in the case of Atley v. Clinton Co. (Comrs.), 77 Ohio State, 285 [82 N. E. 1079], It is there held that the order or judgment of the commissioners contemplated by the last clause of Sec. 4461, from which an appeal may be taken by an aggrieved party, is the order or judgment finally determining that the proposed ditch is necessary and will be conducive to the public health, convenience or welfare, and that it is the best route, and also determining claims for damages, if any are made.

That is, in such cases, the appeal must be taken within the time limited after the order or decision to be appealed from has been made by the commissioners.

The statutes relating to appeal from the proceedings of county commissioners are in pari materia with the statutes governing appeals from township trustees. The limitation in cases of ditch proceedings of township trustees is eight days from the entering of such order; and as there are only two orders from which an appeal is allowed in township ditch matters, such notice and bond should be given within eight days from the entering of the last order; in this case, the order relative to compensation and damages.

Under this construction, such appeal should have been taken within eight days after April 24, 1915. This was not done, and the appeal was properly dismissed on motion of the township trustees; and the court of common pleas did not err in sustaining the action of the probate court in dismissing said appeal.

The judgment of the court of common pleas will be affirmed. Exceptions may be noted.

Shields and Houck, JJ., concur.


author: Jones (E. H.), J.

text:
    EASEMENTS
    [Hamilton (1st) Court of Appeals,
    July 12, 1916.]
    Jones, Jones and Gorman, JJ.
    Mary Knepfle et al v. Cleveland, C. C. & St. L. Ry. Zarum Simonson v. Cleveland, C. C. & St. L. Ry.

      Abandonment of Easement in Canal Lands by Railway ini Failing to Pay Taxes or to Fence.
    A railway company appropriated an old canal bed with all tbe privileges and appurtenances of whatever nature connected therewith, which included a basin containing about ten acres of land theretofore used in turning boats. The basin was not needed by the railway, and in time dried up, and was continuously farmed by the adjacent owners for almost fifty years, when the railway asserted title to an easement therein, and caused this land to be transferred to its name for taxation. During the long interval the railway had been required to fence its road, and in doing so built a fence which followed the line of the railway track, and did not include the basin. In an action by the adjacent owners, whose deeds covered this basin, to have their titles quieted, Held:

    That the railway company in taking over the right-of-way of the canal company, which included this tract of land, took more than it needed or has had occasion to use, and by its acts in not including this land with its own property for taxation, and in placing its fence as it did, and in permitting others to use the land without hindrance, evinced an intention to abandon its easement therein, and the plaintiffs are entitled to a decree quieting their title as against such easement.
    Appeal.

      Michael Minges and Albert A. Graef, for plaintiffs.

      Harmon, Colston, Goldsmith & Hoadly, for defendant.
   Jones (E. H.), J.

The above two eases come into this court on appeal from the court of common pleas, and by agreement were heard together, as they involve the same questions, and the same evidence is entirely applicable to both.

The actions are brought to quiet title in the plaintiffs as against the adverse claim of the defendant — in the Knepfle case, to 5.11 acres and in the Simonson case 4.23 acres of land. The evidence establishes the fact that this land in controversy was from about the year 1838 to 1863 a part of the right-of-way of the Cincinnati & W. Canal Co. and was covered by the waters of said canal, was a part thereof, and was used by said company in the conduct of its business principally for the purpose of turning boats.

On July 1,1863, the Cincinnati & I. Ry. determined to build a branch railroad, running from a point where its main line road, running west from Cincinnati, left the bed of the Cincinnati & W. canal to the village of Harrison; and on said day the board of directors of said railroad company passed a resolution which in effect appropriated all that portion of the Cincinnati & W. canal commencing at the point named, which has since been known as Valley Junction; thence following the line of the canal to the village of Harrison, together with the two banks and basin of said canal, all its locks, gates, aqueducts, viaducts, bridges, mill sites and privileges, water power, and other rights, privileges and appurtenances and property of whatever name and nature. Later there was paid to the Cincinnati & W. Canal Co. the sum of $5,000 for the property so conveyed by the canal company to it.

Thereafter on January 1, 1877, the Cincinnati & I. Ry. conveyed to the Harrison Branch Ry. the right-of-way and land occupied or used by the Harrison Branch By. for a railroad, extending from its intersection with the railroad of the Cincinnati & I. Ry. at Valley Junction to the village of Harrison, together with all privileges and appurtenances to the same belonging, etc.

On the same day the Harrison Branch Ry. leased to the Cincinnati & I. Ry. the same property for a term of ninety-nine years, renewable forever.

On December 31, 1912, the Harrison Branch Ry. conveyed all its property to the present defendant. The property conveyed is thus described in the deed:

“The railroad of the grantor company extending from a point of connection with the Cleveland, C. C. & St. L. Ry. at Valley Junction in Hamilton county, Ohio, to a point on the state line between Indiana and Ohio in the village of Harrison in said county; together with all and singular the properties real and personal, rights, franchises, interests and estates appertaining to or used in connection with said railroad herein conveyed or intended so to be (except the franchise to be a corporation), in-eluding roadbeds, superstructures, rights of way, tracks, bridges, viaducts, buildings, structures, fixtures and appurtenances, locomotives, cars and other rolling stock, tools, machinery supplies, materials and other chattels connected with, appurtenant to or used in connection with said railroad or belonging to or possessed by the grantor company; and all property, real or personal, wherever situated, or interest or estate therein, by the grantor company owned or possessed; and all rents, issues, profits, tolls and other income of said railroad, properties, rights, franchises, interests and estates; together with all and singular, the tenements, hereditaments and appurtenances of said railroad and properties, and the reversion or reversions, remainder or remainders. ’ ’

Plaintiffs, Mary Knepfle and others, bought the farm now occupied by them under a description which makes no reference to a canal right-of-way or a railroad right-of-way, by a deed which bears date May 22, 1897; and plaintiff Simonson bought the farm now owned by him by deed which likewise makes no reference to the right-of-way either of the railroad or canal and which was dated February 21, 1901. The boundaries of the farms conveyed by these deeds, according to the descriptions therein contained, included the tracts of land involved in this controversy.

It also appears from the testimony that in 1863, at the time the canal company sold out to the railroad company or very soon thereafter, the water was let out of the .canal; that for some time thereafter the property in question (the former canal basin) was a low, wet place in which water stood, but that in course of time it became dry and was farmed by the owners of the fee, and was used and controlled by them as fully and in the same manner as they used and occupied the rest of their respective farms.

In 1912, at the time of the transfer to the defendant from the Harrison Branch By., the defendant had a survey and plat made of its property, and the same was duly placed upon record. Thereafter, upon representations made by the defendant to the county auditor of Hamilton county, the property in dispute was removed from the tax duplicate in the names of the plaintiffs, and they thereupon brought these suits to quiet the titles they claim to hold to the property in question, making the railroad company party defendant thereto. The railroad company answered, setting up, first, that it owns the property in question; and second, that it has been in the open, notorious and adverse possession of it for more than twenty-one years- last past.

Plaintiffs base their right to have their titles quieted upon four main grounds; first, they say that defendant has no title to the properties in question; second, that the plaintiffs are purchasers for value without notice; third, that the acts and conduct of the canal company in disposing of its rights to the Cincinnati & I. By. predecessor of the ’defendant, followed by the failure and neglect of the defendant and its predecessors to occupy either or any' part of the parcels of land in question, amounted in law to an abandonment of its right; fourth, they claim to have obtained title by actual, open, notorious, continuous, exclusive and adverse possession for more than twenty-one years.

According to the view that this court takes of these cases, we deem it unnecessary to discuss or determine the first two contentions of the plaintiffs. The defendant only claims an easement in this land. The record shows beyond question that the fee of this land has always been in the plaintiffs and their predecessors in title. Whether when plaintiffs purchased this land (the Knepfles in 1897 and Simonson in 1901) they took the title with record notice of an easement therein is immaterial, if from an examination of the questions of abandonment and adverse possession the court find upon the issues joined in this action in favor of the plaintiffs at this time. Such is the situation; so we deem it unnecessary to enter into a discussion as to whether or not the plaintiffs were purchasers without notice. Upon this point we simply say that we have examined this record rather carefully, including the exhibits which are made a part thereof, and can not recall any public record which could be considered notice, nor do we think the record shows any physical fact which would put the present owners upon inquiry or be notice to them, except as to the strip enclosed by the railroad company and necessarily used and occupied by it in the operation of its road.

The question of abandonment must be determined by the facts and circumstances peculiar to each case.

In the case of Junction Ry. v. Ruggles, 7 Ohio St. 1, 11 the court, says:

“Doubtless a right-of-way, like any other right of property, may be abandoned; and such abandonment, which depends on ■the intention of the owner, may be inferred from the lapse of time or other circumstances indicative of an intention on the part of the grantee to abandon.”

The same principle is announced in Garlick v. Pittsburgh & W. Ry., 67 Ohio St. 223, 235. The court says:

“The question of abandonment is eminently one of intention.”

And then it quotes the following from Washburn, Easements & Servitude, p. 707:

“It is not easy to define in all cases what would be such act of abandonment as would destroy a right of easement, and each case seems to be a matter for a jury to determine. But nothing short of an intention to so abandon the right would operate to that effect, unless other persons have been led-by such acts to treat the servient estate as if free of the servitude, and the same could not be resumed without doing injury to their rights in respect to the same. And in this it is not intended to embrace questions which may arise from a mere non-user of an easement. ’ ’

In this connection see also: Hatch v. Cincinnati & Ind. Ry. 18 Ohio St. 121.

In the light of this doctrine, which as applied to this case makes the claim of abandonment depend upon the intention of the railroad company, let us look briefly at the facts as here presented: The railroad company of Course had no use for a

canal basin. When the canal was abandoned and turned over to the railroad company and a railroad was constructed thereon operating its cars by steam, the canal basin as such was abandoned. Steam was substituted for the mule, and wheeled cars for the boat. The railroad company no longer needed the basin. And from 1863 to 1912, the date of the bringing of this action, not a single act was ever performed by the railroad company that could be considered as an act of ownership with reference to this property. The owners of the fee occupied the land, cultivated it, pastured it, gathered the crops from it, enclosed it with fences and, as said before, used it in exactly the same manner as they did the rest of their farms. A few years before this action was brought the plaintiffs through an attorney ordered the defendant to build a fence separating its right-of-way from this land. This demand was made under the provision of the statute which requires a railroad company to fence its right-of-way, and was complied with promptly and without any protest on the part of the railroad company.

There is not one syllable in the record which shows that the defendant company, or its grantors, by word or deed for over fifty years prior to the commencement of this action ever said or did anything indicating that it made any claim to the property in question. It was the action of the railroad company in having the county auditor remove this land from the tax duplicate in the names of the plaintiffs that precipitated this law suit. If instead of doing that the railroad company had sold this tract of ground to the Cincinnati L. & A. Ry., whose right-of-way abuts this tract of ground on the north, for depot purposes’ or for switches and terminals, then it seems to us that the case would be covered entirely by the decision of our Supreme Court in Platt v. Pennsylvania Co., 43 Ohio St. 228 [1 N. E. 420]. As it is, counsel for plaintiffs rely upon this last cited case, while their adversaries make the claim that it has no application to the facts in the case at bar. We are inclined to think, however, that it has a strong bearing upon the determination of the question here presented. The Lake Shore Ry. in the latter case had appropriated a strip of ground one hundred feet wide for its right-of-way. It built its track, and in so doing used only fifty feet, which it maintained as its right-of-way for over twenty-one years, when it sold to the Pennsylvania Ry. twenty-five feet of the strip originally appropriated. An action was brought by Oliver, the owner of the fee, to recover damages, wherein it was held that—

“the fact that it became evident subsequently to an appropriation that the company had appropriated more land than was necessary for its use, and would not need a particular specified part of the strip appropriated for any purpose for which the appropriation was made, will not authorize ithe company to sell in perpetuity such surplus part to another railroad company. * * * The land owner is not authorized to recover by civil action such surplus or enjoin the operation of such railroad thereon, but he may by action treat the transaction as an abandonment of such surplus by the first company and its appropriation by the last company, and recover damages as upon an appropriation.”

The reason given why the lessor could not recover the land was that he had stood by and seen the investment by the Pennsylvania Co. of a vast amount of money, before complaining.

We think that in so far as it was held by the Supreme Court that the nonuser by the Lake Shore Ry. for so. many years, of this twenty-five-foot strip, showed that it was unnecessary to the operation of its road and was in effect an abandonment of the same by it, the case is instructive here and furnishes authority for the decision reached by us in this case, viz., that the nonuser of this land for practically a half century by the defendant and its predecessors must be taken as a manifestation of an intention to abandon the same. The railroad company when it took over the right-of-way of the canal company in 1863, in taking the canal basin took that which it did not need in connection with the operation of its road, and in the light of the evidence in this case as briefly reviewed above it must be held to have abandoned the land herein involved, or its easement therein, long before this action was commenced, and plaintiffs are entitled to a decree quieting the title in them.

This determines these cases, but since the claim of title by prescription is so strongly urged and fully discussed in the briefs on both sides, it is well to say that we are strongly inclined to the opinion that the claim of plaintiffs in this regard is established and sustained by the evidence. As already stated, the predecessors in title of the plaintiffs shortly after the water was let out of the canal reclaimed the basin as a part of their respective farms and used it continuously, openly and notoriously, not only for twenty-one years but for more than twice that length of time prior to the beginning of this action. It is claimed by the defendant that this occupancy was not adverse. It is true that this necessary element is not as clearly shown by the evidence as that the possession was open, notorious and -continuous, but the evidence shows that for more than twenty-one years prior to any assertion of this kind on the part of the railroad company the then owner of each part of the former basin dug a well on his respective portion and has ever since maintained the same. They constructed across the land — it being low-lying land — foot bridges by means of which they and other residents of the vicinity could reach a railroad station near by. They ordered the railroad company, as owners of adjoining land are empowered to do under the statute, to build fences along the right-of-way as then in use. They connected these fences in such a way as to completely enclose the land in controversy. They paid the taxes for all these years. And in this connection it is worthy of mention that the evidence does not show that the railroad company at any time included this property in its statement or return for taxation required under Sec. 5422 G. C. It is fair to assume that no return was made by the railroad company of this land or of its easement therein, there being a total absence of evidence to that effect. We will not assume that this omission was an attempt deliberately made to avoid taxation on this land, but rather believe, it to have been due to the fact that the company had abandoned all claim to the land. This omission to include this land in its reports to the tax authorities is one of the strongest indications of abandonment that the evidence or lack of evidence presents, and should have been included in the statement of facts and circumstances supporting the plea of abandonment.

As indicated above, we are not as clear as to the rights- of the plaintiffs under the claim of adverse possession as under that of abandonment. Our position is quite similar to that of the circuit court of this county in the case of Tudor Boiler Mfg. Co. v. Greenwald Co., 26 O. C. C. 556 (5 N. S. 37). That case involved a right-of-way, and the court had under consideration in connection therewith the subjects of abandonment and title by prescription. They found in favor of the Greenwald Co. on both of these defenses, but that the stronger defense was made out in favor of abandonment. On page 561 (43) the court say:

‘ ‘ On this issue the court is not so strong in its conclusion as on the issue of abandonment, but on this, too, we find in favor of the defendant.”

That sentence expresses the attitude of this court in the instant case, except that our finding is for the plaintiffs.

Every act of ownership or dominion over this property for more than fifty years has been performed by the plaintiffs, and we are inclined to think that these acts of dominion and ownership by the occupants of the land, taking all of the evidence into consideration, were adverse, and therefore hold that the plaintiffs have obtained whatever title or easement the defendant or its predecessors may have had in this canal basin, by prescription. As an example of the holding of the Supreme Court in regard to the principle that title to an easement may be acquired by adverse possession, see journal entry in Hamilton Co. (Comrs.) v. Cincinnati H. & D. Ry., 92 Ohio St. 513 [112 N. E. 1081].

Somewhere in the record it is said that the action of the county auditor, taken in 1912, in removing this land from the tax duplicate in the names of plaintiffs and transferring it to the defendant, was taken under authority of Sec. 8821 G. C. An examination of that section will show that it applies only to land actually in use by a railroad company, and it therefore furnishes no authority for any action in this kind of a case. The action of the railroad company in making the application for the transfer was a sufficient assertion of claim to constitute a cloud upon the titlfe and form a basis for this action, especially in view of the fact that the application was granted by the county auditor and the transfer was made.

For the reasons above stated we find that the titles of the plaintiffs should be quieted as prayed for in their respective petitions.

Jones (O. B.), and Gorman, J. J., concur.


text:
    COUNTIES — HIGHWAYS
    [Morrow (5th) Court of Appeals,
    1916.]
    Shields, Powell and Houck, JJ.
    George C. Gruber v. Morrow Co. (Comrs.)
    County Comimissioners to Proceed with Road Improvement Governed by Petition of “Majority” of Resident Owners within Mile of Improvement Contemplated.
    Whether county commissioners have jurisdiction under the Garrett law to proceed with a road improvement is to be determined by the provision of Sec. 6926 G. C. for a petition by “a majority of the resident owners of real estate situated within one mile of the road,” without reference to a provision of Sec. 6929 G. C. which eliminates “land owners residing within a municipality,” and is void for uncertainty.
    Appeal.
   POWELL, J.

This action is before this court upon a motion to dissolve a temporary restraining order heretofore allowed in the court of common pleas, and which came into this court by appeal from a judgment of the court of common pleas making said injunction perpetual.

The question presented arises upon the statutes relative to •the construction or improvement of public highways, and was begun under what is known as the Garrett law, which begins with Sec. 6926 G. C., and ends with Sec. 6956. The particular question to be decided is as to whether or not, under the provisions of these statutes, the commissioners had jurisdiction to order the improvement prayed for, because the petition for such improvement or construction was not signed by a majority of the resident owners of land lying within one mile of the proposed road.

It is provided by Sec. 6926 that when a majority of the resident owners of real estate situated within one mile of a public road present a petition to the board of county commissioners asking for the grading and improving of such road, they shall go upon such road and take such proceedings as are provided in said statutes.

The particular question presented in this case arises under the latter part of Sec. 6929 G. C., which reads as follows:

“It shall not be necessary in determining'such majority petitioners to count land owners residing within a municipality.”

The question arises upon this state of facts, to-wit: that there are sixty-three lots of land to be assessed; that there are nine non-resident owners who can not be counted in determining whether a majority have signed the petition; that fourteen of the remaining tracts are owned by persons living within a municipality and more than one mile from the road to be improved; that the total number of signers to the petition is twenty-two, and that the fourteen tracts of land owned by persons living within a municipality are not counted in determining whether a majority have signed the petition.

It is contended by the commissioners that the owners of these fourteen tracts should not be counted by reason of the provision contained in See. 6929 above mentioned, and that twenty-two constitute a majority of the land owners entitled to be counted.

The plaintiff in the action seeks to enjoin because the petition was not signed by a majority of the resident owners of land as provided by Sec. 6926. If the petition is signed by a majority, the order of the commissioners establishing such road was properly made. If it was not signed by a majority of the resident land owners, then the court was without jurisdiction to order said improvement to be made.

Upon examination of the statutes the court is of the opinion that the two sections above quoted are in conflict; that Sec. 6926 requires that a majority of the resident owners of real estate situated within one mile of the road must sign the petition to give the commissioners jurisdiction under said statutes, while See. 6929 provides that if any one of said land owners resides within a municipality, it shall not be necessary that he be counted in determining such majority petitioners.

It is the opinion of the court that this provision of Sec. 6929 is void for uncertainty; that if it be construed to be mandatory, in that these owners residing within a municipality shall not be counted, then a new rule for determining majorities is established, which is in conflict with the generally well accepted rule for the determination of a majority. If it is not mandatory, but discretionary whether they shall be counted or not, at the option of the commissioners, then it would be in violation of the provisions of the constitution which provide that all laws of a general nature shall operate uniformly throughout the state. We think that if such provision has any force and effect, it would only apply to such municipalities as are within the bounds of such proposed road improvement, or within one mile of either side of the road which is to be improved.

With this construction it follows that in either event the petition filed in this case is insufficient. It does not have a majority of the resident land owners within such improvement district, if such resident owners residing within the county are to be counted; nor does the petition show that the resident owners who reside within a municipality are residents of a municipality within one mile on either side of such proposed road.

For these reasons the court is of the opinion that the commissioners were without jurisdiction to make said improvement ; that the injunction was properly granted, and the motion to dissolve the same will be overruled. Exceptions may be noted.

Shields and Houck, JJ., concur.


author: JONES (E. H.), J.

text:
    BENEFICIAL ASSOCIATIONS
    [Hamilton (1st) Court of Appeals,
    April 24, 1916.]
    Jones, Jones and Gorman, JJ.
    Della Parks v. Grand Fountain U. O. T. R. et al.
    Property in Name of Branch Organization Subject to Claims of Beneficiaries of Parent Society.
    When a subsidiary body is officered by the same officers as those who control and dominate the parent body, and has as its purpose the rendering of assistance to the parent body, and its purpose and character has always been so understood by all the members of the parent body and has always been so declared and those who became members of the parent organization did so in the belief that it embraced this subsidiary property in the hands of a receiver and standing in the name of the subsidiary will be administered for the benefit of the parent body.
    Appeal.

      William C. Lambert, for plaintiff.

      Chas. Broadwell and Johnson & Levy, for defendants.
   JONES (E. H.), J.

The petition in this case avers that the Grand Fountain of the United Order of True Reformers is a corporation under the laws of Virginia, and that the other defendant, the Reformers Mercantile & Industrial Assn., is also a corporation under the laws of Virginia and is an allied or subsidiary corporation, being under the control and management of the Grand Fountain U., O. T. R.; that the latter is a fraternal beneficial association of colored people with members all over the United States, divided into divisions and lodges,-and that in consideration of dues paid by its- members at regular specified times it pays to them sick benefits and also issues death certificates providing for the payment of a stipulated sum upon the death of the member named therein.

Plaintiff, Della Parks, being the beneficiary named in one of these certificates issued to Bose Lee Parks, deceased, recovered a judgment before a justice of the peace against the Grand Fountain upon said certificate for the sum of $139 and costs. She says that said judgment is in full force and effect and is, unpaid. She also says that within the jurisdiction of this court alone there are, according to her information, a number of persons who are in the same situation as herself and who are beneficiaries named in certificates held by deceased members of the order; that some of these have recovered judgments on their claims, all of which are unsatisfied and unpaid. She further avers that the said beneficial society is in the hands of receivers; that its affairs are in a tangled condition and that some of its principal officers are under indictment on the charge of misapplying the funds of said defendant in the state of Virginia; that on February 20, 1902, the Grand Fountain purchased certain real estate in the city of Cincinnati; that the title of said real estate was fraudulently put in the name of the defendant, the Beformers M. & I. Assn., and that in fact said real estate always was and now is the property of the Grand Fountain. Plaintiff, Della Parks, prays that said real estate be subjected to the payment of said judgment; that it be sold if necessary and out of the proceeds the judgment of the plaintiff be paid, and for such other and further relief as she may be entitled to.

The case is here on appeal from the judgment of the common pleas court, and was heard by this court on the oral evidence and numerous exhibits, and was submitted on arguments and briefs.

We think the evidence fully supports the claim of the plaintiff set out in her petition that the Grand Fountain U. O. T. B. is insolvent.

In support of the claim that the property described in the petition, located in Cincinnati, was owned by the Grand Fountain U. O. T. R., and not by the defendant, the Reformers M. & I. Assn., a great number of books and records of the Grand Fountain were offered in evidence. These books consist of the minutes of the annual session of the Grand Fountain U. O. T. R., beginning with the year 1902, down to the year 1908; also, a history of twenty-five years of the order, guidebooks, pamphlets and other literature disseminated by the officers of the Grand Fountain. Throughout these books and reports it appears that the officers of the Grand Fountain were also the officers of the Reformers M. & I. Assn.; that the Reformers M. & I. Assn, was promoted and organized by the officers and members of the Grand Fountain; that it was controlled and dominated entirely by the members and officers of the Grand Fountain and was advertised in their literature as a subsidiary organization of the Grand Fountain.

It further appears from these records that the officers of the Grand Fountain, also the officers of the Reformers M. & I. Assn., including the Grand Worthy Master, as president of the organization, made repeated statements to the local members of the Grand Fountain of Cincinnati that the property involved in the controversy in this cause was to constitute a home for them and all the order of the Grand Fountain, and that these representations were made as inducements to secure colored people in this city to become members of the Grand Fountain.

Without undertaking to set out the numerous statements and the evidence in this case, we have come to the conclusion that the property located in Cincinnati, the title of which appears to be in the name of the Reformers M. & I. Assn., is really held in trust by that organization for the use and benefit of the Grand Fountain and its members; that this subsidiary organization, the Reformers M. & I. Assn., was incorporated and organized solely for the purpose of aiding and assisting the members of the Grand Fountain and to facilitate the transaction of its business and to divide up the work which was to be accomplished by the parent body. In the numerous pamphlets put out by the parent body and in the minutes of the annual session it is shown that the parent organization consists of eight subdivisions or branches, the first being subordinate Fountains, and other subordinate branches being the savings bank, the real estate department and lastly the Reformers M. & I. Assn

It further appears from the evidence in the case that other property which belonged to the parent body was bought and the title placed in the name of the subsidiary organization. For example, in 1903, the worthy grand master of this order, who was the chief executive and controlling spirit of the organization, reported that he had purchased fifty-four acres of land on the James river in Virginia, and that he had put the title of the property in the Reformers M. & I. Assn., and that the property belonged to the parent body of the Grand Fountain. The same year and in the same report he gave a detailed statement of how he had purchased the Cincinnati property, and, among other things, stated that there had been donated by the votes of the directors of the Grand Fountain $40,000 to put up a building in St. Louis, but that he had purchased the property in St. Louis for $22,500, and had taken the balance left from the $40,-000 and purchased another piece of property in Louisville for $4,600, and had purchased the property in Cincinnati for $7,000.

"We think the evidence is overwhelming tending to show that notwithstanding the fact that the title was taken in the name of the Beformers M. & I. Assn., it was nevertheless purchased for the parent body and it was so understood by all of the members of the organization. Such being the fact, we conclude that the members of the organization of the Grand Fountain who are residents of this city have a right to look to this property in Cincinnati to secure the payment of the claims which they have against this organization. The mere fact that the Reformers M. & I. Assn, is a separate organization from that of the Grand Fountain will not prevent the application of equitable principles to the facts in this ease. It has been held repeatedly by the courts that a corporation is a legal entity apart from the natural persons who compose it, but that this legal entity is a mere fiction introduced for convenience in the transaction of its business and of those who do business with it; but like every other fiction of the law, when urged to an intent and purpose not within its reason and policy, the fiction may be disregarded. State v. Standard Oil Co., 49 Ohio St., 137 [30 N. E. 279; 15 L. R. A. 145; 34 Am. St. 541]; Brundred v. Rice, 49 Ohio St., 640 [32 N. E. 169; 34 Am. St. 589].

In First Nat. Bank v. Trebein, 59 Ohio St., 316, 326 [52 N. E. 834], the Supreme Court, in speaking of the manner in which courts would look at the corporate entity of a corporation, says:

“The fiction by which an ideal legal entity is attributed to a duly formed incorporated company, existing separate and apart from the individuals composing it, is of such general utility and application as frequently to induce the belief that it must be universal, and be, in all eases, adhered to, although the greatest frauds may thereby be perpetrated under the fictions as a shield. But modern cases, sustained by the best text-writers, confine the fiction to the purposes for which it was adopted— convenience in the transaction of business and in suing and being sued in its corporate name, and the continuance of its rights and liabilities, unaffected by changes in its corporate members; and have repudiated it in all cases where it has been insisted on as a protection to fraud or any other illegal transaction. ’ ’

It can not be doubted, from a perusal of the evidence in this case, that this subsidiary organization, the Reformers' M. & I. Assn., was organized purely and simply as an aid to the parent body, officered by the same officers as those controlling and dominating the parent body and for the purpose of assisting the members of the parent body. It was considered by all of the members of the organization and all of its officers, and so stated time and again in their utterances before the delegates in their annual session, that these organizations were all part and parcel of one Grand Fountain U. O. T. R. Those who became members of this organization in Cincinnati did so upon the belief and understanding that this great organization embraced all the subsidiary organizations and branches known as subsidiary branches. In truth and in substance the real company was the Grand Fountain U. O. T. R. and it dominated and controlled all the other branches and organizations.

In view of this conclusion we are of the opinion that a decree should be entered in this case in accordance with the prayer of the petition1 of the plaintiff, and that this property in Cincinnati, now in the hands of a receiver, should be held and administered for the benefit of the members of this Grand Fountain who are citizens and residents of Hamilton county, Ohio, who may have come in or may hereafter come in and ask to participate in the benefits which they claim in this property.

Jones (O. B.) and Gorman, JJ., concur.


author: GORMAN, J.

text:
    DAMAGES — MALICIOUS PROSECUTION — TRIAL
    [Hamilton (1st) Court of Appeals,
    April 19, 1915.]
    Jones, Jones and Gorman, JJ.
    Munro Hotel Co. v. James Brough.
    1. Failure to Release Attachment on Mistake of Parties Warrant Finding of Malicious Prosecution.
    The discovery among the belongings of J A B of canceled checks drawn by J B affords reasonable ground for the belief that the bank account upon which these checks were drawn belonged to J A B, but having been informed, after the bringing of a suit in attachment against JAB and the garnisheeing of this account, that JAB and J B were two different persons and that the said account did not belong to J A B, it became the duty of the plaintiff at once to release said attachment, and failure so to do warranted the finding in the court below that the suit was being maliciously prosecuted.
    2. Confusion in Use of “Testimony” and “Evidence” Interchangeably and “Fair Preponderance” instead of “Preponderance.”
    "While it is error, in a charge to the jury, to use the words “testimony” and “evidence” interchangeably, or to use the words “fair preponderance- of the evidence” instead of “preponderance of the evidence,” it does not afford ground for reversal when the prejudice, if any arose from such use, was against the defendant rather than the plaintiff in error.
    3. Measure of Damages In Malicious Prosecution.
    The measure of damages for the bringing of a suit in attachment without probable cause and maliciously is such compensatory damages as will make the plaintiff whole for expenses incurred in securing a discharge of the attachment and loss of the use of the property, together with counsel fees and punative damages on account of the humiliation and injury sustained by the plaintiff by reason of the suit.

      Harry Hess, for plaintiff in error.

      Chas. Broadwell, contra.
   GORMAN, J.

The action below was one to recover damages for maliciously and wrongfully suing out an attachment and garnishing funds of the defendant in error in the Fifth-Third National Bank of Cincinnati.

It appears that one James A. Brough, the son of the defendant in error, contracted a hotel bill at the Munro Hotel, operated by the plaintiff in error company, amounting to $27.50; that he had left the hotel without paying this bill, and in his room was found after he had left a suit ease containing, among other things, several returned canceled checks on the Fifth-Third National Bank, signed by Janies Brough. Thereupon plaintiff in error brought a suit before a justice of the peace and sued out an attachment and garnisheed the funds of the defendant in error in the bank aforesaid. The defendant was not indebted to the plaintiff, but at the time of the attachment the agents and officers of the company did not know this fact. They supposed that James A. Brough, the son, who had in his possession the canceled returned checks, was the owner of the account in the bank, whereas the father was the owner of the account. The ■ defendant in error, on learning of the attachment and garnishment, went to the Munro Hotel and the agents thereupon told him that he was not the person against whom suit had been brought and that it was a mistake if his funds were attached. He requested the attachment to be released, but it was not done. He was obliged to and did file a motion before the justice to discharge the attachment. The same was overruled, and he appealed from the judgment overruling the motion, to the common pleas court, which court reversed the ruling of the justice of the peace, discharged the attachment and issued a mandate to the justice of the peace to enter a judgment discharging the attachment.

The defendant in error thereupon brought this action alleging that the former action was brought maliciously and without reasonable or probable cause. In the trial of the case below a verdict for $200 was rendered in favor of the defendant in error, and judgment was entered upon the verdict. Error is now prosecuted to reverse that judgment. Numerous errors are alleged in the petition in error and in the brief filed by counsel for plaintiff in error.

We believe that at the time the suit was commenced before the justice of the peace against James Brough, alias James A. Brough, the officers and agents of plaintiff in error had reasonable grounds to believe that the account in the Fifth-Third National Bank belonged to the man who had been the guest at the hotel, but the failure of the agents and officers of the hotel company, after being satisfied that the defendant in error was not the man indebted to the hotel company, to discharge the attachment and its resistance of the motion of defendant in error to discharge the attachment in the justice’s court and in the court of common pleas, we think put the plaintiff in error in the wrong. The moment that the agents and officers of the plaintiff in error were satisfied that the defendant in error was not indebted to the plaintiff in error, and that it was his funds in the bank which were attached, it became the duty of the agents and officers of the hotel company to see that the attachment was discharged with all possible dispatch. We think that the failure to do this is sufficient to warrant the finding that the prosecution was set on foot, maliciously.

The principal ground of complaint made by plaintiff in error is that the court erred in several respects in charging the jury, and that these errors were prejudicial to plaintiff in error, and therefore the judgment should be reversed.

The court, throughout the charge to the jury, used the word “testimony” instead of “evidence,” and charged the jury that they must find from the preponderance of the testimony that the plaintiff was entitled to recover, etc., instead of from the preponderance of the evidence. The evidence outside of the oral testimony of the witnesses, was a letter from Mr. Slutes, the attorney for the Fifth-Third National Bank, to Charles T. Dumont, justice of the peace, advising him that the account of James Brough had been attached, a transcript of the docket and journal entries of the justice of the peace before whom the attachment was sued out, and the canceled returned checks; also, a page taken from the register of the Munro Hotel Co. This evidence was offered by the defendant in error to maintain the issues upon his part, and while the court erred in employing the word “testimony” rather than the word “evidence,” we are of the opinion that this error was not prejudicial to the plaintiff in error, as the jury might well have believed that they could disregard the written evidence and consider only the oral testimony. Furthermore, we are of the opinion that the jury were not astute enough to distinguish the difference between the words “testimony” and “evidence.” It is not an uncommon occurrence for the court to employ the word “testimony” as synonymous with the word “evidence,” nor is it uncommon for the ordinary jury to accept the term “testimony” as the equivalent o£ ‘ ‘ evidence, ’ ’ and we are not prepared to say that i£ the word “evidence” had been employed rather than the word “testimony” the jury’s verdict would have been different from what it was. We are, therefore, of the opinion that on this point the error of the court was not prejudicial to the plaintiff in error.

It is further claimed by plaintiff in error that the court in charging the jury used the word “fair preponderance of the evidence. ’ ’ This appears to be true, and we think it was error on the part of the court to modify the word “preponderance” by employing the word “fair.” This has been held by the Supreme Court to be error, but this error was not prejudicial to plaintiff in error — it was rather prejudicial to the defendant in error — -and if the verdict had been in favor of the plaintiff in error the defendant in error might be here complaining of that error of the court. But the error was favorable to the plaintiff in error and it therefore was not prejudicial.

It is further claimed that the court erred in stating to the jury that they must be “satisfied by the preponderance of the evidence.” > This has been held by the Supreme Court to be error, because it requires the jury to find by a greater degree of proof than the rule requires in civil actions before the plaintiff can recover. This error was not prejudicial to the plaintiff in error, but rather prejudicial to the defendant in error.

It is further claimed that the court erred in defining to the jury “probable cause.” The court in its charge to the jury, among other things, undertook to define to the jury “probable cause, ’ ’ as follows:

“Probable cause may be said to be that cause which the ordinarily reasonable man or ordinarily prudent ‘man would accept as a guide for himself under any like state of circumstances. ’ ’

Our Supreme Court has defined “probable cause” in the case of Ash v. Marler, 20 Ohio St., 132, as:

“A reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the facts were true.”

This definition, we think, has been generally accepted as the correct one in describing “probable cause.” Nevertheless, the definition given by the trial court was not so far wrong as to warrant this court in holding that the jury were misled by the language employed by the court.

There are numerous other errors alleged to have been committed by the court in the charge to the jury, but on an examination of the whole charge we are satisfied that the charge was as fair to the plaintiff in error as it could reasonably ask it to be, and that the jury were not misled by the charge.

In this case the defendant in error had two remedies: he could have brought an action upon the bond to recover damages for the wrongful attachment, in which ease he would have been limited to the actual damages sustained by the attachment of his money and the expense he had been put to in securing the discharge of the attachment. But the defendant in error was not bound to pursue this remedy, as he had another remedy, the one at common law, which he pursued in this case.

“It is well settled and has been uniformly held in this country, that in attachment plaintiff may be subjected to damages for attaching the defendant’s property maliciously and without probable cause. The defendant’s remedy in this respect is not at all interfered with by the plaintiffs having at the institution of the suit given such a bond with security, conditioned to pay all damages the defendant might sustain by reason of the attachment having been wrongfully obtained.” Drake, Attachment, (6 Ed.) Par. 726.

The essential wrong in an action of this kind is the proceedings complained of were without probable cause, and from the want of probable cause malice may be inferred, or malice may be shown by the facts and circumstances of the case. The measure of damages in actions of this kind is the same as in cases of malicious prosecution.

In Greenleaf, Evidence, Sec. 456, the rule with reference to damages is laid down as follows:

“Whether the plaintiff has been prosecuted by indictment or by civil proceedings, the principle of awarding damages is the same; and he is entitled to indemnity for the peril occasioned him in regard to his life and liberty, for the injury to his reputation, his feelings and his person, and for all the expenses to which he necessarily has been subjected.”

In this case, if the jury had found that the action was without reasonable or probable cause and maliciously instituted, they would have been warranted in assessing not only compensatory damages, but also punitive damages; and as a part of the damages they had a right to allow reasonable counsel fees. The compensation which the defendant in error would be entitled to recover, if he made out a case, would be the expense that he had been put to in securing a discharge of the attachment, including counsel fees for services rendered in securing such discharge. He would also be entitled, as stated by Greenleaf, to compensation for the humiliation and injury to his feelings, and the publicity given to him by the bringing of such attachment, and for the injury resulting from his deprivation of the use of his funds.

The court below charged the jury that they might find punitive damages in addition to the expense plaintiff was put to, if the action for malicious attachment was without probable cause and was found to have been maliciously begun. We think the court correctly stated the rule of damages, as far as the court went; but the court would have been justified in going still further in charging the jury that they would be warranted also, if they found the plaintiff was entitled to punitive damages, in allowing him reasonable counsel fees for the prosecution of this action. The charge of the court in this regard was, therefore, as favorable to plaintiff in error as it had a right to expect. It certainly was not prejudicial to it.

Upon a review of the whole case, we are of the opinion that substantial justice was done in this case by the verdict rendered, and the judgment of the court below will be affirmed.

Jones (E. H.) and Jones (O. B.), JJ., concur.


author: SWING, J.

text:
    PRINCIPAL AND AGENT
    [Hamilton (1st) Court of Appeals,
    July, 1914.]
    Swing, Jones and Jones, JJ.
    William R. Thompson v. Josephine D. Dorman.
    Purchaser Procured must be Able, Ready and Willing to Fulfill His Part of Contract to Purchase Realty for Agent to Recover Commission.
    In an action for recovery of a commission for sale of real estate, tlie petition is demurrable when there is no allegation that the purchaser who was procured was able to buy the property on the terms proposed; and when the evidence fails to cure this defect by showing that the proposed purchaser was able, ready and willing to make the purchase, a motion to direct á verdict for the defendant should be granted.
    Error.

      B. T. Brown, for plaintiff in error.

      Adler, Kelley & Hauck, for defendant in error.
   SWING, J.

The action was originally brought before James S. Myers justice of the peace, Cincinnati township, Hamilton county, for a commission for the sale of real estate, the amount being for $80, 2 per cent, on $4,000, the amount of the alleged sale made by the agent. In the court of common pleas the court directed the jury to return a verdict' for the defendant, and error is prosecuted in this court.

Plaintiff in his petition alleged:

“Plaintiff further says that on or about February 27, 1911, the defendant requested the plaintiff as such agent, to endeavor to procure for her a purchaser of said property. The plaintiff then agreed to comply with said request, and on or about March 21, did procure for said defendant a purchaser for said real estate, who thereupon entered into a written contract with said defendant to purchase said real estate for $4,000 upon terms agreed upon by and between said purchaser and said defendant. That-without fault upon plaintiff’s part said purchaser failed to carry out his said contract of purchase with said defendant, and said defendant because thereof refused and still refuses to pay said plaintiff his commission therefor. ’ ’

The law in regard to what is necessary for a real estate broker to do in order to earn his commission is thus stated in Fairchild v. Cunningham, 84 Minn., 521 [88 N. W. 15] :

“A real estate broker is not entitled to a commission for-the sale of land unless he procures a purchaser who is able, ready and willing to comply and purchase on terms named by, or which are, in the absence of an express agreement as to terms, satisfactory and acceptable to the owner.”

We think this is the well .settled law.

In Flinn v. Jordel, 12 Ia. 457 [100 N. W. 326] the court say:

“The contract furnished by a broker signed by the purchaser, furnishes no evidence of his ability to perform its conditions.”

There is no allegation in the petition that said purchaser was able to purchase on the terms set forth in the contract, and we think with the lack of such allegation the petition was demurrable. The evidence offered at the trial fails to cure this defect in the petition because it does not show that the alleged purchaser was ready, willing and able to purchase, and because of the failure to make this showing, we think the court was right in directing the jury to return the verdict for the defendant.

We find, no errors in the judgment of the court of common pleas, and the same will therefore be affirmed.

Jones (E. H.) and Jones (O. B.), JJ., concur.


author: CHITTENDEN, J.

text:
    JUDGMENTS AND DECREES — RES JUDICATA
    [Wood (6th) Court of Appeals,
    October 22, 1913.]
    Kinkade, Richards and Chittenden, JJ.
    A. J. Steele v. Ohio Oil Co.
    Former Judgment on Same Issue Presented and Plaintiff Had Full Knowledge of Facts upon which New Action is Based, Res Adjudicata.
    In an action to obtain the cancellation of an oil and gas lease, when the answer sets up a former action between the same parties in which the validity of the same lease was in issue, and alleges that the case was tried upon that issue and judgment entered sustaining the validity of the lease, and further alleges that at the time of bringing the former suit the plaintiff had full knowledge of all the facts set up in the present action, as grounds for cancellation of the lease, and no reply was filed to the answer, the plaintiff is not entitled to the relief sought because the controversy is res judicata.

    Appeal.

      George H. Phelps, for plaintiff.

      J. W. Sehmifelberger and Riegle & Avery, for defendant.
   CHITTENDEN, J.

The plaintiff brought this action in the Common Pleas of Wood county, for the purpose of having canceled a lease for the privilege of producing oil from certain lands in said county and also for the purpose of enjoining defendant from all further operations upon said lands for the production of oil therefrom. The prayer also asked for an. accounting for all oil taken from the lands since the plaintiff became its owner in 1909.

As a reason for granting the relief which he seeks, plaintiff alleges facts which he claims show that the defendant is engaged in a conspiracy to monopolize the production of crude petroleum and its manufactured products and by-products, and that as a part of such monopoly and fraudulent conspiracy the lease of plaintiff’s premises was purchased by the defendant from the original lessee, and he claims that as a result of such" unlawful conspiracy the price of petroleum has been depressed to about thirty per cent, of its true economic value.

The facts are pleaded somewhat in detail, but they are all to the effect above stated.

The defendant files an answer to .the plaintiff’s claim in which it admits the corporate character of the defendant, the execution of the lease and ownership of the land and lease involved in the action, and denies all allegations contained in the amended petition of the plaintiff which charge an unlawful conspiracy to control production and market for petroleum and its products. It asserts that the lease in question was originally executed by the owner of the property to certain individuals from whom the defendant later acquired title. The defendant further alleges that the plaintiff bought the lands in question at a judicial sale with full knowledge of the lease and its terms and of the fact that the lease was owned by the defendant company. It further claims that it has in every particular complied with and carried out the terms of the written lease.

By a third defense set forth in the answer of the defendant it is alleged that in a former action in the courts of Wood county between the same parties, the validity of this same lease was in question and that the courts determined, upon the merits of the case, that the lease was valid and that the defendant was entitled to operate for and produce oil upon said property in accordance with the terms of the lease.

It is alleged that in the former litigation above referred to, the plaintiff attempted to set up the same defense of an unlawful conspiracy upon the part of the defendant and others to monopolize the petroleum trade and depress the market value of its products and by-products. That during the course of the proceedings the pleadings in which it was sought to make this defense against the validity of the lease were voluntarily withdrawn by the plaintiff. The defendant alleges that at the time of the commencement of the former action above referred to the plaintiff, A. J. Steele, had full knowledge of all the facts stated in his petition filed in this case, and that all the matters and things in connection with the defendant’s exclusive right to operate for oil and gas upon the whole of plaintiff’s farm were in issue in the former action and were conclusively and finally litigated therein. To this answer no reply has been filed.

The defendant has filed a motion for judgment upon the pleadings in favor of the defendant, and the cause is now submitted on said motion.

The first question challenging our attention is the defense set up by the defendant that the cause has been fully adjudicated in a former action.

Although the answer of the defendant shows that the pleadings of the plaintiff setting up the unlawful conspiracy as a reason for avoiding the lease was withdrawn before the case was finally submitted for trial, it further alleges that at the time of the commencement of that action the plaintiff was in full knowledge of all those facts which he now claims if proven would avoid the lease.

In Covington & C. Bridge Co. v. Sargent, 27 Ohio St. 233, it was held:

“In a judicial proceeding in a court of record, where a party is called upon to make good his cause of action or establish his defense, he must do so by all the proper means within his control, and if he fails in that respect, purposely or negligently, he will not afterward be permitted to deny the correctness of the determination, nor, to relitigate the same matters between the same parties.”

In Rindskopf Bros. & Co. v. Doman, 28 Ohio St., 516, 521, the court after quoting the syllabus in Covington & C. Bridge Co. v. Sargent, supra, say:

“So we take it when a party has full knowledge of all the facts that would make for him a valid defense in a given case, a failure to assert them at the proper time, from any cause over which he has control, will work a waiver, and cause him to loose the benefit thereof.”

And in Petersine v. Thomas, 28 Ohio St. 596, 601, the court say:

“All matters of action and defense coming properly within the scope of the suit or action, will be put at rest by the final determination of the action or suit, unless excepted by some provision of law. ’ ’

The doctrine in Covington & C. Bridge Co. v. Sargent, and Rindskopf Bros. & Co. v. Doman, supra, has been followed in many subsequent decisions, viz.: Bartlett v. State 28 Ohio St. 668; Raymond v. Ross, 40 Ohio St. 343; Baltimore & O. Ry. v. Smith, 54 Ohio St. 562, 596 [44 N. E. 240] ; Kunneke v. Mapel, 60 Ohio St. 1, 6 [53 N. E. 259], The principle indeed is elementary and it would serve no purpose to multiply authorities in this opinion.

We think the facts set forth in the answer of the defendant and which are undenied by the plaintiff, bring the case clearly within the doctrine above announced, and although the pleadings setting forth the facts of the unlawful conspiracy were voluntarily withdrawn from the action by the plaintiff before trial in the former case, yet the pleadings upon which the case was submitted to the court presented the issue as to the validity of the lease in question and the right of the defendant to operate under such lease, and that action, thus framed by the pleadings, left that as the issue upon which the ease was tried and called upon the plaintiff to present every defense that he had to the claim made by the defendant in that action.

The answer of the defendant in this case contains the allegation that the plaintiff at the time of the bringing of the former suit had full knowledge of all the facts that he now sets up as a reason why the lease should be canceled.

Following the law as laid down in the several decisions above cited, we hold that the cause has become res judicata, and that the plaintiff is therefore not entitled to the relief prayed for in this action.

With this view of the case it becomes unnecessary to inquire into any further questions made upon the pleadings.

The judgment of the court will be that the petition of the plaintiff be dismissed at his costs.

Kinkadb and Bichards, JJ., concur.

       24 C. C. (N. S.), 27.


author: RICHARDS, J.

text:
    BRIDGES — COUNTIES
    [Wood (6th) Court of Appeals,
    May 19, 1916.]
    Richards, Chittenden and Kinkade, JJ.
    Minnie Chapman v. Wood Co. (Comrs.)
    County not Liable for Injury from Defective Approach to Bridges in Absence of Showing that Repairs Exceed Fifty Dollars.
    A claim for damages on account of injuries, alleged to have been due to negligence in keeping the approach to a bridge in proper repair, cannot be enforced against county commissioners, in the absence of any showing that the cost of such repairs would have exceeded fifty dollars.

      Benj. F. James and E. D. Bloom, for plaintiff in error.

      E. E. Solefher, Pros. Atty. and Fries & Hatfield, for defendant in error.
   RICHARDS, J.

This proceeding in error is brought to reverse a judgment rendered on a verdict directed in favor of the county commissioners. The plaintiff was injured on May 2, 1915, while a passenger in an automobile riding easterly on what is known as the River road, extending from Grand Rapids to Perrysburg. The accident happened at the point where this road crosses the bridge over Sugar creek.

The plaintiff claims that the bridge and the approaches thereto were so negligently and carelessly constructed, kept and maintained as to be unsafe and dangerous, and out of repair, and were negligently allowed to remain out of repair and in a dangerous condition for more than a year prior to the date of her injury.

The evidence discloses that in the forenoon of the day of her injury she was riding with other passengers in an automobile approaching this bridge, and that the driver of the machine, in order to avoid a rut near the center of the road, turned to the right side of the road, and in so doing approached too near the side, so that the right wheels of the machine were on the slanting portion of the road, and that the machine skidded. The driver attempted in vain to right the machine and get again into the ■ middle of the road, but did not stop the machine, the same continuing at the rate of about twelve miles an hour until it struck the westerly edge of the bridge, the right front wheel striking the guardrail on the bridge with such force that the automobile was turned over on its left side, throwing the passengers out of the machine.

The approach to the bridge was, at the point where the same meets the bridge, six or eight inches below the driveway of the bridge, and on the southerly side of the road where the road slants downward the bridge was some two or three feet higher than the driveway. This slanting portion of the highway was covered with a growth of weeds, making it difficult to see the existence or extent of the slope. The bridge in question was one which was constructed a number of years ago by the county commissioners, being a concrete bridge with iron guardrails.

The evidence does not disclose any defect in the bridge at the time of the injury, but the defect consisted in the approach thereto, which was evidently in need of repair. The common pleas court in directing a verdict for the defendant did so on the ground that no duty was imposed on the county commissioners to keep the approaches to the bridge in repair, the same being located on an unimproved road.

The plaintiff does not allege, nor is there any evidence tending to show, the reasonable cost of repairing the approaches so as to make the same fairly safe for the use of passengers in vehicles on the highway.

At common law, boards of county commissioners were not liable in damages for negligence in constructing or maintaining bridges, but this liability has been imposed on such boards in cases falling within the terms of the Sec. 2408 G-. C., the duty there stated being to keep the roads and bridges therein named in proper repair.

The practical difficulty confronted the plaintiff of showing that the injury occurred by reason of a want of repair in the bridge. Section 2422 G. C., reads as follows :

“Except as therein provided, the commissioners shall construct and keep in repair, approaches or ways to all bridges named in the preceding section. But when the cost of the construction or repair of the approaches or ways to any such bridge does not exceed fifty dollars such construction or repair shall be performed by the township trustees.”

We have no doubt that in a general way the approach to a bridge is a part of the bridge, but the Legislature specifically imposed upon township trustees the duty of repairing approaches to bridges when the cost thereof does not exceed the sum of $50.

There being nothing in this case to show that the cost of repairing the approaches would exceed that sum, the board of county commissioners is not liable for failing to cause the approach to be repaired.

The record does not disclose that any such duty devolved upon the county commissioners, and in the absence of such duty there could be no liability. The trial judge was right, therefore, in directing a verdict for the defendant.

Judgment affirmed.

Chittenden and Kinkade, JJ., concur.


text:
    RAILROADS
    [Wood (6th) Court of Appeals,
    October 22, 1913.]
    Richards, Chittenden and Kinkade, JJ.
    Edwin H. Rogers v. Lake Shore & M. S. Ry.
    Lessor of Equipment not Liable for Injuries Resulting from Defective Condition.
    A lessor of railway cars parting with the possession and control of the cars is not liable for damages for personal injuries resulting from the defective condition of one of the cars in the absence of an averment that such condition existed at the time of the lease.

      Benj. F. James, for plaintiff in error.

      Boyle <& Lewis and F. P. Beigle, for defendant in error.
   RICHARDS, J.

The Lake Shore & M. S. Ry. filed a general demurrer to the petition in the court of common pleas, which was sustained, and the plaintiff not desiring to plead further, final judgment was entered against him, to reverse which this proceeding in error is brought.

It appears from the allegations of the petition that Rogers was engaged in loading logs upon a certain ear, which was the property of the Lake Shore & M. S. Ry. but which had been leased by it to the Toledo & O. C. Ry. He was injured by the falling of an end gate which he avers was insufficiently fastened by reason of unsafe fasteners provided by the two companies.

The petition contains no averment that the alleged defects" existed at the time the car was leased by the Lake Shore & M. S. Ry. to the Toledo & O. C. Ry., but it does contain an averment that the car was at the time of the injury in the possession and under the control of the Toledo & O. C. Ry. It further appears from the petition that the plaintiff did not have knowledge of the terms of the lease from the one company to the other.

The court of common pleas committed no error in sustaining the demurrer of the Lake Shore & M. S. Ry. to this petition, nor in the final judgment entered.

Under the allegations of the petition the case is clearly within the principle announced in Burdick v. Cheadle, 26 Ohio St. 393 [20 Am. Rep. 767] ; Shindelbeck v. Moon, 32 Ohio St. 264 [30 Am. Rep. 584], and Stackhouse v. Close, 83 Ohio St. 339 [94 N. E. 746].

Counsel for Rogers rely, among other cases, upon that of Cincinnati & S. Ry. v. Sleeper, 5 Dec. Re., 196 (3 A. L. Rec. 464). The facts of that case, however, are so different from the case at bar in material respects that it is not a controlling authority. The lessor company in that ease reserved control of the property.' The petition does not contain allegations which would bring the claim of the plaintiff within the principle announced in Pennsylvania Ry. v. Snyder, 55 Ohio St. 342 [45 N. E. 559; 160 Am. St. 700], and we need not, of course, determine whether the principle there announced would be applicable to an injury suffered to one other than an employee of the lessee company.

Finding no error, the judgment of the court of common pleas will be affirmed.

ICinkade and Chittenden, JJ., concur.


text:
    SCHOOLS
    [Wood (6th) Court of Appeals,
    May 6, 1915.)
    Richards, Chittenden and Kinkade, JJ.

       Joseph Johann v. Milton Tp. Rural Sch. Dist. (Bd. of Ed.)
    1. Transfer of Territory from Rural to Village District Valid.
    Section 4736 G. C., as amended by act 104 O. L. 138, authorizes a county board of education to transfer territory from a rural school district to a village district.
    2. Three Year Inhibition Against Discontinuance of Centralization d'oes not Prevent Boundary Changes.
    The provisions of Sec. 4727 G. C. that centralization shall not be discontinued within three years, does not prevent such changes of boundaries as may be authorized by other statutes and will conserve the best interests of the schools.
    3. Adjustment of Funds and Transfer of School Territory, Directory not Mandatory.
    The statutory provision that an adjustment of the funds and indebtedness of the two districts involved in the transfer shall be contemporaneous with such transfer, is not mandatory but directory only, as is also the provision that the transfer can not become effective until the resolution providing therefor has been filed with the county auditor.
    Appeal.

      Fries & Hatfield, for plaintiff.

      B. F. James, for defendant.

      Motion to certify overruled by Supreme Court, May 18, 1915.

   RICHARDS, J.

The action is one for an injunction, and the controversy arises over the acceptance of a bid for the erection of a school house in Milton township rural school district, and from entering into a contract for the erection of sneh school house. ¥e will briefly state the conclusions at which we have arrived.

The electors of this school district voted in favor of centralization of the schools. By action of the county board of education a small portion of this school district was detached from this district and attached to the Weston village school district. Later a further detachment of a tract of 160 acres was made. A portion of this last tract of land so detached was owned and occupied as a residence by Michael B. Metzger, who was a member of the Milton township board of education. Thereafter the board of education not having, for thirty days, appointed a person to fill the vacancy thus caused, the county commissioners appointed E. M. Strow to fill the vacancy. Several contentions are made by the plaintiff which we will dispose of in their order.

First, it is claimed that the county board of education had no right to transfer territory from a rural district to a village district. We hold, however, that Sec. 4736 G. C. vests such power in that board. The legislature could not have intended to limit, by the language there used, a transfer of territory from a rural district to another rural district and from a village district to another village district. The section was not intended to cover all districts, for by its terms it does not embrace city school districts nor county school districts, but in our opinion authorizes transfers between the districts named in the section above cited, when authorized by the county board of education.

It is further contended that a county board of education has no right to transfer territory from a rural district after such district has voted to centralize its schools. We find no such limitation in the statutes. It is provided in Sec. 4727 that such centralization shall not be discontinued within three years. This, however, would not prevent such changes of the boundaries of districts as might be authorized by other statutes, but the same could not be permitted to go to the extent of being used as a pretext to accomplish decentralization.

Our attention is called by counsel to Scott v. McCullough, 72 Ohio St. 538 [75 N. E. 52], and Fulks v. Wright, 72 Ohio St. 547 [75 N. E. 55], and we have given these case's a very careful examination. The doctrine announced in those cases is substantially, that no part of the territory of a special school district can be taken to form another special school district, and that when the schools of a township have been centralized, no part of the territory so centralized can be taken to form a special school district.

Since those decisions were announced radical changes have been made in the statutes of Ohio controlling the formation of school districts and the power of changing the boundaries of the same. Indeed, it may be quite true that the statutes relative to changing the boundaries of districts were enacted in their present form in part to escape the force of the above decisions, for the very fact of centralization would naturally raise many questions as to the propriety of existing boundary lines and the power to make such reasonable -changes as should be necessary to meet the contingencies arising must be vested somewhere, and, by the school code in its present form, that power is vested in the county board of education.

By recent legislation a county board of education has been established, and this board has been given the fullest authority, by See. 4736, to transfer territory from one rural or village school district to another. The board, which is given jurisdiction throughout the county, is directed to make a survey of its district and to arrange the schools so as to make them most easily accessible to the pupils of the county, and it may proceed without regard to township lines in making such changes.

The statutes further providé that a rural board of education may submit the question of centralization to a vote of the qualified electors, and that if the same carries, such rural board shall proceed to the “ centralization of the schools of the rural district. ’ ’

It thus appears that when centralization has become effective, it is only a centralization of the schools, and that the district still remains a rural district, and by Sec. 4736 G. C., the county board of education has full authority to transfer territory from one rural or village school district to another. This authority then would exist under the present statutes even though centralization had become effective, but it could not lawfully be carried to the extent of working a decentralization of the schools. The object of the statutes is clearly to empower the county board of education to conserve the best interests of the pupils of the schools of the county, whether they reside in districts in which the schools have been centralized or not.

The plaintiff further contends that a resolution by the counts'- board of education transferring territory from a rural to a village district can not be effective without also at the same time providing for an equitable division of the funds and indebtedness which the rural district may have. The statutes contemplate that such contemporaneous adjustment of the funds and the indebtedness shall be made, but the provisions to that end are manifestly not mandatory, but only directory.

Again, it is insisted by counsel for plaintiff that such transfer can not become effective unless a copy of the resolution is filed with the county auditor. In this case it appears that the proper resolution was subsequently filed, but was, however, not filed at the time of the transfer. The statutory requirement is directory in so far as it fixes the time for such filing, and the filing shown by the evidence in this case is a substantial compliance with the statute.

The statutes investing county boards of education with the power to change the boundary lines of school districts evince a legislative to repose a discretion in the judgment of such boards, and when such boards act within the power conferred by statute, their judgment is only subject to review by the courts, when it appears that they have acted fraudulently, or that they have grossly abused the discretion vested in them.

The defendant insists that-a certain prior action, State v. Milton Tp. Rural Sch. Dist. (Bd. of Ed.), not reported, is res adjudícala as to the matters in issue in this case.

In the opinion of this court, Joseph Johann not having been a party to that action, and the same having been disposed of on appeal in this court other than on its merits, and by adjustment between the parties, the same is no bar to the present action.

It follows from what has been stated as to the power of the county board of education that the petition of the plaintiff must be dismissed at his costs.

Chittenden and Kinkade, JJ., concur.