text:
    (Sixth Circuit—Lucas Co., O., Circuit Court
    January Term, 1896.)
    Before Scribner, Haynes and King, JJ.
    THE TOLEDO COMMERCIAL COMPANY v. THE GLEN MANUFACTURING COMPANY.

      l.’Amended pleadings — Adopting and referring to allegations in other pleading without re-stating them, improper. — Where an amended answer is filed after the original anwer has been decided insufficient on demurrer, it is not a proper way to refer in such amended answer to any other so-called pleadings that have been filed in the case, and to adopt their allegations or making them a part of it, and it is doubtful whether a court can look into the other pleading to determine whether the one in question is suffi- ' cient.

      %'Foreign corporations doing business in Ohio — Requirement of certificate from secretary of state before doing business in Ohio— What pleading setting up failure of foreign corporation to comply with Ohio km must aver — To take advantage of the Ohio law of 1894, as a defense in a suit instituted by a foreign corporation, the averments of the answer must bring such foreign corporation plainly, fully and squarely within the provisions of it, and show that such foreign corporation does not belong to the class of foreign corporations exempted by the law from its provisions.
    S. To what foreign corporations the laio is alone applicable to avoid its interfering with interstate commerce. — This law can only apply to such corporations as come within the jurisdiction of the state for the purpose of carrying on their business ' here; but a state can not prohibit corporations from doing business in any other state in selling its products or wares in any manner that it chooses.
    Error to the Court of Common Pleas of Lucas county.
   King, J.

This case was heard in the Court of Common Pleas upon a demurrer to the amended answer. The demurrer was sustained, and the defendant not desiring to plead further in the case, a judgment was rendered upon the petition in favor of the plaintiff for the amount claimed in the petition — something more than $1300 — and this proceeding is to reverse that®judgment of the court of common pleas.

The action was brought in the court of common pleas by The Glen Manufacturing Co. against The Toledo Commer- ■ cial Co: The plaintiff set forth in its petition that it “is a body corporate, incorporated, organized, existing and doing-business in and by its said name under and in pusuanee of the laws of the state of Massachusetts, and having its home office and principal place of business at and in the city of' Boston in said state. The said defendant is a body corporate, incorporated, organized, existing and doing business in and by its said name under and in pursuance of the laws of' the state of Ohio, and having its home office and principal place of business at and in the city of Toledo in said state.

“1st. On the 11th day of February, A. D., 1895, at the-city of Boston aforesaid, the said plaintiff at the special instance and request of the said defendant, sold and delivered to the said defendant a large quantity of printing paper of the value of 1401.18, in consideration whereof the said defendant then and there, and at and upon divers and sundry times and occasions since said sale and delivery,- promised to pay to the said plaintiff the sum of 1401.18 within a reasonable time thereafter, which reasonable time has long since-elapsed, yet the said defendant, though often thereunto requested, hath not paid the said sum nor any part thereof, and' the whole thereof is now owing and due from the said defendant to the said plaintiff, together with interest thereon from and after the 11th day of February, A. D,, 1895, at the rate of six per cent per annum.”

There is a second cause of action setting up in precisely the same language the sale of another lot of paper on another date, and a third cause of action, setting forth the -sale of another lot of paper. A judgment is asked for against the defendant for the sum of 11377.96, and interest from the dates when the several sales were made.

To that petition the defendant first filed this answer:

“Now comes defendant, and for answer to plaintiff’s petition filed herein says: It admits that said plaintiff is a corporation organized under the laws of the state of Massachusetts, and that defendant is a corporation organized under the laws of Ohio. This defendant denies that the sales' set out in the petition were made at the city of Boston in said state of Massachusetts. This defendant says that said sales and all trasactions and negotiations connected therewith were carried on in this state. Defendant says that said plaintiff is a foreign stock corporation; that said plaintiff has not procured from the secretary of state a certificate that it has complied with all the requirements of law -to authorize it to do business in this state; that said plaintiff has not filed in the office of the secretary of state a sworn copy of its charter or certificate of incorporation, and a statement under its corporate seal particularly setting forth the amount of capital stock, the business or objects of the corporation which it is engaged in carrying on within this state; nor has such corporation designated in the manner provided by law a person upon whom process against said corporation may be served within this state; nor has such corporation paid to the secretary of state the fees required by law to be paid such secretary. That said secretary of state of Ohio has not issued to plaintiff a certificate as required by law authorizing it to do business in this state. That said plaintiff has done or is doing business in this state. Wherefore defendant prays that-said petition of plaintiff be dismissed; that it may go hence without day, and recover its costs herein expended.”

To that answer the plaintiff interposed a demurrer, which was heard by the court of common pleas, and sustained. And thereupon the defendant files what it denominates an amended answer, under the same title, and says:

“Now comes said defendant, and for its amended answer to the petition of plaintiff filed herein, says that it reaffirms, adopts, and makes a part of this amended answer all of the allegations of its original answer filed in this action.
“And this defendant further answering, says: it denies that on the 11th day of February, 1895, or at any other time, -at the city of Boston in the state of Massachusetts, the said plaintiff, at the special instance and request of said defendant, sold and delivered to the said defendant a large quantity of printing paper as in the petition alleged. Defendant says that whatever paper was sold to it by said plaintiff, was sold to it and delivered to it by said plaintiff in the city of Toledo, in the state of Ohio.
“And it further alleges, as in its original answer set forth, that any sales of said printing paper so made to it by said plaintiff, were made in the state of Ohio, and any paper, the subject of any such sales as set out in the petition, were delivered to it by said plaintiff in the state of Ohio.”

To this amended answer a demurrer was interposed and sustained.

It should be said of this amended answer that we do not regard it a proper way to plead in an amended pleading by referring to any other so-called pleadings that have been filed in the case, adopting their allegations or making them a part of it; and it is doubtful whether the court has any business to look into the other pleadings to determine whether the one in question is sufficient. But we do not dispose of this answer with that statement. Looking into the previous answer, which had been held insufficient by the court upon demurrer, and doing as the amended pleading says — adopting its allegations — we find that it contains very little to be adopted. ' The answer of the defendant admits that .the plaintiff is, under the laws of Massachusetts, a corporation organized and doing business there. It does not specifically admit any other allegations in the petition,nor does it deny any of the allegations of the petition, except that it specially denies that the sales set forth in the petition were made in Boston. It avers that all the negotiations and transactions leading up. to the making of such sales were made in Toedo, and it avers by a general averment that the plaintiff has been and is doing business in Ohio. To this is added an allegation of the amended answer that it denies that the plaintiff sold and delivered to it, the defendant, in Boston, the printing paper named in the petition; but avers that whatever paper was sold to it, was sold and delivered to it in the city of Toledo. It is doubtful whether the amended answer has changed materially the allegations of the original answer; but taken together, it is denied, that these sales were made or that this paper was delivered in the city of Boston, as alleged in the petition, and it is averred that the sales and the deliveries were made in the city of Toledo, in the state of Ohio. It is not denied that the plaintiff is a stock corporation, organized under the laws of the state of Massachusetts, doing business in that state, having its office and its principal place of business located in the city of Boston in that state; nor that the paper in question was sold to it, or that it promised and agreed to pay for it, or that the sum of thirteen hundred and odd dollars is due to the plaintiff from the defendant for the paper which it purchased and received. Those allegations of the petition not being denied, are of course admitted. The defendant relies solely upon its allegations that this paper was sold and delivered in Toledo, and that the plaintiff has done and is doing business in Ohio, to defeat this action,under the terms of a statute which it claims is applicable to that question. The statute in question was first passed April 25th, 1893, 90 O. L. 261, and provides:

“That no foreign stock corporation,other than a banking •or insurance corporation, shall do business in this state without first having procured from the secretary of state a certificate that it has been complied with all the requirements of law to authorize it to do business in this state, and that the business of the corporation to be carried on in this state is such as may be lawfully carried on by a corporation incorporated under the laws of this state for such or similar business, or if more than one kind of business, by two or more corporations so incorporated for such kinds of business exclusively. The secretary of state shall deliver such certificate to every such corporation so complying with the requirements of the law of this state. No such corporation now doing business in this state shall do business herein after July 31, 1893, without having procured such certificate from the secretary of state, but any lawful 'contract previously made by such corporation may be performed and enforced within the state subsequent to such date. No such foreign stock corporation doing business in this state without such certificate, shall maintain any action in this state upon any contract made by it in this state until it shall have procured such certificate. Before granting such certificate, the secretary of state shall require every such corporation to file in his office a sworn copy of its charter or certificate of incorporation, and a statement under its corporate seal particularly setting forth the amount of capital stock, the business or objects of the corporation, which it is engaged in carrying on, or which it proposes to engage in or carry on within this state, and a place within this state which is to be its principal place of business, designating in the manner prescribed in the code of civil procedure in this state, a person upon whom process against such corporation may be served within this state. Such designation shall continue in force until revoked by an instrument in writing designating in like manner some other person upon whom process against such corporation may be served in this state If the person so designated dies or removes from the place where such corporation has its principal place of business within this state, and such corporation does not, within thirty days after such death or removal, designate in like manner another person upon whom process against it may be served within this state, the secretary of state shall revoke the authority of such corporation to do business within this state, and process against such corporation in actions upon any liability incurred within this state before such revocation, may, after such death or removal, and before another designation is made, be served upon the secretary of state. At the time of such service th© plaintiff shall pay to the secretary of state two dollars, to be included in his taxable costs and disbursements, and the secretary of state shall forthwith mail a copy of such notice to such corporation if its address or the address of any officer thereof is known to him. For each certificate thus issued by the secretary of state he shall be entitled to receive and shall be paid fees according to the amount of capital stock of each such corporation as follows: $100,000 or less, $15 * * * which fees and the several sums of $2 above named are to be paid by him to the treasurer of state to credit of general revenue fund. ”

That act was amended by an act of the General Assembly, passed May 19,1894, found in 91 O. L. 355, but the amendment does not change the original act in any respect that I observe, except to provide that foreign corporations that have complied “with'the provisions of section 148c. of the Revised Statutes, passed May 16, 1894, shall not be subject to process of attachment under section 5521 Revised Statutes, or any law of Ohio, upon the ground, that it is a foreign corporation or a non-resident of this state.

In 1894, and a few days prior to the passage of this amended section, which amended section was adopted for the purpose of adding the clause(which Hast read, the legislature passed another act, found in the same volume, page 272, providing that,

“Every foreign corporation, incorporated for purposes of profit, now or hereafter doing business in this state and owing or using a part or all of its capital or plant in this state, shall, within 30 days after the passage of this act, then before it proceeds to do any business in this state, under the oath of the president, secretary, treasurer, superintendent or managing agent in this state of such corporation, make and file with the secretary of state a statement, in such form as the secretary of state may prescribe, containing the following facts:

And it sets forth substantially the same things as in the first mentioned act to be filed with the secretary of state. But this act provides that:

“This section shall not apply to foreign insurance, banking, savings and loan or building and loan companies, or to express, telegraph, telephone, railroad, sleeping-car, transportation or other corporations engaged in Ohio in interstate commerce business; or to foreign corporations, entirely nonresident, soliciting business, or making sales, in this state by correspondence or by traveling salesmen.”

This act does not provide that the corporation shall name the person upon whom process shall be served; it does not provide that it shall give the name of its officers and agents in charge of its business in Ohio; but provides that it shall pay a fee for the certificate which it obtains based upon the amount of the capital stock at the rate of one-tenth of one per cent, represented by the property or business done in Ohio; and it provides that corporations who comply with the provisions of that act shall not be subject to attachment under section 5521 Revised Statutes, or any law of Ohio,

Those two acts seem to have somewhat the same object and purpose, but whether this be so or not is doubtless immaterial, as the act amended in 1894, (Yol. 91, O. S. 355) is the only one relied upon, by the paintiff in error. The object of the statute, as I read it, was to require foreign corporations doing business in this state to make out this certificate and file it with the secretary of state, and pay a fee therefor. Evidently the legislature had some purpose of revenue in mind when they adopted both of these acts; and also intended that a foreign corporation doing business in this state, should designate a person upon whom summons or process might be served in case suit were brought against it.

The question is raised here whether this answer brings this company within the provisions of this act; in other words, do they allege such a state of facts as to come within the provisions of the amended act of 1894, that no foreign corporation other than a banking of insurance corporation shall do business in this state without having procured from the secretary of state a certificate of the sort described in this act? In the first place, I should say that as this act is restrictive of the right to do business in this state, and absolutely-forfeits the right to maintain an action upon a debt due and upon a contract made and owing by. a citizen of the state of Ohio to this foreign corporation, that he who undertakes to apply it as a defense to an action upon such a debt, must bring his defenses quarely and fully and plainly within the provisions of it. This answer fails to do that in this respect: that it does not aver that the plaintiff is not one of the corporations excepted from the provisions of this statute, to-wit: either a banking,or an insurance company. The allegation in the petition does not state the business of the plaintiff in any respect, but states that it is a corporation doing business in the state of Massachusetts, organized under its laws, and having its office and principal place of business at Boston in that state. What its business is is not disclosed anywhere in any of these pleadings; but it states that on a certain day it sold and delivered to the defendant a certain quantity of printing paper,for which the defendant promised and agreed to pay the price named, which it has not paid. There is no allegation in the answer that this corporation was not a banking or insurance corporation. That alone, in our judgment, would render this answer defective and subject to demurrer. But this answer contains an allegation that this plaintiff is doing business in the state of Ohio. There is no allegation of any business that it has ever trans? acted here. It will be noticed by the terms of this act that the thing that is required to do in order to bring it within the provisions of this act is, that it must state to the secretary of state in its application for this certificate that it has a principal place of business in this state, and it must state that it has an agent in charge who is located at that same place, having charge of its principal place of lousiness, upon whom process may be served. The petition alleges that this company has a principal place of business, and that that is located in the city of Boston, in the state of Massachusetts; and that is not denied. For ought that appears by these pleadings, then, it has no other place of business than that located in Boston. If it has- no other place of business,' it does not come within the provisions of this act; for in order to come within the provisions of the act, it must have a place of business in Ohio. It must designate it to the secretary of the state, in order to 'be entitled to this certificate, and it would be necessary to aver in the answer, that it has a place of business in the state of Ohio, where it is doing business. The only allegation in the answer which may be claimed to amount to that is, that the sales in question were made in Toledo, and the plaintiff has been doing business only in the state of Massachusetts, having its only place of business in Boston, The answer says in a general way that plaintiff has done and is doing business in Ohio; but that allegation is too general to amount to any thing. It does not describe what is its business, what kind of business it is or has been doing. This must be described by the corporation in order to be entitled to receive a certificate from the secretary of state. We are left wholly to the allegations of the petition in that respect, and they are, that it is carrying on some kind of business in Boston.

I think that the authority cited by counsel for defendant in error in the argument of this case — 113 U. S. 727- — is entirely in point. It seems to cover an act which in some respects is like this one. The court there discuss the meaning of the phrase “to carry on business,” the phrase used in a statute in the state of Colorado that the court were considering. “Doing business” is, I take it, substantially the same thing as “carrying on business.” They went onto show by their analysis of that phrase that it meant that it was prosecuting, carrying forward, and continuing business of some sort or character in the state.

An allegation that this company is doing business does not show that it is necessarily within the provisions of this statute; but, as argued by counsel and as stated in the opinion of the Supreme Court of tlie United States, that if this statute should undertake by any interpretation that should be put upon it, to prevent a corporation organized and doing business in another state from selling goods in Ohio, why, it-would interfere with .interstate commerce, and such holding Rere would prevent the defendant in error, organized and «doing business in Massachusetts, and having its principal place of business in Boston, from selling and delivering in Toledo to a resident of Toledo, its wares and merchandize, which would be clearly in contravention of the federal constitution upon that point.

G. P. Kirby, attorney for plaintiff in error.

E. D. Potter, Jr., attorney for defendant in error.

This law can only apply to such corporations as come within the jurisdiction of the state for the purpose of transacting their business. In that view, it would be entirely constitutional,.as the courts have frequently held, for the state to regulate the manner in, and the condition under which a foreign corporation may come within its territory po transact and carry on its business; but courts have not and will not hold that a state may prohibit a foreign corporation doing business in any other state from selling its products or its wares in this state in any-manner that it saw fit.

So we think this answer- does not state a defense, and therefore the judgment of the court of common pleas will be affirmed.


source: Caselaw Access Project

author: Caldwell, J.

license: Public Domain

text:
    (Eighth Circuit—Cuyahoga Co., O., Circuit Court
    Jan.Term, 1896.)
    Before Caldwell, Hale and Marvin, JJ.
    THE BOARD OF EDUCATION OF GLENDALE VILLAGE SCHOOL DISTRICT v. HAZEN L. COSGROVE.

      1. Bes Judicata — Plea of, by party not a party of record, but the real party in interest in former case. — A party, although not á party of record in a case, yet 'may so identify himself with it, i that the judgment in such case is really for or against him, as the case may be. And he may then set up the judgment in such case as res adjudicata, in another action brought for or against him : involving the same issues as the former suit.

      2. Same — When doctrine applies. — A third party is barred by a former litigation, wherein he was not a party, by reason of his inter-, est, or by reason of his responsibility over to the defendant, which will attach if judgment goes against the defendant, which obligation may rest in covenant or implied obligation; where he has openly defended the action, and'where his interposition was complete as shown by his acts.

      3. Same — The form of action has no bearing upon the right to plead res adjudicata, but the controlling question is whether the issues be the same in both cases, and on this question the court will go into evidence to find what issues were actually tried, if it does not appear by the record itself.
    Error to the Court of Common Pleas of Cuyahoga County.
   Caldwell, J.

In the summer of 1891, Cosgrove was employed to superintend the schools in the villáge of Glenville. He commenced his employment, and was paid along until April, 1892. When the pay-roll was passed in May, on the 5th of May, 1892, Cosgrove’s- order was passed the same as Ml others that the board were then to act upon, and he was allowed his order of $90,00. The treasurer, Moser, refused to pay the $90.00, and he brought an action to compel Moser to pay him the money on the order issued by the board. That was commenced in this court, and heard here, and the court required the treasurer to pay the money to Cosgrove, $90.00, Cosgrove went on and taught during part of that year, until the summer vacation, and the board didn’t allow him to teach the coming year. His employment was for two years, commencing in 1891, and ending in 1893. And he brought an action, and this is the action, for his pay for the year in which they did not allow him to teach, which was the second year of his employment.

The same defense is set up substantially to this action that was set up in the other action, that at the time that he entered upon the performance of the contract he was not capable of performing it — -legally capable of performing the contract, in that he had no certificate covering the branches that he was to teach; and that being true, that he was not capable of carrying out the contract, and the board had a right to set it aside.

To this, in the reply, the plaintiff set up the judgment that he had obtained in regard to the $90.00 — the suit involving the payment to him of the $90.00, and showed that although that suit was against Moser, the treasurer of the board, and this suit was against the board, yet he undertook to set out such facts as would make the board the real party in the first suit, and plead the first judgment as res judicata in this second suit. He obtained his judgment in the common pleas court, and the Board of Education- brings the action here to have that judgment reversed.

The questions that we have not already decided in this case arise largely out of the introduction of this record into the evidence. Exceptions were taken to its introduction, and to various parts of the record as they were introduced, and it is claimed here that it was error to introduce it, and that the matter should not have been presented to the jury as it was by j;he court, and that allowing the record in the former case to go before the jury, by the court, was error, and various parts of the charge to the jury are excepted to by the village, and claiming there was error. But all these claims of error involve the one question, whether or not it was proper to plead as res judicata a judgment to which the board was not nominally a party. Simply the treasurer was the party to that suit. And those questions are the only ones that we intend to say anything about in this opinion.

The question of the legality of the certificate was determined in the former action. The question of the nature of the contract and the construction of the contract between Cos-grove and the Board of Education was determined in the former action. As to whether his employment was that of a teacher, or that of merely a superintendent, that was all determined. Whether the board required him to teach certain branches in their employment, or at any time during his employment, was determined in the former action. So that all those questions and all those issues have heretofore been determined by us, and our opinion is furnished us in this case, and we are satisfied with it, and content with it as it stands.

That leaves then simply for consideration now the question of whether it was proper to plead the judgment that was rendered in that case as a bar to the School Board in this case when the School Board was not nominally a party to that action. It was contended by Cosgrove below, that while the School Board was not nominally a party to that action, yet the School Board really conducted the defense of Moser, its treasurer; employed the counsel, paid the costs of the action, determined how it should be finally disposed of— whether error should be taken to the Supreme Court or not; and in fact it was claimed that the Board of Education took the matter entirely out of the hands of Moser by some resolutions it passed on the 2nd day of June, 1892, before the disposition of that suit. The board got together, and after reciting the circumstances as the board understood them— that Cosgrove had no legal certificate; that the Board of Education had required him- to teach certain branches that he was not qualified by law to teach in that he had no certificate to teach them, and that his being unable therefore to comply, or being unprepared to comply with his contract; that the board set aside.all relations between Cosgrove and the board. Resolutions to that effect were passed, and the judge charged the jury below that these resolutions were broad enough to cover the $90.00 then in litigation between Moser and Cosgrove, and that it was virtually taking the matter entirely out of the hands of Moser, its treasurer, by cancelling really the order that the board had issued and which Cosgrove was seeking to have the treasurer pay.

Now, those resolutions, passed on the 2nd day of June, were not before this court on the former trial, so that the suit then proceeded as though the board still had outstanding the order to Cosgrove for the $90.00, and that Moser, as treasurer, was refusing to pay it. Whereas, the real facts, as they appear by this bill of exceptions, that existed at the time we decided that suit, was that the Board of Education had met on the 2nd of June, and had cancelled that order, so far as they could, by resolution; had cancelled that order that they had issued to Cosgrove and which he was seeking to have paid; and by so doing it was contended below that the Board of Education had taken upon itself the control of that order, had wrested it from the hands of the treasurer, had cancelled a]l authority for him to pay it, as it had can-celled the order and he could only pay on an order, and that the board assumed the conduct of the trial from that on; that they appeared and testified in the case, they employed counsel; that they undertook to dispose of the case finally by having the costs charged to the board. Now, there is evidence in this record tending to show that. And the only question, the only legal question in the case, is this; whether a party may so identify himself with the case, that although he is not a party to the record in that case, , yet may so identify himself with it, and so participate in it, that that judgment in that case he may set up in his favor, if it is really in his favor, or that it may be plead against him if it is really against him.

We have examined the authorities on this question very extensively, but I will not undertake to go into them now. They7 are cited in Wells on Res Adjudicata and Stare Decisis, sections 15, 16 and 17, and in Herman on Estoppel and Res Judicata, sections 156, 157, 158, and Black on Judgments, section 540, and in other places. And as we find the law to be that a third party is barred by a former litigation, wherein he was not a party, by reason of his interest in the subject matter of the former litigation or by reason of his responsibility over to the defendant, which will attach if judgment goes against the defendant, which obligation may rest in covenant or implied obligation; and second, where he has openly defended the action; and -third, his interposition must have been complete, as shown by his acts, such as employing the attorney, testifying in the case, being present and aiding in the conduct of the .trial, and aiding it with his money, controlling an appeal, and agreeing to pay costs, and things of that kind.

Now, in this suit, if that judgment went against Moser in that former suit as the treasurer of the board, then it was against the board. The board is the party that is to pay; the board is the trustee, the guardian, the controller of this tuition fund, and whatever is paid out of it the board pays, so that any judgment against Moser must be met and paid by the board. Now, that brings the board within one class of persons who may be bound.

Another class is where the liability over is against the party — for instance a surety. Where the principal alone is sued, and the' surety appears and takes part in the defense, and is active in it, and does the necessary things in the law to bind a party, there he may be bound because of the lia^ bility over to him if he does those things. We do not find that this rule extends out of these two classes. First, it must be a person who is liable if there is a judgment. Second, a person on whom there may be a liability over if there is a judgment against the defendant.

I might say, in one sense, the board belongs to both these classes. If there was a judgment against Moser, the board must pay it. If there was a judgment against Moser, and he still did not pay it because the board would not allow him to use the funds that way, then he may have compelled the board to submit to that judgment.

Well now,we find in looking at the facts in this case, that there is evidence tending to show, and sufficient for the jury’s finding, we think, that the Board of Education did openly defend this action, and that they interposed is manifested and shown, not only by their acts during the trial in being present, but there is evidence tending to show’ that they employed the counsel, and that they were here and testified in the case; and the evidence would tend to show that that was a voluntary appearance as witnesses on their part. Some of the members were present, of course not all, and that they were here present and aiding and doing all they could to conduct the trial, and assisting Moser in every way they could to defeat Cosgrove in that suit. And those resolutions that I speak of, on the 2nd of June, were one step the board took to aid him. It simply cancelled all outstanding obligations on the part of the board, to Cosgrove, as well as all future obligations under that contract. In fact, to wipe out all obligations, whether past or present, was the effect or the attempt of those resolutions, and that showed that the board had changed its mind in regard to this matter, and concluded it was wrong in issuing the order to Cosgrove, and undertook to withdraw it. And there is evidence tending to show that they undertook, the board undertook, to control this mater of taking that case from this court to the Supreme Court. They authorized the attorney in that case to submit to Cosgrove a certain proposition, and if he would not accept that proposition that attorney should then take the case to the Supreme Court.

In fact, there is evidence enough, we think, to sustain this verdict on the part of the jury, that the board did have the control of that suit, did control it and manage it, and treat it all through as really the litigation of the board, and that in that suit the board meant by so doing to determine whether or not they could defeat the payment of that order, and if so they could defeat all rights of Cosgrove thereafter under that contract; for the facts that would defeat the issues in the case that we tried against Moser, Cosgrove against Moser, were precisely the issues that were tried in this case. Now, what were the issues? And I speak of this because I see that counsel in the brief takes a different view of it. By the issues in cases of this kind we do not mean the judgment that is sought, but we mean the issues made on which testimony is offered, or the issues of law which are really controverted by reason of the. facts that- are' plead in the pleadings. Now, the issues we think are, what kind of a contract did the board make with Cosgrove? Did it cover simply that of superintending the schools, or that of superintending and teaching? What had the board required him to teach? Was he legally qualified to carry out that contract at the time that he entered upon its performance,or any time thereafter, was he legally qualified? Now, those were the issues that were tried in the first case. Those are precisely the issues that the Board of Education tender in this case. That being true, the fact that a mandamus was asked in one case, and personal judgment in another, does not so alter the issues of the two cases as to make them different. The form of action has nothing to do with this matter of pleading in a matter of res adjudicata. The form of the two actions may differ. That has been decided in our own state in the Tenth Ohio state. That is not the controlling matter, but controlling matter is whether the issues were the same, the parties the same. And in looking to see who were the parties, or looking to see what the issues were, the court will go into evidence to determine what issues were actually tried, if it does not appear by the record itself, and to determine who the parties were, if it does not appear who the real parties were, and it is plead that one party was merely nominal and another the real party; the court will then go into evidence to determine who the real parties are. _ That was done in this case, and there was sufficient evidence, we think, to connect the board with that former trial and former judgment, owing to its relation to this treasurer, to make the law entirely applicable that was given by the judge to the jury. The judge left it io fact to the jury to determine whether the board by its resolution on the 2nd of June, 1892, took the matter almost entirely out of the hands of the treasurer, and thereafter conducted the suit and the entire defense itself, looking forward no doubt at the time to the nullifying of the entire contract for the coming year, or from the time of the judgment in that case, whether in favor of the treasurer or of the board.

We find no error, and we affirm the judgment. '

P. JP. Kaiser, County Solicitor, for plaintiff irferror.

Marvin & Shupe, for defendant in error.


author: Haines, J.

text:
    (Sixth Circuit—Lucas Co., O., Circuit Court
    Jan. Term, 1896.)
    Before Scribner, Haynes and King, JJ.
    DORA LANGE v. AUGUST GRABE.

      1. Mortgage — Claim of mortgagee to the insurance effected by mortgagor to himself — A mortgagee, merely as such, has no interest in or claim to a policy of insurance effected by the mortgagor upon the mortgaged property for his own benefit.
    2. Same — Covenant to insure — Rights of mortgagee — A covenant, or a contract, express or implied, by the mortgagor, that he will keep the mortgaged premises insured during the existence of the mortgage, for the benefit of the mortgagee, creates an equitable lien in favor of the latter upon the money due for a loss upon a policy effected by the former in his own name upon the mortgaged property, whether the policy exist upon the property at the time of the mortgage, or be afterwards taken out by the mortgagor.
    3. Same — Condition'to repay insurance — Not broken until premium actually paid — The mortgage provided that the mortgagor shall keep the property insured for the benefit and further security of the mortgagee, and that if he fail to do so, the mortgagee may effect insurance for his benefit, and that the premiums then paid by the mortgagee shall be a lien on the property, and if the mortgagor shall fail to re-pay the premiums thus paid by the mortgagee for thirty days, that then the entire principal debt of the mortgage shall become due and payable. The mortgagor having.failed to procure insurance for the benefit of the mortgagee. Held: That the condition of the mortgage is not’broken, and suit of foreclosure cannot be instituted until the mortgagee has himself actually procured and paid insurance himself.

      Appeal from the Court of Common Pleas of Lucas county.
   Haines, J.

This case was brought here by appeal. The plaintiff filed her petition in the court of common pleas for the purpose of foreclosing a certain mortgage, and set up in that petition the following note:

“$701.44. Toledo, Ohio, March 1th, 1894.
Three years after date I promise to pay to the order of Dora Lang, seven hundred and one dollars and forty-four cents, value received, with interest at six pe cent per annum.
August Grabe.
“(Secured by a mortgage on real estate.)’-

This petition was filed in the court of common pleas on the 14th day of June, 1894, being about three months after the execution of the note, and long before the note had fallen due, and before anything was due upon it, either of principal or interest, according to its terms.

The plaintiff then proceeds to set up the mortgage, and after doing that and describing it, the petition proceeds:

“Plaintiff further says that said deed of mortgage has the following conditions thereunder written, and became an important condition in the sufficiency of the security of said note, to wit: ‘The said obligor further agrees to pay all taxes and assessments against said premises, as the same shall become due and payable; and further agrees to keep said premises fully insured in favor of said grantee, her heirs or assigns, in companies to be approved by her', failing in which such insurance may be effected by said grantee, and all expenses thus arising from premiums or otherwise shall constitute a lien against said premises from this date, as though specifically stipulated therein. It being hereby covenanted, that if failure be made in the payment of either principal, interest, taxes, assessments, or insurance premiums, or any part thereof when due, as aforesaid, and the same shall remain'in arrears for thirty days, the whole of said principal sum shall become and be then due, and the said mortgagee, her heirs, or assigns, shall be and are hereby, authorized in said case of default to proceed at her option for the collection of the whole amount unpaid thereon. Now if the said August Grabe, his heirs, assigns, executors, or administrators, shall well and truly pay the aforesaid obligation according to the tenor thereof to the said Dora Lange, her heirs and assigns, together with all taxes, assessments and insurance premiums, then the above deed shall be void; otherwise the same shall remain in full force and virtue.’
“Plaintiff says the said defendant has not kept the conditions of said mortgage deed; that said conditions have been broken by said defendant with reference to the condition of insurance by said defendant. That more than thirty days has elapsed since the making of said mortgage; that he has repeatedly and wilfully refused, and still wilfully refuses to procure for plaintiff’s benefit and protection said insúrance, and have the same properly transferred upon the books of the insurance company, loss if any payable to plaintiff as her interest may appear, as a part of her mortgage security, but still wilfully refuses to effect said insurance, according to the terms of said mortgage.
“Plaintiff says that she has endeavored to procure insurance on her own account as provided in said mortgage, for the purpose of protecting her mortgage interest in said property, but has failed to procure said insurance, for the reason said defendant has a policy of insurance on said premises for all said property will bear, and all insurance agents are willing to carry. ’ ’

The petition then described the property.

There is no allegation, it will be perceived, that the note itself is due, or that the interest is due, or taxes and assessments; the whole gravamen of the petition is, that the defendant has insured the premises in his own name, and refuses to assign the policy to the plaintiff, or to have the same made payable to her as her interests may appear. It will be noticed that the condition is that he shall insure the premises in favor of said grantee, and that if he fails to do it, then the insurance may be ■ effected by the grantee, and the expenses and premiums shall constitute a lien against said premisesvfrom that date, as though specifically stipulated therein. And the further condition is, that if he fails to pay the insurance premiums or any part thereof when due as aforesaid, and the same shall remain in arrears for thirty days, the whole of said sum shall be then due, at the option of the plaintiff.

The defendant having failed to make the insurance as agreed, taking insurance in his own name, the only excuse that plaintiff gives for not insuring them herself is, that she has not been able to effect insurance, for the reason that the agents-refuse to issue a policy upon the property in her favor.

We have examined the matter with some care, and we are clearly of the opinion that the condition of this mortgage is not yet broken by refusing to pay premiums, for the plain reason that the mortgagee has paid no premiums, and that the condition upon which the whole sum would become due was, “if he should fail to pay the premiums which had been advanced or paid by the plaintiff.”

The rights of the parties under this condition of affairs seem to be well settled by tne authorities. I read first from a case in 5 R. I. — Nichols v. Baxter, 491. I will read from the syllabus:

“A mortgagee, merely as such, has no interest in or claim to a policy of insurance effected by the mortgagor upon the mortgaged property for his own benefit.
“A covenant, or a contract, express or implied, by the mortgagor, that he'will keep the mortgaged premises insured during the existence of the mortgage, for the benefit of the mortgagee, creates an equitable lien in favor of the latter upon the money due for a loss upon a policy effected by the former in his own name upon the mortgaged property, whether the policy exists upon the property at the time of the mortgage, or be afterwards taken out by the mortgagor; and where, in case of an existing policy of a certain amount, having six years to run at the time of the execution of the mortgage, a conditon in the mortgage called for the keeping up of insurance by the mortgagor of precisely that amount for the benefit of the mortgagee, the amount, in case of loss, to be payable to him, it was held, that, by virtue of the contract of the parties, evidenced by such a condition, the mortgagee had an equitable lien, after loss, upon the amount ■due upon the policy of the mortgagor, notwithstanding a ■clause in the condition permitted the mortgagee, in default of the fulfillment of such condition by the mortgagor, to take out a policy of that amount, for his protection, at the expense of the mortgagor, and under the security of the mort.gage for the premiums paid by him therefor.
“In such case, the insurance company and an assignee of the policy, both of whom were notified of the equity of the mortgagee prior to the assignment, were held to be subject to that equity.”

The case was discussed, and many decisions are cited by the learned judge who delivered the opinion in that case in support of the propositions laid down in the. syllabus. Another case may be found in 101 U. S. 439—Wheeler v. Insurance Co. The syllabus is:

“Where by his covenant or otherwise a mortgagor is bound to insure the mortgaged premises for the better se•eurity of the mortgagees, the latter have, to the extent of their interest in the property destroyed, an equitable lien upon the money due on a policy taken out by him,
. “This equity exists, although the covenant provides that in case of the mortgagor’s failure to procure the insurance and assign the policy, the mortgagees may procure it at his ■expense.”

Mr. Justice Bradley, in delivering the opinion of the court, says:

. “It is undoubtedly the general rule that a mortgagee has no right to the benefit of a policy taken by the mortgagor, unless it is assigned to him. But it is settled by many decisions in this country that if the mortgagor is bound by covenant or otherwise to insure the mortgaged premises for the better security of the mortgagee-, the latter will have an equitable lien upon the money due on a policy taken out by the mortgagor to the extent of the mortgagee’s interest in the property destroyed. Aud. this equity exists, altho'ugh the contract provides that in case of the mortgagor’s failing' to procure and assign such insurance, the mortgagee may procure it at the mortgagor’s expense. Of course the-mortgagee’s equity will be governed by the scope and object of the agreement; as, if the agreement be to insure for a-certain amount, the equity will not apply beyond that amount; and as its object is to afford better security for the payment' of the debt, it will not be enforced farther than is necessary for such security; if the debt is abundantly secured by the-property which remains liable to the mortgage, a court of chancery would properly decline to enforce it. The present case, however, is not embarrassed by any questions of this sort”

The defendant, by way of answer and cross-petition, denying that he is indebted in any sum upon the mortgage or* upon the note, sets forth as the reason therefor the allegation that they “were obtained by plaintiff from defendant without any consideration whatever, and by the fraud, imposition and coercion practiced by said plaintiff upon this defendant. ’ ’ And he thereupon proceeds to set up that “he is of about the age of 6á years, and that plaintiff is his daughter by his wife in first marriage, that since the death of his first wife, and at or about the time of the execution of the alleged note- and mortgage in the petition set forth, defendant desired to remarry, but plaintiff was opposed to said marriage, for no other reason than that she feared she might not inherit the property possessed by defendant; and for the purpose of coercing and. compelling defendant to give her a share of his property in-advance of said marriage, the plaintiff threatens to place the-defendant under guardianship in the probate court of Lucas-county, Ohio, and all for the purpose of preventing defendant from alienating his property or entering into the- marriage contract; that by said threats and importunities, said defendant was, by plaintiff, induced to execute and deliver tó her the note and mortgage set forth in the petition, without any consideration therefor. ” He says that “at the time-of the execution of said note and mortgage, he was not indebted to the plaintiff in any sum; that he received nothing for said mortgage and note, and that by reason of the premises, said note and mortgage are void and of no effect in law. ’ ’

And he prays that plaintiff may be ordered to cancel and deliver up said note and mortgage, and that the same be de-. .dared- void and of no effect.

To this there was a reply filed, and for that reply she says:

“That it is not true, arid she denies, that he note and •mortgage set forth in her petition and referred to in defendant’s answer was obtained by plaintiff from said defendant without any consideration whatever, and by fraud, imposition ■•and coercion practiced by plaintiff upon this defendant; but' on the contrary avers, that a long time and several years prior to the execution of said note and mortgage she had recovered a large sum of money in her own right from a certain party, to wit: $550, and was the owner of the same; "that said defendant borrowed $450 of said money of plaintiff on or about the 27th day of July, 1874, for the purpose of. .making payment on the property then bought by said defendant, and which is the same property mentioned in the ■mortgage and the same that this mortgage covers; that said defendant then promised when he so took said money from her that he would repay her; that said defendant being her father, she relied upon him, and believed he would repay her, and that no security therefor was at that time taken by her for said money, so as aforesaid loaned to him, and none whatever -was taken' until said note and mortgage was given by said defendant, as mentioned in her petition; and that the note and mortgage mentioned in her petition and the answer was so as aforesaid given to her by said defendant to secure her for the money so as aforesaid loaned to said defendant, •and the accrued interest, or so much thereof as was agreed upon by them on the settlement at the time said note and mortgage was given. That said defendant had full knowledge to all the facts, and that said settlement was not arrived at or agreed to without several interviews and attempts at settlement, both private and with her attorney in his office;that no fraud, imposition, or coercion or intimidation was practiced; that a long time elapsed before said settlement was made after it was begun, and that said defendant had ample time to consult with and be represented by counsel, if he so desired, before he consented to or signed said note and mortgage; that said defendant is not an imbecile, neither is he unsound in mind, but on the contrary, is in the full possession of his mental faculties, and fully capable of knowing and" ^protecting his property rights, and properly transacting all his business intelligently and understanding^.

C. S, Curtis, for plaintiff.

J. JE. Pilliod, for defendant.

‘ ‘ Plaintiff further replying, says, that it is not true, and she denies that she was opposed to her said father’s marriage-for no other reason than that she feared she might not inherit the property possessed by defendant, and for the purpose of coercing defendant to give her a share of his property in advance of said marriage.”

It appeared from statements made by counsel at the trial; that a question arose between these parties as to the-right of this plaintiff to this money at the time this note- and mortgage was given. The defendant then desired to, proceed to further show that there was no consideration for the note and mortgage. We declined to hear the evidence. And now, upon the facts before us, the petition and also the-cross-petition of the defendant will be dismissed — each party, to pay his own costs.


author: Swing, J.

text:
    (First Circuit—Hamilton Co., O., Circuit Court
    Jan. Term, 1896.)
    Before Swing, Cox and Smith, JJ.
    ELIZABETH FURST v. HERMAN MULLER et al.

      1. Assignment of interest in judgment to attorney, in casé — Where a-party assigns to his attorney a half interest in a judgment recovered by his services, who in turn assigns his interest to a third party, and then absconds, but his assignee employs other counsel to prosecute the case in the higher courts, who however-are not permitted by the client to attend to the case further, he engaging other counsel to do so, such assignment of part interest in the judgment is valid, and the counsel afterward employed by the client to attend to the case has no claim against the share-originally assigned by the client to the attorney. ‘,

      Appeal from ' the court of Common Pleas of Hamilton county.
    The late Herman Muller recovered a judgment against the1 P., C., C. & St. L. Ry. Co. in a suit for damages brought by Frederick Quatkemeyer. For his services he was assigned one-half of the judgment, the understanding being that he should conduct the case in the circuit and supreme courts, ■if necessary. Muller in turn assigned all of his half of the judgment to Philip Volkert, and afterward assigned part of his interest in the same judgment to Mrs. Furst. He then disappeared, and Goebel & Bettinger, who were employed by Volkert to look after the case, were not permitted to act, but W. W. Symmes, who had been employed by Quatkemeyer,did appear, and secured an affirmance of the judgment in the supreme court. The matter then came on for hearing as to who was entitled to the fund under Muller’s assignments.
   Swing, J.

We think the assignment-©!- Quatkemeyer to Muller of one-half the judgment against the railroad company was a valid assignment and vested in Muller a good title to one-half of the same as against the railroad company, said company having been properly notified of the assignment. As between Furst and Volkert, to whom Muller had assigned his half, the evidence seems clear to us that the assignment to Volkert on May 22, 1893, was prior in. time to that to Furst on November 27, 1893, and that it passed to Volkert the interest of Muller in his fees in the case, and being prior in time is prior in right, there being no intervening equity; and Muller having assigned to Volkert his half of the judgment after its rendition and assignment to him by Quatkemeyer, the superior equitable title of Volkert was converted' into a valid legal assignment.

We are further of the opinion that an agreement was-entered into between Quatkemeyer, Muller and Goebel & Bettinger, whereby Quatkemeyer and the- other parties agreed that Goebel & Bettinger were to carry on the litigation which Muller under his contract was bound to do, and that Goebel & Bettinger offered to carry out the contract on their part, but that Quatkemeyer assigned the contract and employed other counsel, and thereby put it beyond the power of Goebel & Bettinger to act. Quatkemeyer’s conduct in violating his contract cannot, therefore, avail.him to defeat the right of Muller and his assignees to recover the half assigned. Neither can-Quatkemeyer’s attorney be entitled to receive, from the half assigned to -Muller, compensation for services in the prosecution of the suit. He must look to Quatkemeyer, whose attorney alone he was.

Jacob Bhroder, for Yolkert.

W. Austin Goodman, for Elizabeth Purst.

W. W. Symmes, for Quatkemeyer; and Robert Ramsey, for the P., 0., 0. & St. L. Ry. Co.

Decree for Volkert.


text:
    First Circuit—Hamilton Co., O., Circuit Court
    Jan. Term, 1896.)
    Before Swing, Cox and Smith, JJ.
    DAWSON v. KEMPER.

      1. Right of owner over his property — Closing •windows in party wall — A man has the right to use his property for his own health and enjoyment, as he thinks best, provided he do not, by doing so, unlawfully injure his neighbor. The law does'not interfere so as to compel the doing of certain acts which good neighborhood would cheerfully accord.
    Appeal from the Court of Common Pleas of Hamilton county.
    ' The plaintiff and the defendant aré owners of adjoining property on Broadway, Cincinnati, separated by a party wall, in which there were vyindows of opaque glass. These windows were boarded up by the defendant, for the reason that he had been annoyed by persons in the house of the plaintiff looking through them into his rooms. The plaintiff charged that the boarding up of these windows was malicious, and petitioned for an injunction. The defendant, by answer and cross-petition, denied the char'ge of malice, and asked for $2,000 damages on account of the annoyance of having people peeping through these windows into his rooms, which were used by him' (a physician) as an office, where operations were performed.
   Swing, J.

From the evidence we find that the defendant, Kemper, did not do' the acts complained of in the petition from a spirit of malice, as therein charged; but on the contrary,we-find that he was perfectly justified in taking whatever course-was necessary in order that the privacy of his own dwelling-might be secured so far as this was interfered with by persons improperly using the space in defendant’s wall for the-purpose of looking into defendant’s premises. It was not shown that the acts complained of were done by plaintiffs-with their knowledge or consent. The act complained of was on the defendant’s own property, and he had the right to use his property for his own health and enjoyment in such way as he thought best, provided he did not by doing so unlawfully injure his neighbor. The plaintiff had no right to keep these spaces open in the wall any more than he had the right to make other and new spaces in the wall, as against the right of the defendant to close them whenever it became proper and necessary to the enjoyment of his property he should conclude to do so. For instance, it is admitted that’ he might close them by building against the wall. So, we think, when it was found that these spaces in his own wall were being used to his injury, he had a right to close them. Not that he had a right to injure his neighbor, but he had a. right to protect himself; and having conceded him the righp to effectually protect himself, even to the extent of closing the windows, we are unable to see how in law we are able to say to him that hejshould put in opaque glass instead of boards or brick. The glass hitherto put in had proven inadequate. Was heJUound to try it again? We think not. Good neighborship, we think, would be content with the opaque glass; but the law does not go quite so far as to compel the doing of certain acts, which good neighborship cheerfully accords.

J. M. Dawson, for plaintiff.

Gholson & Cabell, contra.

The petitionr,and the answer and cross-petition of the defendant will be dismissed.


author: Smith, J.

text:
    (First Circuit—Butler Co., O., Circuit Court
    Oct. Term, 1895.)
    Before Swing, Cox and Smith, JJ.
    THE CITY OF HAMILTON v. J. C. STILWAUGH et al.

      1. Sub-contractor’s lien — Money advanced by contractor to pay his men—
    An assignment by the contractor to a third party of his claim against the City of Hamilton of the money due him from the city on a contract executed“by'him, will not give to the assignee a right to such money from the city, superior to the rights of sub-contractors on the same contract who subsequently to such assignment, but within the statutory time, filed proper mechanic’s liens.

      2. Sub-contractor’s lien — Liability of city—

    If, after such assignment ^was made, and notice thereof given to the city, it thereafter improperly paid the amount due to the contractor, or any part thereof^to other persons who had no right to it superior to that of the assignee, the city would be liable to the latter for the amount so improperly paid. But in the case at bar, the liens subsequently taken by the sub-contractors were superior to the claim of the assignee.

      3. One advancing money to contractor for carrying out contract — Not '■ entitled to contractor’s lien for such advances—
    Where a person advances money to a principal contractor to pay the wages of different work men employed by him in carrying out his contract, he has only a claim against the contractor therefor, and can not be considered as a sub-contractor.

      4. Sight of workmen to take lien not assignable.—
    Or where one person takes an assignment from one or more workmen under the principal contractor of their claims against him therefor, such assignee is not entitled to take out a lien therefor. This is a personal right in favor of the laborer, and is not assignable.
    Appeal from the Court of Common Pleas of Butler County.
   Smith, J.

Our conclusions in this case briefly stated, are these:

1st. That the assignment made by McNearny & Davis, the principal contractors with the City of Hamilton, to Willard Smyers, of their claim against the city, or of a part of it, which was offered in evidence, and relied on by him as giving him a right against the city for the amount so assigned, superior to the rights of other sub-contractors, who after this took out liens for the amounts due to them respectively, did not have the effect claimed for it. There is no law that we know of that provides for anything of this kind,and in our judgment it would be opposed to the whole' spirit of our mechanic’s lien statutes. " If after such assignment ■ was made, the assignee gave notice thereof to the city, as seems to have been done, and the city afterwards improperly paid the amount, or any part of it, to persons who had no right to it as'against the assignee, the city would be liable to the assignee for such improper payment. But in our view7, such assignment and notice did not prevent the city from properly paying the amount due to the other sub-contractors who took valid liens after this assignment, before paying anything to Smyers. Their rights to the fund thus became superior to his, under his assignment.

2nd. We are further of the opinion that on the facts disclosed, Smyers was not authorized to takeout a sub-contract- or’s lien as he attempted to do, and thereby did not acquire any lien on the amount due-from the city to the principal contractors. If, as the evidence tends strongly to show, Smyers simply advanced money to the contractors to pay the workmen employed by them, he simply had a claim against them, and he himself can in no sense be considered a sub-contractor, and therefore was not entitled to any lien. Or if it be considered that his payment of the hands operated to transfer their claims to him, (for there was in fact no assignment thereof made by the laborers to him), still we think he would not be entitled to take out a valid lien therefor. The statutes on the subject, Sec. 2193 and post, give to subcontractors, or those who furnish labor or materials for the work, the personal right to take such a lien, but there is nothing in the statute which seems to authorize the assignee of such a claim to do so — and particularly would it seem that it could not be done in a case like this, where the amount claimed was paid to a great many laborers, each of course working under a separate and distinct contract, and having separate and distinct claims. How could all of these separate and distinct contracts be set out in one claim asserted by the assignee therefor as required by Sec. 3193. It has not been done in this case — and we think it was not the purpose of the law, to allow a lien to be taken by a mere assignee of a claim. The result of this is, that tbe other lien holders have priority over Smyers, and the claims of the creditors represented by Mr. Wesco, who as assignees of divers persons attempted to file and assert a lien on the fund.

We are unable to see how we can in this case, as. we are asked to do, go into the question whether the city does not hold more than the sum admitted by it to be due to the principal contractors, and enter a judgment ordering them to pay that sum to these claimants. This is an action in the nature of an interpleader brought by the city, admitting a certain sum to be in its hands, applicable to the claim of the principal contractors and asking directions as to its payment to the different claimants. We think that questions of this kind must be settled in a different suit. Distribution of the fund may be made in conformity with this opinion.

Alex. F. Hume, for Smyers.

M. 0. Burns, for City of Hamilton.

John F. Neilcm, Millilcin, Shotts & Millikin, Aaron Wesco, for different creditors arid lienholders.


author: Cox, J.

text:
    (First Circuit—Hamilton Co., O., Circuit Court
    Jan. Term, 1896.)
    Before Swing, Cox and Smith, JJ.
    WALKER BRANCH AND METHODIST CHURCH OF CUMMINSVILLE, O., v. THE DIRECTORS OF THE WESLEYAN CEMETERY ASSOCIATION.

      1. Conveyance subject to condition — Forfeiture—
    Timothy Kirby, by deed in 1841, conveyed certain property to the Methodist church of Cumminsville, for church purposes, and should it cease to be so used, the grant to cease and determine. In 1846 Kirby conveyed all his interest in said land to the Wesleyan Cemetery Association, subject to the grant of the church. Kirby died sometime after, and in 1889 the church burned down, and the ground has not been used since for church purposes. The trustees ask that it be sold and the proceeds used to build a new church in a better location. The Cemetery Association claim to enter by virtue of the deed from Kirby in 1846.

      Held: 1. The deed from Kirby to the church vests in it an estate in fee subject to be divested only by a breach of condition. This is a mere possibility which may never occur, and the presumption of law would be that the grant being favorable to the church, it would not forfeit it.

      2. Same — Possibility of reverter not an estate which can be transferred—
    The possibility of a reverter does not rise to the dignity of an estate, but is a mere expectancy or possibility which can neither be transfered or released. 35th Ohio State, 297.

      3. Same — Who may claim forfeiture—
    If the condition subsequent were broken, that did not ipso facto produce a reverter of the title. The estate continued in full force until the proper steps were taken to constitute the forfeiture. This could be done only by the grantor during his life time, and after his death by those in privity of blood'with him. In the mean time only a right of action subsisted, and that conld not be conveyed so as to invest the right to sue in a stranger. 97th'U. S. Reports, 693-6.
    Appeal from the Court of Common Pleas of Hamilton County.
    Demurrer to amended petition.
   Cox, J.

Plaintiffs in their amended petition say, that on and prior to the 15th day of April, 1841, Timothy Kirby was seized in fee-simple of a tract of about 25 11-100 acres of land on the Colerain Turnpike Road in Mill Creek township, Hamilton county, O.; that on said day he executed and delivered a deed to the trustees of the Methodist Church of Cumminsville for a part of said tract containing upwards of three-quarters of an acre, the consideration being for divers good causes and the sum of $1 paid. Whereby he gave, granted and conveyed.

“To the trustees aforesaid, to the survivors and their successors in office forever, which land I have donated as a site for a Methodist Church and other buildings if necessary to make a place of religious instruction; and should the said land cease to be occupied for church purposes and as a place of divine worship, the grant will cease and determine. To have and to hold the same to the trustees and to the survivors and to their successors in office forever, in trust that they shall enclose said lot of land with a good substantial fence, and keep the same well fenced on all the lines adjoining lands of the grantor, and that they and their associates shall erect and build on said lot of land a place of worship for the use of the members of the Methodist Episcopal Church in the United States of America according to the rules and discipline which, from time to time, may be agreed upon and adopted by the ministers and preachers of said church at their general conference in the United States of America, and preserve said church in good repair as a place of worship; and in further trust and confidence that they shall, at all times, forever hereafter, permit said ministers and preachers belonging to said church as shall, from time to time, be duly authorized by the general conference of the preachers and ministers of said Methodist Episcopal Church, or by the annual conference authorized by said general conference, to preach and expound God’s Holy Word therein.”
“That said trustees named in said deed took possession of the land so conveyed to them, and erected a Methodist Episcopal Church thereon in 1841, and continued’to use said land as a site for a Methodist Episcopal Church until 1889. That on the 14th day of October, 1846, Timothy Kirby conveyed to the directors of the Wesleyan Cemetery of Cincinnati said 25 11-100 acres, subject to the grant of April 15, 1841, to the trustees of the Methodist Church of Cincinnati. That the trustees of said church in 1872 sold and conveyed to the directors of Wesleyan Cemetery all of the property conveyed them by Kirby April 15, 1841, except a strip of and off of the east side of said tract, on which the church stood, said strip being 75 in width and about 200 feet in depth. That in May, 1889, the church building on said strip burned down, and the lot being no longer suitable for a site for a church, it has never been rebuilt, and no building of any kind erected on said lot.
“That the said Methodist Church was incorporated under the laws of Ohio in 1870, under the name of the First Methodist Episcopal Church of Cumminsville,
“That Joseph Hayward, the sole surviving trustee named in the deed of April 15, 1841, did, in May, 1892, convey to said M. E. Church said 75-foot strip, and on June 13, 1892, the trustees of said church obtained authority from the court of common pleas to sell said strip and invest the proceeds in the erection of a new church on Chase street, Cumminsville; and thereupon they sold and conveyed said .strip to Walker Branch on October 4, 1892, who, after bringing this suit, being unable to pay for said property, has reconveyed the same to the said First M. E. Church of Cumminsville, and the said church intends to sell the same and invest the proceeds as directed by said court, and the said church has been made party to this action with permission of the court to continue the same in the name of the original party.
“That said Methodist Church of Cumminsville and its grantees have been in possession of said strip since 1841; that the plaintiff was, at the time of bringing this action, and said church is now in the possession of the same. The plaintiffs say that the defendants claim some interest in said strip of land adverse to the plaintiff’s interest.
“ Plaintiffs pray that defendant be required to set up their interest in said land, that the same may be adjudged null and void, the plaintiff’s title quieted and for all proper relief.”

To this petition the directors of the Wesleyan Cemetery of Cincinnati demur, their ground of contention being that it appears by the statement of the petition, that by the terms of the deed the property to which they seek to quiet the title in themselves required that they should erect a church and other necessary buildings for the use of the M. E. Church' and preserve said church in good repair as a place of worship, and at all times, forever, permit the ministers and preachers of said denomination to preach and expound God’s Holy Word therein, and that said land should not cease to be occupied for church purposes and as a place of Divine Worship. The petition alleges that on October 14, 1846, Timothy Kirby conveyed all his interest in said strip of land to the directors of Wésleyan Cemetery of Cincinnati, their successors and assigns forever subject to the grant to said trustees of the M. E. Church of April 15, 1841.

That said petition further alleges that in May, 1889, the church building on said strip burned down; that the site not being suitable for a church, the church has never been rebuilt, and there are no buildings of any kind on said lot, and the church proposes to sell the present site and expend the nioney in building another church at some distance from the present lot.

• The Cemetery Association contends that by the deed of 1846, Kirby conveyed to it all the right which he had subject to the rights of the church under the deed of 1841, and that this right of Kirby was one of forfeiture and re-entry when the premises ceased to be used for the purposes préscribed in the deed, and that that contingency having occurred, as alleged in the petition; the cemetery now has the right to exercise the power of forfeiture and re-entry .which Kirby might have done had he lived when the church ceased to use the premises. The Cemetery Association contends also that it took a title in fee to the church lot, the deed to Kirby only granting use for a particular purpose.

Plaintiffs claim that by the conveyance of Kirby in the deed of 1841 a fee on condition subsequent passed to said church; that thereby the whole estate passed, leaving nothing in Kirby which could be the subject of a grant until the. condition has been broken; that the right to consummate the forfeiture for breach of the condition is before breach, not assignable. It is not an estate or interest in law, but a mere possibility, and cannot be conveyed; that the attempted conveyance by Kirby to the Cemetery Association was made before any breach of the condition.

Timothy Kirby died some years ago while the lot was occupied by a church building and the terms of the grant were being fully complied with. His heirs have been made parties to this suit, but have not answered, setting up any right to enter for forfeiture, nor is it claimed that they have •ever attempted to do so.

The deed from Kirby to the church vests in it an estate in fee, subject only to be divested by breach of condition: This is a mere possibility which may never occur, and the presumption of law would be that the grant being favorable to the church, it would not forfeit it. That such a possibility cannot be released, is sustained by the many authorities cited by counsel for plaintiff. In Needles v. Needles, 7 Ohio St. 482-442, the court says “it is a general rule that a naked or remote possibility cannot be released, for the reason that a release must be founded on a right in being vested or contingent.

In Gilpin v. Williams, 35 Ohio St. 297, the court reiterates this doctrine, saying “there are rights so called ■which? do not rise to the dignity of estates at all, but are mere expectancies or possibilities, such as those of heirs apparent, possibilities of reverter, etc.” The court further says “there is no principle better settled than that the expectation of an heir presumptive is not a vested right, but a mere possibility; it is not an estate in lands, and can neither be' transferee!, nor released.”

Cash & Berry, for plaintiff.

Roberts & Taylor, for defendants.

In 97th U. S. Reports, 693 and 696, lands were dedicated to the city of Rock Island for schools and churches. The court says if the condition subsequent were broken, that did not ipso facto produce a reverter of the title. The estate continued in full force until the proper steps were taken to consummate the forfeiture. This could be done only by the grantor during his life time, and after his death by those in privity of blood with him. In the meantime only a right of action subsisted, and that could not be conveyed so as to invest the right to sue in a stranger.

To the same effect see the following authorities: Twelfth New York. 131 and 132; 4 Kent’s Com. 126; 51 Cal. 198; 13 Cal. 107; 5 Ohio, 390; 51 Miss. 412; 14 Howard, 488; 16 Wallace, 203; 26 New Jersey, 13; 9 Mass. 501; 7 Pickering, 111; 12 Barbour, 160; 21 Wallace, 44; vol. 2, part 2, Leading Cases in Equity, page 1609.

Demurrer overruled.


author: Smith, J. '

text:
    (First Circuit—Warren Co., O., Circuit Court
    Oct. Term, 1895.)
    Before Swing, Cox and Smith, JJ.
    THE HUBER MANUFACTURING CO. v. CLARA W. SWENEY et al. (No. 1.)

      Nunc pro tunc entry at subsequent term — Inadvertent entry — Presumptions—
    Where the journal of the court shows an entry of judgment at the October term in favor of one party, and the overruling of á motion for a new trial filed by the other party, and the allowance of a bill of exceptions; and at .tbe next term of the court that an order nunc pro tunc as of the October term had been entered by the court, finding that the said entries made at the October term were inadvertently made, and ordering^ that they be stricken out and held for naught, such last order so made was not erroneous, and should not be reversed. For all that appears, such entries made at the October term may have been entered without the order or sanction of' the court, and might at the same term have been stricken out, and the nunc pro tunc entry of the April term shows that it was in fact made at the October term, but for some reason was not then entered.
    Error to the Court of Common Pleas of Warren county.
   Smith, J. '

The question which has been argued and submitted to us, as preliminary to the presentation of the question whether the final order in the case adjusting the conflicting liens asserted by the parties was in accordance with the law and the evidence, is this: whether the order of the court, made April 26, 1895, viz. at the January term 1895, as of October term 1894, was a legal and valid order ,and whether the court was authorized to make such an order at the time it was made.

To a’proper consideration of this question, it is necessary to state some facts which appear from the record.

James W. Sweney had made a general assignment of his personal property to Mr. Brandon, who accepted the trust, and qualified as assignee. The property being covered by chattel mortgages to different persons, the assignee filed in the probate court an application to adjust those liens and fix their priority. The mortgagees severally set up their claims by answer, and on a hearing the court made an order fixing the rights of the parties, and from this decree an appeal was taken to the court of common pleas.

At the October term a trial was had in the common pleas court, and on October 20 the court entered two orders and judgment,finding that the mortgage óf the Huber Co. was the best lien on the property covered by its mortgage, and on the same day the other parties, having filed a motion for a new trial, it was overruled by the court and exception taken thereto, and a bill of exceptions was allowed and signed.

At the ensuing April term, viz. on April 6, 1895, an order was entered upon the journal of the court, finding that the two orders were inadvertently made and entered .upon the journal, and it was ordered that they be stricken out and held for naught. This does not purport to be a nunc pro tunc entry, but is an order by the court made at a subsequent term, and not having been made in conformity with the terms of the statute for vacating or modifying judgments at a subsequent term, was probably of no legal effect.

But on April 26, 1895, another order was entered upon, the journal-of the April term in the nature of a nunc pro tunc order, as of the October term 1894, andas a substitute for another order entered at the April term, purporting also to be in the nature of a nunc pro time order.

From this it appears that at the October term, 1894, after the entry of the two orders on February 20, 1894, application was made, (orally perhaps), to the court to set aside those two orders. What the grounds of the application were, does not appear. So far as appears it may have been on the ground that they had been improperly or improvidently entered, as not having been authorized by the court. If so, during the term the court had full control of its journal and record of the term, and could for such reasons direct the orders or decrees so entered to be stricken out. The entry in question shows that the court did at the October term so order, and if it did, and no entry was made of its action, it had full authority at the subsequent April term, by a nunc pro tunc order as of the October term, to enter such order as was, in fact, made at the October term.

Whether a court has the power,after having decided a caso upon the merits, and having overruled a motion for a new trial, (which judgments or orders were properly entered upon the journal), after the expiration of the three days allowed for filing a motion for a new trial, on the written or oral application of the losing party, to review the correctness of the former adjudication, and on the ground that the former adjudication was wrong, does not we think properly arise in this' case, for it does not appear that such was the case here. The first entry of April 6, shows that the entry was improvidently entered, and for all that appears, the entries stricken out by the order-of April 26, 1895, may have been on the ground that they never were authorized by the court, and were stricken out for this reason. And on the doctrine that the presumption must be in favor of the-validity of proceedings of the court, unless the contrary appears,-we must hold that the order of April 26, 1895, as of October term, was a valid exercise of power by the court, and had the effect to set aside the orders of October 20, 1891, and leave the cause for decision by the court.

W. A. Eltzroth and W. Chester Maple, for plaintiff’s in error.

Mr. Burr, of Broiun, Burr & Brandon, contra.

Afterwards the court made a decree at the April term, fixing the right of the mortgagees, and the correctness and propriety of this order is challenged by the petition in error, and as to this we have not heard oral argument, and we understand that counsel desires to be heard on this point.


text:
    (First Circuit—Warren Co., O., Circuit Court
    October Term, 1895.)
    Before Swing, Cox and Smith, JJ.
    THE HUBER MANUFACTURING CO. v. CLARA W. SWENEY et al. (No. 2.)

      Chattel mortgage taken with notice of prior mortgage — Failure to re-file said chattel mortgage — Effect on subsequent chattel mortgage ivith notice.—
    On the facts stated in the opinion of the court, the chattel mortgage of Mrs. Sweney was entitled to priority over that of The Huber Co. Though the first mortgage of the former was not valid as to the assignee, and the creditors whom he represented, for the reason that it was not re-filed in accordance with the statute, it was good as against the Huber Co., which took its mortgage on the same property with actual notice of Mrs. Sweney’s mortgage. And the second mortgage of Mrs. Sweney, taken on the same property, to secure the same debt, was good as against the assignee of the mortgagor and his creditors, and therefore the claim of Mrs, Sweney was entitled to priority over that of The Huber Co. as to the proceeds of the property which was covered by both mortgages.
    Error to the Court of Common Pleas of Warren county.
   Smith, J.

■ The admitted or established facts in this case briefly stated are these — On March 18, 1892, James W. Sweney executed to Clara W. Sweney, bis mother, a chattel mortgage on one new Huber engine and other personal property, to secure a debt of $500, which was duly and legally filed March 23, 1892. About May 20, 1892, James W. Sweney agreed to purchase of The Huber Manufacturing Co., a separator, and at the same time agreed to execute and deliver to said company,upon its receipt, a chattel mortgage thereon, and also cm the Huber engine before mortgaged to Mrs. Sweney, and at the same time Sweney told the agent of the company with whom the contract was made, that his mother bad then a mortgage on the engine. The separator was duly delivered to Sweney, and on July 29, 1892, be gave his notes for the purchase price thereof ($450), and executed to the company bis chattel mortgage on both the engine and the separator to secure the payment of the notes. It is a question whether at the time tlie mortgage to the Huber company was given, anything was then said about Mrs. Sweney having a prior mortgage on the engine, but we understand the evidence to be that it was then mentioned. At all events, the agent said that at the time it was given, be knew that he was taking a second mortgage on the engine. This mortgage of the Huber company was duly filed September 13, 1892, and duly refiled August 16, 1893. Mrs. Sweney failed to refile her mortgage, and on May 17,1893, James W. Sweney executed to her another mortgage upon the engine and some other property to secure the same debt which had been secured by her first mortgage, lhis was -duly filed July 1, 1893, and on January 1, 1894, James W. Sweney made an assignment of all his property, including that so mortgaged, to Mr. Brandon, for the benefit of creditors, and the property was taken possession of by him, and sold, and the assignee filed in the probate court his petition or application asking the court to determine and find the rights and priorities of the parties to the proceeds of the sale of this, mortgaged property. The mortgagees set up their claims, and a^ finding was made by the probate court, and an appeal taken to the common pleas. The judgment there was in favor of Mrs Sweney, and the Huber company prosecuted this petition in error, claiming that on the evidence the judgment was erroneous; and that the motion for a new trial should have been granted.

It further appears from the papers in the case that the ■engine sold for $300, and that after applying on each mortgage the proceeds of the other mortgage property covered by it, Mrs. Sweeney’s claim and that of the Huber company, also, amounts to more than $300, so that if Mrs. Sweney’s mortgage has priority over that of the Huber company, it will consume all of the proceeds of the sale of the engine; and if the Huber company mortgage has priority, it will take the whole of the fund. So that in any event, as both the Huber company mortgage and the second mortgage of Mrs. Sweney are good as against the assignee and the creditors of Sweeney, the question for decision is, which of those two has priority as to the fund arising from the sale of the engine.

It is admitted on all hands, that by reason of the failure of Mrs. Sweney to refile her first mortgage, as required by law, it became absolutely void as against the assignee and tbe general creditors of Sweney. If the Huber company took its mortgage on the engine, with actual notice of the prior mortgage of Mrs. Sweney thereon, (as is confessed it did), as between her mortgage and that of the Huber company, she was entitled to priority under the express holdings of the Supreme Court in 7th Ohio St. 198, and 14 Ohio St. 488, unless the fact that Sweney made an assignment for the benefit of his creditors, alters the rule. We cannot see why it should. In this case the creditors have not the slightest interest in the controversy — no part of the proceeds of the sale of the engine can in any event come to them, for there are two mortgages valid as to them, either of which will consume the fund in dispute. It is therefore a simple question of priority between the mortgagees, under the principles of law stated. The rule, we think, is stated in the closing part of the decision of the Supreme Court in the case of Day v. Munson, 14 Ohio St. 488, on page 493. We are of the opinion then that under her first mortgage, Mrs. Sweney has priority over the Huber company, and her last claim is good against the assignee and creditors. And this having been the judgment of the common pleas court, that judgment will be affirmed.


text:
    (First Circuit—Hamilton Co., O., Circuit Court
    Nov. Term, 1895.)
    Before Swing, Cox and Smith, JJ.
    BARR v. CHAPMAN.

      Revivor of action — Death more than a year before motion for~f revivor — Discretion of court — ■
    The court, in the exercise of a sound legal discretion, may allow an action to be revived in the name of the personal representatives, or heirs at law, of a deceased party, though he may have died more than one year prior to the time when such application for revivor is made. The facts disclosed in]this caselmake^it a proper-one for the granting of such an application.
    Motion to dismiss action, because the same has not been, properly revived.
   Smith, J.

In this case a motion has been filed by the defendants to dismiss the action for the reason that some one or more of the plaintiffs died more than one year before the filing of the motion, and the action has not been revived in the name of their heirs or legal representatives. A motion has also been filed on behalf of the plaintiffs, their heirs or legal representatives, for leave to file a supplemental petition, setting up the fact of the death of some of the original parties, and the names of their legal representatives to the end that the action may be properly revived in their names and proceed to final judgment.

We understand it to be conceded by the counsel for the defendants, that it is within the sound legal discretion of the court to allow such revivor to be made, though not applied for, until more than one year has elapsed, after the fact of such death,and after it came to the knowledge of the parties applying therefor. But the claim is made by counsel for the defendants that where there has been great laches in making such application, and injury would result to the opposite party, both of which facts are claimed to exist in this case, that the court should not allow it to be done, but should dismiss the proceeding.

Many of the facts bearing on this question are within our own knowledge. It is well known that the case now pending in this court was the one first brought to settle the question of the rights of the parties to the real estate in controversy. That it was tried in the court of common pleas, and a decree entered, and the case brought into this court by appeal. That after the bringing of the first suit, a second one was brought with a like object, in the Superior Court of this city, by one or more parties who claimed to have an interest in the subject-matter of the controversy, but who from some cause had not been made parties in the first action. This last cause was in due form removed to the Circuit Court of the United States for trial, several years ago, and as we are advised, that court claimed and assumed jurisdiction of the whole controversy, and proceeded to hear and dispose of it. Shortly after this cause was docketed in this court, counsel for the defendants in possession now. making the motion to dismiss, applied to this court to set an early day for the hearing of the case. The plaintiff’s counsel objected, and insisted that new parties must be brought in. The court, being of'the opinion that this was essential, ordered that it be done. Promptly thereafter, the defendants in possession again applied for the hearing of this cause; some of the new parties filed an answer, to which a demurrer was filed and sustained (5 Ohio Circuit Court Rep. 69), but the court found that the new parties were entitled to time to take proof. The plaintiff could not stipulate that the new parties might use, in this case, the testimony taken in McClaskey v. Barr; and in the meantime, upon the joint application of such new parties and the plaintiff and the cross-petitioners, the Federal Court set an early day for the hearing of the case in that court and speeded it to a decree, which was rendered several years ago, and which we understand settled all questions as to the rights of the parties to the land; but within a few months, on appeal, a very different decree has been rendered, and which we understand to have been in favor of the defendants, but which is said to contain a saving as to the right of one or more of the parties to this case (who under the ruling there made, had by the commencement of the first action, prevented the running of the statute of limitations against them), to proceed with said first action.

A majority' of the court is of the opinion on this state of fact, that there has been no such laches on the part of the plaintiffs in seeking the revivor of the action as would justify us in refusing to allow proper steps to • this end to be taken, We think that there was no good reáson why they should have gone to the expense of making new parties, when there was every reason to suppose that the decree of the United States Court would settle the whole controversy. And we arrive at this conclusion the more readily, as it would seem that if this action is disposed of otherwise than upon the merits, those of the parties whose rights are reversed by the decree of the United States Court, would have the right to commence a new action, within one year after the judgment of dismissal. This would operate hardly upon them, and be of no substantial benefit to the defendants. The motion to dismiss the action will therefore be overruled, and leave will be granted to file the supplemental petition, making new parties with the view to revive the action as to the heirs or legal representatives of the parties who have died.

B. A. Harrison, Ledyarcl Lincoln and J. C. Harper, for motion.

S. T. Crawford, contra.

We think that it is incumbent on those seeking the revivor that they should proceed with diligence to effect the revivor, and a failure to do so, will justify the court in dismissing the action. •

Judge Swing does not agree with us in this holding, being of the opinion that proper diligence has not been shown in this matter.