text:
    MOTIONS — AFFIDAVITS—BILLS OF EXCEPTIONS,
    [Lucas (6th) Circuit Court,
    January 25, 1904.]
    Parker, Hull and Haynes, JJ.
    Daniel D. Thomas v. William H. Mangus.
    1. Motion ron New Trial Unnecessary to Authorize Review of Judgment on Motion to Dissolve Attachment.
    No motion for a new trial is necessary-to authorize a reviewing court to review the judgment of a trial court on a motion to dissolve an attachment or discharge a defendant from an order of arrest before judgment. Stone v. Bank, 4 Circ. Dec. 354 (8 R. 636), approved and followed.
    2. Filing Motion for New Trial Will not Affect Time When Bill of Exceptions Must be Filed.
    If a motion for a new trial is filed in such case, the filing thereof will not affect the time when a bill of exceptions must be filed, but the forty days allowed by the statute (Sec. 5301 Rev. Stat.) for such-filing begins to run from the date of the judgment of the court on the motion to dissolve or discharge.
    ERROR to the court of common jileas.
    Paddock & Johnson, for plaintiff in error.
    Shunck & Thompson, for defendant in error.
   HULL, J.

This action was brought on a promissory note, and ancillary to the action an attachment was issued. No goods were found under the attachment, and, upon a proper showing being made, an order of arrest was issued before judgment against defendant and he was taken into custody as provided under the statute that he might be. A motion was afterwards filed to discharge defendant from arrest. 'This motion was sustained by the court of common pleas and the defendant discharged, and proceedings in error are prosecuted here by the plaintiff to reverse that judgment. Upon the motion to discharge the defendant from arrest, evidence was offered hv way of affidavits and orally, and that was all embodied in the hill of exceptions which is before us. It is claimed that this action of the court of common pleas was against the weight of the evidence. A motion was made to strike off the bill of exceptions for the reason that it was not filed in time in the court below, that is, it was not filed within forty days after the date of the granting of the motion to discharge the attachment by the court of common pleas, but a motion for a new trial was filed by plaintiff asking for a rehearing, and that was not overruled until March 2, and the bill of exceptions was filed within forty days after the overruling of that motion for a new trial, and it is claimed by plaintiff in error that the forty days began to run from the time the court overruled his motion for a new trial, and that, therefore, he is within the statute. The bill of exceptions statute, the last one, which was passed October 22, 1902, provides, in Sec. 5301 Rev. Stat.:

' “The party excepting must 'reduce his exceptions to writing, and file the same in the cause within forty days after the overruling of the motion for a new trial, or the decision of the court, where a motion for a new trial is not filed, thereupon the clerk shall forthwith notify the adverse party, or his attorney, of the filing of such bill.”

The motion for a new trial, according to the record, was not filed until four days after the order had been made; but it is claimed that a Sunday intervened and that that day should not be counted. And it is claimed by the plaintiff in error that a motion for a new trial was not necessary. But that claim is a two-edged sword for the plaintiff, for, if the motion for a new trial was not necessary, then the -time of the filing of the bill of exceptions would be governed by the same rule as where no motion for a new trial is in fact filed. If a motion for a new trial is not necessary, then the filing of such motion would not extend the time for the filing of a bill of exceptions, but the forty days would begin to run from the time of the order of the court, the statute providing for the filing “within forty days after the overruling of the motion for a new trial, or the decision of the court where a motion for a new trial is not filed;” the statute does not say where a motion for a new trial is not necessary, but says “where a motion for a new trial is not filed. ’ ’ But if a motion for a new trial is filed, where it is not necessary and is not required, it would not affect the running of the forty days or the time at which the forty days would begin to run. That a motion for a new trial in such a case is not necessary, we think is clear. In Minnear v. Holloway, 56 Ohio St. 148 [46 N. E. Rep. 636], it is suggested that a motion for a new trial in such a case is probably not necessary. It was not squarely passed upon by' the Supreme Court as it was unnecessary to do so, but they say in the opinion, page 154:

"As new trials are only granted in proceedings in which there are issues of fact, See. 5305 Rev. Stat., what is said above about remanding cases for a new trial after reversing on the weight of. the evidence, cannot apply to orders and judgments made on hearings on affidavits or evidence, for injunctions, or for the vacation of an injunction, or the dissolution of an attachment, or motions for the appointment or discharge of receivers, or motions for the vacation of an order of’arrest in a civil action and other like motions and proceedings in which no issues of fact are made up by pleadings, and there is no trial in the legal sense of that term.”

In the paragraph before this, in the opinion, Judge Burket, who delivered the opinion, says:

"In such cases the reversal by the higher court should not be on the ground that the verdict or judgment below was against the weight of the evidence, but that it was contrary to law, that is, that the court below erred in applying the law to such conceded facts. The .motion for a new trial in such case, if such motion is necessary, should be upon the ground that the verdict or decision is contrary to law.”

As stated by the Supreme Court in this case, where the action ot the lower court in such ease is reversed, it does not go back for a new trial as where there has been a trial upon issues of fact set forth in the pleadings, but the judgment is reversed and the court of common pleas is directed to enter the judgment that the reviewing court holds should have been entered. If an attachment has been discharged, if the reviewing court holds that that is against the evidence and against the law upon the showing made, tlíe case is sent back and the common pleas court is ordered to overrule the motion to discharge the attachment.

• The circuit court of Cuyahoga county has held expressly that a motion for a new trial is not necessary in such a case, in Stone v. Savings & Banking Co. 4 Circ. Dec. 354 (8 R. 636).

"No motion for a new trial is necessary to authorize a reviewing court to review the facts on which the courts below determined a motion to dissolve an attachment.”

The opinion was delivered by Judge Hale, and he says (page 355) :

"It is said, first, that this question cannot be reviewed in this court, because no motion for a new trial was made on the overruling of this motion. That is not an open question in this court. We hold that a motion for a new trial is not necessary to authorize this court to review the facts, upon which the court below determined the motion.
"Section 5305 Rev. Stat. defines the causes for which new trial will be granted. The first clause of this section reads: £A new trial is a reexamination in tlie same court of an issue of fact after a verdict by a jury, a report of a referee or master, or a decision by the court.’
“Section 5128 Rev. Stat. defines an issue: ‘Issues arise on the pleadings where a fact or conclusion of law is maintained by one party and controverted by the other.’
“We have held and now hold, that no issue of the kind here defined arises upon a motion to dissolve an attachment, and therefore a motion for a new trial is unnecessary.”

We think this is the law, and an order of arrest before judgment is an attachment of the person and subject to the same rule as .when property is attached. So that when the court of common pleas granted the motion to discharge the order of arrest in this case, no motion for a new trial was necessary on the part of the plaintiff below to prosecute his proceeding* in error in this court to review on the. ground that the order of the court was against the evidence, and it seems clear to us that the time within which he nnjst file his bill of exceptions must date from the time of the order of the court of common pleas sustaining the motion to discharge tlife defendant, from the arrest. That order was made on January 22, 1903. The bill of exceptions was filed on April 11, following, being seventy-nine days after the date of the order and judgment of the court discharging the defendant.

’ The motion to strike the bill of exceptions from the files must be sustained; it not having been filed until a long time after the forty days had expired. This is fatal, and this court has no jurisdiction to review the ease upon the facts. There being no question raised in the case except as shown by the bill of exceptions (the weight of the evidence) it follows that the judgment of the court of common pleas must be affirmed.


source: Caselaw Access Project

author: SULLIVAN, J.

license: Public Domain

text:
    STREET RAILROADS —MUNICIPAL CORPORATIONS — SPE= CIFIC PERFORMANCE.
    [Montgomery (4th) Circuit Court,
    January Term, 1903.]
    Wilson, Sullivan and Summers, JJ.

      Edwin P. Matthews (City Solicitor) v. Southern Ohio Traction Co.
    1. Specific Performance hot Peoper Remedy to Compel Electric Railway Company to Perform Duties to Public.
    Specific performance is not the remedy by which to compel an electric railway company, which is operating an interurban railroad under a municipal grant, to operate a street"railroad within the municipality, to announce the names of streets and railroad crossings, keep tickets for sale on its cars, and operate its cars at a certain rate of speed, not■withstanding these obligations are imposed upon the company by the franchise under which it claims to occupy and use the municipal streets. Such a decree, in order to be effective, would require a personal supervision and control by the court of the personal acts of faith, diligence, and conduct of the company’s employes upon whom the discharge of these duties are devolved, which a court of equity will not undertake.
    2. Specific Performance of Obligation to run Cars Refused, When.
    Equity will not decree specific performance when the exercise of judgment to properly meet and adjust relations to new conditions as they might arise in the future, together with continuous supervision over the personal conduct of the parties, would be required in order to make its decree effective. Hence, a municipal ordinance imposing a duty upon a street railway company to “ run cars as often as public convenience and business of the road will justify,” cannot be enforced by specific performance, as the operation of ears would have to be adjusted from time to time as the public demand increased or diminished; the frequency of such changes would be leit to conjecture and is, therefore, necessarily uncertain.
    3. Street Railways not Bound to Operate Cars at Loss, When.
    Under an ordinance requiring street railway companies, as a condition to the occupation and use of municipal streets, to “ run cars thereon as often as the public convenience and business of the company will justify,” such companies are only bound to run such number of cars to meet the public demand as it is able to operate without loss.
    Appeal from Montgomery common pleas.
    E. P. Matthews, for plaintiff.
    McMahon & McMahon, for defendant:
    We do not believe the authorities will justify the court in taking possession of this property and continuously operating it, or directing its operation. The contract between the parties takes the commonsense view of the situation. It recognizes the interest of the railroad company to put on such service as the public convenience demands when the business would justify it. It does not call for service when the same would be unprofitable. Port Clinton Ry. Co. v. Railway Co. 13 Ohio St. 544: Rutland Marble Co. v. Ripley, 77 U. S. (10 Wall.) 339 [19 L. Ed. 955] ; Blanchard v. Railway Co. 31 Mich. 43 [18 Am. Rep. 142] ; Electric Lighting Co. v. Railway Co. 109 Ala. 190 [19 So. Rep. 721; 55 Am. St. Rep. 927] ; Tinkler v. Hindmarsh, 2 Beav. 350; Wheatley v. Coal Co. L. R. 9 Eq. 538; McCann v. Railway Co. 2 Tenn. Ch. 773, and cases cited.

       Affirmed by the Supreme Court, no report, 49 Bull. 123.

   SULLIVAN, J.

This ease comes into .this court on appeal. It is an action brought to compel the defendant to perform several of the obligations assumed by its predecessors, and provided for in the several ordinances of the city granting its predecessors a franchise over and upon the streets of the city named in the petition, to construct and operate a street rail-' way.

The violation of the terras of said grant, as charged in the petition, are:

First. The conductors’ failure to announce the names of the streets.

Second. Failure to announce the crossings of other railroads.

Third. Not keeping for sale tickets upon the cars..

Fourth. Operating its cars at a rate of speed in excess of six miles an hour.

Fifth. Failure to operate a sufficient number of cars necessary for the public convenience and demand.

The company by its answer admits the several ordinances containing the stipulations set forth in the petition, excepting that that relating to the number of cars to be operated is not correctly stated.

It avers it has no knowledge as to the failure of the conductors to announce the street crossings and railroad crossings, and therefore denies the same. It claims the right to operate its cars at a speed of ten miles an hour, and if their motormen exceed this rate they have no knowledge of it, and therefore deny this charge. It avers that it was not aware of the provisions respecting the sale of tickets upon the ears, and as soon as advised they placed the same for sale upon the cars, and will continue to do so in the future. They deny the charge of failing to operate a sufficient number of cars to answer the public convenience, and aver that it was not the understanding between the parties at the time the franchise was'granted that the local travel was a consideration of such grant, and declare that the city has adequate remedies at law and a redress for the wrongs charged, and it is therefore not entitled to a decree of specific performance.

The reply of the city is a general denial of all the matters not admitted by the answer.

Testimony was taken upon the several issues, which shows that the rate of speed of the interurban cars at times was in excess of ten miles an hour; that occasionally conductors failed to announce crossings or stop at crossings for passengers to get on and off the cars; and in one instance when tickets were wanted on a car they could not be furnished because the conductor had sold out. The testimony relative to the operation of a sufficient number of ears to answer the public convenience would not be sufficient to justify a decree requiring more frequent service, if it were within the power of the court to make such a decree.

It is not necessary, however, to discuss the evidence, in view of the conclusion we have reached.

The failure to announce or stop at crossings, or running at an excessive rate of speed, are made misdemeanors by the ordinances, of the city, and any motorman or conductor, violating these ordinances, may be prosecuted and fined.

The ordinance, providing for the sale of tickets on cars, provides, that when a demand for them is made by a passenger, and a failure by any conductor to supply them, for any reason, relieves the passenger from the payment of fare, and he can ride to his destination without paying fare.

In the matter of announcing crossings, rate of speed, and the Keeping of tickets for sale upon the cars, a decree of' specific performance would require a personal supervision and control of the employe upon whom the discharge of these same duties devolved.

The operating of a road from necessity requires the employment of subordinates to discharge these various duties. True, the officers of the company make the orders, but their execution from necessity rests upon these subordinates, and it would be their conduct the court would have to regulate and supervise, and not the officers’; hence, the court would have to hear and determine every charge of any violation of the ordinances of the city, and the violation of the orders of the railway officials, a duty the court could not undertake.

The court says in the case of Port Clinton Ry. Co. v. Railway Co. 13 Ohio St. 544, 556:

“Even if the contract were sufficiently specific, so that the party, when ordered to operate the railroad, would know the manner and mode in which the order was to be obeyed, still the question of obedience to the order must necessarily be left open. And the question of obedience to such an order might come up for solution, not once, * * * but in instances innumerable, and for an indefinite time. ’ ’

Where a remedy by decree of specific performance requires the supervision of personal acts of faith and diligence, in the performance of a personal duty or act, we think in such instance the remedy is invariably withheld.

Tn the matter of announcing crossings, and the rate of speed, a decree of specific performance would not be any more effectual in securing an observance of these matters, than prosecutions under the ordinances making such violations misdemeanors.

The city also claims that the railway company is violating the franchise granted to it by the city by not operating a sufficient number of cars to answer the demands of the public; that all their cars are held in front of the company’s station in the city, and the intervals between the cars is too great to be a convenience for the local travel. The stipulation respecting this obligation is to be found in the ordinance of June 11, 1869, and is as follows-.

“Section 4. (Good ears to be placed on track and run.) And provided further, that any company or individual to. whom any privilege shall be granted' to construct and operate street railways upon the streets and avenues of this city, shall place and continue upon said roads good cars for the convenience and comfort of the passengers, and that they run cars thereon as often as the public convenience and business of the road will just^.”

This provision, as we consider it, means that as the public demand for the use of the road increases from time to time to a point where the company can, without loss to it, operate a sufficient number of cars to meet such increase, it must do so. It would be against the interests of the public if the company was required to operate a service entailing loss and eventually bankruptcy. It was therefore contemplated, ás shown in this stipulation, that the public convenience or demand, as it may be called, would increase, or conditions might arise that it would diminish, and hence the service was left to be fairly adjusted to meet such changes. Ilow frequently such exigencies might 'arise would be beyond conjecture, and therefore necessarily uncertain, so that a decree fixing the number of cars to be operated, would require the court to continue in' the supervision of this part of the business, in order to meet changes that would occur in the future; and so on, so that the control over the road would have to be continuous, a condition that could not be tolerated. It is a rule that when in order to make a decree of specific performance effective it would require continuous supervision over the personal conduct of .the parties, and the exercise of judgment in order to properly meet and adjust relations to new conditions as they might arise in the future, a court of equity cannot and will not extend the remedy.

The several obligations sought to be enforced in this case are clearly of this character. As the court say, in the case already referred to, instead of the final order being the end of the litigation, it would be itself a fruitful and continuous source; and that, too,’ not in the regular course of judicial proceedings, but irregularly, and simply on application, and such application to be made by either party, one when he considered there had not been a faithful compliance with the order, and the other when exemption from some provision might be claimed, on the ground of inability.

The complaints of the city relate to the interurban service and not local seiwice. The grant to the predecessors of the defendant was to operate a street railroad within the city and not an interurban road. If the complaints of the city are true, it has a remedy, we think, but not the one sought in this proceeding, and therefore a decree of specific performance will be refused.


author: HAYNES, J. (Orally.)

text:
    MANDAMUS — COURTS—TRIAL.
    [Lucas (6th) Circuit Court,
    October 31, 1903.]
    Parker, Hull and Haynes, JJ.
    State, ex rel. Mohler, v. Reynolds R. Kinkade.
    1. Mandamus Will not lie to Compel Court to Enter Order as of Subsequent Term.
    Mandamus will not lie after the term to compel a court to make an entry of an order overruling a motion for a new trial as of a date of the subsequent term, in order to allow a party to prepare and file a bill of exceptions, where no action was taken by such party until after the previous term and the time had gone by for preparing and filing the same, and it further appears that all the parties and the deputy clerk were present in open court at the time the motion was overruled and had full knowledge thereof that such party was not misled, and took no action to protect his rights.

      2. Motion Docket not Official.
    It is the duty 'of the clerk of courts to record the action of the court in the court journal on the date thereof and according to the truth of the matter, and a refusal by him to receive an entry overruling a motion for a new trial, when such action has been taken by the court, on the sole ground that no memorandum of such action appears on the “motion docket,” is without warrant. Such docket is unknown to the statutes, and a memorandum thereon made by the court is merely for its own information.
    3. Nunc Pro Tunc Order Will not Issue Where Party Present, Taking no Action to Protect Right. - .
    A nunc pro tunc order will not issue on motion of a party who was present at the time and had full knowledge of the action of the court, but took j;o action to defend his rights.
    Joseph R. W. Cooper, Esq., and Frank G. Crane, Esq., for relator.
    Doyle & Lewis, for defendant.
   HAYNES, J. (Orally.)

This is a petition in, mandamus filed by the relator, the object and prayer of which is to compel a judge of the court of common pleas to enter the overruling of a motion for a new trial, in a certain case, as of the September term, 1903, of that court. The facts of the case ^are these: Mohler had sued The Grasser & Brand Brewing Company; the case came on for trial and a verdict was directed by the judge of the court in favor of the defendant, this occurring in May, 1903; and thereupon the plaintiff filed a motion for a new trial. The motion came on to be heard on June 29 of that year, was argued by counsel and overruled by the court. The matter seems to have rested there until somebody waked up later in the season, along in September, and got an impression that they ought to file a bill of exception so that they could file a petition in error, and they found then that no entry had been placed upon the journal of the overruling of the motion for a new trial. Thereupon, onv September 4, 1903, there was a journal entry tendered by Mohler’s counsel to the clerk of the court of common pleas, which purported to be the overruling of the motion for a new trial of the last day 'of the previous term, that term having adjourned on July 28, 1903. The clerk refused to make the entry. Thereupon a motion was filed by the plaintiff for an order nunc pro tunc for the entering of the overruling of the motion for a new trial as of June 29, the date that it was overruled. For some reason, this was overruled by the court. The petition for mandamus avers that there never has been any judgment entered in the case, and there the matter stands, so far as the journal in the court of common pleas is concerned. Incidentally I should say that the court had, on September 8, 1903, made an entry on his docket, but he aft-erwards erased it for the reason that it had been made by the judge himself after the term, and so improperly made at that time. Defendant’s counsel filed a bill of exceptions on September 4, 1903, with the clerk, and that matter was brought up before the judge and he refused to sign the bill of exceptions.

Now, as a way out of the difficulty, a petition in mandamus filed' to have the entry overruling the motion for a new trial made as of the September term, which commenced on September 15, to let the bill of exceptions be signed and filed. It appears from the record that counsel for both parties were present when the motion for a new trial was ovei-ruled and the court made its decision, and the court was there and the clerk of the court by his deputy. It will be observed that no step was taken by any party from that time afterwards until more than sixty day liad elapsed from the time of the overruling of the motion, when activity was commenced. The reason assigned by the clerk for not receiving the journal entry that was furnished by defendant’s counsel was, that there was no memorandum on the docket of the court of common pleas. That book is known as the “motion docket” by us, but it is not known to the statute; a “trial docket” is provided for by the statute, and that is the one that is kept by the court. It has been determined more than once by the Supreme Court of this state that a memorandum made by the judge upon that docket is merely a memorandum for his own information. The motion was overruled on the twenty-ninth in open court, and that was the act of the court. It was the duty of the clerk under the statute to record the acts of the court in the journal of the court. No time is stated when it should be done, but it is ordered to be done and it is to be done according to the truth of the case. This entry should haws been made and should have been made on June 29, that was the truth of the cast.

The defendants had a right, immediately upon the overruling of the motion, if they wished to take the case to a higher court, to take steps and file a bill of exceptions. They had forty days in which to do that; and if they desired, the journal entry to be made so that the record could go up with the journals all complete, they could have called the attention of the court to it and had the entry made. We know of no reason, and I may say that we see no right for the court of common pleas to make an entry in September overruling the motion for a new trial. It is possible that after the term he might, upon a proper statement of facts, set aside the former motion and rehear the case; but to simply set aside and r.eenter it I think would be beyond the proper exercise of his power. The party in whose favor the motion was overruled has his rights in the matter, and he had a right to have the entry made as of the date at which the overruling was made and his right is fixed as of that time. The statute, Sec. 5301 Rev. Stat. (96 O. L. 16), provides that the party excepting must reduce his exceptions to writing and file the same within forty days after the overruling of the motion for a new trial. He had his forty days within which to do that.and it was his duty to take steps to do that within that time if he desired to take the case further.

With this statement of the facts and of the law of the case as we understand it we think this application for a mandamus should be overruled. The party has had his day in which to file his bill of exceptions and that time has passed. He has not been misled by any person or by any party. He was present in open court and heard the ruling of the court and he was bound to act upon 'that ruling if he desired to take exceptions to the overruling- and the action of the court or have a hearing upon that in another court. It is argued that a nunc -pro tunc order should not be allowed as of June 29, as it would work-a hardship and an injury to the other party. It is true that that rule is laid down in regard to nunc pro time orders, but at the same time the power to enter such orders is well and definitely fixed and is exercised often many years after the time that the action was taken by the court. There was a hard-fought case from' this county where there had been a motion overruled and failure to enter a judgment, and an application was made more than seven years after, and the entry was made and was sustained by the courts. The rule, so far as this case is concerned, has no application whatever, because the parties were present and had full knowledge of what was done by the court and were bound to act upon the knowledge that they possessed at that time and defend their rights.

For these reasons the application for a writ of mandamus will be denied and refused at the costs of the relator.


text:
    ERROR — INFANTS.
    [Huron (6th) Circuit Court,
    November 13, 1903.]
    Parker, Hull and Haynes, JJ.
    H. David Palmer, an Infant, v. Hubbard Palmer et al.
    1. Praecipe for Summons no Part of Record.
    A praecipe for summons is no part of the record within the meaning of Sec. 5334 Rev. Slat., and will not be recognized or considered by a court of error, although filed with the petition in error, and any recital of fact therein ■ intended to be relied upon must affirmatively appear from the record. Hence, a petition in error does not lie to review a judgment rendered against a ncjn-residen.t minor on the grounds that no guardian ad litem was appointed or the requisite answer filed, where the fact of infancy appears only in the praecipe for summons and not in the record.
    2. Erroneous Proceeding Against Infant Vacated Under Sec. 5354 Rev. Stat. Where Error not Apparent on Record.
    Notwithstanding no error is apparent upon the face of the record, an erroneous proceeding against an infant in the court of common pleas may be vacated or modified by such court after the term, under Par. 5, Sec. 5354 Rev. Stat.
    C. P. Wickham and Stephen M, Young, for plaintiff.
    G. T. Thomas, Horace Andrews, Homer Johnson and F. W. Van Dusen, for defendants.
   HAYNES, J. (Orally.)

A petition in error is filed in this case for the purpose of setting aside the judgment and verdict that was rendered in the case which was tried in the court of common pleas, being the case of Margaret Parker et al. v. Hubbard D. Palmer et al. That action was brought for the purpose of setting aside a will.

It is averred in the petition in error in the case at bar, that H. David Palmer was an infant of perhaps the age of fourteen years; that he was made a party defendant in the original action, but was never served, but was brought in by publication of notice, being a resident of the state of New York, and that he never had- any guardian appointed for him ad litem. It did appear, however,. that through certain attorneys-, he had filed an answer and cross-petition in the case.

It is claimed now that the court of common pleas erred in hearing the case and in rendering judgment against him in the original action without having appointed a guardian ad litem, and having the requisite answer filed.

In reply, it is claimed that it nowhere appears in the record of the case that he was an infant; he appears there as a person of full age and answers as a person of full age by his attorneys.

It is claimed, however, that it appeared in the praecipe that was filed in the action below that he was a minor and that it was stated that he was a minor over fourteen years of age at that time. It is claimed, it nowhere being in the record that he was a minor, that a petition in error does not lie; that the method of correcting the error, if an error occurred, lies by other means and by other processes.

The first question, it seems to us that is material here, is to know whether it does or does not appear in the record that he was a minor.

Section 5331 Rev. Stat. provides:

“The record shall be made tip from the petition, the process, tne return, pleadings subsequent thereto, reports, verdicts, orders, judgments, and all material acts and proceedings of the court; but if items of an account, or copies of papers attached to the pleadings, are voluminous, tiie court may order the record to be made by abbreviating the same or inserting a pertinent description thereof, or by omitting them entirely.”

Now, we feel very clear under the statute, that the process or praecipe for summons was no part of the record in the case; the record, in fact, had never been made up. The petition in error was filed and sent up and praecipe for summons and everything else, and if it were duly recorded, we would deem it our duty to pay no attention to it.

It is well settled by the Supreme Court, and it is a matter upon which we act very frequently, that any matters carried into the record that are not properly of the record should not be recognized upon the hearing of tne case in a court of error. We shall assume, therefore, that the record nowhere sliotys that this person was a minor.

Section 6 709 Rev. Stat. provides:

“A judgment rendered or final order made, by any court of common pleas, may be reversed, vacated or modified by the circuit court of the county wherein such court of common pleas is located for errors appearing upon the record.”

It is only for errors appearing upon the record that judgment may be reversed.

It should be observed in passing that at the time the code was adopted, it was provided by what is now Sec. 6731 Rev. Stat.:

“Writs of error and certiorari to reverse, vacate, or modify judgments or final orders in civil cases are abolished; but courts shall have the same power to compel transcripts of the proceedings containing the judgment or final order sought to be reversed, to be furnished, completed, or perfected, as they heretofore had under writs of error and cer-tiorari.”

The effect of that, as we understand it, is to bring the record here by petition in error and to examine it under the statutes that I have referred to, and the only question before us is, whether there is error manifest in the record that is produced before us on the petition in error.

We think the contention of the defendant in error is correct; that no error appearing on the face of the record this question cannot be raised in the form of a petition in error; that it belongs to that class of errors that must be reached in another form

It is provided in Sec. 5354 Rev. Stat.:

“The common pleas court, or the circuit court, may vacate or modify its own judgment or order, after the term at which the same was made.”

Paragraph five reads:

“For erroneous proceedings against an infant, or person of unsound mind, when the condition of such defendant does not appear in the record, nor the error in the proceedings.”

It would seem that the legislature had this in view at the time this act was passed that if, upon the face of the record, there is error, then this can be reached by petition in error. If there is no error apparent upon the face of the record, then erroneous proceedings against an infant may be reached under this paragraph — by proceedings filed in the court of common pleas, and in that manner the questions that are raised or the questions that are made may be brought up in the record before the reviewing court.

There have been a great many questions made and argued in this case, but the view that we take is, we think, decisive of the case. The petition in error will therefore be dismissed.


author: WILSON, J.

text:
    CONTRACTS — EQUITY—MUNICIPAL CORPORATIONS.
    [Franklin (2nd) Circuit Court,
    January 19, 1904.]
    Sullivan, Summers and Wilson, JJ.
    Columbus (City) v. Cleveland, C. C. & St. L. Ry. Co.
    1. Municipality may Contract Same as Individuals, When.
    A municipal corporation has power to enter into contracts which it reasonably believes advantageous and beneficial to its citizens, notwithstanding it may be without administrative power to enforce their performance, or cannot do so under its police power. Hence, a contract between a municipality and two railroad companies wherein the latter, in consideration of the construction of a street viaduct by the former, agrees to erect on their property fronting on the viaduct “neat and ornamental buildings” for the purpose of obstructing the view of railroad cars and engines from persons and apimals passing over the same and also to make it have the appearance and advantages of a continuous street, being a contract advantageous and beneficial to the municipal citizenship, will be sustained as a valid exercise of municipal power, although there may be no power to enforce the erection of the buildings.
    2. Specific Performance of Building Contract Decreed.
    The general rule that equity will not decree specific performance of a building contract, but will leave the parties to their, remedy at law, does not apply where the plaintiff cannot enter upon the defendant’s premises and erect the building, where, a measurable money equivalent cannot be had in lieu thereof, or where there has been a part performance by plaintiff so that defendant is enjoying the benefits of the contract in specie. Where the contract is capable of being performed and nothing short of performance will accomplish the purpose of the contract, and no rule in damages could be framed so as to give adequate relief, specific performance will be decreed.
    3. Want of Mutuality Between Possible Assignees no Defense.
    Want of mutuality between possible lessees or assignees of the parties to a contract is no defense to a specific performance between the original parties between whom there is mutuality.
    4. Part Performance Decreed, When.
    Specific performance of a contract, generally, will not be decreed when to do so would be a vain thing, as where defendants have the right at any time to revoke or annul the obligation contracted to be performed; but where plaintiff is entitled to have the contract executed while defendants are in a position to perform, defendants may be compelled, at the election of plaintiff, to perform to the extent that they are capable, especially where the violation is flagrant and the injury serious, notwithstanding there is a possibility of the contract becoming inoperative by a change in the relation of the parties. Hence, where defendants may, under a building contract, lease or sell the property whereon they are to build free from any claim or lien of plaintiff arising out of the contract, equity may decree the specific performance thereof during the time defendants remain in possession in order that plaintiff may to such extent enjoy the protection and benefit flowing from it, especially where it is -obvious that a remedy in damages for a breach would be wholly inadequate.
    ñ. “Neat and Ornamental” in Building Contracts Reasonably Construed.
    The words“neat and ornamental” used in a building contract and referring to the appearance of buildings to be erected, should receive a reasonable construction, looking to the purpose sought to be accomplished. ■ Accordingly where the contract specifies the purpose, the defendants in an action to compel their erection will not be heard to complain of the contract because of the latitude and discretion given them as to the kind and cost of the buildings to be erected and the material to be used in their construction.
    6. Evidence That Plaintiff can be Satisfied by Certain Buildings.
    Equity is warranted in finding the purpose of such building contract easy of accomplishment to the satisfaction of the plaintiff, when it appears that one of the defendants has erected part of the buildings under the contract to its entire satisfaction.
    7. Use of Bad Material not Assumed.
    Equity will not assume that the defendants, in an action for specific performance of a building contract, will use material in their construction which should not be used, or that they will build other than upon approved architectural lines.
    8. Equity May Enjoin Erection of Unsightly Building.
    A decree for the specific performance of a building contract may he so enforced by a court of equity as to prevent the erection of a building made purposely grotesque and unsightly, or that is plainly fraudulént and evasive of the contract.
    9. Right to Sell Free From Incumbrance Implies Right to Hold in Same Manner, When.
    The right to sell property free from incumbrance generally implies the right to hold it unincumbered in order that it might be sold at any time; but not where it would be in plain contradiction to the obligation to be performed with reference to such property, as where the owner has contracted, for a valuable consideration, to erect buildings thereon while in possession for the benefit of the promisee, notwithstanding the stipulation that such obligation shall in no wise create a lien or incumbrance upon the property, nor impair the right to lease or sell the same free from any claim or lien arising under the contract. In such case the obligation and understanding is to build at all events as long as possession is retained, but that the property can be sold or leased free from such obligation if the buildings erected should prove a losing investment so that their maintenance would be a charge or incumbrance, upon the property.
    10. Equity Will not Determine Want of Power to Enforce Decrees, When.
    Where want of power in a court of equity to decree the means by which to execute a decree of specific performance does not necessarily appear from the pleadings, the court will not determine such questions upon a demurrer to the petition.
    11. Whether Lease or Sale to Avoid Decree Upheld, Quaere.
    Whether a leasq or sale of property for the express purpose of defeating a decree for the specific performance of a building contract would be upheld in equity quaere.

    Appeal from common pleas court of Franklin county.
    G. S. Marshall and James M. Butler, city solicitor, for plaintiff.
    W. O. Henderson- for P. C. C. & St. L. Ry. Co., and J. F. Wilson, for C. C. C. & St. L. Ry. Co.
   WILSON, J.

These actions [Columbus v. Cleveland, C. C. & St. L. Ry. Co., and Columbus v. Pittsburgh, C. C. & St. L. Ry. Co.] come into this court on appeal from a judgment in the court below, sustaining a general demurrer and dismissing the petition in each case (Columbus v. Railway Co. 12 Dec. 310). The}- are submitted together as involving the same questions of law.

The actions are brought to enforce the specific performance of a contract made by the defendant's, respectively, with the plaintiff in and about the erection of the viaduct on High street in said city. The contract is attached to the petition. The particular stipulation which is brought into question is contained in what is designated as section fourteen of the contract. It reads as follows:

“In consideration of the first party (the city) constructing the viaduct at the elevation shown upon said plan hereto attached, said second and third parties will, at their own expense erect, or cause to be erected, on their property fronting on the viaduct and its High street approaches, neat and ornamental buildings to obstruct from the part of said viaduct immediately opposite their said property the view of cars and engines; the construction of said buildings to be commenced within sixty days after the completion of said viaduct, prosecuted without unnecessary delay, and fully completed within two years from the completion of the viaduct. This stipulation shall not create any lien, charge or incumbrance on said fronting property, -nor impair, in any wise, the rig-ht or power, of said second and third parties to lease, sell, convey or dispose of said property, or any part thereof, free from any claim or lien, of the first party, arising out of this agreement; nor shall such lease, sale, conveyance or disposition, release said second and third parties from their obligation to erect said buildings, or to cause them to be erected.”

The city pleads compliance with all of the terms of the contract on its part and avers in the first case that the Cleveland, Cincinnati, Chicago & St. Louis Railway Company, owning property fronting on each side of the viaduct, and still being in possession of the same, has failed and refused, and still refuses, to erect the buildings as it has agreed to do; and in the second case that the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company, owning and in possession of property fronting on both sides, having complied with the contract to the satisfaction of the city, as to the property on the east side, has failed, and refused, and still refuses, to erect the buildings on the west side thereof.

The question raised upon the demurrer is, do the petitions state a case for specific performance? The propositions made in support of the demurrer are: That the city is without power or authority to enter into the contract; that, as a general rule, courts of equity will not order the specific performance of a building contract, and the petitions do not state a case within any of the recognized exceptions to the rule; that the contract is too indefinite and uncertain to form a predicate for such decree, and that, it being in the power of the defendants to render the decree inoperative, by selling or leasing the property, the court will not order specific performance.

As to the first proposition it may be conceded, upon the authorities cited, that the city, on its administrative side, is without power to’ enforce the erection of these buildings; such power not being within any legislative grant, or a proper exercise of the police power. But we know of no authority, and none is cited, which will prevent the city, as a private business corporation, from entering into any contract that it may have ’good reason to believe advantageous and beneficial to the citizenship; and such, in our view, is the contract in question.

The general rule that a court of equity will not decree specific performance of a building contract does not apply, where it is not competent for the plaintiff, or any one for it, to enter upon the defendant's premises to build, and where a measurable money equivalent cannot be had.

In a footnote to the case of Mosely v. Virgin, 3 Ves. Jr. 184, the reason for the rule is said to be “If one will not build, another may, and" there can be a full compensation in damages.”

The exceptions to the rule, and the authorities sustaining them are collected in 3 Pomeroy, Eq. Jurisp. Sec. 1402, p. 445, n. -From them we quote: >

“This court has jurisdiction to enforce the specific performance of a contract by a defendant to do defined work upon his property, in the performance of which the plaintiff has a material interest, and which is not capable of adequate compensation in damages.” Storer v. Railway Co. 2 You. & Coll. Ch. 48.
“Where, from the nature of the relief sought, performance of a covenant in specie, will alone answer the purpose of justice, the court of chancery will compel a specific performance instead of leaving the plaintiff to an inadequate remedy at law.” Stuyvesant v. New York (Mayor), 11 Paige 414.

Another exception to the general rule, well sustained by authority is, where there has been a part performance, so that the defendant is enjoying the benefits in specie.

The eases at bar come clearly within the exceptions, if the work is sufficiently defined.. The relief here sought is, in the language of the contract, the erection of “neat and ornamental buildings, to obstruct from the part of said viaduct immediately opposite their (the defendants’) said property the view of cars and engines.”

Nothing short of performance in specie will accomplish this purpose, and at the same time give to the viaduct the appearance and advantages of a continuous street. Nor is it perceivable how a rule in damages could be framed só as to give adequate relief.

But is the contract sufficiently definite?

In the case of Price v. Corporation of Penzance, 4 Hare 507, the contract was that the corporation, having purchased the plaintiff’s land, should, at their own expense, make a street, and also a market. ’ ’

The vice chancellor said:

“Under this contract the corporation have taken possession of the land and converted it; and having had the benefit of the contract in specie as far as they are concerned; I need not say that the court will go to any length which it can to compel them to perform the "contract in specie

The court asked this question, however, “If I make a decree for the performance of the contract, how is the court to know when the contract is performed?”

Subsequently, the corporation having by resolution declared that the market should be one for the sale of fish and shoes, the court said, in a further hearing of the case: “This has gone -far to remove the difficulty to which I have adverted.” Thereafter the corporation performed the contract, leaving the case to be adjudged as to costs only.

In thé case of Sanderson v. Railway Co. 11 Beav. 497, “A railway company about to sever the plaintiff’s land by their railroad, agreed to purchase the necessary portion of land, subject to making such roads, ways, and slips for cattle as might be necessary.” And, having taken possession, and severed the land, the court held that “though it was difficult to execute an agreement thus expressed, yet that the plaintiff was entitled to specific performance; that the word 'Necessary’ must receive a reasonable interpretation.” And it was held to mean “such roads, ways, and slips for cattle, as might be necessary and proper for convenient communication between the severed portions of the plaintiff’s land.”

In the case of Storer v. Railway Co. supra, “The defendants agreed to purchase so much land as was necessary for their purposes, at a price named, and to construct, and forever thereafter maintain, one neat archway, sufficient to permit a loaded carriage of hay to pass under the archway, at such place as the plaintiff, his heirs and assigns should think most convenient, in his pleasure grounds, and-should form and complete the approaches to such archway.”

The .vice chancellor said:

“There is no difficulty in enforcing such a decree. The court has to order the thing done, and then it is a question capable of solution whether the order has been obeyed.”

In the ease of Lawrence v. Railway Co. 36 Hun (N. Y.) 467, the contract provided among other things, that: “The defendant should simultaneously with the construction of said railroad, erect at or near Excelsior Spring, owned by the plaintiff, a neat and tasteful station building, for the-accommodation of passengers to and from said spring, which shall be a regular station of the road, and all regular trains shall stop at said station, the name of which shall be Excelsior Spring Station: Held, that the defendant could, and should be compelled to specifically perform the said agreement.”

This case is approvingly cited by the New York court of appeals in Prospect Park & C. I. Ry. Co. v. Railway Co. 1 Am. & Eng. Eq. Dec. 395. These cases are cited because the contracts might be said to- be indefinite, and because they illustrate the length to which the courts of equity will go in order to do justice between the parties.

There is a class of cases holding that kindred contracts cannot be specifically performed. Port Clinton Ry. Co. v. Railway Co. 13 Ohio St. 544, 545, is a leading case in that class. In the nature of things, this must be so, for the reason that some such contracts are capable of being performed, while others are not. It is not, then, so much a question of authority as it is, to which class ’ does the contract belong; always remembering that a doubtful case will be cast on the side where complete justice can be done.

In the light of all the authorities there are no insuperable difficul-. ties in the contract sued upon here. The words “neat and ornamental” should receive a reasonable construction, looking to the purpose it is sought to accomplish. The contract specifies the purpose, in so far as the city is concerned. It is to obstruct the view of cars and engines, to persons and animals crossing the viaduct — a very useful purpose, and, it would seem, very easy of accomplishment, to the satisfaction of the city. The fact that one of the railroad companies has erected buildings on the east side of the viaduct satisfactory to the city, is a demonstration of this view of the contract.

The defendants should not be heard to complain of the latitude in the contract, which will permit them to erect buildings suitable otherwise to their own purposes, and within their discretion as to cost and material.

The court will not assume, for the purpose of defeating the contract, that they will use material they should not, or that they will build other than upon approved architectural lines. Nor will the court be without power to execute its decree. It could, under the contract, enjoin the erection of a building that was being made purposely grotesque and unsightly, or that was plainly fraudulent and evasive of the contract. The same power will execute the decree.

A more serious question is, whether the court should order specilic performance in the face of the other stipulation that the property may be leased or sold free from incumbrance. As a general proposition, it may be stated that the court will not do a vain thing, and that it would bo vain to order specific performance if the defendants have the right at any time to revoke or annul their obligation to perform. Rutland Marble Co. v. Ripley, 77 U. S. (10 Wall.) 339; Southern Express Co. v. Railway Co. 99 U. S. 191; Rust v. Conrad, 47 Mich. 449. These stipulations are not easily reconcilable. Ordinarily the right to sell the property free from incumbrance would imply the right to hold it unincumbered, in order that it might he so sold at any time. But this would he in plain contradiction of the obligation of the railroad companies to build these structures; and if this interpretation is to obtain, it would seem that the contract had been purposely made to be broken, in order that an abatement in the consideration might be sought in the way of damages. Such-indirection is not fairly presumable. A more reasonable construction would be that the railroad companies should build the structures at all events, if they remained in possession; hut if they proved to be a losing-investment, so that their maintenance would be a charge and incum-brance upon the property, to the diminution of its value, they should have the right to lease or sell the property free from any such liability.

It is a familiar principle in specific performance, that a party to a contract may, at the election of the other party, be compelled to perform to the extent he is capable, before resort is had to the remedy at law.

In this case the plaintiff is entitled to have the contract executed during the time the defendants remain in possession, in order that it may, to that extent, enjoy the protection and the benefits flowing from it. This is particularly true when, it is obvious the remedy in damages is wholly inadequate.

There was no want of mutuality in this contract, at the time it was made, and can he none so long as the defendants remain in possession. That there may he such between the plaintiff and the lessee or assignee of the defendants is a question with which the court is not now concerned. The power of revocation or annullment of this stipulation to build is not vested in the defendants. On the contrary, it is expressly, and by the last words on the subject, inhibited. To this extent these cases are distinguished from the authorities above cited upon which the defendants rely. That it may exist in the lessee or assignee is no defense here. They may not elect to exercise it, but may buy or lease for the express purpose of complying with the -contract. If it be a- sale or lease of the property “fronting” on the viaduct, and ..nothing more, it is difficult to see how they could be benefited without compliance. Their property would be “in-air” until it was physically attached to the viaduct by some structure fronting thereon. Just what is meant by property fronting on the viaduct, at an agreed elevation; and, whether the sale or lease of the property, for railroad -purposes only, would absolve the defendants from the liability to perform, are questions which do not arise upon the petition, and may be reserved for that contingency. It might also become • a question, whether a sale or lease agreed upon for the express purpose .of defeating the- contract could be upheld in equity.

Where the violation of the contract is flagrant, and the injury se- ■ rious, the court will not withhold a decree in specific performance, merely for the reason that there is a possibility, but no pending probability, of its becoming inoperative by a change in the relation of the par-, ties.

As is said by Judge McIlvaine in Dayton, X. & B. Ry. Co. v. Lewton, 20 Ohio St. 401, 411:

“Whether a court of equity has power to decree and means to execute its decrees in such cases, are the ultimate questions in the case, and not preliminary ones.”

If the want of power does not necessarily appear from the facts pleaded; the court should not be called upon to determine that question upon demurrer to the petition.

The demurrer to* the petition will in each case be overruled.


author: HAYNES, J.

text:
    NEGLIGENCE — MASTER AND SERVANT.
    [Lucas (6th) Circuit Court,
    October 31, 1903.]
    Parker, Hull and Haynes, JJ.
    Henry J. Spieker Co. v. Fergus Ferguson.
    1. Master Must Furnish Servant Safe Place to Work.
    The master is bound to furnish his servants, a safe place to perform the'work for which they are employed, and a default of such duty is negligence which will render'him liable for injuries to! the servants resulting therefrom.
    2. Negligence of Foreman Chargeable to Master.
    The foreman of a gang of men engaged in the performance of work for the master is the representative of the latter, and his negligence in failing to provide a safe place for tile men to work is chargeable to the master. Hence, where in the performance of work under the control of the foreman, the men were required to work upon, a scaffold which had been previously erected by a stranger, and while engaged in their work the scaffold fell by reason of its weakness, whereby one of the men was injured, the master is liable for the injuries sustained by reason of the negligence of the foreman in not providing a safe place for the men to work.
    ERROR to the court of common pleas of Lucas county.
    Doyle, Lewis & Schaufelberger, for plaintiff' in error.
    Scribner & Coldham, for defendant in error.
   HAYNES, J.

(Orally.)

This action was brought by Fergus Ferguson against The Henry J. Spieker Company to recover for damages which were sustained by him by the fall of a scaffold at the Casino, he being engaged at that time by The Henry J. Spieker Company as a painter employed in working for them at that point. There were some four men who were working together at the time, and they were in that part of the building called the rotunda, and they found boards placed across certajn beams or cross-beams of scantling, which had been placed there by some independent parties, to wit, the employes of an electric company, who were putting in the electric lights and fixtures. The claim on the part, of the defense is, that the work was being done by these four men; that they were charged with the duty of erecting the scaffolding upon which they were to work and that if there was any neglect in the manner in which the work was performed, it was the neglect of the workmen themselves; that they stood in the relation of fellow workmen, and that therefore the defendant company was not liable.

It is further set- forth that by the custom in Toledo and of this company, the workmen were to put up the platforms or scaffolds themselves upon which they were to work in the carrying on of their work. It appears from the testimony that the plaintiff below came here seeking for work and went to the office of the compan)- and saw Mr. Spiekcr, who was president of the company, and he told Ferguson he did not know whether they wanted men or not, but to go down to the Casino and see his partner, Mr. Berkenbile. Berkenbile was connected with the company and had charge of the working force and of the hiring of the men. Spieker managed the finances and Berkenbile was the manager in the field. Fie testifies that he went there and saw Berkenbile, who told him that he would go and see and then took him to see a man who wás at work with their other men (a Mr. Minneker) and he introduced him to Minneker and told Minneker to set him to work, and thereupon he went to work with that gang or body of four men. They worked some that afternoon and the next morning they went to this part of the building to work, and finding this planking there and this scaffold, they went to work upon it. One of the cross-scantlings was weak; there was a large knot in it and the grain of the timber ran crosswise instead of lengthwise of the timber, so that it was very weak and it fell.

After reading this testimony through we find that the' statement made by the plaintiff in regard to the hiring is practically not denied. Berkenbile says he does not remember much about it; and Minneker is in abn.r.t the same position; there is nowhere any statement made by the defendant denying it, and we are of opinion, that where a man is employed, under the rules of law, the employer is bound to furnish him a safe place to work; that at this time this man was under the control of Minneker; that Minneker stood in the relation of foreman to him; thru lie did so by the action of Berkenbile himself, and that in the work Hr. lU-inneker became to him a foreman over the men and that it mv.¡ the duty of Minneker,1 representing the company, to have seen 'to it that tlie plaintiff had a safe platform or scaffold for the men to- work upon.

Other questions might arise, but we do not pass upon them — for instance, as to the effect to be given to- this so-called custom in chanr-'ing the obligation and duty of the owners of the property to furnish a safe place and thus relieve themselves from responsibility. We base the decision entirely upon the evidence that I have already stated; that under the circumstances of the case, Fir. Minneker properly stood in the relation of foreman to these men and represented the company and was bound to see that the scaffold was safe for the men to stand upon, and that in this respect the company, through him, was negligent; and holding these views, the judgment of the court of common pleas will be affirmed and reasonable cause certified for the filing of the petition in error.