author: ALLREAD, J.

text:
    CONSTITUTIONAL LAW — HEALTH—MUNICIPAL CORPORATIONS.
    [Darke (2nd) Circuit Court,
    April 28, 1911.]
    Dustin, Allread and Ferneding, JJ.
    Greenville (City) v. M. G. Demorest et al.
    1. Sewage Disposal Act Invalid for Lack of Uniform Operation.
    Act 99 O. L. 74, Sec. 1 (Gen. oCde 1251), requiring purification of sewage of municipalities and protection of streams from pollution, inasmuch as it exempts certain municipalities from its operation, is invalid for lack of uniformity within the inhibition of Art. 2, Sec. 26, of the constitution.
    2. Imposing Penalty Upon Council Members for Failure to Enact Legislation to Effect Rules of State Board of Health Invalidates Statute.
    Act 99 O. L. 74, Sec. 6 (Gen. Code 1260), imposing a penalty upon members of municipal councils and other officers for failure to perform acts required by the state board of health with respect to sewage disposal, is unconstitutional in that it is directed against a legislative body, substituting to that extent the action of the state board of health for that of the council.
    Appeal from common pleas court.

      D. W. Bowman and J. C. Elliott, city solicitor, for plaintiff.

      T. S. Hogan, Atty. Gen. and Chas. C. Marshall, for defendants.
   ALLREAD, J.

(Orally.)

This action is brought in behalf of the city of Greenville by its city solicitor against the members of -council and certain other administrative officers of the city, the state board of health, and its members, to enjoin action to establish and construct a sewer disposal plant and make the levy of taxes and issue of bonds therefor, under authority of the act of April 7, 1908 (99 O. L. 74; Gen. Code 1249, et seq.), the act being entitled, “An act to authorize the state board of health to require the purification of sewage and public water supplies and to protect streams against pollution.”

The action originated in the court of common pleas, and upon final judgment in that court, was brought here on appeal. The case stands upon demurrer to the amended petition.

The amended petition is in three causes of action and goes into detail as to proceedings and the situation of the sewage, water supply, and stream into which the sewage flows, and the effects thereof upon the health and comfort of the citizens in the vicinity of the stream.

Among the averments of the petition under consideration it appears that the city of Greenville in the years 1890- and 1891 constructed and has- since maintained a system of sewers emptying into Greenville creek, and that upon petition of the township trustees of Greenville township proceedings have been had under the act of 1908 resulting in an order of the state board of health, approved by the governor and attorney-general, to the city of Greenville, “to purify its sewage in a manner satisfactory to the state board of health.” That the plan contemplated by the state board of health is a “sanitary sewage ' disposal plant,” involving an expenditure of about $35,000 and a maintenance cost of about $3,000, annually. That this expenditure can only be met by a bond issue, and that the members of council and city officials are about to act solely in obedience to the orders of the sta'te board of health and in fear of the penalties provided for in the act.

The main question argued and presented by counsel relates to the constitutionality of the act. The act contains in Sec. 1 the following exception or proviso:

“Provided that no city or village that is now discharging sewage into any river which separates the state of Ohio from another state shall sbe required to install sewage purification works as long as the unpurified sewage of cities or villages in any other state is discharged into said river above said Ohio city or village.”

It is contended that this exception brings the act within the inhibition of Art. II, Sec. 26, of the constitution, which provides that “all laws of a general nature shall have a uniform operation throughout the state.”

That this act in relation to the public health is one of a general nature is clear, and the question in this respect is whether the act has a uniform operation throughout the state. To have a “uniform operation throughout the state” does not prevent reasonable and just classification of subjects. To hold against reasonable and just, classification would greatly restrict the efficiency of legislation.

Tt is also clear that in testing legislative classification doubt must be resolved in favor of the act; but where the classification is colorable, arbitrary, and not founded upon reasonable distinction, the courts are bound to enforce the constitutional provision and declare the repugnancy of the act.

The case of Cincinnati v. Steinkamp, 54 Ohio St. 284 [43 N. E. Rep. 490], involving an act of the general assembly in reference to fire escapes on buildings of three or more stories, was limited to cities of the first grade of the first class. It was contended in that case that the act was invalid because of the drastic terms of its provisions and also because it was in violation of the uniformity clause of the state constitution. The court held in favor of the act upon the first contention, but held it to be unconstitutional because it was in violation of the uniformity clause, being confined to the city of Cincinnati. It was distinctly held that the law, affecting the public safety, was one clearly of a general nature and should have a uniform operation throughout the state, and that a classification of a single city would not be reasonable in view of the fact that other three story buildings in other cities throughout the state were just as much entitled to the protection of this act as the city of Cincinnati. Judge Spear in the opinion in this case cites from Boynton, Judge, in the case of McGill v. State, 34 Ohio St. 228, in relation to the drawing of juries, as follows:

“The difficulty encountered in all cases where a legislative act is alleged to contravene the provisions requiring the uniform operation of laws of a general nature, lies in determining what constitutes a law of that nature; within the meaning of the constitution. The test is said to depend upon the character of its subject-matter; that if that is of a general, as distinguished from a local or special nature, existing in every county throughout the state, a subject in which all the citizens have a common interest, then the law is one of a general nature,.requiring a uniform operation throughout the state.”

Says Judge Spear:

“ ‘Existing in every county throughout the state’ means, we suppose, only in every county where the conditions of the statute exist, for in order to be general and uniform in operation it is not necessary that the law should operate upon every person'in the state, nor in every locality; it is sufficient, the authorities coincide in holding, if it operates upon every person brought nothin the relation and circumstances provided for, and in every locality where the conditions exist. But, upon the other hand, it seems equally well settled, a law is not of uniform operation if it exempts a portion of those coming within its terms; that is, if it confers privileges, or imposes burdens upon some of a class answering a description which are not conferred or imposed upon all others belonging to the same category. ’ ’ ,,

In the case of Costello v. Wyoming, 49 Ohio St. 202 [30 N. E. Rep. 613], a case arose under an act of the general assembly providing for a special method of constructing sidewalks and assessing the cost in villages situated within a county having a city of the first grade of the first class. In other words, the legislature undertook to classify villages because of their location in a county in which a city of the first grade of the first class was located. The Supreme Court held that that was unreasonable classification. That there was no reason why a village should have a different system of sidewalk construction from other cities and villages simply because of the fact that it was located in the same county with a city of the first grade of the first class. In discussing this proposition Judge Dick-man, on page 208 of the opinion, says:

“It has been said that, ‘The mode and extent of classification is left to the conscience of the legislature — its sense of right and public necessity.’ But it is now settled beyond controversy that the constitutional provision above referred to is mandatory, and that a failure on the part of the legislature to observe it will be fatal to the validity of a statute. Whether or not the classification is authorized by the constitution is for the courts to determine. The people in their wisdom, by prescribing in the constitution a fixed rule of uniformity for the operation of laws of a general nature, have thereby imposed a limitation upon special legislation, and such limitation can not be broken down or overstepped under the guise of classification. In affirming the principle that classification can not be sanctioned as a pretext for evading the limitation upon special legislation, it was said by Sterritt, J., in Ayer’s Appeal, 122 Pa. St. 266, 284, in language pertinent of this case: ‘Whether, in any given case, the legislature has transcended its power and passed a law in conflict with that limitation is essentially a question of law and must necessarily be decided by the courts.’ ”

On page 211 he says:

“The requirements for village-classification, in view of the enactment of laws which shall have a uniform operation throughout the state, will not be satisfied by adopting any common mark or feature that will serve to classify. It was stated by Beasly, O. J., in State v. Hammer, 42 N. J. L. 435, 440, that a law may be general in its provisions, and may apply to the whole of a group of objects having characteristics sufficiently manifest and important to make them a class by themselves, .and yet, the marks of distinction on which the classification is founded may be such, that the law may be in contravention of a constitutional provision prohibiting the enactment of special laws which regulate the internal affairs of towns and cities. If all that is requisite for the purpose of legislation is to designate villages by some quality, no matter what it may be, which will so distinguish them as to mark them as a distinct -class, the constitutional restriction in regard to the uniform operation of laws of a general nature, would be of no avail, as there are few objects that can not be arbitrarily associated. The objects grouped for classification should be distinguished by characteristics sufficiently marked and important to make them a class by themselves.”

In the case of Gentsch v. State, 71 Ohio St. 151 [72 N. E. Rep. 900], Judge Davis of the Supreme Court discusses this same question. From the syllabus we find this rule to be laid down:

“Classification is often proper and sometimes necessary in legislation, in order to define the objects on which a general law is to take effect and in order to definitely apply and effectuate the purposes of the legislation; but when classification' is unnecessary, arbitrary, fictitious or otherwise faultily made and is used to evade the. constitutional limitations under the form of general legislation, such legislation in relation to a class may be both special and unconstitutional.”

And in the opinion on page 165 he says:

“The reported decisions of this court abound with eases; of false classification in acts obviously drawn with the purpose of enacting special laws under the guise of general laws.”

We have taken some pains to cite from the authorities upon; this proposition, because ,it is important to know how far the courts are required to go in the consideration of special acts to enforce the uniformity clause of the state constitution and!' to determine when classification is justifiable and when it is. not justifiable.

It is contended on the part of the state that the exception, of the Ohio river cities is legitimate classification for two reasons: (1) Because the boundary of the state being at,low-watermark on the northwest of the Ohio river, it has so- proprietary interest in the waters of the river; and (2) because the-exception is based upon the contamination of the waters of the-Ohio river by flowage from the cities and villages upon the, other shore. As to the first, it clearly appears from the title-of the act and its context that the purpose of the act was to purify the water supply and protect the inhabitants from noxious odors and the impure water. The state of Ohio has riparian. rights in the waters of the Ohio river. Many cities and villages are located upon the Ohio river and the state is hound to protect those of its citizens who live along the Ohio river as well as those living on other rivers, streams and waters throughout the state. Furthermore, the exceptions exist only so long as other “unpurified sewage of cities and villages of any other state is discharged” in the river. It is therefore apparent that the manifest purpose of this act was not to exclude Ohio river cities upon the ground that it had no jurisdiction over the waters of the Ohio, hut because of the facts stated in the second ground. It follows therefore, that the classification can not he sustained upon the first ground, but must be upheld, if at all, upon the second ground stated, namely, the fact that the waters are contaminated by the sewage from other cities and villages over which the state of Ohio has no jurisdiction.

It must be conceded that the contamination of a water supply from the other shore over which the state has no jurisdiction, and so that the purification of sewage on this side would be of little or no avail, would justify an exception. A good ground for the classification and excéption would be found in the futility of the proceeding.

But an analysis of the excepting clause carries the exception far beyond any reasonable necessity.

The Ohio, which is the only boundary river, extends for 300 or more miles along the eastern and southern boundary of the state and along thirteen counties, and upon its banks are -many large and populous .cities of this state. The exception exempts all these cities from the act so long as the “unpurified sewage of cities or villages in any other state is discharged into said riyer above said Ohio city or village.”

Now, we may take judicial notice that three states lie along the Ohio river whose cities may and do discharge sewage into the Ohio river above Ohio cities. Under this exception, if the cities or villages of any other state flow sewage into the river, the cities below, regardless of distance or possibilities of contamination, are included in the exemption. Take for instance the city of Cincinnati. If all the Kentucky cities and villages are prevented from flowing sejwage into the Ohio, yet the fact of flowage from West Virginia or even Pennsylvania exempts Cincinnati. Besides, the act exempts those Ohio cities "now flowing sewage,” etc. A city hereafter constructing a- sewer system draining into the Ohio river comes within the provisions of the act and is bound to purify its sewage, notwithstanding contamination from the other states, and although another city of the same character is exempt.

This classification can not, in our opinion, be sustained.

It is urged that the exception and not the act should be stricken down as unconstitutional. Some difficulty always arises in deciding when an exception or limitation should be held void and when the main act is to fall.

In the case of State v. Buckley, 60 Ohio St. 273, 296 [54 N. E. Rep. 272], there is a discussion of this question. The question there was as to the validity of the registration law, which was confined to all of the cities of the state except Mansfield and the cities of the fourth grade of the first class, and the court held that the act was not of uniform operation throughout the state. In the opinion it is said:

"It is urged, however, that if this exception makes the act unconstitutional, the exception should be disregarded, and the act held valid as operating uniformly throughout the state. The answer to this is that the court has no.law-making power, and can not extend a statute over territory from which it is excluded by the general assembly. A court can hold a whole act unconstitutional because it is not broad enough, that is, because it is not of uniform operation throughout the state; but it can not extend an act which is too narrow, so as to take in territory which was left out by the general assembly. In the ease of an exception, the general assembly never enacted the statute in the excepted territory, and the court has no power to enact it therein.”

The same proposition was up in the case of State v. Lewis, 74 Ohio St. 403 [78 N. E. Rep. 523], involving the validity of the tax inquisitor law. Under an act of 1885 the county commissioners were authorized in certain counties of the state to employ a tax inquisitor on certain terms. The, act of 1888 created a general authority for the commissioners in any county of the state to appoint a tax inquisitor at a certain compensation, but in Sec. 4 of the act there was a provision that this, act of 1888 should not affect the provisions of the act of 1885.. Now, it was contended that inasmuch as this was a separate section which provided that it should not affect the provisions of the act of 1885, the separate section should be declared invalid, and the main act extended to cover the entire state, just as it was argued in this case that we should hold this provision excepting the Ohio river cities unconstitutional and eliminate it from the act and leave the act one in general operation throughout the state. The court held in that case that Sec. 4 was manifestly an exception and qualified Sec. 1. In this case the exception is in Sec. 1 and manifestly an exception. The reason for this is given in the case of Friend v. Levy, 76 Ohio St. 26, 50 [80 N. E. Rep. 1036]. That was a repeal of the direct inheritance law. In the repeal it was provided that estates in which the inventory had been filed were excepted from the repeal. The Supreme Court held that that exception was invalid, and this observation is made:

. “The exception being void, the question arises whether the whole act must be declared unconstitutional. The rule of construction is that, where the void parts of a statute were evidently designed as a compensation for, or inducement to, the valid portions thereof, so that the whole taken together warrants the belief that the legislature would not have passed the valid portions alone, the whole statute should be held inoperative. ’ ’

So in this case we are not able to say that the legislature would have passed this bill if the Ohio river cities had not been exempted from its burdens.

We are therefore of the opinion that the last clause of Sec. I is an exception and not a limitation. That there is a clear-intention in the act not to extend its provisions to the Ohio river cities, and that to do so by interpretation would be judicial legislation.

The duty of the court is to construe the act as clearly intended, and so construed it is not of uniform operation through-out the state and is therefore unconstitutional.

There is still another constitutional objection. The penalty clause (Sec. 6) prescribes a penalty of $500 against individual members of council for failure to take the steps required or to carry out any order of the state board of health. This in effect stifles the judgment of the local governing board and taxing authority. Such a penalty might legally be charged against an administrative officer, having only administrative duties, but to do so against members of a legislative body is destructive of the fundamental theory of our government and substitutes the state board as the real governing board. Sanning v. Cincinnati, 81 Ohio St. 142 [90. N. E. Rep. 125; 25 L. R. A. (N. S.) 686].

It is true that the penalty clause is not directly in issue in this case, but it is properly before the court by the averment that the state board is threatening to resort to the penalty clause and that members of the council are about to act solely under force of such threats.

We do not express an opinion as to whether or not the unconstitutionality of See. 6 destroys the whole act, yet conceding that it only applies to the penalty clause we feel justified in expressing our opinion as to this section, in view of the allegations of the amended petition above referred to.

It is not necessary to express an opinion as to the other points made in argument further than to say that the court is inclined to uphold drastic measures provided by the general assembly for the public health and public safety where the enactment is made in pursuance of the general grant of legislative authority, but such enactment must not be repugnant to any specific provision of the constitution designed for protection of the people at large.

It follows that in our opinion the act under consideration is unconstitutional and void.

The demurrer to amended petition is therefore overruled.

Dustin and Ferneding, JJ., concur.


source: Caselaw Access Project

author: GIFFEN, P. J.

license: Public Domain

text:
    INJUNCTION — MUNICIPAL CORPORATIONS.
    [Hamilton (1st) Circuit Court,
    November 1, 1910.]
    Giffen, Smith and Swing, JJ.

      Fred Tuke, a Taxpayer, v. J. H. Sundmaker (Dir).
    Award of Contract Enjoined for Irreconcilabiditt pF Proposals.
    Injunction lies against award of contract for a municipal improvement .under Gen. Code 4328, where the specifications were impossible of enforcement and the bidders were not made aware of the construction which would be placed upon the specifications in determining which was the lowest and best bid.

      Maxwell & Ramsey, for plaintiff.

      R. M. Ballard, and F. F. Dinsmore, for defendant.

      Affirming Tuke v. Sundmaker, 21 Dec. 615.

   GIFFEN, P. J.

The plaintiff seeks to enjoin the execution of a contract for paving Eastern avenue with wood block treated with a heavy or dead oil of coal tar.

The specifications provided that the oil shall be free- from carbon, and it is admitted that a strict compliance with this provision is impossible. It is admitted also that the prior inters pretation of this provision allowed two and one-half per cent of free carbon. The construction applied in awarding this contract was not more than three-fourths of one per cent. It is plain, therefore, that the impossibility of' complying with the specifications was evidenced by each and every sample of oil submitted with the bids, and left to speculation by the bidders the maximum amount of free carbon permitted. While the director of public service had the per cent fixed in his own mind, it was not known to all the bidders nor to all who might desire to bid. Their information must come from the specifications, unless the construction adopted by the director of public service was known to all. The court will not do a vain thing by undertaking the enforcement of that which is impossible or to-reconcile proposals that were confessedly not in compliance with the specifications. We are of the opinion that the director of public service could not legally award a contract to any bidder, because all the proposals as evidenced by the samples of oil submitted failed to comply with the specification as to that material. The execution of the contract will be enjoined.

Smith and Swing, JJ., concur.


text:
    LANDLORD AND TENANT.
    [Hamilton (1st) Circuit Court,
    July, 1909.]
    Giffen, Smith and Swing, JJ.

      Marmet Co. v. Cincinnati (City).
    1. Advertisement of Land for Lease Immaterial as to Mistake in Description in Lease.
    A mistake having occurred in the description of land held under lease, it is immáterial that in the advertisement offering the land for lease it was described by both metes and bounds and by occupation, while in the lease as afterward executed it was described by metes and bounds only, since the description by metes and bounds would control that by occupation.
    2. Lessee may Rescind Lease upon Discovering Mutual Mistake in Lease.
    A mistake in the description of leased premises may be material notwithstanding the lessee has not used the property for the purpose intended at the time the lease was executed; hence, its appearing that the mistake was mutual and that the lessee acted immediately upon discovering it, he is entitled to a rescission of the lease; but no recovery of rents paid can be had while the lessee was in possession and. enjoyment of the premises previous to the discovery of the mistake.
    Error to common pleas court.

      Kramer & Kramer, for plaintiff,

      John B. Schindel, for defendant:
    Cited and commented upon the following authorities: Capelli v. Hondero, 123 Cal. 324 [55 Pac. Rep. 1057]; Farley y. Bryant, 32 Me. 474; Bodwell v. Heaton, 40 Kan. 36; Kilbourn y. Fury, 26 Ohio St. 153; Warehouse Co. y. Ozment, 132 N. C. 839 [44 S. E. Rep. 681] ; Gephart v. Belleman, 12 Dec. 133; Bush v. Hicks, 60 N. Y. 298; Gillespie v. Moon, 2 Johns. Ch. (N. Y.) 585 [7 Am. Dec. 559] ; Winnipisseogee Lake Cotton & W. Mfg. Co. Y. Perley, 46 N. H. 83; Knapp v. White, 23 Conn. 529; Wood y. Hubbell, 10 N. Y. 479; Baxter, In re,' 152 Fed. Rep. 137; Park Bros. & Co. v. Blodgett & Clapp Co., 64 Conn. 28 [29 Atl. Rep. 133] ; Watson Coal Co. v. Casteel, 68 Ind. 476; Grymes v. Sanders, 93 IT. S. 55 [23 L. Ed. 798]; Stearns
      v. Beckham, 31 G-ratt. (Va.) 379; Williamson v. Moore, 13 Dec. Ee. 19 (2 Dis. 30); Hill v. Bush, 19 Ark. 522; 2 Pomeroy (3 ed.) 856; Shappirio v. Goldberg, 192 U. S. 232 [24 Sup. Ct. Eep. 259; 48 L. Ed. 419]; Farrell v. Bouck, 61 Neb. 874 [86 N. W. Rep. 907]; Farrell v. Bouck, 60 Neb* 771 [84 N. W. Rep. 260]; Keith v. Brewster, 114 Ga. 176 [39 S. E. Rep. 850] ; Byers v. Chapin, 28 Ohio St. 300; Crist v. Dice, 18 Ohio St. 536; Hayes v. Skidmore, 27 Ohio St. 331; Anderson v. Tighe, 57 Term. (10 Heisk.) 299; Crowe v. Lewin, 95 N. Y.' 423; Barfield v. Price, 40 Cal. 535; Coons v. North, 27 Mo. 73; Belknap v. Sealey, 14 N. Y. 143 [67 Am. Dee. 120] ; Paine v. Upton, 87 N. Y. 327 [41 Am. Rep. 371]; Rowley v. Flannelly, 30 N. J. Eq. 612; Megie v. Bennett, 51 N. J. Eq. 281 [27 Atl. Rep. 917] ; Irwin v. Wilson, 45 Ohio St. 426 [15 N. E. Rep. 209]; Jamaica v. Hart, 52 Yt. 549; Cowell v. Springs Co. 100 U. S. 55 [25 L. Ed. 547]; Oregonian Ry. v. Railway <& Nav. Co. 22 Fed. Rep. 245; Oregonian Ry. v. Railway & Nav. Co. 27 Fed. Rep. 277; Mao-met v. State, 45 Ohio St. 63 [12 N. E. Rep. 463] ; State v. Baker, 55 Ohio St. 1 [44 N. E. Rep. 516] ; Cincinnati v. Con-nor, 55 Ohio St. 82 [44 N. E. Rep. 582]; Thomas v. State, 76 Ohio St. 341 [81 N. E. Rep. 437; 10 L. R. A.. (N. S.) 1112; 118 Am. St. Rep. 884]; Douglass v. Pike Co. 101 IT. S. 677 [25 L. Ed. 968] ; Ohio Life Ins. Co. v. Debolt, 57 U. S. (16 How.) 416 [14 L. Ed. 997]; Gelpecke v. Dubuque, 68 U. S. (1 Wall.) 175 [17 L. Ed. 520]; Cincinnati, W. <& U. Ry. v. Cttoiton Co. (Cornrs.) 1 Ohio St. 77; Strang, Ex parte, 21 Ohio St. 610; State v. Gardner, 54 Ohio St. 24 [42 N. E. Rep. 999; 31 L. R. A. 660] ; Poston v. Jones, 2 Ired. (N. C.) Eq. 350; Cheairs v. Coats, 77 Miss. 846 [28 So. Rep. 728; 78 Am. St. Rep. 546] ; Forbus'v. Collier, 7 Dec. Re. 331 (2 Bull. 122) ; Crawford v. Jooies, 54 Ala. 459.

      Affirmed, no op., Cincinnati v. Marmet Co. 85 O. S. 000; 56 Bull. 428.

   GIFFEN, P. J.

The plaintiff seeks to recover rents paid under a lease from the city and to cancel the lease upon the ground of a mutual mistake in including in the description a piece of land not owned by the city, and which was material and essential to the use intended by the plaintiff.

The four tracts of land conveyed being each described by metes and bounds in the advertisement for proposals as well as in the lease it is immaterial that the lease failed to show as did the advertisement that the property is “now occupied by the Winifrede Coal Co.” because the particular description by metes and bounds would control that in general terms by occupation.

In the case of Smith v. Galloway, 5 B. & Ad. 43, the syllabus is as follows:

“Under a lease of all that part of the park called B situate and being in the county of O and now in the occupation of S, lying within certain specified abuttals, with all houses and etceteras belonging thereto, and which now are in the occupation of S, a house on a part which is within the abuttals, but not in the occupation of S, will pass.”

The description by metes and bounds of each tract was definite and certain, and the recital that the premises thus described were in the occupancy of the Winifrede Coal Co., was insufficient of itself to put the plaintiff on inquiry. It must be determined therefore from all the evidence whether there was a mutual mistake, whether material, and whether the plaintiff noted promptly on discovery.

If, as claimed by counsel for defendants in his brief, “the plaintiff knew what property the Winifrede Coal Co. occupied, and supposed that the property described in the advertisement by metes arid bounds was the property which said company occupied,” then it would be entitled to no relief, as it would be claiming property under the lease that it never expected to get and the defendants never intended to lease.

The officers of the plaintiff company who negotiated the lease deny all this, and say that they relied on the description by metes and bounds and that the premises were not available for the use intended without the particular piece in dispute, and we think this testimony is corroborated by the circumstances ; but whether the company afterwards acquiesced is not •so clear. The testimony of Mr. Jones, manager of the Winifrede Coal Co., shows that there was a high board fence dividing the property occupied by the company from that in dispute oecupied by the B. & O. S. W. Ry. Co., ancj that he knew that it substantially represented the boundary line; but it does not appear that he communicated this knowledge to Mr. Marmet and Mr. Kleybolte, president and vice-president of the plaintiff company, when they together viewed the premises a few days after the bids for the leasehold were opehed. He also pointed out to them at that time adjacent property leased to his company by parties other than the city, but he did not attempt to describe that which was acquired from the city.

Mr. Baird, president of the Winifrede Coal Company, was also present at this meeting, and it appears from his deposition that he “made a mistake that the railroad track did not belong to the Winifrede Coal Co., it was owned by the Baltimore & Ohio Railway and had been put in for our convenience. ’ ’ This is not a denial of ownership of the land upon which the track was laid, and Marmet and Kleybolte might well assume that if the track was laid for the convenience of the Winifrede Co.,, the latter owned the land.

The admission of C. G. Roth, Jr., as auditor of the Marmet Co., in the letter of December 9, 1903, is not binding on the corporation in the absence of express authority to make the same or a course of dealing from which it may be implied. Bradford Belting Co. v. Gibson, 68 Ohio St. 442 [67 N. E. Rep. 888].

If, as claimed by counsel for the defendants, it was the duty of the plaintiff to examine the records or otherwise verify the description, then the company was negligent and not entitled to the relief asked; but we do not understand that under a lease containing a pertinent description of the land and a covenant for quiet enjoyment, the lessee is bound' at his peril to search the records or examine the property. The mistake of the defendants, who are presumed to know the boundaries and .extent of the city’s property, is apparent, yet they did not discover it until this controversy arose. With greater reason therefore the sincerity of the plaintiff in claiming to be misled by the mistake should not be doubted, unless the circumstances require it; and this we find to be not the case, although there are facts seemingly leading to a different conclusion. The evidence shows the mistake to be material although the plaintiff did not, for business reasons, use the property in the manner originally intended, and that it was not actually discovered until a short time before suit was brought. It follows therefore that the plaintiff is entitled to a rescission of the contract. Hayes v. Skidmore, 27 Ohio St. 331. The plaintiff is not entitled, however, to recover the rents already paid, as it was in the possession of and enjoyed the entire premises until discovery of the mistake, and the rents were paid by reason thereof and not under a mistake of fact. Clark v. Potter, 32 Ohio St. 49.

Decree accordingly.

Smith and Swing, JJ., concur.


text:
    PLEDGES — PRINCIPAL AND SURETY.
    [Hamilton (1st) Circuit Court,
    June, 1909.]
    Giffen, Smith and Swing, JJ

      Frank F. Hellman v. Province M. Pogue et al.
    1. Purchase by Pledgee oe Pledged Property at Other than Public Sale does not Change Pledge Relation.
    A pledgee’s sale in his private office upon notice only to a limited number of persons is not a public sale, and in the absence of express agreement, the pledge is not terminated by his bidding off the property.
    2. Certificate of Sale by Pledgor to Pledgee after Payment by Surety of Judgment Secured by Pledge does not Defeat Subrogatory Rights of Surety in Property Pledged.
    A certificate of sale of pledged property to pledgee as purchaser at’ other than public sale, made by pledgor subsequent to payment by surety of judgment secured by pledge, does not defeat surety’s right of subrogation in the pledged property prescribed by Gen. Code 12194.
    Appeal from common pleas court.

      J. M. Dawson, for plaintiff.

      C. B. Matthews and Pogue &\ Pogue, for defendant.

      Affirmed, no op., Pogue v. Hellman, 85 O. S. 000; 56 Bull. 411.

   GIFFEN, P. J.

A sale of pledged chattels by the pledgee upon notice given only to such persons as he deems liable to be interested in the property and at Ms private office is not a public sale; and, in the absence of express agreement, if the property be bid off by him the contract of pledge is not thereby terminated, nor the relations of the parties changed. Laclede Nat. Bank v. Richardson, 156 Mo. 270, 281 [56 S. W. Rep. 1117; 79 Am. St. Rep. 528]; Glidden v. Bank, 53 Ohio St. 588 [42 N. E. Rep. 995; 43 L. R. A. 737].

A certificate by the pledgor of .such sale subsequent to the payment by a surety of two of the judgments secured by the pledge does not defeat the right of the surety to be subrogated to the rights of the judgment creditor or pledgee in the property pledged. R. S. 5836 (Gen. Code 12194), Hill v. King, 48 Ohio St. 75 [26 N. E. Rep. 988].

Decree for plaintiff.

■Smith and Swing, JJ., concur.


author: ■FILLIUS, J.

text:
    INTOXICATING LIQUORS.
    [Columbiana (7th) Circuit Court,
    November 5, 1910.]
    Metcalfe, Laubie and Fillius, JJ.

      Emma Geisse v. State of Ohio.
    Courts Take Judicial Notice of the Result of a Local Option Election in Prosecution for Violation Thereof.
    In a prosecution for selling intoxicating liquors in violation of Gen. Code 13225, a trial judge may take judicial notice of the holding of an election in the county and the result thereof; hence a conviction will not be set aside for failure to specifically prove the fact of such election and its result.
    Error to common pleas court.
    W. F. Lones, for plaintiff in error.

      W. A. 0 ’Grady, for defendant in error.

      Reversed, no op., Geisse v. State, 85 O. S. 000; 56 Bull. 387.

   ■FILLIUS, J.

(Orally.)

This case is here to reverse the judgment of the mayor of the city of Wellsville finding and adjudging Emma Geisse guilty of the charge there preferred against her of selling intoxicating liquors contrary to the local option law. Upon that trial a bill of exceptions was taken setting forth all the evidence, and error was thereupon prosecuted to the court of common pleas where the judgment of conviction was affirmed, and this proceeding in error is to reverse both judgments.

The main contention of counsel for plaintiff in error is that there is no evidence in this record warranting the conviction of Emma Geisse, and specifically that there is. no evidence in this record that Columbiana county had been voted “dry,” and inasmuch as the charge against her was for violating the “dry” statute, she can not be convicted. We have read this record through with great care from beginning to end, with a view to ascertaining whether there is any testimony tending to show that Columbiana county had voted “dry” prior to the commission of the offense and so given validity to the local option law within its boundaries.

There are some fragments of testimony in the' case that would point towards Wellsville being a “dry” town, but nothing seems to point towards the county being a ‘‘dry” county. Under our statutes, a town may vote itself dry and the county outside of it remain “wet.” These fragments of testimony occurring in the record referring to the town as being “dry” may as well be referred to the town of Wellsville being “dry” as to the fact that the county is “dry.” So we find ourselves unable to say that there is evidence in the record showing that Columbiana county voted “dry.”

This necessarily leads to a reversal of these judgments, unless the contention of counsel for the state be correct, that the trial court may have taken judicial notice of the fact that Columbiana county was a “dry” county, and that for the purpose of sustaining this conviction this court will take judicial notice of what the trial court might have taken notice of and so sustain this conviction. ,

This contention leads to a discussion of that proposition. Now, of course, whatever courts may take judicial notice of needs no proof. The statute of the state especially so provides, and beyond that it has so been repeatedly held by courts of last resort everywhere. Early in Ohio, in the case of Brown v. State, 11 Ohio 276, the Supreme Court of the state held that the court would fake judicial notice of general, local and special acts.

“The doctrine of judicial notice is that there are certain facts of which the court will not require evidence, because they are so well known, so easily ascertainable, or so related to the* official character of- the court, that it would not be good sense to do so. ’ ’ McKelvey, Evidence p. 18.

Within the doctrine of judicial notice thus stated, it seems to us the trial court may have taken judicial notice of the election and its result. The facts leading to the election, the campaign preliminary to the election itself, were in their very nature well known to every citizen and every inhabitant of Columbiana county. It is not unreasonable to say that perhaps no fact of any kind was better known by all thé people, old and young, male and female, ignorant and educated, than the fact that an election had taken place in Columbiana county upon the question whether the sale of intoxicating liquors should be prohibited or continued in this county. Nor was the result of that election less well known to every person within the county. Those who were in favor of voting the county “dry,” who supported that side and worked for it, and those who voted against it and labored to bring about its defeat, constituted practically the entire community. If the county voted “dry” as this county did, then followed immediately important consequences. A large number of places that were occupied as places for carrying on the traffic became closed. The public revenues became diminished by the amount of income that was cut off from this source of tax. The various towns and communities in the county immediately recognized a complete change in the condition of things in the places of business, so that the fact that an election of that sort was held and the fact resulting in consequence of the election were facts so well known and so easily ascertainable that there would seem to be no doubt but that they belong to a class of facts coming within the rule above stated.

It is to be understood that within the class of facts that courts will take judicial notice of there is a certain class that a court is bound to take judicial notice of, and a certain other class of facts of which it may, in its discretion, take notice.

Without stopping now to inquire in which class the question before us falls we content ourselves with discussing the question whether the case falls within the class of facts of which the court may at its discretion take notice.

The rule relating to the class of facts of which the court may, at its discretion, take notice is thus stated:

‘ ‘ The range of facts of which the courts may, in their discretion, take judicial notice, is very extensive; but underlying it is the single principle of common notoriety, as distinguished from universal recognition.” McKelvey, Evidence p. 33.

It is sometimes said that courts may require proof of the very facts concerning which they may take judicial notice. This is said not to be a correct Statement. The court can not require proof; but it may inform itself, or may require counsel, in their capacity as officers of the court, to assist it in obtaining the requisite information from the proper sources. McKelvey, Evidence p. 36.

Applying that doctrine to this case, if the court wished to doubly satisfy itself respecting the fact established by common notoriety, it could advise itself or ask counsel to advise it whether the public record of the results of the election required to be made to the clerk of the court of the county had-been made, and what it showed. Indeed, it would seem as though this ought to be-the proper course to pursue, in view of the fact that if proofs, were required to be made and if made by the production of the-certificate, it could have no effect in the case beyond informing the court, as will be hereinafter shown.

Clearly, within the rule last above stated, it seems to us that both the fact of the election and the result of it were facts of common notoriety, established by such public acts, that thé court would be entirely justified in taking judicial notice thereof.

We are 'aware that there is much contrariety of view upon this subject, but within the rule stated and upon the better reason, we are compelled to the conclusion that the court should take judicial notice.

In discussing the rule last above referred to, the author says :

"“The court is intelligent. It is cognizant of what is notorious m the community, and it will not always shut its eyes to such notoriety, when it becomes material in the trial of a case. While common notoriety is not sufficient to place a fact in the category things of which notice must be taken, the cases show that courts have frequently considered themselves justified by reason of it, in dispensing with proof.” McKelvey, Evidence p. 33.

And, the author speaking directly to this subject and with 'reference to the contrariety of view existing, says:

"The limits which the courts have laid down to the application of this principle are not always consistent, and an attempt to reconcile the many decisions would prove as impracticable as ’useless. Judicial notice is not a substitute for proof, nor a ’means to strengthen a weak case. There are doubtless instances of its too extensive as well as too narrow application, but in the :main the decisions may be said to follow the lines above laid down.” McKelvey, Evidence p. 36.

In the case of Urmston v. State, 73 Ind. 175, the supreme court of Indiana said that the court knew judicially that a township election was held on the second Tuesday in October, 1875, at which a successor to a constable ought to have been elected and the court presumed that he was elected.

Now, what is the situation here ? Here is a state law that became effective in Columbiana county only when the county voted to make its provisions operative within its boundaries. It then became a criminal statute of the state providing pains and penalties against anybody who may violate its provisions. In this case upon an affidavit charging Emma Geisse with violating its provisions a warrant was properly issued for her arrest, and she was put on trial for violating this criminal law of the state becoming effective in Columbiana county by the will of its electors. And it is said that before she can be convicted by the state, the state must, upon her trial, make proof that the law is in force within the county, because it does not, by its terms, become a criminal statute as to Columbiana county affecting the sale of intoxicating liquors until adopted, so to speak, by a majority of the electors of the county voting that it shall so apply.

It is conceded that when Columbiana county voted “dry” ipso facto, the provisions of the Rose local option law became operative within the county and thereby the traffic in intoxicating liquors within it was prohibited, and that every person within the county became thereby bound by its provisions and subject to-its pains and penalties upon their violation, whether he participated in the election, or whether he knew or had notice of it, or whether he knew or had notice of the result of that election.

In view of this effect upon.a person within the county, why does it become necessary to make formal proof of the election and its result? and when made, what is its effect? It is obvious that the proof is not made for the purpose of bringing home to the person charged with the violation of the law either knowledge of the election or its result, for, as already observed, he is bound to know what the law of the county in this respect is, however that law becomes effective within the county. It is also obvious that the proof when made, if it be a certified copy from the county clerk of the result of the election, can not be contradicted by the person charged. He will not even be permitted to contradict it. It is also obvious that the proof when so made is absolutely conclusive upon the jury. Indeed it would seem that while the election becomes necessary to make the law effective within the county, it becomes thereby part of the law itself providing when it becomes effective, and is binding upon every person irrespective of notice or knowledge of the election-

If these observations be correct, why make formal proof at all? The person charged is conclusively presumed to know the law is effective within the county, and what the person charged is conclusively presumed to know in this respect may not the trial court properly take judicial notice of ? It seems to us to be quite within established rule for the court to take judicial notice of the existence of the criminal statute with which the prisoner is charged with violating, and which he is -conclusively presumed to know is in force.

The Rose local option law requires that the result of the -election shall be certified to the clerk of the court of common pleas and spread upon the records of the court where everybody may learn about it, if they choose. It thus becomes a public record. Of this record the court may take notice, and from it lie, too, may advise himself if he chooses to do so. And inasmuch as the only possible effect which the proof tendered upon trial of the election and its result could have in the case would be to advise the court of it and thereby enable him upon that proof to direct the jury accordingly, what principle of law or public policy or reasonable limitation applied to what a court may properly take judicial notice of is violated, if the court assumes to take and does take judicial notice of the fact that this law is in operation within this county ? The conclusion that we have arrived at is that it was the duty of the trial court to take, as he evidently in this case did take, judicial notice of the fact that this law was in operation within this county, and that what he properly took judicial notice of, this court in reviewing this judgment may likewise take judicial notice of. Indeed, the mayor of Wellsville would properly take judicial notice of a passage of an ordinance by the municipality and that it was in force and effect within the municipality by its proper legal advertisement. If this be so, why should he not as well take notice of the fact that there had been a public election within the county and of its result when carried forward as such elections are, whereby a statute is made operative within a county? Surely if whether the court may take judicial notice of a- fact depends upon the public character, public approval and public authentication of that fact, then it would seem that no fact of which a court may take judicial notice could be better verified or authenticated or more generally known, than the fact and result of such an election.

Now, we are not without authority upon this matter, and in a very well reasoned ease where the statute is as near like ours as. two statutes in two states so widely different and so widely separated as Georgia and Ohio, might likely be, the supreme court of Georgia held that the court should take judicial notice of the fact that the statute had become operative within a county as a result of an election held for that purpose.

In the Georgia statute the act provided that:

“If a majority- of the local votes of the county shall be for prohibition, the clerk of the superior court of the county shall file a copy of the notice issued by him, with his certificates showing the date of the publication thereof, in his office, which notice and certificate shall be entered on the minutes of the superior court of said county and the record or a certified copy thereof shall be competent evidence to show when this act went into effect.”

The question was directly before the court, whether or not the court would take judicial notice of the election. The judge giving the opinion just preceding what I am about to read refers to the fact that the court would take judicial notice of a local statute, and he proceeds: “But it is argued that, while, this may be true, the act itself may be recognized without proof.”

“This act provides that the managers of the election shall consolidate the votes of the different precincts in the county, and make a return to the clerk of the superior court, and that the clerk shall announce the result by publishing the same in a newspaper, and that the act shall take effect on the day of the publication of the result by the clerk. It provides, further, .that this notice shall be entered on the minutes of the superior court, and it shall be competent evidence to show when the act took effect. ‘ Courts are created to administer and enforce the law. ’ Therefore, they do and must take judicial cognizance of all laws. Whether the law was in existence is for them to say, just as fully as it rests with them whether the indictment is good or bad, or that the evidence to prove the offense alleged is legally admissible, or otherwise. To the courts alone belongs the right of saying whether a statute is in force or not. The law itself-having provided that the result, of the election should be placed upon the minutes of the superior, court,. and that, .that entry should be competent evidence to show when the act went into effect, and the judge below having these minutes before him, there was no error in his reading from said minutes, and instructing the jury, as matter of law, as to when the act went into effect. It is the duty of the judge to know the law, and especially to know the law in his own circuit. If he should be ignorant of the local law enacted by the legislature for any county in his circuit, or. any county where he may preside, it would be his duty to inform himself of what the law is. If the act of the legislature does not inform him as to when it went into effect, then he can look to the means provided by this act to inform himself. If the act provides that the clerk so announces the result of the election, and places it on the minutes ,of the court, he may look to that. If the act provides, as many of them do, that the return should be made to the ordinary of the county, and he should issue his proclamation declaring the result, then he may look to the proclamation, or have it introduced, if necessary, in evidence before him,, but not before the jury. The proclamation of the clerk or ordinary is conclusive that the law has been accepted by the people, and has become effectual as a law. It being conclusive for this purpose, there would be no use or propriety in submitting the matter to a jury, because the defendant would not be allowed to controvert it, and it would be useless to submit any evidence in a criminal case to the jury which the defendant would not be allowed to controvert.” Combs v. State, 81 Ga. 780 [8 S. E. Rep. 318]; Oglesby v. State, 121 Ga. 602 [49 S. E. Rep. 706].

It seems to us this is the correct view to be taken of this question, and While courts in some other states hold otherwise, still we think the better reason is in favor of holding that the court will take judicial notice of a question of this character.

We are not unmindful that the Rose local option law provides what shall be prima facie evidence of the results of such an election, but we are of opinion that that provision does not prevent the court taking judicial notice of the result of the election, if otherwise it may properly do so.

Accordingly the judgment is affirmed.

Metcalfe and Laubie, JJ., concur.


author: KINKADE, J.

text:
    BURGLARY.
    [Lucas (6th) Circuit Court, -,
    1911.]
    Wildman, Kinkade and Richards, JJ.
    Ralph Martin alias Howard Cox v. State of Ohio.
    Possession oe Burglars’ Tools Evidence Felonious Intent Regardless oe Time and Place oe Intended Use.
    Possession of articles of a kind commonly used by burglars by accused while loitering in a place where many burglaries are committed and in company with associates of doubtful character, evidence an intention of using them burglariously within the meaning of Gen. Code 12439, and it is immaterial what was his intention as to time and place to use them.
    Error to common pleas court.

      T. H. Murphy, for plaintiff in error.

      A. F. Connolly and B. B. Stuart, Asst. Pros. Atty., for defendant in error.
   KINKADE, J.

The plaintiff in error here was indicted by the grand jury of this county for having burglar tools in his possession with intent to use them burglariously. He was tried and the jury found him guilty as charged. The case is here on error to reverse the judgment, entered upon this verdict of the jury.

It was said in opening the case for the plaintiff in error here that another error was sought to be presented by the bill of exceptions, misconduct of counsel in argument, but the trial judge erased the statement placed in the bill by counsel, so that is not a matter for consideration here. The two grounds of error relied upon here are: First, the charge of the court; second, insufficiency of the evidence to sustain the verdict returned by the jury.

It is said that there is no evidence in this record from which the jury could have found properly, that the defendant had these tools in his possession with intent to use them burglariously, and therefore that the verdict cannot be sustained. And we were earnestly asked by counsel to read this record with care to discover, as counsel stated he had discovered that it was devoid of evidence justifying the finding of the jury, a'serious thing if true. We have read the record as urged by counsel and have read it with care. The members of this court while at the bar, have tried many criminal cases. All of us have been upon the common pleas bench and have heard scores of criminal cases, so we feel qualified to judge of the character of the'evidence presented here, as to whether it shows any intent or not in a case of this character.

This man was found upon the railroad grounds of the Lake Shore railroad at Air Line Junction and he says at 6 o’clock in the evening. The state says something like 7 o’clock in the evening. We think it is not material who is correct in this regard; he was there, and in company with four other men. He was there admittedly, by his own testimony, for the purpose of stealing a ride to Chicago. The other four men he said were there for a similar purpose; they had all discussed the going out of the trains, what they would do, and how they would do it and where they would locate themselves in order to have the best advantage in carrying out their purpose; and while there the officers of the railroad company came to them and ordered them off of the grounds, some dispute arose and the whole of them were arr'ested I believe, at least this man was, and on his person was found a bunch of keys, curiously constructed keys, quite a number of them. There was also found on his person a revolver and a chisel, described in the indictment and described in the record as a “jimmy,” a chisel so shaped that it might be used as a “jimmy”; a search light, and some cartridges were in the revolver.

We think it clearly appears from the record that the articles found on this man were articles of a kind commonly used by burglars in carrying on their trade. In fact, it is not seriously contended they were not.

When he was arrested with these things on him he was inquired of where he got them and what he had them for, and he declined to make any statement at all. When he gets into the trial of his case he offers this as an explanation, that when the officers came to him they searched him, at least to some pxtent, as lie says they “frisked,” him. This is described to mean that the officers came near 'him and slapped him where he would have pockets to see if they could ^discover anything, but did not make a careful search. He says they “frisked” him and he says they discovered nothing for the very good reason he had nothing. He started away pursuant to the order of the officers and was going to take a street car and come back to the city; he says that after he had gone a distance he met a boy who said the street car was the other way and not that way, so he went back to the neighborhood of his companions, intending to go the other way to look for a street car, but the dispute between the officers and the other men had progressed to such a point as that the officers had evidently determined to take them all in, or take some of them in, I should say. It is said sometime during that movement one of the other men came to him and said to him, “Now you have been searched and they have not discovered anything on you, and they will not search you again. Now here are these things that I have, if they find any of these things on me it will be a serious thing, therefore, you take these things now and you keep them and they will not be discovered on us to our detriment.” He says this is the way he came to get these things, and when afterward they inquired of him where he got them he said he did not answer them for the .reason that the other men were not then out of reach of the officers, and that to have told them he got them from the other men would have been the same as to have permitted the other men to be found with them in their possession; therefore, to shield the other men (he did not say that, but that is the inference), to shield the other men he declined to tell where he got them; and as I say, when he was found and they were found on him, at no time did he offer any explanation where he got them until he comes into his trial, and then he tells this story as to where he got them and how. He seems to have had more concern about the welfare ■of the other men who were practically strangers to him, than he had about himself. He now. tells this story that the reason he did not explain to the officers was that it would have been detrimental to his associates who were then trying to get away, but were not far enough away to make their escape.

He tells how he came to go to Air Line Junction; says he went up Broadway to the crossing of Broadway and the Wabash tracks prepared to take train No. 32 for Chicago; that he stepped into a saloon near there and found No. 32 had gone and he then met these three or four men and expressed his disappointment to them that he should have thus missed his connection and they said to him to come with them as they were going to Air Line Junction and they would all find a train out there. He then gives a curious account of how he got to Air Line Junction, curious to anybody who understands the geography of the situation, but. at any rate he finally got to Air Line Junction, and then all of these things took place that he says took place. And it is said here, that this story disposes of the question of intent. Well, if it were believed by the jury, perhaps it might, but it evidently was disregarded entirely by the jury and after reading his story and considering its inconsistencies and improbabilities, we are unanimous in the opinion that the jury were quite justified in disregarding his story entirely, and, taking the case as it is with the goods found on him without any explanation, with himself in a railroad yard where many burglaries are committed on the railroad cars, in company with associates of doubtful character, we think the jury were justified in reaching the conclusion that they did, that this man had these tools or implements upon his person for the purpose of using them burglariously.

It was said he might have had an intention to commit a burglary in Chicago or some place else, and that it was incumbent upon the state to show he had an intention to use them burglariously and presently within Lucas equnty. We think the statute is not so limited. The statute says, whoever has in his possession such tools, etc., with the intention of using them burglariously; this is what makes the offense complete; there may be no occasion to use them at that precise time and place; in fact it may be impossible to use them at the time and in the immediate locality where the party having them in his possession is arrested, and yet he may be guilty of the offense defined in the statute. The important inquiry is what is his intention with -respect to the use of the tools found in his pos- 4 session.- If his intention is to use them burglariously, the exact time and place where he expects to go into business is not very material. Both the possession and the intent must be found by the jury to have been shown by the evidence beyond a reasonable doubt to warrant a finding of guilty.

We find in the record, unobjected to, an inquiry made of this man whether he had ever afterwards seen any of these associates after he was found with them in the railroad yard, and whom he described as “hoboes” (he said the act of the whole of them, stealing rides on trains, is what is known as “hoboing”). He said yes, he had seen them, and when asked where he had seen them he said he saw them in the county jail here when he was in the county jail.

Now, we think the jury were entitled to take into account that fact and all the circumstances and surroundings of this case. This man testified he had worked for some time at a restaurant here. He testified as to the length of time he had been in Toledo. He was a witness in his own behalf but he called no one to testify as to his' good character. His defense rested entirely upon his' own statements, and when they are rejected, we think there is very little, if anything, left of his defense", and it impresses the members of this court that he might have been in better standing with the jury had he omitted entirely his story or testimony and left the case as the state rested it.

We think, taking the case as a whole, that there is abundant proof here to justify the jury in finding that he had these implements upon his person with the intent prohibited by the statute.

We have read the charge of the court and find no prejudicial error in the charge. At one place the court does say that a reasonable doubt is a doubt that a man can give a reason- for, but in the very next sentence the court explains correctly and in detail what is meant by that expression. It has been held by the Supreme Court that that expression standing alone and unexplained does not state the rule correctly, but it has not been held that the form of statement found in this charge presents prejudicial error. We have read the charge 'with care and we find no prejudicial error in it. The judgment of the court of common pleas will have to be affirmed.

Wildman and Richards, JJ., concur.


author: MARVIN, J.

text:
    DIVORCE AND ALIMONY.
    [Summit (8th) Circuit Court,
    April 12, 1911.]
    Henry, Marvin and Winch, JJ.
    Barberton Savings Bank Co. v. Ethan Allen Belford et al. Ethan A. Belford v. Anna S. Belford.
    Decree for Divorce where Jurisdiction was not Obtained Over Defendant does not Determine Alimony or Dower.
    A decree for divorce granted to a husband for the aggression of the wife under Gen. Code 11993 requires a judicial hearing by a court having jurisdiction of either the person or the property of the wife, or both; hence a decree for divorce granted in a proceeding in which no service, except by publication, was had upon the wife and of which she had no knowledge until after the decree, does not affect or determine her rights either to alimony or dower in property standing in the name of the husband.
    Appeal from common pleas court.

      F. A. Decker, for plaintiff in Case No. 961.

      J. V. Walsh, for defendants in Case No. 961.

      F. A. Decker, for plaintiff in Case No. 962.

      W. E. Pardee and /. V. Welsh, for defendant in Case No. 962.
   MARVIN, J.

The rights of the parties in these two actions grow out of the same state of facts. A sum of money, resulting from the sale of real estate upon foreclosure of a mortgage given by Ethan A. Belford and Anna S. Belford to the Barberton Savings Bank, and which sum is a surplus above the payment of the' amount due to the bank upon the debt secured by such mortgage, is now in the hands of the sheriff of this county, where it is remaining until the issues between Ethan A. Belford and Anna S. Belford are determined.

Ethan A. Belford and Anna S. Belford were husband and wife. Both resided in Summit county while that relation sub-between them, and each had resided there for a considerable period before they were married to each other. A separation took place between them, and then Ethan A. Belford removed to Guernsey county in this state, where he brought suit against his wife, Anna, and obtained a divorce from her. She, at the time, was not living in Guernsey county, and the only service obtained upon her in the divorce proceeding was by publication, the plaintiff in that action, Ethan A. Belford, having filed an affidavit there that he did not know where she resided, nor could he by reasonable diligence ascertain where her residence was. The decree for such divorce was entered in the court of common pleas of Guernsey county on December 17, 1906, and the court decreed “that the defendant has been guilty of gross neglect of duty towards the plaintiff, and by reason thereof the plaintiff is entitled to a divorce as prayed for. It is therefore adjudged and decreed that the marriage contract heretofore existing between Ethan A. Belford and Anna S. Belford be, and the same is hereby dissolved and both parties are released therefrom. It is further ordered and decreed that the defendant be hereby barred and divested of all claim, title and interest by dower or otherwise in aby real estate belonging to said Ethan A. Belford, by reason of the aggressions of said Anna S. Belford.”

The petition in No. 962 is filed by Anna S. Belford against Ethan A. Belford and sets out that she is a resident of the state of Ohio and now has a bona fide residence in the county of Summit; she says that on November 1, 1906, the defendant abandoned her without due cause. She says that while she was his wife he neglected his duty towards her and ill-treated her. Then she sets out his ownership of certain real estate in the village of Kenmore, Summit county. She further says that there is in the hands of the sheriff of Summit county, subject to the order of the court, a considerable sum of money, to-wit, about $1,000, which belongs to the defendant, said money arising from the sale of real property in the case of the Barberton Savings Bank Company against Ethan A. Belford and Anna S'. Belford (this is the same money already mentioned in this opinion) and she prays for alimony..

In the suit for foreclosure by the Savings Bank Company she answered, setting out that she was entitled to dower in the real -estate, the mortgage upon which was foreclosed in that action, and she prays in that action to have allowed to her the value of her dower' interest in the premises.

In his answer to the petition in No. 962, Ethan Allen Belford denies all allegations of wrongdoing on his part towards his wife, and' sets up the decree of divorce granted to him in Guernsey county, as hereinbefore set- out. To this answer the plaintiff replies, setting out that if the defendant obtained a divorce from her in Guernsey county, the same was obtained without notice to her and without her knowledge. She says that the time he filed his petition in the court in Guernsey county and at the time he filed his affidavit for service by publication upon her, he knew that she was a resident of Summit county, Ohio, and that if he did not know it, he could readily have found by the exercise of reasonable diligence that she did then reside in Summit county, and that therefore any divorce which he obtained in Guernsey county was by the perpetration of a fraud and imposition upon the court which granted the same; denies the jurisdiction of the court to grant the divorce; that she never had an opportunity to defend said divorce; that she never had her day in court, and repeats her allegation that she was not in the wrong in any differences between the plaintiff and the defendant, but that the defendant was wholly in the wrong.

The defendant, Ethan Allen Belford, offers in evidence a transcript of the proceedings of the court in Guernsey county. From this transcript it appears that the divorce was granted, as already said; that service was obtained by publication, after an affidavit was filed by tbe plaintiff in that action; that he did not know and had not the means of knowing where his wife then resided, and it shows this further fact that on April 25, 1907, which, was at a term of the court subsequent to that in which the divorce was granted, Anna S. Belford filed a motion in that court and in that case, asking that the court open and set aside and hold for naught the judgment, orders and decrees that had before that time been entered in the case. She sets out in that motion .the facts, as contained in her reply here, that she had no notice of the filing of the petition-or the hearing of the case, and that she has had no day in court, and at the same time she filed and caused to be forwarded a notice to the defendant that she would make an application on May 6, 1907, to have the judgment and decree of divorce set aside, denying all wrongdoing .on her part, and asking that the petition against her be dismissed. Thereafter, on May 27, 1907, the court entered an order in these words: “The motion of the defendant to open and set aside and hold for naught the judgment, orders and decrees heretofore made and rendered against defendant herein was heard, refused and overruled. To which ruling the defendant excepts, and fifty days are allowed to prepare and file a bill of exceptions.”

On the part of the defendant it is urged here that the plaintiff ought not to be permitted to pursue her action for alimony, nor to pursue her claim for dower,, or for an allowance in lieu of dower in the foreclosure case. First, it is said, that whether the plaintiff could have any rights in reference to such dower or alimony,, if she had not filed her motion and answer in the Guernsey county case, she is precluded now -from proceeding here, because, it is said, she has had her day in that court which granted the divorce.

The reasoning for this contention is not in accord with the holdings of this court.

In the ease of Solomon v. Solomon, 26 O. C. C. 307 (4 N. S. 321), it is said in the syllabus:

“A decree for divorce procured through the fraud of plaintiff, which consisted in his obtaining service by publication upon defendant under a false affidavit that her whereabouts were unknown, cannot be opened up after the term and defendant allowed to come in and defend under favor of Sec. 5355 Rev. Stat. Said statute is not applicable to actions for divorce. ’ ’

The reasons for this holding are discussed in the opinion and this language is quoted from the statute in reference to divorce. “'No appeal shall be allowed from the decree, but the same shall be final and conclusive.” And then this language is quoted from the opinion in the case of Parish v. Parish, 9 Ohio St. 534, 535 [75 Am. Dec. 482], where the foregoing provision of the statute is under consideration:

“This statutory provision is nothing more than a legislative recognition of the principle of public policy, which has been repeatedly affirmed by the courts,, that a judgment or decree which affects directly the status of married persons, by sundering the matrimonial tie, and thereby enabling them to contract new matrimonial relations with other and innocent persons, should never be reopened. Such a course would endanger the peace and good order of society, and the happiness and well-being of those who, innocently relying upon the stability of a decree of a court of competent j'urisdietion, have formed a connection with a person who wrongfully, perhaps, procured its promulgation. ’ ’

Besides this quotation from Parish v. Parish, supra, many other authorities are cited and quoted in the opinion in Solomon v. Solomon, supra, and we reach the conclusion that the action of the court in Guernsey county in overruling the motion there made by the plaintiff in that action settles nothing so far as the present case is concerned. The court necessarily overruled the motion because it had no jurisdiction to open up the decree, which it was by that motion sought to have opened up. This case, therefore, stands here as though this plaintiff had never made any motion in the case in Guernsey county. The language of the court in the decree of divorce which declared that the defendant in that action was barred from any claim for dower added nothing to that decree. If the court had the jurisdiction to make the order, it was because the case was so in that court that the defendant in that action would have been barfed of dower without the court saying anything about it.

The provision of law in regard to this matter is found in Gen. Code 11993 (R. S. 5700), and reads:

“When the divorce is granted by reason of the aggression of the wife, she shall be barred of all right of dower in the lands of which Her husband is seized at the time of filing the petition for divorce, or which he thereafter acquires, whether there is issue or not.”

So that if this section applies to the present case, the wife is barred of her dower, because the statute says so. If this section does not apply, then the language of the court does not bar her, because if the court had jurisdiction to bar her of dower she was barred by the statute itself, and this brings us to the question urged with vigor by the plaintiff, that since no service, except by publication, was had upon the wife and that she had no knowledge of the proceeding in Guernsey county until after the court had entered its decree, her property rights could not be affected by such decree. That the inchoate right of dower is recognized as a property right by our Supreme Court is shown in numerous eases. Among others, the case of Mandell v. McClave, 46 Ohio St. 407 [22 N. E. Rep. 290; 5 L. R. A. 519; 15 Am. St. Rep. 627], where in the syllabus it is said:

“The contingent right of a wife, during her husband's life, to be endowed of his real estate at his death, is property having a substantial value that may be ascertained with reasonable certainty from established tables of mortality, aided by evidence respecting the state of health and constitutional vigor of the husband and wife respectively.”

In that case the matter is thoroughly discussed, and the result reached as announced in the syllabus.

To the same effect is the case of Black v. Kuhlman, 30 Ohio St. 196, 199.

We agree with counsel for the plaintiff who says in his brief that Gen. Code 11993 (R. S. 5700), presupposes and intends that a judicial hearing shall be had in which the court either had jurisdiction of the person of the wife or that the court had jurisdiction of the property itself in which dower might be or had attached, and in the absence of such jurisdiction of the wife or property, or both, the court could not. affect the property rights of the wife without her day in court. And this view is supported by the case of Doerr v. Forsythe, 50 Ohio St. 726 [35 N. E. Rep. 1055; 40 Am. St. Rep. 703], the syllabus of which case reads:

“A divorce obtained by a husband from his wife in another state, without service other than by publication, and 'she being at the time a citizen of and residing in this state, does not in any way affect her property rights in this state.”

In the opinion, which is very brief, on page 730, the court gives, among other reasons, why a decree in Indiana could not affect the wife’s property rights in Ohio; that it is possible that the divorce was granted in Indiana upon some ground which would not be a ground for divorce in Ohio, and then follows with this language:

“But if it were otherwise, as she had no 'opportunity to defend, all that can be claimed for that decree, is that it dissolved the marriage relation between the parties, and restored the husband to the status of an unmarried man. This the court could do; but, as it had no jurisdiction of the person of the wife, it was not competent to the Indiana court to affect such rights as she had acquired in the property of the husband under the laws of this state.”

The same reason which prevents the decree in a foreign state from affecting the property rights of the wife in this state appears to us equally strong upon the proposition that a decree rendered in this state, where the court had no jurisdiction of the person of the wife nor of the property in which she was interested, her property rights could not be affected.

The reasons why the marital status of the parties can be fixed by a court having jurisdiction of the person only of the plaintiff are founded upon public policy, as applicable especially to tbe marriage relation, and are fully discussed in the opinion in the ease of Solomon v. Solomon, supra.

We reach the conclusion then that neither the right of . Anna S. Belford to dower or to alimony is determined by the decree for divorce obtained in Guernsey county, and the court will hold the cases to hear evidence on the question of her rights in this regard.

Henry and Winch, JJ., concur.


text:
    INSURANCE — RECEIVERS.
    [Lucas (6th) Circuit Court,
    February 23, 1910.]
    Parker, Wildman and Kinkade, JJ.
    Bertha Koch v. St. Charles Hotel Company.
    1. Créditos, Having Leave, may Assert Claim by Proper Motion in Action for Receiver of Insolvent Corporation.
    In an action against an insolvent corporation for a receiver and tbe winding up of its affairs, a creditor may come in by leave-of court and assert bis claim by a motion in proper form.
    2. Receiver is Chargeable with Cost of Insurance for Balance or Term of Policy for which Premium Note Previously Given.
    Where a promissory note is given for insurance, it does not constitute payment of tbe premium, but during tbe term of tbe insurance is a mere evidence of indebtedness arising under a contract not yet completed; and where a receiver comes in and takes possession of tbe property covered by tbe insurance, be' is chargeable with tbe cost thereof for tbe Remainder of the term tbe policies have to run.
    Error to Lucas common pleas court.

      Kohn & Northup, for plaintiff in error.

      Kohn & Northup, Brown, Hahn, Sanger & Froehlich, for defendant in error..
   KINKADE, J.

This is a proceeding in error involving a controversy between parties other than the nominal plaintiff in error. The-case was originally instituted by her against the St. Charles Hotel Company and a receiver for that company was appointed. He subsequently resigned, I believe, and another receiver was appointed in his place.

The questions before us are raised in a controversy, between a firm known as Barker, Frost & Chapman, who are insurance agents, and who, prior to the receivership, had obtained for the St. Charles Hotel Company certain insurance and had charges against the hotel company for the amount of premiums therefor. Shortly before the appointment of the receiver this firm obtained from the St. Charles Hotel Company two notes in evidence of settlement of the amount at that time supposed to be due. After the receiver was appointed some question arose as to whether the insurance should be terminated, the policies having the usual provision as to their being void by change of ownership, and as a result^ of the discussion between the parties the insurance was pérmitted to remain upon the property as controlled and held by the receiver, the receiver however insisting that the note which had been given operated as a full payment for the insurance for the entire term which it was to run, while on the other hand the St. Charles Hotel Company being insolvent, the firm of Barker, Frost & Chapman claimed that they were entitled to treat the contract on the part of the insurance company as an executory one, and claimed that the notes were not payment of the insurance but only evidence of the indebtedness, and surrendered the notes and made a claim as a preferred charge against the receiver of the amount of the insurance premium which would accrue for the insurance from the time the receiver was appointed until the end of the term of the insurance period. The firm came into the case by motion upon leave of eourt and thereupon filed another motion asserting their claim. It is insisted in behalf of the plaintiff in error that they could not properly do this; that they should interpose by a cross petition or as intervenors by pleading upon their claims, so as to submit them to an issue by a pleading on the other side. It is said that the court erred in not striking out or refusing to consider this motion as an assertion of the claim of Barker, Frost & Chapman, and in overruling the request of 1¡he receiver to file an answer.

The whole matter, however, was litigated in the court below as if there had been a pleading filed by Barker, Frost & Chapman and an answer to it traversing the allegations o£ such pleading.

We are inclined to think that the motion was proper in view of the circumstances as seeking a direction from the court of the appointment, -requiring the receiver to allow this claim, and that it fairly tendered the issue for the consideration of the court.

There are some other preliminary questions which may be considered, all questions incidental to the principal one, but the one which has addressed itself to us as fundamental to the ease is the one as to whether the giving of the. note constituted a payment of the insurance for the full period, and whether Barker, Frost & Chapman would have any authority to terminate the insurance, to shorten the term, and thereby lessen the amount of the premium which the insurance would earn. There is a good deal of able and very lucid discussion of the question in the brief presented to us, and we think that the question as to whether these notes in fact constituted a payment or only evidence of. an indebtedness on the part of the St. Charles Hotel Company to Barker, Frost & Chapman has been substantially decided in one or two cases to which I will refer.

In the case of Weller Co. v. Gordon, 24 O. C. C. 407 (7 N. S. 303), at the January term, 1903, this court held, Judge Hull announcing the opinion, that the giving of an order, check or other instrument is not absolute payment, unless it is shown that- it is understood and agreed by the parties to be accepted as absolute payment and satisfaction of the amount, and the burden is upon the person claiming the payment to show these facts. The other cause was by another circuit court, and is perhaps a little more precisely in point as to what constitutes a payment where the instrument is given based upon an- indebtedness and where under such circumstances the burden of the proof rests to show the intention. The ease is that of Rous culp v. Railway, 10 Circ. Dec. 621 (19 R. 436), and paragraph 8 of the syllabus is as follows:

“As a general rule, giving a note is not payment but merely evidence of the debt, and in the absence of proof to the contrary must be so regarded.”

I might say that the case to which I have referred, Weller Co. v. Gordon, supra, decided by our own court was subsequently affirmed by the Supreme Court, without opinion, Weller Co. v. Gordon, 70 Ohio St. 489.

We may take it then as an established rule governing us. that the giving of the note by the St. Charles Hotel Company, in the absence of satisfactory proof to the contrary, was to be-treated as mere evidences of the state of the indebtedness at that time between the hotel company and Barker, Frost & Chapman. They have offered to surrender these notes, and they are claiming that the contract for insurance is not like a contract, where, even if there had been full payment, there-was nothing still to be done in the way of rendering of the-service by the party to whom the notes were given or to whom a payment is made, and the argument made by counsel in this-regard is absolutely conclusive upon the subject. There is no-question that a transaction of this kind is to be distinguished from the purchase of supplies or the purchase of a suit of' clothes or any other article, where the contract is completely executed on the part of the one who receives the money or-receives the note. The insurance company here had nothing to do; it was to carry a hazard for a term of years, or for a particular .period, and during the entire period it was expected to-be performing that service.

Now a large part of that service was to continue after the appointment of this receiver, and as has been well urged upon us, if there had been no insurance, it would have been the duty-of the receiver under the circumstances to ask the court for-authority to take out insurance, upon the property for its protection, or for.. the protection rather of the persons beneficially interested in the estate. Instead of that, this insurance-was permitted to remain. There is no question as to the validity of the insurance or the reasonableness of the premium. paid, and it would seem to be entirely inequitable that the property in the hands of the receiver should receive this protection and should pay nothing for the benefit.

We think under all the circumstances that the receiver is justly chargeable for the amount of the insurance, for the amount which the insurance should draw from the time of the appointment of the receiver; that it is like a charge against an administrator, or against any receiver, as a part of the expenses of administration or expenses of the receivership, and consequently that it is a preferred claim, having priority over other claims of general creditors of the estate.. Our judgment is that the court below did not err in so holding.

It is contended with some earnestness that there is no authority to make this sort of an order without a showing that the receiver has funds in his hands out of which 'to make the payment; but the order of the court below was that he should make payment out of funds in his hands then or thereafter, and all things are to be presumed in a proceeding in error in favor of the regularity of the proceedings below, and we may fairly presume that the court, having knowledge of the condition of the assets in the hands of the receiver, was aware that there was something in his hands out of which he could at least ultimately make payment of the claim. The judgment of the court below will be affirmed.

Parker and Wildman, JJ., concur.


author: JONES, J.

text:
    NEGLIGENCE.
    [Hamilton (1st) Circuit Court,
    April 15, 1911.]
    Cincinnati Trac. Co. v. Kunie Frank.
    Smith, Swing and Jones, JJ.
    Liability fob Damages fob Causing a Hobse to Run Away.
    ■Whether a traction company is liable for damages resulting from the frightening of a horse by the unexpected starting in the street of a snow sweeper, Which made a loud and unusual noise and filled the air with snow in the direction in which it was. operating, is a question of fact for the jury.

      Error to common pleas court.
    There was a recovery below by the defendant in error in this ease of $2,500, which was reduced to $2,000 in the court below.

      Kittredge, Wilby & Stimson, for plaintiff in error.

      T. L. Michie and G. L. Swain, for defendant in error.
   JONES, J.

The evidence in this case shows that defendant in error was, at the- time of the accident, driving south on Reading road in Cincinnati in a market wagon. It was snowing and a sweeper propelled by electricity and equipped with large, cylindrical, revolving rattan brushes was being operated by defendant company in removing snow from its tracks located on said street. As plaintiff approached, the motorman, on her account, stopped the sweeper and called for her to come on. Whether she signalled for him to stop or he stopped of his own volition is immaterial. It is evident that from some act of hers or the horse which she was driving, he saw fit to stop out of consideration for her safety. The sweepers of this type are only used in time of snow, make a loud, unusual noise, scatter the snow through the air and are likely to frighten horses.

Two eye-witnesses testify that after waiting until Mrs. Frank drove 150 or 200 feet, and when her horse was just opposite the sweeper, it was started, causing the horse to run away. She was thrown out of the wagon and injured.

The question of negligence was one of fact and was submitted to the jury, whose verdict was for defendant in error.

We can not say .that the verdict was not sustained by the evidence.

Judgment affirmed.

Smith and Swing, JJ., concur.


text:
    APPEAL — DIVORCE AND ALIMONY.
    [Lucas (6th) Circuit Court,
    June 12, 1911.]
    Wildman, Kinkade and Richards, JJ.
    Elizabeth Wolcott v. Robert E. Wolcott.
    1. Extreme Cruelty and Habitual Drunkenness before Defendant’s being Adjudged Insane Sufficient Grounds for Divorce.
    A petition for divorce against an insane defendant, setting forth extreme cruelty and habitual drunkenness, for more than three years prior to defendant’s being adjudged insane and committed to a state hospital, states grounds sufficient for granting divorce.
    2. Appeal Lies to Order Dismissing Divorce Petition Alleging Grounds Accruing Prior to Defendant’s Insanity Decreep.
    Appeal, b-ut not error under Gen. Code 12002, lies to an order vacating the appointment of a trustee for an insane defendant and dismissing, without hearing on the merits, a petition for divorce alleging accruing prior to insanity decreed. ’
    Error from common pleas.

      Earl L. Peters, for plaintiff in error.
   KINKADE, J.

This was an action for a divorce in the court of common pleas. The petition set forth as grounds for the divorce, extreme cruelty and also habitual drunkenness on the part of the defendant for more than three years prior to March 9, 1901, and stated that these grounds arose while the defendant was sane. The petition further stated that the defendant was, on March 9, 1901, duly and legally committed to the Toledo State Hospital for the Insane at Toledo, Ohio, by the probate court of Wood.' county, Ohio, as an insane person and that he has ever since been insane, and since 1901 has been continuously confined in said asylum, and that at the time of.the filing of the petition the defendant was incurably insane.

On motion of the plaintiff a trustee was duly appointed by the court of common pleas to represent the defendant in the action, and the trustee filed an answer.

"When the case was called for hearing in the court of common pleas the trial judge was in doubt (so we are informed by counsel for plaintiff) as to the right of the plaintiff to maintain an action for divorce against one then insane, and yet the court was not disposed to enter judgment against the plaintiff in such form as to deny plaintiff the right to review on appeal, that question in this court. The common pleas court vacated its order appointing the trustee, as having been made without authority of law, and then dismissed the petition stating in the entry that such dismissal was without any hearing on the merits and was based solely on the statement in the petition that the defendant was an insane person. The plaintiff appealed the case to this court and also filed a petition in error here.

The statutes of Ohio never contained any provision authorizing proceedings in error to review a decision of the court of common pleas entered in a divorce case. The courts have uniformly held that no such right of review on error exists in Ohio.

I read from the case of Parish v. Parish, 9 Ohio St. 534 [75 Am. Dec. 482], the paragraph of the opinion of the court found on page 538:

“The statute of March 14, 1843, conferring jurisdiction in divorce eases upon the courts of common pleas, which was. in force when these proceedings were had, provides that “no appeal shall be obtained from the decree, but the same shall be final and conclusive.” Cur wen, 991. This statutory provision is nothing more than a legislative recognition of the principle of public policy, which had been repeatedly affirmed by the courts, that a judgment or decree which affects directly the status of married persons by sundering the matrimonial tie, and thereby enabling them to contract new matrimonial relations with other and innocent persons, should never be reopened. Such a course would endanger the peace and good order of society, and the happiness and well being of those who innocently relying upon the stability of a decree of a court of competent jurisdiction, have formed a connection with the person who, wrongfully perhaps, procured its promulgation.”'

This case was followed by the Supreme Court in the case of Mulligan v. Mulligan, 82 Ohio St. 426.

This court passed upon this question in the ease of Clowry v. Clowry, 8 Circ. Dec. 652 (16 R. 302). The opinion is by Judge Scribner, and upon a full examination of all the cases in Ohio the. right to prosecute error in divorce cases is denied.We find some statements in the opinion concerning the right of appeal which were unnecessary in deciding the error case then before the court (there being no question as to the right of appeal them before the court), in which we do not concur.

The court of common pleas was given jurisdiction in matters of divorce and alimony, concurrent with the Supreme Court, by the act of March 13, 1843, and by Sec. 3 of that act, all right of appeal was denied and the decree was declared final and conclusive. 2 Curwen’s Statutes, Chap. 466.

March 11, 1853, the law of divorce and alimony was again amended, and while Sec. 16 of that act denied all right of appeal, -Sec. 17 provided for an appeal under certain conditions named in 3 Curwen’s Statutes, Chap. 1252, Sec. 11.

The law was again amended April 15, 1857, 54 O. L. 131. This act gave the right of appeal under certain conditions, one being where a petition is dismissed without a hearing on the merits, and also provided for an appeal in any case from that part of the decree -relating to alimony only.

These two provisions for appeal, when a petition is dismissed without a hearing jon the merits, and from that part of the decree pertaining to alimony alone, have been in the statutes ever since 1857, the different acts being but slightly different in form.

The provisions of the present General Code on this subject will be found in Gen. Code 12002, which reads as follows:

“No appeal shall be allowed from a judgment or order of the common pleas court under this chapter, except from an order dismissing the petition without final hearing, or from a final qrder or judgment granting or refusing alimony, or in cases under the .next preceding section. When judgment is rendered for both divorce and alimony, the appeal will lie only to so much of the judgment as relates to the alimony. When eel appeal is taken by the wife, she shall not be required to give bond. ”

Plaintiff’s petition having been dismissed without a hearing on the,merits, he is properly here on appeal, presenting for our determination the question whether his petition should have been so dismissed.

We are of the opinion that the petition states grounds sufficient for the granting of the divorce, it being stated in the petition that the statutory grounds therein set forth arose prior to the insanity of the defendant. It is not claimed that the insanity itself is a ground for the divorce. '

The order of the court of common pleas appointing a trustee to represent the defendant was properly made, and should not have been vacated.

The appeal case will be remanded to the court of common pleas for further proceedings according to law.

The petition in error will be dismissed for want of jurisdiction.

Wildman and Richards, JJ., concur.