author: WILDMAN, J. WILDMAN, J.

text:
    MUNICIPAL CORPORATIONS.
    [Lucas (6th) Circuit Court,
    March 24, 1910.]
    Parker, Wildman and Kinkade, JJ.

      Toledo (City) v. Andrew Brown.
    1. Persons Selling Their Own Productions not Peddlers or Hawkers.
    Persons selling the products of their own raising and manufacture, designated in the proviso of R. S. 2669 (Gen. Code 3672), are not peddlers or hawkers against whom fees for licenses may be imposed.
    2. Discriminations between Sellers oe Their Own Products and Sellers oe Purchased Products are Reasonable.
    Discriminations in license laws between persons selling products of their' own raising and those selling purchased products, are’ not unreasonable. Tn the former case the selling is hut an incident of the seller’s business; in the latter it constitutes the seller’s business.
    3. Licenses Justified by Exercise of Police Power not Tax Power.
    Exactions of license fees in municipalities in Ohio are justified in , the exercise of police power rather than upon the right to tax for revenue purposes. i
    4. License Issued by Auditor upon Application to Mayor notTnvalid.
    License issued by auditor upon application therefor to mayor is in effect issued by the mayor and an ordinance so providing is not thereby rendered invalid.
    [Syllabus approved by the court.]
    Error to common pleas court.

      Cornell Schreiber, city solicitor, and Alonzo G. Duer, for plaintiff in error: .
    As to the claim that the evidencé fails to disclose the year in which the offense was committed. Foster v. State, 19 Ohio St. 415; Carry v. Gaynor, 21 Ohio St. 277, 280.
    It is claimed that the affidavit upon which the warrant was issued is defective, mainly for the reason that it is not specially alleged “that the articles sold were not products of defendant’s own raising or manufacture.” St. Louis v. Meyer, 185 Mo. 583 [84 S. W. Rep. 914]; 15 Am. & Eng. Ene. Law (2 ed.) 293; Toledo v. Hutchinson, 55 Ohio St. 573 [45 N. E. Rep. 1043].

      As to constitutionality of the statute and the validity of the ordinance. People v. Sawyer, 106 Mich. 428 [64 N. W. Rep. 333]; Bosenbloom v. State, 64 Neb. 342 [89 N. W. Rep. 1053; 57 L. R. A. 922]; State v. Stevenson, 109 N. C. 730 [14 S. E. Rep. 385; 26 Am. St. Rep. 595] ; Marmet v. State, 45 Ohio St. 63 [12 N. E. Rep. 463]; Kansas City v. Overton, 68 Kan. 560 [75 Pac. Rep. 549] ; State v. Montgomery, 92 Me. 433 [43 Atl. Rep. 131]; Sterling v. Bowling Green, 26 O. C. O. 586 (5 N. S. 217); Commonwealth v. Ober, 12 .Cush. (Mass.) 493; Fisher v. Patterson, 13 Pa. St. 336; Baguet v. Wade, 4 Ohio 109.

      Charles K. Friedman, for defendant in error.

      Affirmed, no op., Brown v. Toledo, 83 O. S. 491.

   WILDMAN, J.

This case, in its inception, was a prosecution of the present defendant in error upon a charge of going about from place to place hawking and peddling and selling some articles of value without a license, in violation of an ordinance of the city of Toledo. He was convicted in the police court, fined five dollars and costs, and upon a proceeding in error instituted by him in the court of common pleas, this judgment of conviction was reversed, upon the sole ground, as stated by the judge of the court of common pleas, that the ordinance upon which the prosecution was based is invalid, and that the statute by virtue of which the ordinance was passed is unconstitutional. While the amount of the penalty imposed is very small, the questions involved are of such importance and wide interest ■us to- demand from this court very careful consideration.

The proceeding here is in error to reverse the judgment of the court of common pleas. The evidence in the trial court was very brief, consisting of the testimony of one witness and come agreements or concessions, and they develop the fact that Andrew Brown at the time stated in the complaint against him was engaged in selling fish upon and across the streets of the city of Toledo, and that the case was covered by the ordinance found in the revised ordinances of the city, Section No. 580. I will briefly dispose of all the incidental questions substantially as in the court below. We' agree with that court that the contentions of the defendant in error are not tenable unless he can ■sustain the one upon which the court of common pleas based its conclusion, to-wit, that the ordinance and the statute are inr valid. In saying this, as in all that I may say with regard to this case, counsel may understand that I am voicing the judgment of a majority of the court only. I understand that Judge Kinkade is not quite prepared to give his concurrence to the views entertained by Judge Parker and myself.

The statute under which this ordinance was passed, R. S. 2669 (Gen. Code 3672), is under the caption “General licensing powers of council.” There is another section of the statute in another chapter, R. S. 1536-100 (Gen. Code 3634) under the heading “General powers of municipalities,” which gives to the council power to regulate the use of vehicles upon streets by means .of license; but the section to which I first referred is the one under which this ordinance requiring a license from hawkers and peddlers and certain other persons selling commodities or articles of value was drawm and passed.

Reading only such portions of R. S. 2669 (Gen. Code 3672) as apply to the case at bar we find this language:

“The council of any city or village may provide by ordinance for licensing * * * hawkers, peddlers, * * * and hucksters in the public streets or markets, and, in granting such license, may exact and receive such sum of money as it may think reasonable; but nothing in this section shall be construed to authorize any municipal corporation to require of the owner of any product of his own raising, or the manufacturer of any article manufactured by him, license to vend-or sell in any way, by himself or agent, any such article or product. ’ ’

It is earnestly urged, and with a great deal of plausibility, that this language of the statute as to its own construction makes an unjust discrimination between two classes of vendors of things of value, and that it thereby violates certain sections of the constitution of Ohio. It is possibly claimed to be affected by the fourteenth amendment of the federal constitution also, although I do not know that this was specifically referred to in the argument. The ordinance in attempted compliance with this section of the statute is in some respects very crudely drawn, and we are not prepared to say that it may not be in some of them invalid as in violation of the constitution, as vague and uncertain in its terms, and also as not authorized by the section of the statute to which I have referred. I may say briefly, however, as to this matter, that in most of the respects pointed out to us by counsel for defendant in error to sustain the holding of the court below, these matters have no special pertinency to the state of facts embodied in the complaint against the' defendant in error, Brown, or in the evidence adduced upon the trial. As to the matter of the broad powers of revocation of a license given to the mayor, the uncertainty in the grading of the license as to the amount, and perhaps some other matters evidencing the carelessness with which the ordinance was drawn, they may be eliminated from it and still leave those particular parts of it affecting the rights of the defendant in error intact and unaffected. It is a principle so familiar as to require no citation of authorities that an entire act or an entire ordinance will not be invalidated by the unconstitutionality of some of its parts, provided that it 'may fairly be inferred that the legislature or the legislative body of the municipality would still have made the enactment as to the other parts without respect to those which are invalid.

The kind of traffic or business in which the defendant was engaged is one very fully treated in the various text-books. There is an extensive chapter in 21 Cyc. 364, entitled “Hawkers and Peddlers,” in which we find definitions and numerous rules and principles applicable to hawking and peddling. On page 365 we have the general statement:

“The licensing of hawkers and peddlers is within the power of the legislature, provided that the statutes do not discriminate between the citizens or the products of the several states or foreign countries, and that the purpose is not merely to benefit the resident merchants of a city. Furthermore, the legislature has no power to discriminate in favor of citizens of one county as against citizens of other counties in the same state, or to require a license for the peddling of goods only where manufactured in the state. So it cannot exempt sales to all manufacturers and dealers residing or doing business in a certain territory. But it is generally held to be allowable to exempt from the operation of the statute certain persons who peddle their own products or manufactures, such as farmers, butchers, and manufacturers.”

Certain other classes are mentioned which it may be allowable to exempt from the ordinances. It will be noted that in the section of our statute to which I have referred, there is no provision that certain classes shall be excepted from the operation of the act, but it is said that nothing in this section shall be construed to authorize any municipal corporation to require of the owner of any’product of his own raising, etc., such license tax or fee. The courts have often construed this phrase, “hawking and peddling,” holding that a farmer who is marketing his own meat, or a manufacturer who is marketing his own work, is not a peddler or a hawker within the meaning of the terms used almost from time immemorial in the various enactments, not only in the states of this Union but also in Great Britain. On page 872 we have this statement:

“Irrespective of statute, persons who raise or produce what they sell, such as farmers and butchers, have been held not to be peddlers, although there is authority to the contrary. In many of the states the statute exempts from its operation any "manufacturer, mechanic, nurserjunan, farmer, butcher, or fish or milk dealer, who sells, either by himself or an employe, manufactured articles, wares or products.”

It should not be overlooked, however, that the ordinance of the city of Toledo before me imposes in terms a fee for a license, not only from peddlers and hawkers, but also upon persons generally who sell under certain circumstances articles of value. It covers not only peddlers and hawkers,, hut hucksters and it may possibly be construed as larger in its scope even than the embracing of these three classes. The language is:

“No person shall go from place to place in the city of Toledo upon or across the streets or other public places peddling, hawking, selling or offering for sale or exchange any goods, merchandise, products, fruits, vegetables, meat or other articles or things of value of any kind or character. ’ ’

Going back to the definition of a hawker and peddler, I find in 15 Am. & Eng. Enc. of Law (2 ed.) p. 293, this statement • in the text:

"A manufacturer, real worker, or manufacturing mechanic selling his own products is not considered a hawker and peddler, unless declared so by statute. In Great Britain this exemption extends to the children, apprentices, and servants of any real worker or maker of goods, usually residing in the same house with him, selling or seeking orders for wares made by him. In Canada this same exemption seems to exist except where changed by provincial legislation or local laws.’?

It may be inferred from what I have already read and said that legislation of the kind which we have under consideration is not a novelty in this country or in England. It is a subject which has been recognized and treated by legislative bodies and by courts for several centuries, and it has seemed to the majority of this court that to attempt to establish distinctions not recognized by the current of authority in this country and in Great Britain would be to legislate rather than to adjudicate; it would practically be attempting to establish a new rule of law in innovation of that which has been recognized by the current of the decisions and by the bodies authorized to legislate in the various states and in the mother country. As stated in 21 Cyc. the rule has not been universally adopted that a discrimination may .be made between the selling of purchased products and the selling of products of one’s own maidng or raising, but, not only from the statement in the text, but from numerous authorities which we have found time to examine, we are satisfied that the drift of authority is in favor of the recognition of such a discrimination as a just one. It is not, however, for the court to determine whether a legislative enactment is wise or unwise; whether an attempted classification is one which ought to have been made or not in the exercise of the discretionary powers of the legislative body, whether it be the legislature of a state or the council of a city. It is enough, as repeatedly held by the courts, to justify the upholding of an enactment, as a valid one, if the classification appears not to be capricious and arbitrary. Its expediency is for the enacting body, not the courts. ¥e are concerned with the powers, not the wisdom, of the legislature and council.

In Marmet v. State, 45 Ohio St. 63, 69 [12 N. E. Rep. 463], onr Supreme Court has touched upon the question in considering an ordinance of Cincinnati, passed under a power to regulate the use of streets, the charge being that the plaintiff in error had used vehicles thereon without first obtaining a license. The ordinance was attacked, on the ground, as in the case at bar, that it made an unjust discrimination in favor of farmers marketing the product of their own farms. Judge Spear, in his opinion, says:

“It is urged, too, that the last clause of section 29 makes ’discriminations in favor of farmers marketing the products of their own farms, which are unjust, and that this invalidates the law. Such products ordinarily embrace the necessaries of life, without which the people, and, to some extent, domestic animals 'could not subsist, and it is not unfair to .assume that this consideration had weight with the legislature in making the discriminations referred to. Other reasons may have been within the knowledge of that body which are not-here disclosed, and do not occur to us. However, it is enough to say, that it is not shown that such discriminations are not within the legislative discretion. It may be added that absolute equality as to burdens, whether applied to taxes or other subjects of legislation, is not to be expected in our laws. The wisdom of man has not yet devised a system of equalizing burdens so perfect in its application and so thorough in its enforcement as to leave no room for adverse comment or criticism. ’ ’ ,

Although this specific feature of the Cincinnati ordinance is not referred to in the syllabus of the case, the question was one of the contentions and it was essential that it be considered and disposed of to arrive at the court’s conclusion. It is said by counsel for defendant in error in the case at bar that Marmet v. State, supra, has been practically repudiated by the Supreme Court in later adjudications. ¥e do not, however, think that it has been disturbed in this regard, if in any other, and we think that it may be taken still as the law óf Ohio. "We have found in other adjudications various statements of reasons for the making of such discriminations between on the one hand peddlers, hawkers and sellers of goods purchased by them or obtained in other ways, and on the other hand, the marketing of farm products or manufactured goods by the producer or maker.

In Rosenbloom v. State, 64 Neb. 342 [89 N. W. Rep. 1053; 57 L. R. A. 922], the syllabus contains, among others, this paragraph:

“There is such a real distinction between persons wno go from house to house, and place to place, vending their own products, and those who sell in the same way the productions of others, that the legislature, acting on considerations of general policy, may make it the basis of classification for the purpose of taxation.”

It was held in that case that the license fee was in the nature of a tax which was authorized under the constitution of the state of Nebraska. Whether it would be so authorized under the constitution of Ohio is a question which we do not consider, because it is probable, as it appears to the majority of the court, and perhaps to all, that licensing ordinances in this state are ordinarily based upon the general police power rather than upon a right to tax for the purpose of raising revenue. But it has seemed to me that the right to discriminate or classify in the manner in which a classification or discrimination was attempted by the legislature of Ohio and the council of the city of Toledo, may even better be justified in the exercise of police power than in that of the taxing power. On page 925 the judge, speaking-for the Nebraska court, says:

“A further contention of counsel for defendant is that, by reason of the exceptions contained in Sec. 152, the law lacks the essential requirement of uniformity.” “The real test,” he adds, “of the validity of defendant’s objection to this statute, is not whether the classification is wise and just, but whether the legislature acted arbitrarily, whether, without an adequate determining principle, it made a division of peddlers into two classes, and then sought to deprive one class of their constitutional right to the equal protection of the laws. If there is a genuine and substantial distinction between persons who go from house to house, and place to place, vending their own products, and those who. sell in the same manner the productions of others, the classification is founded in the nature of things, and is therefore upon a basis everywhere recognized as lawful. Now, there is, in our opinion, such a marked and material difference between the two classes of peddlers as to make it entirely proper for the legislature, acting on considerations of general policy, to tax one class, and to permit the other to go free. The man who goes about the country selling what he has himself produced may be presumed to confer a benefit upon the general public, by eliminating the profits of the retail merchant, and perhaps even those of the wholesaler and jobber. He has a fixed abode where he produces the things which he sells, and where he may be reached and required to make good his warranties. He is generally the owner of immovable property, which is subject to state and local taxation. It may be that he is required by the municipality in which he lives to pay a poll tax and a tax upon his business; to build and repair sidewalks, and keep the same free from snow, ice, and other obstructions. He contributes to the social, educational, and financial property of the community in which he resides. He bears a just share there of the burdens of government. And, in addition to all this, it must be remembered that the selling of bis products is only incidental to the business of producing them.”

This last matter is one referred to in a number of cases we have found, that is, that the selling is but an incident to the production where the selling is conducted by the one who produces.

“These characteristics,” the judge continues, “speaking generally, distinguished the untaxed peddler from the peddler who is taxed; and they are, it seems to us, quite sufficient to justify the classification which the legislature has made.”

There is a great deal more in the discussion of this question in the opinion which I should be glad to read if I had time. One judge dissents from the views of the majority of the court on certain points, but, if I understand his reasoning, he concurs as to the particular point which we have under consideration. the right to discriminate between mere peddlers or hawkers and farmers or others marketing their own productions.

The supreme court of Michigan, in People v. Sawyer, 106 Mich. 428 [64 N. W. Rep. 333] holds:

“Under a charter giving the city power to license and regulate hawkers and peddlers, an ordinance requiring peddlers to take out licenses may exempt from its operation mechanics of the state selling their own manufactured articles, and farmers selling the products of their own farms.” And in the opinion I find this language:
“The exemption of mechanics, in selling their own manufactured articles, and farmers, in selling products of their own farms, from the operation of the ordinance, is but following the state statute on the subject of the license to hawkers and peddlers. The power given by the charter is to regulate hawkers, peddlers, etc. Under this power the common council had authority to impose such reasonable conditions and limitations as it saw fit. 1 Dillon, Munic. Corp. Sec. 359. The discrimination in favor of mechanics and farmers in the sale of their products is within the power conferred by the charter on the common council. These immunities have been recognized for many years. By the statute of 50 George III, Chap. 41, Sec. 23, real workers and makers of goods within Great Britain were exempt from the payment of the license-which was imposed upon hawkers and peddlers. ’ ’ He then cites some English authority in connection with this statement and adds: “In many if not in most of the American states, these immunities are granted to mechanics and farmers selling their own products, and the power is not questioned.”

In the state of Kansas also the question has been passed upon by its court of last resort. In Kansas City v. Overton, 68 Kan. 560 [75 Pac. Rep. 549], the syllabus states:

“A city ordinance imposing a license tax on hucksters and hawkers is not invalid because it exempts from its operation those who are personally selling the products of their own or leased lands.”

In State v. Montgomery, 42 Me. 433 [43 Atl. Rep. 131], decided by the supreme court of Maine, in which the legislative enactment of that state involving this principle is decided and the act is held constitutional, and in the opinion we have something added to the suggestions of reasons for the discrimination made in some of the other adjudications which I have cited. On page 15,' Judge Savage, who announces the opinion, says:

“As expressive of the reason why it has been deemed advisable in time past to regulate the exercise of the business of hawkers, we quote from Jacob’s Law Dictionary, title ‘Hawkers’:
“Those deceitful fellows, who went from place to place, buying and selling brass, pewter and other goods and merchandise, which ought to be uttered in open market; and the appellation seems to grow from their uncertain wanderings, like persons that with hawks seek their game where they can find it.
“The object of such legislation has also been well stated by Baron Graham to be to protect, on the one hand, fair traders, particularly established shopkeepers resident permanently in towns and other places, and paying rent and taxes there for local privileges, from the mischief of being undersold by itinerant persons, to their injury; and, on the other hand, to guard the public from the impositions practiced by such persons in the course of their dealings. Attorney General v. Tongue, 12 Price 51. So by Judge Cooley.
‘ ‘ ‘ That the regulation of hawkers and peddlers is important, if not essential may be taken as established by the current practice of civilized states'. They are a class of persons who travel from place to place, among strangers, and the business may be easily made a pretense or a convenience to those whose real practice is theft and fraud. The requirement of a license gives opportunity for inquiry into incident and-character, and the payment of a fee affords some evidence that the business is not a mere pretense.’ ”

Several other authorities are cited in support of the conclusion at which State v. Montgomery, supra, arrives that the enactment in that state is constitutional although it makes such discrimination.

It has seemed to me that this suggestion made by Judge Cooley as quoted in State v. Montgomery, supra, is entitled to weight. Of course it cannot be said that all persons who travel from place to place are dishonest and that they are going about using the form of traffic as a cloak to disguise some fraudulent or corrupt purpose; but the legislature in its enactments, or the council in its ordinances, makes general rules because of general evils or dangers, precisely upon the principle that a license is required as to certain occupations, in order that people may not be deluded by persons not skilled in their trade or profession, although there may be many unlicensed persons having abundant skill.

I have discussed this question at length because counsel on both sides have sought a consideration of the case upon its merits as to the validity of the ordinance and the constitutionality of the law, and because it involves a question which may affect many municipalities in the state. Our view is that the court below was wrong in its conclusion that the statute of the state is unconstitutional and that the ordinance enacted under it is invalid, and we think for this reason that the judgment should be reversed.

Mr. Friedman:

This question is of considerable importance. It is not the mere matter of these five dollars, but I have some forty-five clients I think altogether in relation to that matter, and it is a matter of considerable importance, not only to us but to the city itself. I can say frankly that I deem it of even more importance than in this particular case the question of whether or not the mayor should issue the license, because the statute provides that the mayor should have a right to issue the license, and not only that ordinance provides that the auditor should issue the license, but also that we are charged in the affidavit with not having obtained a license from the auditor. It is of such interest to me that I trust the court will pardon me.

WILDMAN, J.

I will say, if counsel desires, although I intended to cover the matter by the general statement made preliminary to consideration of the constitutionality of the statute and ordinance, that the statute does require that the license shall be obtained from the mayor. The ordinance provides that the application shall be made to the mayor and after certain examination the license shall be issued by the auditor, but we think that while the auditor is the clerical person who issues the license, he is but doing it as a ministerial act and under the authority and by the direction really of the mayor. "While the ordinance is somewhat irregular in this respect, it is not invalidated by this fact. We think that the mayor does, in effect, under the ordinance as well as under the statute, issue the license, and when it is stated in the complaint that the defendant below was doing these acts without having obtained a license from the auditor, it means only that he has not obtained the license from the auditor as a last step in a series of acts which would entitle him to the license. We deem it equivalent to an expression on the part of the affiant that he had no license. However, if the affidavit was defective in this regard, it was shown upon the trial without contradiction that defendant stated that he had no license.

Parker, J., concurs.

Kinkade, J„ dissents.


source: Caselaw Access Project

author: GIFFEN, P. J.

license: Public Domain

text:
    MOTIONS AND ORDERS — PLEADINGS.
    [Hamilton (1st) Circuit Court,
    June 19, 1909.]
    Gillen, Smith and Swing, JJ.
    Sil Black et al. v. Wm. A. Goodman, Jr., Tr., et al.
    1. Motion for Judgment not Proper Remedy to Determine Error in Motion to Make Definite and Certain.
    An order overruling a motion to make definite and certain, may constitute reversible error but cannot be determined on a motion for judgment on the pleadings; a petition in error is the proper procedure in such case.
    2. Motion to Strike Pleading from Files Tests Form and Regularity of Filing.
    Motion to strike answer and cross petition from the files tests the correctness of its form and regularity of its filing; hence, if it appear from the pleading that it is frivolous or filed for purpose of delay the motion lies, but if it contains a good defense or states a good cause of action, it is immaterial that it was not filed in good faith or for purposes of delay.
    Error to common pleas court.

      Murray M. Shoemaker, for plaintiff in error.

      Mealy, Ferris & McAvoy, for defendant in error.
   GIFFEN, P. J.

The bill of exceptions having been stricken from the files, the defendants in error move the court for-a judgment in their favor “upon the pleadings and record herein.”

The first ground of error alleged is in overruling the motion of plaintiff in error for defendants in error to make their petition definite and certain. This is held to be reversible error in the case of New York, C. & St. L. Ry. v. Kistler, 66 Ohio St. 326 [64 N. E. Rep. 130], but whether the motion was in fact well founded must be determined when the case comes on to be heard upon the petition in error and can not be summarily disposed of on motion for judgment.

Another error alleged is in granting the motion of defendants in error to strike the answer of plaintiffs in error from the files.

The office of a motion to strike a pleading from the files is to test the regularity connected with the filing, as when filed after the time allowed by statute, or the form of such pleadings as when not verified, its office is not to inquire into the merits of the case either in law or in fact. Finch v. Finch, 10 Ohio St. 501, 505.

If the answer and cross petition is frivolous and was filed for the purpose of delay merely, as stated in the motion, and all this appears from the pleading itself, the motion was properly sustained; but if the answer contains a good defense, or the cross petition a good cause of action, it is immaterial whether filed in good faith or for purposes of delay only, and the motion should have been overruled. Hamilton, G. & C. Trac. Co. v. Parish, 67 Ohio St. 181 [65 N. E. Rep. 1011; 60 L. R. A. 531].

In either event this is not the mode provided by statute for reviewing a case on error, and the motion for judgment will be overruled.

Smith and Swing, JJ., concur.


author: SMITH, J.

text:
    ERROR — VERDICTS.
    [Hamilton (1st) Circuit Court,
    November 27, 1909.]
    Giffen, Smith and Swing, JJ.
    Frederick W. Niebling v. Walter Laidlaw et al.
    1. Trial Court Cannot Reform Verdict to Include Interest Omitted by Jury.
    A trial court, entering judgment, cannot, under R. S. 5199 (Gen. Code 11457), reform a verdict to include interest prayed for in tbe petition which the jury, in assessing the amount of recovery pursuant to R. S. 5203 (Gen. Code 11465), fails to include; but they should have been sent out again for further deliberation as provided by R. S. 5198 (Gen. Code-11456).
    2. Reviewing Court may Deduct Interest Improperly Included in Judgment.
    On review of a judgment improperly including interest, not - included by the jury in its verdict, the appellate court may modify the judgment entered by deducting interest so added.
    Error to common pleas court.
    Action was brought for a balance of $639.45, due for services and expenses in connection with an arbitration. The jury returned a verdict for the amount claimed, but failed to compute interest thereon. In entering judgment on the verdict the court below added interest.

      Paxton, Warrington & Seasongood, for plaintiff in error.

      Moulinier, Bettman & Eund, for defendant in error.
   SMITH, J.

In view of our statutes relative to the correction of verdicts, we are inclined to the opinion that it was error of the trial court in rendering judgment for defendants in error to include in the judgment interest upon the verdict when the same was not returned by the jury in its verdict.

R. S. 5198 (Gen. Code 11456) provides that if the verdict is defective in matter of substance the jury must be sent out again for further deliberation.

R. S. 5199 (Gen. Code 11457) provides that if the verdict be defective in form only, it may, with assent of the jurors, before they are discharged, be corrected by the court.

R. S. 5203 (Gen. Code 11465) provides that when, by the verdict, either party is entitled to recover money of the adverse party, the jury, in its verdict, must assess the amount of recovery.

While it is true the petition asks for interest from a certain date, yet under the last section it was the duty of the jury to assess the amount of recovery if it found that the defendants in error were entitled to recover money from the plaintiff in error.

Besides, if there was a mistake in the amount assessed by the jury, and thereby the verdict was defective in matter of substance, then the jury should have been sent out again for further deliberation.

The verdict is not defective in form and on its face neither is it defective in substance, for the jury being the only one to assess the amount of recovery it might well find that the party should not be allowed interest.

In the ease of Fries v. Mack, 33 Ohio St. 52, it is held that, “Where an issue of act is submitted to a jury and by their verdict they find for the plaintiff or defendant, such verdict is to be regarded as a finding upon the issue joined between the parties. ’ ’ In the case at bar the jury did so find assessing the amount due from plaintiff in error and it was the duty of the court in rendering judgment thereon to look alone to the verdict.

As it is stated in the case of Claiborne v. Tanner, 18 Tex. 68:

“There can be no clearer principle than that: 'Where a jury has intervened, and all the issues have been submitted to their decision, their verdict must constitute the basis of the judgment. The cou’rt can not look to the evidence on which the verdict is found, in order to determine what judgment to render, hut must look alone to the verdict.’ ”

In Anew of the foregoing, therefore, the case having been fully heard and considered and the only error or mistake arising is in the entering of the judgment, the same is hereby modified to the extent of reducing said judgment to the amount found due in the verdict of the jury.

Giffen and Swing, JJ., concur.


author: SWING, J.

text:
    CONTRACTS — EVIDENCE.
    [Hamilton (1st) Circuit Court,
    June 11, 1910.]
    Giffen, Smith and Swing, JJ.
    C. H. Monroe & Co. v. Jos. R. Peebles Sons Co.
    Statements by Defendant, not Beabino upon Liability not Prejudicial.
    Admission of 'statements made by defendant in an action upon a. contract, but which have no bearing upon the question of his-liability, are not prejudicial, notwithstanding they were not. made in the presence of the plaintiff and were self-serving.
    Error to common pleas court.

      Powel Crosley, for plaintiff in error.

      Froome Morris, for defendant in error.
   SWING, J.

It is claimed that the court erred in admitting statements made by the defendant in error not made in the presence of the-plaintiff in error and that the declarations- were self-serving.

Conceding that these statements were not competent, we are of the opinion that their admission was not prejudicial. Monroe sought to recover on a contract with the defendant company for the erection of a b’-ooth at Music Hall. There is no evidence which tends to prove that at the time he erected this, booth he ever had any conversation with Mr- Peebles or anyone authorized by him by which the Peebles Company was to* become liable to pay for the same. On the contrary, the evidence shows without contradiction that the booth was erected by Monroe under a contract with one Buckley, or Mrs. Haight,, who represented Buckley. In fact, Monroe had never met Mr. Peebles, or' Mr. McLean, the -general manager of the Peebles; Company, until after the erection of the booth. Before the booth was fully completed Mr. Peebles visited Music Hall and gave some directions about the completion of the booth, and it is on what took place at this time that Monroe Bases his right to recover.

The statements admitted were as to what Peebles and McLean said to Buckley and Mrs. Haight, and further as to Mr. Peebles’ intention about exhibiting at the pure food show at Music Hall, for which this booth was erected. These statements could have' no bearing on the • question whether Mr. Peebles at the time he visited Music Hall and after the erection of the booth made á binding contract with Monroe for payment for the same. Neither do we think their admission can be regarded as prejudicial, especially so as the weight of the evidence is clearly with the defendant.

Giffen and Smith, JJ., concur.


text:
    ATTACHMENT AND GARNISHMENT.
    [Hamilton (1st) Circuit Court,
    March 20, 1900.]
    Giffen, Smith and Swing, JJ.
    Dabney Young v. Millie C. Clark.
    1. Plaintiff Averring Concealment of Property by Defendant, Who, on Motion to Discharge 'Attachment, Denies Truth thereof, has Burden to Establish Averment.
    An affidavit having been filed under R. S. 6523 (Gen. Code 10298) hy defendant in support of a motion to discharge an attachment denying the truth of an averment contained in the affidavit upon which the attachment was issued that he has property and rights in action which he conceals, one of the grounds prescribed hy R. S. 6489 (Gen. Code 10253), the burden is upon plaintiff to show by a preponderance of the evidence that his allegation in that behalf is true.
    2. Defendant’s Affidavit Averring Untruth of Plaintiff’s Averments for Attachment Treated as Denial.
    An affidavit hy defendant, averring that the affidavit of plaintiff upon which the attachment was issued is not true, must he accepted as a denial of the averment that the defendant has property and rights in action which he conceals.

      3. Evidence that Defendant is Head and Support of Family Ground for Discharge of Attachment.
    Evidence by defendant that he is the head and support of a family is ground for a discharge of an attachment, where not met by evidence of greater weight offered by plaintiff.
   SMITH, J.

The plaintiff in error seeks the reversal of a judgment of the court of common pleas affirming a judgment or order of a justice of the peace, overruling a motion filed by the plaintiff in error before the justice of the peace to discharge an.attachment issued in an action brought by the defendant in error against the plaintiff in error, and also seeking the reversal of said order made by the justice refusing to discharge said attachment.

The action was one to recover $20.20 on an account for board and lodging, without alleging to whom the same was furnished. At the commencement of the action, an affidavit was filed by the plaintiff averring that the defendant was justly indebted to her for board and lodging; that said claim was just and that she- believed that she ought to recover thereon $20.20; that the property sought to be> attached is not exempt from execution; that it was the personal earnings of the defendant for services rendered by him within three months prior to the commencement of the action; that the defendant is not the head and support of a family, and has not in good faith the maintenance and support of a widowed mother, wholly dependent upon him for support; and that said defendant has property and rights of action which he conceals; and that the C., L. & N. Ey. has in its possession moneys, credits, etc., the property of the defendant.

Thereupon the defendant filed a motion to discharge the attachment on the grounds: First, that the affidavit on which it was allowed was insufficient and untrue; second, because the defendant is the head and support of a family; and third, because the money sought to be attached is the personal earnings of the defendant within the three months next preceding the commencement of the suit. He then filed an affidavit in support thereof, averring that he was the head of a family and not the owner of a. homestead, and, that the property sought to be attached herein was the personal earnings of the said defendant within three months last prior to the commencement of the suit, and that the affidavit upon which said attachment issued is not true; that said earnings do not exceed the sum of $150, and are necessary for the support of himself and family; that he has a minor child, to wit, Lulu Young, aged six years, a widowed mother, to wit, Cordelia Young, also a sister-who is a helpless invalid- living at Edwards, Mississippi, all of whom he has been supporting in good'faith.

At the hearing of the motion to discharge the attachment no evidence was offered on behalf of the plaintiff, other than the original affidavit filed by her for issuance of the attachment, while the defendant offered his affidavit filed in support, of the motion, and an affidavit of a witness, and the deposition of two witnesses residing in Mississippi, showing that the defendant was the father of 'a minor daughter between six and seven years old, who lived part of the time with the mother of defendant in that state, and that an invalid sister resided also with his mother, who was a widow, and that all three of these persons were dependent upon the defendant for support,, except that the mother drew a pension of $8 per month, and that the defendant contributed to the support of the three as-.much as he was able whenever he was paid off. This was all the evidence received, and thereupon the justice overruled the motion to discharge the attachment, to which the defendant excepted and a bill of exceptions was allowed containing all of' the evidence, and a proceeding in error prosecuted.

On this state of fact, there can be no question but that if the facts stated in the affidavit of the plaintiff for the attachment were not sufficient to justify the issuance of it, or the essential allegations thereof were denied by the defendant,, that the motion of the defendant should have been granted, unless additional evidence had been offered on the part of the plaintiff supporting the essential statements of her affidavit,, or the defendant by his evidence showed that they were true.

The ground upon which the affidavit issued in this case,. was that the defendant had property and rights in action which he concealed. Unless this allegation was made, the attachment could not properly have been issued, and if denied by affidavit of the defendant the motion to discharge the attachment should have been granted, unless evidence was offered showing its truth on the hearing of the motion to discharge; for when the affidavit of the defendant denies such allegation, the burden rests upon ‘the plaintiff to show by the preponderance of the evidence that her allegation was true, and there being a single affidavit on this point on each side, it can not properly be said that she did so.

The question then is this: "Was this allegation denied by the affidavit of the defendant? The affidavit filed by him admits the allegation made in that of plaintiff, that the property sought to be attached was his personal earnings for services rendered by him within the three months immediately prior to the commencement of the action. It then denies the allegation of plaintiff’s affidavit that defendant was not the head and support of a family, by averring that he is the head and support of a family; that he has a minor child, Lulu Young, aged six years, and a widowed mother and a helpless sister, all of whom he has been supporting in good faith, and he also avers these earnings sought to be attached do not exceed $150 in value. He also makes this additional averment, that the affidavit upon which said attachment issued is not true. If this last averment is to be considered as denying the allegation of plaintiff’s affidavit, that he has moneys and rights in action which he conceals, this is decisive of the case, on the principles before stated, for being denied the plaintiff offered no other evidence in support of his allegation, and the attachment should have been discharged by the court. The affidavit of the defendant is very inartistically drawn but we are of the opinion that it is to be considered as a denial of this allegation, and therefore that the attachment should have been discharged.

This being so, it is not essential that we consider another question which arises, but we do so Briefly. E. S. 6489 in clause 9 provides, “that no attachment shall issue by virtue of this chapter against the personal earnings of any defendant for services rendered by such defendant within three months before the commencement of the action or the issuing of the attachment, unless the defendant is not the head or support of a family, or unless the amount of such earnings exceeds $150, and then only as to the excess over that amount.”

It is conceded by the affidavits that the property attached in this case is such personal earnings of the defendant for the three months preceding the commencement of the proceedings in attachment, and that the amount is less than $150. The plaintiff in her affidavit' says that the defendant is not the head or support of a family, and the defendant in his affidavit avers that he is, and further avers that such earnings aré necessary for the support of himself and family, and that he has a minor child, Lulu, six years old, and a widowed mother and a helpless invalid sister, all of whom he is aiding and supporting in good faith.

R. S. 6489 (Gen. Code 10253), under which this proceeding is brought, in effect exempts the personal earnings of the debtor for the three months before the attachment proceedings not exceeding $150, when the defendant is the head or support of a family, or has in good faith the maintenance and support of a widowed mother, wholly dependent upon him for support. The evidence submitted by defendant, shows that the mother is not wholly dependent upon him for support, though he does aid her and his helpless sister. But the affidavit of the defendant, as has been said, avers that he is the head and support of a family, having a minor child, and the evidence offered by him supports this claim, and there is no evidence of plaintiff other than her own affidavit to dispute it. As the burden was on her to support her allegations and she failed to produce it, on this ground, also, the attachment should have been discharged.

The judgment of the justice of the peace therefore refusing to discharge the attachment, and that of the common pleas affirming it, will Be reversed.

Giffen and Swing, JJ., concur.


author: ROCKEL, J.

text:
    CHATTEL MORTGAGES — CONSTITUTIONAL LAW.
    [Franklin (2nd) Circuit Court,
    January 17, 1911.]
    Rockel, Dustin and Allread, JJ.
    Arlington C. Harvey v. Antonio Ciocco et al.
    Act 99 O. L. 230 Applies to Chattel Mortgages on File at Time of Passage and is not Unconstitutional.
    Revised Statutes 4155 (Gen. Code 8565), as amended by act 99 0.. L. 230, applies to chattel mortgages then on file and the lien created thereby will be continued if such chattel mortgage is refiled within thirty days next preceding the expiration of three years from the time the mortgage was originally filed. To so hold is not unconstitutional as an impairment of the obligation of contracts nor retroactive as effecting the rights of creditors of the mortgagor.
    [Syllabus 'by the court.]
    Error to common pleas court.

      Raymond & Gibson, for plaintiff in error.

      P. M. GUsh, for defendant in error.
   ROCKEL, J.

The question involved in this case is whether under the act (99 O. L. 230) extending the time of refiling chattel mortgages from one to three years, a mortgage that was filed before the passage of the amended act was void as to creditors if not refiled within thirty' days from one year from the time of its original filing.

The amended act is word for word similar to the original law with the exception that the phrase “one year” is changed to “three years,” and it is clear to our mind that the amended act only related to the time of refiling, and had no other effect or purpose.

It did not change the original contract; it merely extended the life of the lien from one to three years without the necessity of refiling within thirty days from the expiration of one year from its date.

At common law, a lien did not exist on personal property unless it was also accompanied by possession. This rule was, no doubt, founded on public policy. To have permitted such a lien, without possession would have opened wide the door for fraud not only upon creditors but upon others.

So, when it was decided to permit a lien to exist upon personal property without possession, in order that the same might not be used to work a fraud, two things were required:

(1) That the mortgage be filed, for inspection by the public, with some public official.

(2) That such mortgage lien would only be valid, as against Iona fide creditors for one year unless within thirty days before the expiration of such one year, it was refiled with a statement under oath of the amount still due.

This was required as stated by the Supreme Court in Seaman v. Eager, 16 Ohio St. 209.

“In order to prevent fraud or deception against the same classes of persons, by means of leaving mortgages on file in the proper office long after they have been wholly satisfied by payments or other discharges of which the public would have no means of knowledge.”

And the court went so far as to hold that the mortgage was absolutely dead as to creditors under this act if not refiled within the required time. Cooper v. Koppes, 45 Ohio St. 625 [16 N. E. Rep. 662].

The legislature, however, evidently became convinced that public policy did not demand that the life of a chattel mortgage should only exist for one year unless it was refiled within thirty days from the expiration of one year from its original filing, and, therefore, the law was amended in its present form. In so acting the legislature was within the province of 'its constitutional powers. It was for it to decide, if it saw fit so to do, what conditions should attach to a chattel mortgage after it was given as to its continued life and efficiency just as much as it was within its power to pass a law, permitting a lien to be acquired by means of a chattel mortgage in the first instance.

The legislature was the sole judge whether the life of a chattel mortgage should be one or three or more years, and the manner in which it could thereafter be continued as a valid mortgage.

In the case at bar, when the mortgage was filed, it was a valid lien upon the chattels covered by its terms for at least one year. If the owner wished to continue it for a longer period, he must refile it.within thirty days from the expiration of one year from its original filing. But before the time had arrived at which it must be refiled, the legislature concludes that the public will be best subserved by a requirement that a chattel mortgage shall be a valid lien for three years from its original ■filing without a refiling in the intermediate time.

It is not questioned but what the legislature may pass such an act as to mortgages thereafter filed, but if the legislature deemed it wise to pass the law as-affecting after filed or executed mortgages, why should it not apply to those already on file? For necessarily, those on file, a part of the time having already expired, will have to be refiled in a less period of time than the mortgages filed after the passage of the act. The greater necessarily includes the less. There can be no good reason why, so far as the policy of -the law is concerned, that it should not apply to a mortgage already on file.

The plaintiff, however, contends that the legislature had no power to so lengthen the life of a mortgage then executed and on file, because so to do would work an impairment of the obligation •contracts. And he argues that as the law is a part of all contracts, that the creditors were parties to the original contract in relation to this mortgage.

But we search in vain to find in what manner creditors sustain a contractual relation to this mortgage. For their.benefit, and by grace of legislative enactment they may have an interest in the property, if the mortgage holder does not comply with the conditions attached by the law permitting the existence of such mortgage. The law in existence at the time the required •condition is to be exercised certainly is the law that sho.uld .govern.

It is aiso contended that the amended act if applied to mortgages that had already been filed would be retroactive, and, therefore, it could not be so applied.

But this law has nothing to do with the execution of the mortgage or its filing. These matters are provided for by other sections. It only applies to the time of refiling. In this case the time for refiling had not yet occurred. It was an event to occur in the future upon which the law was to or could act. It did not give life to something that was long since dead or place new conditions or restrictions upon a past transaction. It was prospective and not retroactive in its effect and operation.

It is also claimed that if allowed to apply to the mortgage it would be an impairment of vested rights.

As indicated before, we do not see how it could so act. These creditors had no vested right in or to the property covered by this mortgage. They did not even have a judgment until long after the mortgage was given. At most, their interest was reT mote and speculative, and until the mortgage was satisfied they had nothing or could claim nothing.

It is clear from the act itself that it was intended to supplant the act which it repealed, and that every chattel mortgage then on file, or thereafter filed, must be refiled within thirty days from the expiration of three years from the time of its original filing, or it would thereafter be void as to tona fide creditors.

¥e find no error in the judgment of the court below and the same will therefore be affirmed.

Dustin and Allrfead, JJ., concur.


author: PER CURIAM.

text:
    ERROR — EXECUTORS AND ADMINISTRATORS.
    [Huron (6th) Circuit Court,
    October, 1910.]
    Parker, Wildman and Kinkade, JJ.
    Mary A. Smith v. Bertha A. Bracey et al.
    Circuit Court Has No jurisdiction to Review Proceedings for the Removal of Administrators.
    The circuit court, under R. S. 6708, 6709 (Gen. Code 12241, 12247) has no jurisdiction to review by a proceeding in error an order of the common pleas court removing an administrator in a proceeding brought into that court on error to the probate court.
    [Syllabus approved by the court.]
    Error to,common pleas court.

      G. P. Wickham and A. M. Beattie, for plaintiff in error.

      A. V. Andrews and E. M. Palmer, for defendants in error,
   PER CURIAM.

This case is a proceeding in error to reverse an order of the common pleas court removing plaintiff in error as administrator of the estate of Adaline A. Clark. A motion was originally filed in the probate court for such removal and was overruled. The proceeding was thereupon appealed to the common pleas court, which sustained the motion and made the order now sought to be reviewed and reversed.

At the outset of our inquiry we find ourselves confronted by a. question of jurisdiction. Prior to May 6, 1902, the stat-. ute relating to error proceedings from judgments and orders of the probate court to the common pleas court was substantially identical with those as to proceedings in error from judgments and orders of the. common pleas to the circuit court. See R. S. 6708 and 6709 (Gen. Code 12241, 12247). Neither conferred any specific power to review orders removing executors, administrators, etc. R. S. 6708 (Gen. Code 12241) was amended by act 95 O. L. 892, so as to authorize proceedings in error in the common pleas court to review such orders of the probate court; but R. S. 6709 (Gen. Code 12247), which defined the jurisdiction of the' circuit court to review orders and judgments of the common pleas court, was not so amended.

In 1900, before the amendment of R. S. 6708, the Supreme Court, in the case of Monger v. Jeffries, 62 Ohio St. 149 [56 N. E. Rep. 654], expressly held that an order of the probate court for the removal of an executor was not subject to review on petition in error in the court of common pleas. So far as the conclusion reached in that case applied to orders of the probate court under R. S. 6708, it is robbed of its force by the amendment before referred to; but it still in’ principle applies to the other section containing the same phraseology as original unamended R. S. 6708. In other words, while an order of the probate court removing an executor or administrator is now reviewable in error proceedings in the common pleas court, like orders of the common pleas court are not reviewable in the circuit court.

The case cited was followed without report in the cases of Campbell v. Miner (Tr.), 62 Ohio St. 659, and Martin v. Dershem, 65 Ohio St. 556, and also by our own court in the case of Stafford v. Missionary Assn. 12 Circ. Dec. 442 (22 R. 399). It was cited, with apparent approval in Schumacher v. McCallip, 69 Ohio St. 513 [69 N. E. Rep. 986]. See also North v. Smith, 27 O. C. C. 367 (5 N. S. 495), and cases therein cited [also Ferguson v. Ferguson, 16 Dec. 486 (3 N. S. 549).

In the case of Breckenridge, In re, 27 O. C. C. 688 (7 N. S. 86), the circuit court of Cuyahoga county seems to have assumed jurisdiction in a proceeding in error to review an order of the common pleas court removing an executor; but it is not apparent that the question of jurisdictional power to do so was raised.

We conclude that no .jurisdiction has .been conferred on the circuit court to review, by a proceeding in error, the order of the court of common pleas removing plaintiff in error as administrator, and for that reason the petition in error will be dismissed.


text:
    MANDAMUS — PHYSICIANS AND SURGEONS.
    [Hamilton (1st) Circuit Court,
    June 7, 1910.]
    Giffen, Smith, and Swing, JJ.
    State ex rel. Twachtman v. State Medical Board et al.
    Mandamus Lies to Compel State Medical Board tq Hold Examinations Prescribed by Statute.
    The delay for more than three years on the part of the State Medical Board to appoint a time for holding, in other cities than Columbus, examinations of applicants for certificates to practice medicine as reguired. by Gen. Code 1273, and the failure to fix a date for such examinations in June, which is the month when medical students complete their studies and desire to apply for certificates, is an abuse of the discretion vested in that board, and unless the said board desires to set forth by answer a reason for its inaction in that respect, a peremptory writ of mandamus will issue against it.

      Sanford Brown, for plaintiff.
    77. G. Denman, Atty. Gen., W. H. ■ Miller and C. F. Williams, for defendant.
   GIFFEN, P. J.

Although the statute, Gen. Code 1273, requires that examinations of applicants for certificates to practice medicine and surgery in this state he held in the city of Cincinnati as well as in Columbus, no such examinations have been held in Cincinnati during the last three years, and the defendants now declare that they will hold no such examination during or near the month of June, 1910, when a large majority of the students complete their course of instruction.

The only reasonable time for holding the examinations would, under the allegations of the petition, be when the students have finished the course of instruction or soon thereafter, and if the defendant board for its own convenience or other good reason prefers a later date, it ought by answer to set forth such reason. The objection to the present policy of the board is that no time whatever is fixed for an examination in Cincinnati, and that the practical effect of it is to coerce the students to take the examination at Columbus, lest by refusing they will be deprived of every opportunity to be examined and to obtain certificates. It would be a clear abuse of the discretion vested in the board to indirectly nullify ’the statute and deprive the students of Cincinnati and vicinity of the privilege conferred.

The motion to quash the alternative writ will be overruled, and unless the. defendants wish to plead, a peremptory writ may issue as prayed for.

Smith and Swing, JJ., concur.


text:
    EXECUTIONS — -JUDGMENTS—LIENS.
    [Hamilton (1st) Circuit Court,
    June 26, 1909.]
    Giffen, Smith and Swing, JJ.
    Humphreys v. Schlenk et al.
    Judgment Creditor 'Failing to Levy Execution Retains Lien but Loses Priority as to Other Liens in Force.
    A judgment creditor, not having levied his execution for more than a year as required by R. S. 5415 (Gen. Code 11708), while retaining his lien, loses his priority as to a subsequent judgment upon which execution was levied within such year.
    Error to common pleas court.

      Morrison B. Waite, for plaintiff! in error.

      Owen N. Kinney, for defendant in error.
   SWING, J.

This is a question as to priority of liens. Schlenk’s judgment is prior in time and is a lien on the lands in controversy, but not having been levied on the lands of the debtor within one year from the time of the rendition of the judgment under the provisions of R. S. 5415 (Gen. Code 11708, 11709), it lost its priority to the judgment of Humphrey’s, which was rendered subsequent and which was levied on the lands in question. Earnfit v. Winans, 3 Ohio 135, 136; Corwin v. Benham, 2 Ohio St. 36; Bish v. Burns, 4 Circ. Dec. 598 (7 R. 285).

Giffen and Smith, JJ., concur.


text:
    MASTER AND SERVANT.
    [Hamilton (1st) Circuit Court,
    March 12, 1910.]
    Giffen, Smith and Swing, JJ.

      Eight Hour Tobacco Co. v. George Koellner.
    1. Failure to' Guard Stationary Engine does not Make a Master Liable if not the Rroximate Cause of the Injury.
    Failure to enclose a stationary engine in a factory with a guard rail as provided by Gen. Code 1027, does not make the master liable for an injury to the seller of a steam pump, assisting the master’s own employes, in carrying it by the engine in operation, since it appears that an ordinary guard rail would not have prevented the accident.
    2. Instruction Erroneously Refused.
    The testimony having tended to prove that one assisting a master’s employes on carrying a heavy weight, accidentally, and through no fault of theirs, tripped over the corner of an engine platform while walking backwards past it, an instruction raising the theory that the tripping rather than failure to guard the engine was the proximate cause of the injury was improperly refused.
    3. Respondeat Superior.
    One, not an employe, assisting - employes in carrying by an unguarded revolving engine a heavy piece of machinery sold by him to the master, being injured by the negligence of the engineer causing him to fall against such engine, would recover under the doctrine of. respondeat superior and not for failure to maintain guard rails about the engine.

      Reversed, no op., Koellner v. Tobacco Co. 84 O. S. 496.

   GIFFEN, P. J.

The plaintiff in the original action, George Koellner, sold and delivered to the defendant, the Eight Hour Tobacco Co., a steam pump weighing about 400 lbs., and while assisting the employes of the defendant in carrying the pump through a narrow passageway, on one side of which was a revolving engine, suffered a fracture of his right arm by a stroke from the crank of the engine. The jury returned with a general verdict for the plaintiff the following interrogatory and answer:

“"What act or acts, if any, on the part of.the defendant, was the immediate cause of the ■ plaintiff’s injury? In permitting an engine to operate at the time the pnmp was being carried in a narrow passageway without said engine being guarded. ’ ’

Although the passageway w^s only two and one-half feet wide with a coalbin on one side and an engine operating on the other, the pump was bulky and heavy and three men were assisting plaintiff in the work, it does not appear that the work could not be performed with reasonable security provided each and all of the workmen exercised ordinary care.' Had the engine itself been surrounded by an ordinary guard rail, it' would have afforded plaintiff’s arm no protection, unless placed at such height as would prevent his arm from extending over or under it and from coming in contact with the engine.

It is averred in the petition, and the evidence tends to prove, that the engineer, one of the three employes of the defendant, negligently caused said pump to be moved so as to force plaintiff over and upon the revolving wheel of the engine. If this be so, then the negligent act of the engineer was the proximate cause of the injury and the unguarded engine only a condition; but in that event the defendant would be liable as he was not a fellow servant and the doctrine of respondeat superior applies, McIntire St. Ry. v. Bolton, 43 Ohio St. 224 [1 N. E. Rep. 333; 54 Am. Rep. 803]; Cleveland, T. & V. Ry. v. Marsh, 63 Ohio St. 236 [58 N. E. Rep. 821; 52 L. R. A. 142].

On the other hand there is testimony tending to prove that the plaintiff accidentally tripped on the corner of the engine platform while walking backward and carrying the pump; and without any fault of the other workmen. This theory of the case was presented by special instruction No. 5 requested by the defendant but refused by the court. We think this was error, because under such circumstances the unguarded revolving engine was not the proximate cause'of the injury; but the efficient and direct cause was the accidental tripping of the plaintiff.

The defendant objects to the charge of the court upon contributory negligence, because not in issue; but it offered testimony tending to prove such negligence and it was received without objection, hence it can not consistently complain of an appropriate instruction for the consideration and application of such evidence by the jury.

Special instruction No. 1 given by request of defendant,, although most favorable to it, should not have been given, because it excludes all consideration of the negligence of the employes assisting in the work.

The judgment will be reversed for.error in refusing special instruction No. 5 requested by defendant, and the cause remanded for a new trial.

Smith and Swing, JJ., concur.


author: KINKADE, J.

text:
    CRIMINAL LAW — INTOXICATING LIQUORS.
    [Wood (6th) Circuit Court,
    May 11, 1911.]
    Wildman, Kinkade and Richards, JJ.
    George Rogers et al. v. State of Ohio.
    1. State mat Impeach Reputation of Physician Issuing Prescription for Intoxicating Liquors.
    Evidence by the state impeaching the reputation of a physician issuing prescriptions for intoxicating liquors is admissible in a prosecution for keeping a place contrary to law as showing their source, acceptance and filling in good faith by the seller and filing in good faith by the purchaser; otherwise proof of sales upon prescription might raise the presumption that sales were made in good faith.
    2. Stipulation in Criminal Prosecution to Try Several Defendants Charged with Commission of Several Offenses at Once Held Valid.
    A stipulation by counsel in a prosecution for several offenses against several defendants, for unlawful sales of intoxicating liquors, admitting all the testimony in one trial concerning all the offenses charged but providing that “only such evidence as may be pertinent against the defendant shall be considered in each case, and evidence relevant to the other defendants shall not be regarded,” is entirely proper and clearly within the province of counsel to make, and a several and separate conviction of each of the persons accused upon the several charges will be deemed on review to rest upon the evidence adduced and properly applied to each particular case.
    3. Presumption of Resuiarity and Correctness of Judument.
    In reviewing court, every presumption obtains in favor of the correctness and regularity of the judgment of the trial court.
    4. Plea in Abatement Overruled.
    A plea in abatement, setting up matter which should only be offered in support of a plea of not guilty is properly overruled.
    [Syllabus approved by the court.]
    Error to common pleas court.

      Benjamin F. James, for plaintiffs in error:
    Cited and commented upon by the following authorities: State v. Simmons, 49 Ohio St. 305 [31 N. E. Rep. 34] ; State v. Wing, 66 Ohio St. 415 [64 N. E. Rep. 514]; State v. Thatcher, 12 Dec. 718; Cantwell v. State, 18 Ohio St. 477; Doyle v. State, 17 Ohio 225; Williams v. State, 12 Ohio St. 622; Goodin v. State, 16 Ohio St. 345; 14 Cyc. 298; 2 Tidd, Practice 1109; Bean v. Ayers, 70 Me. 421; Cook Carnage Co. v. Johnson, 23 Bull. 374; Cincinnati St. By. v. Wright, 54 Ohio St. 181 [43 N. E. Rep. 688; 32 L. R. A. 340]; Estabrook v. Gebhart, 32 Ohio St. 415; 3 Cyc. 50, 52, 57, 73; Tanner v. Brown, 5 Dec. Re. 112 (2 Am. L. Rec. 614); Driver v. Driver, 153 Ind. 88 [54 N. E. Rep. 389]; Boss v. Bailway, 141 Mo. 390 [38 S. W. Rep. 926; 42 S. "W. Rep. 957] ; Bank of Kingfisher v. Smith, 2 Old. 6 [35 Pac. Rep. 955]; Pollard v. Butter, 35 111. App. 370; Myers v. Phillips, 68 111. 269; Heinsen v. Lamb, 117 111. 549 [7 N. E. Rep. 75]; Shepard v. Hull, 42 Me. 577; True v. Plumley, 36 Me. 466; Crane v. Judge of Wayne Circuit, 24 Mich. 513; Sedam v. Meeksback, 3 Circ. Dee. 424 (6 R. 219); Beed v. Miller, 4' Ky. (1 Bibb) 142; Anthony v. Travis, 148 Mass. 53 [19 N. E. Rep. 8]; Burlington, K. & S. W. By. v. Grimes, 38 Kan. 241 [16 Pac. Rep. 472]; Barnhart v. Clark, 59 Tex. 552; Witbeck v. Waine, 8 How. Pr. (N. Y.) 433; Bew v. Barker, 2 Cow. 408 (N. Y.) 515 [14 Am. Dec. 515] ; Hodges v. Lassiter, 94 N. C. 294; Peebles v. Braswell, 107 N. C. 68 [12 S. E. Rep. 44] ; State v. Powers, 69 Minn. 429 [72 N. W. Rep. 705] ; Biverside Bub-

      her Co. v. Manufacturing Co. 63 Ohio St. 66 [57 N. E. Rep. 958]

      William Dunipace, Pros. Atty., N. B. Harrington and C. S. Hatfield, for defendant in error.
   KINKADE, J.

(Orally.)

In the case of George Rogers et al., plaintiffs in error, against the State of Ohio, there appear to be ten separate cases, Nos. 910, 911, 912, 913, 914, 915, 916, 917, 918, 919, 920 and 921, considered.

These prosecutions were all instituted in the probate court of Wood county and a conviction resulted in the trial in each case, and a penalty imposed.

The cases were carried on error to the court of common pleas, and the court of common pleas reversed five cases on which the prosecution had been sustained for “keeping a place.”

The defendants below are here in five of the cases that were affirmed below to reverse the action of the court of common pleas, and the state of Ohio is here upon a petition in error in the other five cases to reverse the court of common pleas.

It is stated by counsel for the Rogers, first, that they were entitled to a jury, but under the statute we think this claim can not be sustained, second, it is said that the motion to quash was incorrectly overruled. We think that the action of the court was correct in this regard, and in it we see no error, third, it is said that the court was in error in overruling the demurrer. This action of the court we regard as correct, fourth, it is said that the court was wrong in overruling the plea in abatement. We have examined the plea in abatement with care,' and in our judgment it is not a plea in abatement, but it is a matter which might be given in a plea of not guilty, and furthermore, the matter set up in the plea in abatement we think does not constitute a defense to the prosecution, and therefore we find no error in the action of the court in overruling the plea in abatement, fifth, it is stated there was error in the court admitting, evidence over the objection of the defendants, and that this was found to be true by the judge of the common pleas court in the five cases that he reverséd, sixth, it is stated if the court of common pleas was correct in finding there were no sales, it must naturally follow he was wrong in the other cases because if there were no sales, defendants could not be found guilty of keeping a place. We think this does not result at all. Wo do not see that the common pleas court found there were no sales. The court found there was error in a ease in which the state sought a conviction for making sales, that’s all, and we think this point is not well taken in the case.

Attention is called to the stipulation found on page twenty-five of the record, and it is said that even if the scope contended for by this stipulation by counsel for state be admitted, still it could not avail here, for although made by counsel it was a stipulation which counsel could not make in a ease of, this character. We dispose of that by saying that in this character of case we see no objection at all to counsel making a stipulation of this kind. Furthermore, we think the stipulation was entirely proper. Ten cases were to be heard. It could avail the defendants nothing to insist on putting in the same evidence in ten different cases. It would have multiplied the cost of taking the evidence by ten, and it was in the interest of the defendants that the stipulation should be made by their counsel that was made, an entirely proper thing to do,, and we think it clearly within the power of counsel to make that sort' of a stipulation.

It’ is said there was error in receiving information as to the reputation of a certain physician. Passing the question now as to the character of some of the evidence received, it may be said there was no error in receiving competent evidence as to the reputation of a physician, because the statute provides there shall be no liability when they sell in good faith upon the prescription of a reputable physician.

The state claims that inasmuch as they were obliged to prove that the sales were in fact made upon prescription that they were entitled to prove also, and it was the state’s duty to prove that the prescriptions were not from a reputable source. That they were neither given nor acted upon in good faith because if the state should not offer this evidence, the presumption would at once arise that the sales had been made in good faith, and as a consequence the state would prove itself out of court.

We think the position of the state was entirely correct and it was competent that the state prove the reputation of the physician issuing this prescription and also upon the question as to whether they were accepted and filled in good faith, and whether they were filed in good faith by the purchaser. We find no prejudicial error in the evidence admitted in this regard.

It is said that the fines imposed are excessive. The fines were within the terms of the statute and we see no reason why this court should disturb them.

This reviews the principal questions which were considered by the court of common pleas in reversing the five cases that it did reverse. As has been stated, there were ten cases on trial, some relating to one defendant, some to two, and some to three, and after the case had progressed to a given point, a stipulation was entered into, it is stated here by counsel for defendants that this stipulation was limited in character, and he seeks to have assigned to him only the portion of the stipulation which appears in the main sheet of the bill of exceptions, and to repudiate that which appears on the slip attached. It is impossible for us to tell just what, and all that was said at the time this stipulation was made, and we think it is not material. The probate court has found that the stipulation was entered into and that the cases proceeded under that stipulation. Now of necessity when that stipulation was entered into and the cases proceeded,'there being three different defendants .and the defendants being liable for different sales at different times and under different circumstances, there would be evidence in the cases thus offered that would apply to one of the defendants and not to the others, or to two of the defendants and not to the other. It is improbable that you could have ten eases presented under this form of stipulation and not have that condition arise, and it is apparent to us that this stipulation was intended by the parties to provide just as it states, viz: “that the object of this is to avoid the taking of testimony in all the cases and only such testimony as may be pertinent against the defendant shall be considered in each case, and the evidence relevant to the other defendants will not be regarded,” and we must assume that the court in passing upon all the evidence that was offered in one batch like this, excluded the evidence that was not competent and pertinent to any one defendant whose case he was at the time considering, and that he considered only the evidence that related to that defendant’s case at that time.

The common pleas court in its opinion, pointed out many embarrassments that would necessarily come to the trial court in carrying out this plan of trial and we think all that he has enumerated would come to him and we might name others, but the difficulty with it all is that the parties placed themselves before the court in this manner and they thereby imposed upon the trial court the duty and authority to thus discriminate, sift, consider and apply this evidence, .and the trial court did so consider it and reached the conclusion he did.

The court of common pleas seems to think that the difficulty the probate court would have, would be that it would be almost impossible to separate this evidence so as not to do injustice to some of the parties, but it does not impress us that his difficulty would go that far. It seems to us that the record might be read and the parts-.that relate to the other defendants excluded, and as I said, it must be presumed that he did that. We think if it had been submitted to this court, we could have done that.

It -has been said that there have'been a number of sales proven here. Counsel are familiar with the law of Ohio in- that regard. The charge in the information is not a specific sale upon a specific day; it is a specific sale on or about a given date, and under that form of charge in the eases cited by counsel for the defendants in Boyd v. Watt, 27 Ohio St. 259, and Koch v. State, 32 Ohio St. 353, it is clear that the state had a right to prove other sales; had a motion been made at the close the evidence as stated by Judge Baldwin in his opinion, the state would have been obliged to elect upon which specific sale they would have relied for conviction, but it seems no such motion was made, and for that reason the cases were disposed of without any election.

There is another matter that we think may not have received perhaps as full consideration as it should have received at the hands of the common pleas court in reaching the conclusion he did reach and that is this: There is no statement in any of these bills of exceptions that they contain all the evidence. Counsel don’t contend that there is any such statement fin this connection I call attention to the fact that while these bills of exceptions are intended evidently to be duplicates and in general are duplicates all the way through, some slight variation exists notwithstanding, as we find page thirty-one of the bill of exceptions is'missing from eases Nos. 910, 911, 917 and 918). The certificates being omitted that they contain all the evidence, it may be said that much of the evidence in the. case that is said by the court of common pleas to have been incompetent, might have been competent for ought we know, not having all the evidence before us. Near the close of the bill it is stated “that thereupon the plaintiff rested” but it is not stated that the evidence produced is all the evidence that was put in. It is stated that the defendants rested, but it is not ■ stated that the defendants put in no evidence. It is stated that the defendants made offer to put in further and other evidence which was denied them, and to which denial, ■exception was taken.

Counsel are entirely familiar with the rule that every presumption obtains in favor of the correctness of the judgment that has been entered by the probate court, and as I say, there may, have been evidence in the ease that made much of this evidence entirely competent. For instance, suppose the defendants in the case had testified, and suppose they had admitted the different sales. Suppose that Carmack had testified and had not only admitted the selling but had admitted other sales, being a clerk of the Rogers Brothers — we are not saying that there was any presumption that he did so testify, but we say that every presumption obtains in favor of the regularity of the judgment, and it may be that much of the evidence that was held by the court of common pleas to be incompetent was made competent by something else that was said.

Suppose a bill of exceptions contained evidence of several witnesses testifying for the purpose of impeaching tile reputation for truth and’veracity of a defendant in a case, and the bill did not show whether it contained all the evidence, the court would be bound to presume that the evidence was competent. It would be wholly incompetent if the defendant had not testified, or if any witness whose reputation for truth and veracity was thus attacked had not testified. The reviewing court would not be justified in saying that this evidence was not competent because the party attacked had not testified where the bill of exceptions is silent as to whether he did or did not testify.

We mention this as an additional reason why we are not able to reach the conclusion which the court of common pleas did in saying that some of the evidence that was offered in the five cases for selling, was incompetent.

We think that the stipulation should have been given a wider scope than was given by the court of common pleas. The stipulation, taken in connection with the absence of the certificate that the bill contained all the evidence leaves the case in such a form as that we cannot concur in the conclusions reached by the court of common pleas, and for that reason we are obliged to reverse the court of common pleas as to the five cases for selling, and affirm the judgment as to the others.

Wildman and Richards, JJ., concur.


text:
    MUNICIPAL CORPORATIONS.
    [Hamilton (1st) Circuit Court,
    June 19, 1909.]
    Giffen, Smith, and Swing, JJ.

      Cecelia Cavey v. Cincinnati (City).
    Municipality Liable eob Injuries Incurred by Pedestrian’s Falling Over Unguarded Retaining Wall Adjacent to Sidewalk.
    The lines of a street and sidewalk adjacent to an unguarded precipitous retaining wall, being so near as to create an impression that the wall is within the line of the sidewalk, make the municipality liable for injuries incurred by a pedestrian’s falling over such wall; a variance between the allegations of the petition and proof as to the location of the wall is immaterial.
    Error to common pleas court.

      G. F. Williams and Outcatt & Eiclcenlooper, for plaintiff , in error.

      A. E. Morrill, for defendant.

      Affirmed, no op., Cavey v. Cincinnati, 85 O. S. 000; 56 Bull. 376.

   GIFFEN, P. J.

Interrogatory No. 1 when strictly construed is not relevant to the issues and is misleading. It is as follows:

“Was the sidewalk within the limits of the lines of Oregon street, at the place where the plaintiff was injured, in a reasonably safe condition for travel in the ordinary modes?” Answer: “Yes.”

This was equivalent to asking the jury whether a traveler or footman who kept within the limits of the lines of the street would be safe. No such issue was presented by the pleadings. The danger lay not within the lines of the street, but adjacent, and consisted of a precipitous retaining wall, over which a footman using the sidewalk in the ordinary way might fall, not because within the lines of the street, but because so near them that such result might and would be reasonably anticipated.

Interrogatory No. 13 is as follows:

“Was the street and sidewalk within the limits of Oregon street, at the point where and at the time when plaintiff was^ injured, dangerous under ordinary circumstances to persons using ordinary care to keep upon the proper path 1 ’ ’ Answer: “No.”

Strictly speaking neither the street nor sidewalk was in itself dangerous, but the nearness of the sidewalk to a steep unguarded wall made it dangerous for use in the ordinary mode.

The answer to interrogatory No. 14 that the city had no notice of the dangerous condition is not material, as it existed so long that the law presumes notice.

The answers to interrogatories 2, 5, 6, 11 and 12 are consistent with the general verdict in -favor of the plaintiff, and determine the essential facts in issue. It follows therefore that the court erred in rendering judgment for the defendant.

The variance between the allegation of the petition and the proof of the location of the wall is not material, because to the ordinary observer it was a part of the sidewalk and within the limits of the street, although in fact without. The liability of a municipal corporation for not guarding against a danger so near the sidewalk is recognized in the case of Kelley v. Columbus, 41 Ohio St. 263.

Judgment reversed and judgment for plaintiff in errdr on the authority of Cincinnati Gas & Elec. Co. v. Archdeacon, 80 Ohio St. 27.

Smith and Swing, JJ., concur.


author: ICINICADE, J.

text:
    CURTESY — PLEADING.
    [Wood (6th) Circuit Court,
    May 6, 1911.]
    Wildman, Kinkade and Richards, JJ.
    Peter Landis v. James H. Marsh et al.
    1. Estate by Curtesy Extinguished by Death op Claimant’s Wife before Life Tenant.
    An estate by curtesy cannot be had in lands, the possession for life of which was held by intestate’s widow who died in 1895, nearly twenty years after the death of claimant’s wife, a daughter of intestate, such daughter’s having no estate in, or right to, possession therein at her death, the husband’s right was thereby extinguished.
    2. Petition for Assignment of Curtesy is Demurrable.
    Demurrer lies to a petition .to assign curtesy in la,nd for the reason that no such proceeding is now known to the law, and when it appears that the claimant is not a remainderman or in possession as required by Gen. Code 11901, the action cannot be sustained as one to quiet title. H

    [Syllabus approved by the court.]
    Appeal from common pleas court.

      Benjamin F. James, for plaintiff.

      E. M. Fries, for defendant.
   ICINICADE, J.

(Orally.)

This is an action said to have been brought for the purpose of having assigned an estate by curtesy belonging to Peter Landis. The plaintiff alleges that in 1866 one David Adams died intestate, the owner of the property mentioned in the petition. That at the time he had nine children, one of them being the wife of the plaintiff, to whom plaintiff was married some four months after the death of Mr. Adams.

The plaintiff claims that the wife of David Adams, Lucinda Adams, held for life the property described in the petition, and that she died in 1895. The plaintiff’s wife died in 1877, and the plaintiff now says that his wife having died and the holder of the life estate having died, he is entitled to an estate for life in the one-ninth interest of the property described in the petition.

The defendant answers, admitting some of the things alleged and denying others, and then sets up the fact that when David Adams died he was the owner of a large amount of land, including therein the 144 acre tract described in the petition, and that shortly after the marriage of his daughter, Sarah L. Adams, to the plaintiff here, that the heirs all joined in a conveyance of the property mentioned in the petition, to the wife of David Adams as and for her dower, she releasing dower in all the balance of the property, and it is said further in the answer that from that time of the execution of that conveyance in the year 1866 down to 1895, the wife of David Adams remained in possession of all the property described in the petition.

It is stated as a third defense that if the plaintiff had any right by way of an estate by curtesy in this property that it arose in the year 1877 at the time of the death of his wife; that he had known all of the facts incident to the situation from .that time to this; that the other defendants named in the action have been in open, notorious and adverse possession of the property since 1877 and that consequently the rights of this plaintiff in this action are barred by the statute of limitations.

There was a reply filed to the answer. A demurrer was first filed to this petition on the ground that it did not state facts sufficient to constitute a cause of action. The court overruled the demurrer and then upon the final hearing of the case rendered judgment in behalf of the defendants. Notice of appeal was given by the plaintiff and the case is here on error to reverse the judgment of the court of common pleas.

We think there is but one question to decide in this case and that is whether Sarah Landis at the time of her death had such an estate in this property as that her husband succeeded' to an estate by curtesy upon her death.- It is contended on behalf of the plaintiff that she had, and on behalf of the defendants in error that she had not.

It is said in behalf of the defendants in error that she must either have had a possession at the time of her death, or the right of possession. It is conceded that if she did have either, the plaintiff would be entitled to recover in this action, barring one or two other matters I will mention later — but on that particular question the plaintiff would be entitled to recover if she did have an estate in possession, or right to possession at the time of her death.

We are fully in accord with all that was said by Judge Thurman in the case of Borland v. Marshall, 2 Ohio St. 308, where he says that every ’reason obtains for holding that an estate by curtesy is entitled to as much consideration and protection at the hands of courts as any other interest or estate in lands.

This matter is very fully discussed by Judge Thurman and we are very fully in accord with what is stated there in the «pinion. It is of no moment what our opinion might be if this were a new question presented to the court. We think it has been settled by the decisions in Ohio what the law is on this subject, and it is our duty to decide this case according to the law as we find it settled, no matter how many reasons anyone may be able to assign why it might be better if it were other than as it is.

We call attention to the case of Moore v. Iles, 9 Circ. Dec. 418 (16 R. 591), and also the case of Watkins v. Thornton, 11 Ohio St. 367, to which our attention has been called. The syllabus in Watkins v. Thornton, supra, is short and reads as follows:

“In order to give a right by the curtesy in the wife’s lands, it is not sufficient, that the wife was seized of an estate of inheritance therein during the coverture. She must also have had a right to the present possession of the freehold. Hence, it is the settled rule of law, that a husband can not be tenant by the curtesy of a remainder, expectant upon an estate for life, unless the latter be determined during the coverture.”

The estate for life in the ease at bar was not determined during coverture. The wife died in 1877. The life tenant died in 1895; that being true it is our opinion that the estate of curtesy in the husband was thereby extinguished; that on the termination of the life estate there was no existing estate of curtesy resting in the husband., We think that the case of Watkins v. Thornton, supra, determines the issue here.

It was stated in argument here that the court of common pleas while agreeing with the proposition of counsel for defendants in error that there was no such proceeding known to the law as an assignment of an estate in curtesy, still held that it was proper to overrule this demurrer to the petition for the reason that it might be treated as an action to quiet title. Plaintiff is not a remainderman; he does not come in under that clause of the "statute. He is not in possession and therefore had no right to bring an action to quiet title. Nobody out of possession can bring an action to quiet title under the statute except those who hold an interest in remainder. The life estate liad passed away; the wife had died, and whatever interest he had was a present interest and he was not in possession. Gen. Code 11901 is the section that provides who may bring the action to quiet title. Tt says;

“An action may be brought by a person in possession of real property, by himself or tenant, against any person who claims an estate or interest therein, adverse to him for the purpose of determining such adverse estate or interest; or such action may be brought by a person out of possession, having, or claiming to have, an estate or interest in remainder or reversion in real property, against any'person who claims to have an estate or interest therein, adverse to him, for the purpose of determining the interests of the parties therein.”

I call attention to another feature of this case, and that is, that it is very doubtful whether this petition presents the question of the other defendants holding this title adverse to the plaintiff. We think the petition is insufficient in that regard and on that account the demurrer filed might have been properly sustained.

The court overruled the demurrer however, and resting our decision upon the case cited in Watkins v. Thornton, 11 Ohio St. 367, and the case of Hershizer v. Florence, 39 Ohio St. 516, we hold that the judgment of the court of common pleas was correct, and must be affirmed.

Wildman and Richards, JJ., concur.