text:
    WAIVER OF JURY TRIAL IN POLICE COURT.
    [Circuit Court of Lucas County.]
    Georgie Evans v. State of Ohio.

    Decided, October 19, 1901.

      Police Court — Loses Jurisdiction After Term, During Which Judgmént Was Rendered — Weight of Evidence Before — Jury Trial and Waiver of, in an Assault and Battery Case — Waiver Should he Noted Upon the Record.

    1. A police court has no jurisdiction to bear or determine a motion for a new trial, which is not filed during the term in which the judgment was rendered.
    2. Where the evidence is conflicting the judgment of a police court judge, unless manifestly against the weight of the evidence, will not be disturbed by a reviewing court.
    3. A waiver of trial by jury in an assault and battery case should, as a matter of safety, be noted upon the record.
    4. But where the bill of exceptions is silent as to a demand for a jury, or a refusal to waive the right of trial by jury, in an assault and battery case tried in a police court, a reviewing court in view of the fact that a police court is a court of record and has jurisdiction to try such a case will assume that a jury was waived.
    Haynes, J.; Parker, J., and Hull, J., concur.

       Affirmed by the Supreme Court without report, April 27, 1903.

   There are two petitions in error filed in this court, one in cause 2504 and the other in 1532. Upon the filing of the first petition in error a suspension of the execution of sentence was had in the case. As appears by the second record, the defendant appeared in the police court and filed a motion for a new trial on the ground of newly discovered evidence, and submitted a number of affidavits to the court in support of that motion. The court overruled that motion, as the record shows, and that action of the police court was affirmed by the court of common pleas. It is not stated in the journal entries the grounds upon which the police court overruled the motion or upon which the court of common pleas affirmed the action of the lower court, though it said in argument that in both cases it was done because the motion was not filed in time.

The police court is divided into monthly terms, or twelve terms a year (Section 1793, Revised Statutes). This case was tried in January last, and final judgment was rendered on the filed in June, a suspension of judgment being had on June 17, 1901. It will be observed, therefore, that about six months had elapsed between the time of final judgment in the police court and the filing of the motion for a new trial. The statute, Section 5307, Revised Statutes, governing the course of procedure in the police court, provides that all motions must be filed during the term, and, except upon the ground of newly discovered evidence, within three days after the trial. The point is made by the attorney for the state that this motion was not filed in time, and the court had no jurisdiction to hear and determine or to allow it. We hold the position taken is correct, and therefore affirm the action of the court of common pleas in sustaining the police court in that regard, and decline to enter into an examination of the affidavits that were filed.

In the first case it appears that an affidavit was filed in the police court charging the defendant, Georgie Evans, with assault and battery, the prosecution being in the name of the State of Ohio, under the statutes of the state, and the person filing the affidavit being one Gypsy Lonsdale. Thereupon the defendant was arrested, an information was filed in the police court by the prosecutor, and the record discloses this course of proceeding:

“Affidavit filed January 24. Information filed January 25. Defendant in court ready for trial. Plead not guilty. Trial had. Defendant found guilty. Defendant excepts. Continued to January 29 to file motion for a new trial. January 29, defendant in court. Motion for a new trial filed January 28; same submitted this 29th day of January, and motion overruled. Defendant excepts. Defendant is sentenced to sixty days in the workhouse and pay the costs, taxed at $6.35, stand committed to the workhouse until paid. Defendant excepts. ’ ’

Thereupon the defendant was given thirty days in which to prepare a bill of exceptions, which was presented, signed, and filed in the court. The motion for a new trial was as follows:

“Now comes the defendant, Georgie Evans, and moves the court to set aside the verdict heretofore rendered herein, and for a new trial, for the reason that the verdict is not sustained by sufficient evidence, and is contrary to law.”

The bill of exceptions sets out very briefly in narrative form the evidence said to have been taken before the police court. We have examined this evidence very carefully, and have listened to the arguments of counsel upon that question. The testimony shows in brief and in general, that the defendant was residing on Lafayette street, and the complaining witness was a resident of her house. About midnight of the day in question the complaining witness was dressing to go down to the parlor, and while doing so the defendant asked her to do an indecent act. What that act was is not set forth, presumably it ivas of such a nature that in the opinion of the court it ought not to be carried into the record. This she refused to do, and upon that some words followed, and the complaining witness started to leave the house. The defendant, claiming that she was indebted to her, proceeded to seize her clothing, and when she did so, the complaining witness, proceeding to protect herself, seized the clothing herself, and upon that an affray ensued. There seemed to have been a considerable noise and talking. There were two other females residing in the house, who seemed to be up and about the house, and they came into the room and joined in, and the result was that the complaining witness left the house minus the clothing that she did not have on her person, as we understand. During the affray she was struck in the eye and was bruised in several parts of the body, as she claimed.

The ^question before the court was whether or not the defendant had struck her or committed the assault upon her. The defendant claimed that she did not do it, but that one of the other girls did it, and I think one of the other girls testified that she did strike her. However, upon an examination of the evidence, hearing the witnesses, at the conclusion of the testimony the court found her guilty, and sentenced her as appears by the record.

It is said here that it does not appear that this was a house of ill-fame. It may be remarked, however, that it does not appear by the record that it was a house of good fame. But whatever it may have been in that respect, the witnesses were before the court. The judge of the police court saw them. It may be remarked that in the administration of justice in that court they are very frequently called upon to deal with these various characters whose reputations may be said to be — not good. The judge had the opportunity to see these parties, and to decide the case from their appearance in court, and from their manner of testifying. In everything of that kind we think he would be better able to judge whether the witnesses were telling the truth, or who was telling the truth, than we would be by simply reading this limited record, and we think we ought not to disturb his conclusions and finding of fact.

We are of the opinion that his conclusions were right. This defendant, Georgie Evans, is the one who commenced the attack.' She proceeded without any right whatever to levy upon the property of this complaining witness, and the complaining witness endeavored to retain possession of it. It is admitted by all that the complaining witness was injured. She came into court having all the appearances of having suffered from the effects of this attack; it appearing that she had been injured, that much going to sustain her position that she had been injured in an affray, an assault and battery. It would seem that the defendant did not go into that room with any very peaceful intentions, or with any very pleasant feelings towards the complaining witness. It is true that the defendant denies that there was any request that she should do an indecent act. It was said by the other witnesses that the defendant states the truth in that respect. We shall not disturb the verdict on

Upon the hearing in this court a question was raised that is of more importance. It is said it was not raised in the courts below. Whether it was or not does not appear from the record. It has been very fully argued, and realizing the importance of it we asked counsel for full briefs upon the subject.

It will be noted that this offense is now and has been, perhaps, ever since the passage of the criminal statutes of the state, an offense punishable by imprisonment, the statute, Section 6823, Revised Statutes, being that the convicted person may be fined $200 or imprisoned in the county jail for a period not exceeding six months. It was an offense at common law punishable by fine and imprisonment. It appears by the record, as I have already read, that the defendant pleaded not guilty, and that a trial was had, and that the defendant was found guilty; but beyond that the record is silent.

We have spent a great deal of time upon this question, and have examined all the statutes that seem to have any bearing on the point raised or upon the decisions that were cited by counsel. I shall not attempt to go through all of them, but confine myself briefly to so much as we think is necessary to decide the question before us.

Section 1788, Revised Statutes, provides that—

“The police court shall have jurisdiction of any offense under any ordinance of the city, and of any misdemeanor committed within the limits of the city or within four miles thereof, to hear and finally determine the same, and imposé the prescribed penalty; and in cities of the first grade of the second class the court shall have jurisdiction of any offense under any ordinance of the city and misdemeanor committed within the limits of the county in which such city is situated, to hear and finally determine the same and impose the prescribed penalty; but cases in which the accused is entitled to a trial by jury, shall be so tried, unless a jury he waived.”

The Constitution provides that in the trial of crimes and misdemeanors the accused shall have the right to be tried by a jury and meet his witnesses face to face. That provision of the Constitution is applicable to cases of this kind. The statute, I may say in passing, makes a slight difference between the powers of the police court and a magistrate. Magistrates have the right to examine and bind over parties to the court. In eases of felony the police court has the same power; but, so far as I can find, the only power the magistrate has is to bind the party over, except in cases where the party waives a trial by jury in minor offenses and submits to be tried by the court. In the constitution of the police court, however, where the defendant pleads not guilty, if the accused does not waive a trial by jury, the court has the right to summon a jury and proceed to try the case to the jury. The only power the magistrate has where the accused party has the right of trial by jury and does not waive a jury, is to bind the party over to a higher court.

The question is whether or not this record should not have shown that, before the court proceeded to the trial of the case, the accused waived a trial by jury. Most certainly, in the proper course of the proceedings, it should be put in the record. The clerk in this particular case has omitted it or overlooked it.

I had thought upon the opening of the examination of the case, that it being a jurisdictional question, it would be the duty of the police court, unless trial by jury was waived, to bind the accured over to a higher court; but that court had the right to call a jury to try the case and render final judgment, where a jury was not waived. The statute I have read shows that the police court had full jurisdiction of the case; the Supreme court has held that that court is a court of record. So we have a case where the court had jurisdiction of the crime and of the person, and a court that is a court of record; and, therefore, the general rule may be invoked, that in a court of record where jurisdiction is shown, it will be presumed that all the necessary proof was made or things done in order to enable the court to arrive at the judgment at which it did arrive, unless the contrary is shown; that is to say, it may be said that that principle should be invoked in favor of the waiver of a jury. The courts will presume that a jury was waived unless by a proper bill of exceptions it is shown that the party demanded his right to a trial by jury, or unless it is shown that he refused to waive his right, which amounts to the same thing.

I thought at first that the rules in regard to civil cases would have a bearing upon this question, but I find upon an examination of the decisions of the Supreme Court and the statutes this state of facts:

Section 5130, Revised Statutes, provides:

“Issues of law must be tried by the court, unless referred as hereinafter provided; and issues of fact arising in actions for the recovery of money only, or specific real or personal property, shall be tried by a jury, unless a jury trial he waived, or a reference be ordered as hereinafter provided.”

Section 5204, Revised Statutes, provides that:

“In actions arising on contract the trial by jury may be waived by the parties, and in other actions with the assent of the court, in the following manner:
“1. By the consent of the party appearing, when the other party fails to appear at the trial, by himself or attorney.
‘ ‘ 2. By written consent, in person, or by attorney, filed with the clerk.
“3. By oral consent in open court, entered on the journal.” The case of Bonewitz v. Bonewitz, 50 Ohio St., 373, went to the Supreme Court upon a journal entry reading as follows:
“That the cause, coming on for trial came thereupon the parties and their attorneys, and neither party demanded or waived the interposition of a jury, but without objection submitted the cause to the court upon the pleadings, evidence and argument of counsel.”

It was an action upon a written obligation. The judge delivering the opinion of the court says:

“To sustain the judgment of the common pleas, it must appear, either that a jury was waived, or that the issues were such that the cause could of right be tried by the court without a jury.”

He then cites the statutes which I have read, Sections 5130 and 5204, Revised Statutes, and held that inasmuch as it appeared that the parties appeared in court and submitted the case without a jury, that was in substance an entry upon the journal of the waiver of a jury, because if the party submitted the case to- the court, he consented that the court should try it. In many other states the statutes provide that the court may try the ease if a jury is not demanded, making it obligatory upon the party, if he desires a jury, to demand it; in others, as appears in the ease, Bonewitz v. Bonewitz, supra, the court may hear the case only upon consent being entered in writing.

After a very full consultation upon the question, and examination of it, whatever our views of it may have been in the first instance, we think the ease is decided by the Supreme Court in Billigheimer v. State, 32 Ohio St., 435. In that case Billigheimer had been prosecuted under a statute of the state in the name of the state for performing common labor upon the Sabbath. His defense was that he was an Israelite, and that the Sabbath to him was on Saturday, and he had a right to work on Sunday. According to the provision of the statute at that time the penalty was the imposition of a fine not to exceed $5. The statute, however, has been changed, and it is now a matter of imprisonment. The statute, however, with regard to the police court of the city of Cincinnati was the same then as it is now, and the accused was required to be tried by a jury unless he waived the jury. In that case the record was silent as to whether the accused waived a jury and showed that the party refused to plead, and thereupon the court entered a plea of not guilty for him, and proceeded to hear the case and to the imposition of a fine. The question was raised whether or not the party could waive a jury at all. It was claimed that under the provisions of the Constitution he must be tried by a jury, and the decision, which is quite a lengthy one, enters very fully into a discussion of that question, holding, after a citation of many authorities, that in cases of misdemeanors a jury might be waived. It is well known that in cases of felony the Supreme Court of this state have held that the accused can not waive a jury; that he must be tried by a jury. The Supreme Court say at page 441 in this case:

“We think, therefore, that as to minor offenses there can be no doubt but that defendant can waive a jury and submit to a trial by the court. The police judge has the power to hear the cause if a jury has been waived. * * * The only question, therefore, is, did the defendant waive his right. As -has been said the record indicates nothing on the subject. It merely shows that when the court ordered the plea of not guilty filed, the cause proceeded and evidence was heard. It does not show' that defendant demanded a jury, nor that he excepted to proceeding without one. This failure to avail himself of his rights must be held to be a giving of consent.”

It has been said that that was a minor offense, but that makes no difference in this particular case, because the court had no right to try this party, under the statute, unless he waived a jury. But the decision is a decision upon the point that if the record does not show that he demanded a jury, it must be held to be a waiver of that right; and that I take to be true, whether it be a statutory right or a constitutional right.

D. H. Commager and King & Tracy, for plaintiff in error.

Wm. H. Ulery, Assistant Prosecuting Attorney, for the State.

There is an early case, decided in 1854, which went up from this county, Dailey v. State, 4 Ohio St., 57, in which there was a prosecution that went up from this county, being a prosecution before the probate judge; and the question there discussed was as to whether the accused might waive a jury trial. The decision was by Judge Kennon, a very able and very conservative lawyer:

"Is the statute, authorizing the probate judge to try the issue upon a>plea of not guilty, constitutional? By Section 5 of the Bill of Rights, in our present Constitution, it is provided that the right of trial by jury shall be inviolate. By Section 10 it is provided that in any trial, in any court, the party accused shall be allowed to have a speedy public trial by an impartial jury.
"The probate act confers certain criminal jurisdiction on the probate court, and then provides that, upon a plea other than a plea of guilty, if the defendant does not demand a trial by jury, the probate judge shall proceed to try the issue.”

Then he goes quite fully into the question, and holds that the accused was not deprived of the right of trial by jury, because he had not demanded it, which it was his duty to do if he desired a jury trial.

We are of the opinion, as stated before, that Billigheimer v. State, supra, settles the question, and that the judgment of the court of common pleas should be so affirmed, and it is so ordered.

We have said already as to the second case, that we have not looked into the record because it was not filed in time. It appears, however, that if we had looked into it, we would have found among the affidavits filed one made by the defendant her- ' self, wherein she states that she waived a trial by jury before the police judge. It seems, therefore, that the error that has arisen here has been the omission of the clerk of that court to note that fact. We are clearly of opinion that the only safe and proper rule is for the police court to have that fact noted upon the record, because by the statute the court has no power whatever to try the defendant except he waives a trial by jury.


source: Caselaw Access Project

license: Public Domain

text:
    BRAKEMAN KILLED BY CAR BEING THROWN FROM THE TRACK.
    [Circuit Court of Licking County.]
    Andrew Beard, Administrator, v. Toledo & Ohio Central Railway Co.

    Decided, March Term, 1901.

      Negligence — Heavy Stone Jolted from Gar While in Motion — Causing Death of Brakeman — Necessary Proof to Establish Liability on the Part of the Company — Charge of Court.

      A flat car loaded with stone weighing 600 or 800 pounds each was taken into a train, and by reason of the jolting of the car while running at a high rate of speed one of the stone fell off, throwing the car behind it, upon which the brakeman B was riding, from the track, causing his death.

      Held: That in the absence of proof tending to establish (1) that the car was loaded in an improper or negligent manner, and (2) that the company had or should 'have had knowledge thereof, (3) and that the intestate did not have such knowledge, the trial court properly instructed the jury to return a verdict for the defendant.
    Voorhees, J.; Douglass, J., and Donahue, J., concur.

       Affirmed by the Supreme Court without report, November 20, 1901.

   This action is for damages in causing the death of plaintiff’s intestate, Henry Wesley, on June 7, 1893. At the time of his death said Henry Wesley was in the employ of defendant company as a brakeman on one of its freight trains. The accident occurred in this county. The grounds of recovery are:

First.. That the conductor in charge of the train negligently took on and attached to said train two flat cars, which were negligently and carelessly loaded with stone; that the loading of the said cars with said stone was done in a careless and negligent manner.

Second. That said cars were defective in attachments, in that neither of them was provided with end boards, or side boards, and were not provided with the proper standards along the edges of the platforms of said cars. That there were no means provided or used to prevent said stone from sliding or jolting off from said cars.

Third. That the defendant and said conductor negligently and carelessly took on and attached said cars, so defective and loaded as aforesaid, to said train, and negligently used and operated said cars in said train from a station called Fulton on said road in a southerly direction; and while so operated, and by reason of the high, careless and negligent rate of speed between the stations of Hartford and Johnstown, said stone were carelessly and negligently jolted from said car, and falling on the track, the car on which the decedent was riding was thrown from the track, causing his death.

Fourth. That said Wesley did not know of said defect in said cars, and did not know and was ignorant of the defective and negligent manner in which said ears were loaded.

The petition then sets forth the next of kin of the deceased, and prays judgment.

The defendant company answers by denying carelessness on the part of said company and said conductor, and avers that the death of Wesley was caused by his own carelessness.

The cause was tried, and, at the close of plaintiff’s testimony, the court directed a verdict for the defendant; and this is the error assigned and complained of in this court.

The questions of defect in the cars and their appliances are eliminated from the case by reason of the former holding of the circuit court, which was affirmed by the Supreme Court, wherein this court held that this case does not fall within the purview of Section 2 of the act of April 2, 1890 (87 O. L., 149); that the use of such a flat car is not the use of a defective car or one with defective appliances within the meaning of the statute. Toledo & O. Cent. Ry. Co. v. Beard, 20 C. C., 682 (affirmed by the Supreme Court without report, December 13, 1898, Beard v. Railway Co., 59 Ohio St., 615).

The question here presented is upon the issue of carelessness; that these cars were negligently loaded with the stone and placed in the train on which the deceased was a brakeman; and, by reason of the careless manner in which the- stone were placed upon the ears, and the condition of the cars, in not being properly protected in the loading, that the negligence of the company resulted in the death of plaintiff’s intestate. The contention is that the defendant company was negligent in taking these ears into the train, loaded in this manner, that is, that there were no guards at the ends óf the cars, nor at the sides, and the train, running at a high rate of speed, jolted or jarred the stone so that one, at least, dropped upon the track, throwing the car off that the deceased was on, and properly on, causing his death.

- We will consider whether the plaintiff has made out a case showing that the company was negligent, and that he was without fault, and, by reason of the negligence of the company, it being the proximate cause of his death, the company would be liable. It would be necessary then for the plaintiff to show:

1. Knowledge on the part of the company. That is, that the company had knowledge of this defect, or negligence with which it is charged, in the loading of the stone upon the car.

2. That the plaintiff’s intestate did not know; and that this negligence was the proximate cause of his death.

Taking that view of the case then, how stands the record, or evidence, as to establishing affirmatively these two propositions, which it would be necessary for the plaintiff to establish in order that the company would be liable? We have carefully examined the record. We regard this as an important case, and one that calls upon the court to give the record a careful examination as to whether or not the court, in taking it from the jury, was warranted and justified in so doing on the ground that there was no evidence in the record that could call upon the court to submit the question of negligence as a question of fact for the determination of the jury.

As to the first proposition: As to the knowledge of the company of the condition of the car that is complained of, there is no evidence in the record to show that the company, or any of its authorized agents, had anything to do with the loading of the car. The car was taken into the train, but there is no evidence that the conductor knew of the condition of this car, as to how it was loaded with these stones. The proof tends to show that they were heavy stone, weighing perhaps from six to eight hundred pounds; and the proof tends to show that, with stone of that character and that size, it is the customary way, and the ordinary way, to load them without having these end boards or standards to prevent them from sliding or jolting from the ear.

It devolved upon the plaintiff to establish the proposition that the company was negligent in that regard; that they were guilty of negligence in the loading of the car, or receiving it into the train: that it was loaded under their direction, and in such a way that they would be responsible for it. As we have remarked, there is no evidence that we have been able to find that even tends to show any knowledge on the part of the company.

As to the second proposition: It is not only necessary for the plaintiff to show that there was negligence on the part of the company in this regard, but that he was without fault; or, in other words, that he had no knowledge of the condition of these ears, and how they were loaded. There is no evidence whatever in the record as to whether he knew it or not; and, therefore, he having the burden on him to show that he did not know, and it standing without evidence, he would fail in the second proposition, or the second branch of the ease, which it was necessary for him to establish before he could recover.

This is the situation as the case presents itself without the aid of the statute; and, as we have already observed, the Supreme Court has taken this case out of the provisions of the statute.

But, suppose the case comes within the statute, how does it stand upon the record? Considering the case as one coming within its provisions, the contention of plaintiff in error is that, from additional evidence brought into the record since the first trial, this court will be justified in holding from this additional proof that the case comes within the rule prescribed by the statute.

In the case of Hesse v. Railroad Co., 58 Ohio St., 167, the effect of the statute and its office in an action of this character is clearly defined. Judge Shauek, on page 170, says:

‘ ‘ The act by its terms affects the rules of evidence.
“It does not affect the duty of the employe, nor the rules of pleading with respect to it In the cases to which it applies it; raises against the corporation a prima facie presumption of negligence from evidence showing that the employe received am. injury by reason of a defect in the car or locomotive, or the: machinery or attachments thereto belonging. In Coal & Car Co. v. Norman, 49 Ohio St., 598, 607, the general rule governing eases of this character is stated:
“ ‘The servant in order to recover for defects in appliances, must establish three propositions: 1. That the appliance was defective. 2. That the master had or should have had notice thereof. 3. That the servant did not know of the defect.’ ”

When we get a proper construction of the statute and its true office, it affects the rule of evidence, but it does not change the necessity of the party alleging and proving these three propositions that are here stated. Judge Shauek further says:

“The force of the statute under consideration is wholly expended in relieving the servant of the duty of establishing the second of these propositions, namely: That the master had or should have had notice thereof. ’ ’

That would be the only change that there would be, and the only burden that the plaintiff in this action would be relieved from, if this were a ease of a defective car — defective machinery —bringing the case within the provisions of the statute. His duty with respect to the first and third remains wholly unaffected, viz, that the appliance was defective, and third, that the servant did not know of the defect. If the plaintiff fails to establish either one of these propositions, the action can not be maintained.

In this record there is no evidence whatever that the company knew of the condition, or that there was any defect in the loading of these cars. Therefore, there are two essential facts that the plaintiff in this action must establish before he can recover, viz., that there was this defect or this negligence in the loading of the car and the company had knowledge of it; and the deceased did not know of its condition.

The plaintiff must affirmatively establish these facts, either by circumstances, or by direct evidence, or the record must show that there was evidence tending to establish these two propositions, t.o warrant the submitting of the issue to a jury.

Where there is no evidence tending to establish these facts, then the court has nothing to submit to the jury. If there had been some evidence, or the testimony was conflicting, the facts uncertain or the proper inference to be drawn therefrom doubtful, then it would be error for the court to withdraw the case from the jury, or direct them to return a particular verdict.

S. M. Hunter and Flory & Flory, for plaintiff in error.

Kibler & Kibler, for defendant in error. f

But these essential facts or propositions the plaintiff failed to establish, either with or without the aid of the statute; and the question of negligence being one of law, it was the duty of the court to take it from the jury. Therefore the court did not err when the plaintiff rested his case in saying to the jury that they should return a verdict for the defendant.

Judgment affirmed.


text:
    HOMESTEAD.
    [Circuit Court of Cuyahoga County.]
    T. I. Kerns v. Augusta F. Linden et al.

    Decided, November 11, 1901.

      Allowance of Homestead — Out of Life Estate — Purpose of Section 5438— Property Believed from Judgment Only "While Occupied as Homestead.

    In setting off a homestead in property to one holding a life estate therein, the purpose of the statute is subserved if an amount is set off the fee simple title to which is worth $1,000.
    Marvin, J.; Caldwell, J., and Hale, J., concur.

       Dismissed by the Supreme Court for failure to file printed record.

   This action comes into this court by appeal from the court of common pleas.

The facts are that the plaintiff obtained a judgment in the court of common pleas against the defendants, Augusta F. Linden and her husband, John Linden, and that an execution upon such judgment was levied upon about fifty-seven acres of land in this county, in which the defendant, Augusta Linden, has a life estate. On this land is the dwelling house occupied by the two Lindens, husband and wife, and their children, as a family homestead.

There is another judgment lien upon the same property, and the purpose of the present action is have the liens marshaled and this property subjected to the payment of the claims of the lienholders. Augusta Linden claims a homestead exemption, and to this she is clearly entitled. The only question is as to the manner of ascertaining such homestead.

On the part of the Lindens it is urged that since the only estate which they or either of them have in the premises is the life estate of Augusta, there should be set off and assigned to her an amount of this property such that her life estate in the amount so set off- shall be worth one thousand dollars, and it is said that this will take the entire property.

On the other hand, it is urged that without reference to what estate Augusta holds in the property, there should only be set off to her an amount the fee simple to which is worth one thousand dollars, and that the balance of her life estate be sold for the purpose of satisfying these liens.

The language of Section 5438, Revised Statutes, is:

“The officer executing any writ of execution founded on a judgment or order shall, on application of the debtor, his wife, agent, or attorney, at any time before sale, if such debtor has a family, and if the lands or tenements about to be levied upon, or any part or parcel thereof, constitute the homestead thereof, cause the inquest of appraisers, upon their oaths, to set off to such debtor, by metes and bounds, a homestead not exceeding one thousand dollars in value.”

The purpose of the statute is to save to the unfortunate debtor who has a family, a place where he and such family may live-. The property set off is not thereby relieved from being subjected to the payment of the judgment in such wise that it can never be so used, but is relieved only from being so subjected while it is occupied as a homestead for the family.

It is manifest that this purpose will be subserv.ed as well to set off an amount, the fee simple title to which is worth one thousand dollars, to one who only has a life estate, as it would be if the debtor owned the fee simple in the property, for, in neither case, could any benefit be derived by the debtor beyond his own life, and that he may have as well where he has a life estate as where he has the fee simple.

V. A Andrew and F. A. Shepherd, for plaintiff.

J. T. Sullivan, for defendants.

Statutes similar to ours and enacted for the same purpose, have been construed in other states, and this view has been sustained. See Brown v. Starr, 21 Pac. Rep., 973 (79 Cal., 608; 12 Am. St. Rep., 180); Yates v. McGibbon, 66 Iowa, 357 (23 N. W. Rep., 752); France v. Lucas, 14 Bush (Ky.), 395; Arnold v. Jones, 77 Tenn., 545, and Crigler v. Connor, 11 S. W. Rep., 202 (10 Ken. L. Rep., 957).

The order will require the appraisers to set off and assign to Augusta F. Linden land including the house, an amount the fee simple of which is worth one thousand dollars; and the-life estate of Augusta in the remainder will be sold. In case such an assignment can not be made by metes and bounds, then the o^der will be in the usual form, providing for ascertaining the rental value of the property and the application of so much of such rental value as exceeds one hundred dollars a year to the payment of the liens.


text:
    RIGHTS UNDER A CHATTEL MORTGAGE.
    [Circuit Court of Cuyahoga County.]
    Merkel Brothers’ Co. v. Vincent F. De Witt.
    Decided, October 28, 1901.

      Chattel Mortgages — Acknowledged Before Party in Interest — Does Not Affect Interest of the Party Making the Affidavit — Notice As to His Bights.

    While an officer before whom a chattel mortgage is executed, if interested therein could not maintain his interest against subsequent purchasers, yet such interest would not affect the rights of the party making the affidavit, to the extent of his interest in the debt secured by the mortgage.

      Marvin, J.; Caldwell,, J., and Hale, J., concur.
    Heard on error.
   The plaintiff in error obtained possession of a piano under a chattel mortgage, which had been executed by one Williams to A. D. Coe. This mortgage was assigned by Coe to the plaintiff in error; it was good as against Williams but, by reason of not having been properly refiled, had become inoperative as against subsequent purchasers and mortgagees in good faith.

Before the mortgaged property had been taken possession of by plaintiff in error, and while said mortgage was so inoperative except as between the parties to it, Williams executed another mortgage upon the same property to the defendant in error; this was given on April 28, 1897, and, upon its face, purports to secure the payment of two promissory notes of that date, one for $138, and one for $61.09. DeWitt, on April 29, 1897, made the affidavit required by law to be made in order thaí; a chattel mortgage shall be good as against subsequent purchasers and mortgagees in good faith; and on the next day the mortgage was duly filed with the proper officer. This verification was made before Charles Seeman, a notary public.

DeWitt brought an action in replevin against the Merkel Brothers’ Company before a justice of the peace, and, after trial and judgment in that court, the case was appealed to the court of common pleas; it was there tried to a jury, and resulted in a verdict and judgment, in favor of DeWitt, to reverse which judgment this proceeding in error is prosecuted.

There is filed in this court a bill of exceptions containing all the evidence. It is urged there was error in the trial of the case in the court of common pleas.

The amended petition upon which the ease was tried is an ordinary petition in replevin setting out that the plaintiff has a special ownership in the piano, which is described, by reason of-the chattel mortgage made to him as hereinbefore mentioned; that the mortgage was properly filed, and that the defendant detains the mortgaged property from the plaintiff.

To that the Merkel Brothers’ Company answered, setting up the moi’tgage executed to Coe; that the Merkel Brothers’ Company had become the owner of such mortgage, and that, in an action in replevin brought by the plaintiff in error against the mortgagor, Williams, said company was adjudged to be the owner of the piano; and denies all the other allegations of the petition. The defendant in error replied to this answer by a general denial.

Upon the trial in the court of common pleas the claim was made by the plaintiff in error that the note for $138, mentioned in the chattel mortgage under which DeWitt claimed, was, in fact, owned at the time of the execution of that mortgage by Charles Seeman, before whom DeWitt made the verification of the mortgage. No contest was made but that the other note described in the mortgage was owned by DeWitt. Evidence was introduced on the part of the Merkel Brothers’ Company, tending in some degree to show that this claim was well founded, and that Seeman was, in fact, the owner of the larger note.

It is possible that, under the evidence in the ease, if this question had been submitted to the jury for a direct finding upon that issue, it would have so found. The question was not, however, submitted to the jury by itself, but the court charged the jury “that if at the time of the execution of this mortgage and if at the time of the commencement of this action, J. A. Williams was indebted to the plaintiff, and this mortgage was given to secure that debt, executed in good faith for that purpose, we think the plaintiff in this action, and so instruct the jury,, would be entitled to recover possession of this property. ’ ’ Again, the court said to the jury:

“But we think that to entitle the plaintiff to recover, it must appear that Williams was at that time indebted to the plaintiff in some sum and that this mortgage was executed in good faith to secure it, and that such indebtedness existed at the time of the commencement -of this action, that entitled the plaintiff to bring his action in replevin.
“If he had no valid claim, that is, if Williams was indebted to him in no sum, and this was given without any consideration, then the plaintiff would not be entitled to recover. Otherwise, he would be entitled to recover in this action — would be entitled to a verdict at the hands of this jury finding the right of possession in the plaintiff, with nominal damages.”

The court was asked, ou behalf of the Merkel Brothers’ Company, to charge the jury in these words:

“If the jury finds that Mr. Seeman at the time of the execution of the mortgage from Williams to plaintiff, had not sold his claim to plaintiff, and that the $138 represented by the note submitted in evidence was not due to plaintiff but was due to Mr. Seeman, the affidavit of plaintiff to mortgage is not sufficient to maintain the validity of the mortgage as against mortgagees in good faith. ”

This request the court refused to give.

At the close of the charge given, the court was further requested, on behalf of the Merkel Brothers’ Company, to charge:

“That if the officer taking the verification was interested in the mortgage it is not a good affidavit.”

And this the court declined to give.

It was agreed between the parties at the trial, that if the jury found for the plaintiff, he should have the piano, and that if the jury found for the defendant, it should have the piano. So that there was no question as to the amount of damages submitted to the jury.

It will be seen that the question is distinctly made, whether if Seaman, before whom DeWitt’s verification of his mortgage was made, was at the time interested in any part of the debt secured by it, the mortgage was valid as against subsequent purchasers and mortgagees in good faith.

If the fact of interest or ownership by Seeman in the $138 note at the time of the verification of the mortgage would render the affidavit invalid, then the charge given by the court was erroneous, and the refusal of the requests hereinbefore quoted was erroneous because, as has already been said, the evidence was such that the jury might have found that Seaman was the owner of that note.

•In refusing to give the last request, the court gave as a reason for such refusal that a verification was made later by DeWitt for the purpose of refiling the mortgage, before an officer not disqualified by reason of interest or otherwise.

It is plain that the court overlooked the fact that this last verification was made after the commencement of the action in replevin brought by DeWitt, so that that verification can cut no figure in the determination of the case here.

The law is settled beyond dispute, that a party to a deed or mortgage can not act as an officer to take the acknowledgment of such deed or mortgage. And it is held by many authorities that a party who has an interest in the property mortgaged or in the debt secured by such mortgage can not act as a,n officer in the acknowledgment of such instrument. The authorities, however, are not uniform upon this point.

In the argument it was assumed that the same rule which govern as to the verification of a chattel mortgage, under the statutes of this state, and, for the purposes of this case, it is proper, perhaps, to make such assumption, though the question is not here determined.

On the part of the defendant in error it is urged that whether Seaman was the owner of the $138 note or not, the verification made by DeWitt before him would be good and make the mortgage, when properly filed, notice to all the world of whatever interest DeWitt had in the debt secured by such mortgage.

That taking the acknowledgment of a deed or mortgage is held in Ohio to be purely ministerial and in no sense judicial, is settled by Truman v. Lore, 14 Ohio St., 144, where, on page 151, Judge Peck uses this language in his opinion:

‘ ‘ The magistrate does not exercise judicial functions in taking such acknowledgment. * * * His act, though official, is purely ministerial and the adverse party is not thereby precluded from showing the grantor’s legal incapacity at the time.”

In Ford v. Osborne, 45 Ohio St., Judge Minshall, at page 4 in the opinion, uses this language:

‘ ‘ To say that the taking of an acknowledgment of a deed is a ministerial and not a judicial act, is simply to say that it may be attacked collaterally; it does not impair its value as a certificate made by one acting under authority of law, not only in the matter of taking the acknowledgment but also in certifying the same. ’ ’

In Darst v. Gale, 83 Ill., 137, the fifth paragraph of the syllabus reads:

“The acknowledgment of a deed of trust taken by one of the trustees is void as to such trustee, but, if the execution of the deed is proved, this will cure the defect.”

And, in the opinion, at page 143, this language is used by the court:

‘ ‘ The acknowledgment was taken by Grove, one of the parties named as trustees. This unquestionably rendered the deed void as to him, but we fail to comprehend how it affected the deed as to the other trustees. He and they had no community of interest, and his becoming disqualified had no tendency to disqualify them. ’ ’

In Dussaume v. Burnett, 5 Iowa, 95, it is said in the syllabus:

“An individual owning an interest or share in a tract of land, is not so far interested in the entire land, as to prevent him, in his official character, from taking the acknowledgment of a deed conveying to a third party another and distinct interest or share in the same land:
“The fact that the grantee in a deed and the party before whom the deed was acknowledged had an agreement or understanding that each should purchase distinct shares in the same land with a view to a joint speculation, might be a circumstance tending to show fraud or a fraudulent combination to impose upon the grantors, but in itself would not be sufficient to vitiate the deed.”

In Wilson v. Traer & Co., 20 Iowa, 231, the syllabus reads:

“An acknowledgment of an instrument taken and certified by a person interested in it as grantee, should not be admitted to record; and a record thereof would not operate as constructive notice to a subsequent purchaser.”

In this case the mortgage was to J. W. Traer & Go.; the acknowledgment was before J. W. Traer, a notary public, who was also a member of the firm to which the mortgage was made. •And the holding is distinctly to the effect that though it does not distinctly appear from the instrument itself, that the officer before whom the acknowledgment was made, was interested in .the mortgage, yet when that fact does appear, the mortgage must be held to be void; and a number of authorities are cited in support of the proposition.

In the case of Titus v. Johnson, 50 Texas, 224, the fourth paragraph of the syllabus reads:

“The effect of the record of an instrument concerning lands, on its face regularly acknowledged, or proved for record and duly recorded, can not be attacked by showing that the officer who took the acknowledgment or proof had an interest in the land. ’ ’

And in the opinion in this ease, on page 240, this language is used:

“But here we are asked to hold the record of a deed ineffectual for the purposes for which it was required by law to be made, though in all respects apparently correct and in strict accordance with law on parol evidence adduced by subsequent purchasers long after the deed was recorded, to impeach not the genuineness of the instrument or the verity of the facts stated in the certificate, but to prove matters wholly extraneous thereto, with the view of showing that the officer by whom the certificate was made did not possess the capacity to give the certificate, or was not acting within the sphere of his duty. * * * Cei’tainly we do not feel inclined, in the absence of authority in its support, to give our sanction to a doctrine so detrimental, in our opinion, to public interest, and so well calculated to undermine and destroy the foundation upon which the holders of recorded titles now rest in security.”

In Benson v. Olaf T. Hove, 46 Minn., 40, the second paragraph of the syllabus reads:

“A chattel mortgage is valid between the parties without acknowledgment. For the purposes of record, it must be acknowledged; but where it does not appear from the instrument that the officer taking the acknowledgment is legally disqualified by reason of his interest in the estate or property mortgaged, the instrument may properly be received for record and such record will be notice to subsequent creditors and mortgagees.”

The case of National Bank v. Conway, 1 Hughes, 37, is a case decided by the United States Circuit Court for the Eastern District of Virginia. In the opinion, page 40, Judge Hughes uses this language:

“The teaching of the cases cited at bar seems to me plainly to be that an interested person may take the acknowledgment of a deed when the act is merely ministerial, though if the act be judicial, such as taking the acknowledgment after privy examination of a married woman, an interested party can not take it.”

In Stevens v. Hampton, 46 Mo., 408, this language is used in the opinion:

“In view, then, of the acknowledgment as affecting the right of record and the question of constructive notice, the following would seem to be a reasonable' rule: That when the recorded instrument shows upon its face that the acknowledgment was taken by a party, or party in interest, it is improperly recorded, and is no constructive notice; but when it is fair upon its face, it is the duty of the register to receive and record it, and its record operates as notice, notwithstanding there may be some hidden defect.”

In the case at bar the instrument, upon its face, appears to be, in all respects, properly executed and the affidavit taken before a proper officer. That such officer, if interested, could not maintain an interest in the mortgage as against subsequent purchasers seems to be well settled, but how his interest should affect the rights of the party making the affidavit, to the extent of Ms interest in the debt secured by the mortgage, we fail to see. No one is prejudiced by holding that the mortgage was notice of Ms rights in the property. And from the authorities cited, and many others, it is clear that many courts of high standing have so held. And we hold that whether Seeman owned the $138 note or not, it being conceded that DeWitt was the owner of the smaller note, the mortgage as to him, to the extent of such ownership, was notice to the world. The result is, that the judgment of the court of common pleas is affirmed.


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    DOW TAX OMISSIONS.
    [Circuit Court of Clark County.]
    T. J. Casper v. J. T. Norris.
    Decided, December Term, 1901.

      Dow Tax — Complaint of Failure to Pay Assessment — Action of Prodate Court Thereon — Ministerial in Character — And Not Reviewadle on Error — Judicial and Ministerial Power.

    The action of tbe probate court upon a complaint that the assessment upon the liquor traffic, commonly known. as the “Dow tax,” is being evaded is ministerial in character, and the finding of such court upon the complaint is not reviewable on error.
    Sullivan, J.; Wilson, J., and Summers, J., concur.
   In this ease the probate court dismissed the complaint filed by defendant in that court, under Section 4364-9®, Revised Statutes. Plaintiff in error, who was defendant below, filed a general demurrer to the complaint setting forth several grounds, one being that the law under which the complaint was drawn and filed was unconstitutional. Upon that ground the probate court sustained the demurrer, dismissed the complaint and entered up a judgment against defendant in error for costs. To reverse that judgment defendant in error prosecuted error to the common pleas. That court reversed the judgment of the probate court, and error is prosecuted here to reverse the judgment of the common pleas.

Counsel for plaintiff in error presented in oral argument three several grounds, upon either or any one of which they insist the judgment of the common pleas should be reversed. It will not, however, be necessary in view of the conclusion we have reached to notice but one, ana that is whether the common pleas erred in overruling the motion of plaintiff in error to dismiss the petition in error to the probate court. It is the action of that court upon the motion filed April 12, 1901. The fifth ground of that motion may be construed, we think, as one asking for a dismissal of the petition, for want of jurisdiction in that court.

Sections 4364-9»-95-9c-9d and 9e, Revised Statutes, in 94 O. L., 332, 333, are supplementary to Section 4364-9, and were passed April 16, 1901. Sections 4364-9 and the several sections following aside from the supplementary sections are commonly known as the Dow law, fixing a tax upon the business of trafficking in spirituous, vinous, malt or any intoxicating liquors. • Section 4364-9 Revised Statutes, fixes the amount; Section 4364-10, Revised Statutes, makes the same a lien upon the premises in which the business is carried on; 4364-12 provides for the collection of the tax; 4364-13 provides:

“That every assessor shall return to the county auditor with his other returns, a statement * * * as to every place within his jurisdiction where such business is conducted, showing the name of the person, corporation or copartnership engaged therein, a brief and accurate description of the premises where the same is conducted, and by whom owned; said statement shall be signed and verified before such assessor by such person, corporation or co-partnership.”

If on demand, they fail or refuse to furnish the requisite information for such statement, sign and verify the same, the assessment on the business shall be $400, an increase of $50'.-over the amount fixed in Section 4364-9.

Section 4364-14, Revised Statutes, provides:

“That the county auditor shall make and preserve duplicates of such assessments, alphabetically arranged, ’ showing the amount and date of each assessment, by whom to be paid, and the premises whereon the same is a lien. And upon receiving satisfactory information of any such business liable to assessment or increased assessment,” as provided in Section 4364-13, “he shall forthwith enter the same upon such duplicate and upon the county treasurer’s copy thereof.”

Section 4363-9», provides that:

“Upon complaint in writing to any person, verified by affidavit filed in the probate court of any county in the state of Ohio that any person, corporation or copartnership is engaged in such county in the trafficking in spirituous, vinous, malt or any intoxicating liquor and whose name does not appear on the auditor’s duplicate in such county as * * * engaged in such traffic, has refused or neglected to pay the assessment made upon such business, commonly known as the ‘Dow tax,’ * * * the probate court shall forthwith issue notice to such person, corporation or co-partnership of the filing of said complaint and requiring them to appear before said court at a time therein mentioned, not to exceed four days from the date of the issuing of said notice, and show cause why said business should not be entered upon the duplicate of said county for assessment; and said notice shall be directed to the sheriff of said county, and shall be served and returned by him within the time herein-before named in the same manner as summons is served in civil action. ’ ’

The complaint made by John T. Norris against Casper contains substantially all the matter set out in this section; notice was prepared, served and returned as provided in the section. The purpose of this supplementary act, we think, is apparent. It is to bring upon the duplicate persons engaged in the traffic under the guise and name of a different business, and thus avoid payment of the tax. By Section 4364-13 it is made the duty of the assessor to discover and return all places and names' of all persons engaged in the traffic, together with a description of the premises in which carried on, no matter under what guise or name it is conducted. If the matter set forth in the complaint herein was given to the auditor, that officer, if he discharged his duty, has the power to do all that is provided in these supplementary acts, except in the amount of penalty, and the penalty provided for in the supplementary act is to be added by the auditor.

If the probate court upon a hearing found against the complaint, the auditor could still exercise the same power and do the same duty. What is the nature of the power sought to be conferred by this act on the probate court? Is it judicial or ministerial? When exercised by the county auditor it is held to be ministerial (Musser v. Adair, 55 Ohio St., 466). The court say in that case the county auditor “in making additions to the returns of a person, of his property for taxation, does not act as a judge. He acts simply as an agent of the state. * * * He is simply a ministerial officer and none other. * * * The township assessor, the auditor and the board of equalization are all parts of the same system, devised by the» Legislature for the assessment of the property of individuals for the purpose of taxation.”

We take it that the duty of the county auditor under Section 4364-14 is the same in character as that of making additions terial power when exercised by the auditor, when by a legislative act the same is conferred upon the probate court, does it become a judicial power? In DeCamp v. Archibald, 50 Ohio St., 618, 625, the court, in defining judicial powers, say:

“The term ‘judicial power’ as used in the Constitution is not capable of a precise definition. It is included in the power to hear and determine, but does not exhaust the power. That it embraces the hearing and determining of all suits and actions, whether public or private, there can be no doubt. But we think that it is equally clear that it does not necessarily include the power to hear and determine a matter, that is not in the nature of a suit or action between parties. Power to hear and determine matters, more or less directly affecting public and private rights, is conferred upon and exercised by administrative officers. ’ ’

Judicial powers are those conferred on judges as courts in the hearing and determining of questions arising in litigation between parties in actions pending before them. State v. Harmon, 31 Ohio St., 250; DeCamp v. Archibald, 50 Ohio St., 618, 624.

The proceedings provided for by Section 4364-9a is not between parties; it is not to secure a right to any one in litigation or to establish the right of any person. Any person without regard to any individual interest or right may file the complaint; in fact he need not be a tax-payer or have any interest to be affected by the failure of the party complained of to pay the tax. So the proceeding sought to be provided for is not adsersary in its character, not between parties. It is, as we take it, a duplicate if we may so term it of the one provided the county auditor may take to accomplish the same purpose, no broader in its terms, adding nothing to make it a judicial power. If executed it simply succeeds in placing upon the duplicate the name of one evading tax under the Dow Law; the same thing can. be done now and could have been done by the auditor before the supplementary act.

Oscar T. Martin and F. M. Hagan, for plaintiff in error.

M. B. Earnhart, for defendant in error.

Being then simply a ministerial power, error did not lie from the action of the probate court, and the motion of Casper in the common pleas to dismiss the petition in error should have been sustained. The judgment of the common pleas is reversed o and this court entering the judgment that court should have returned, dismisses the petition in error as the common pleas had no jurisdiction to entertain the petition in error from the probate court for the reasons stated. Other errors insisted upon by plaintiff in error are not necessary to be considered. Judgment for costs of this court will be taxed to defendant in error.


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    WHAT CONSTITUTES NON-RESIDENCE IN ATTACHMENT PROCEEDINGS.
    [Circuit Court of Delaware County.]
    George H. Thomson v. W. R. Ogden.
    Decided, June Term, 1901.

      Attachment — Residence as Distinguished from Domicile — Non-Residence Under Section 5521.
    1. Residence and non-residence, as used in the statute relating to attachment, are not synonymous and convertable terms with domicile, as applied and used in the general statutes in regard to questions of citizenship, voting and the disposition of property.
    2 It is the actual residence of a debtor, and not his domicile, that determines his status in an attachment proceeding, begun in the county where the property attached is situated; and if he has no abode or home within the state where process can be served upon him, his property is subject to attachment, notwithstanding he may not have acquired a residence elsewhere.
    3. T, while a resident of Ohio, received an appointment for an indefinite term in one of the departments of the government in Washington. He removed there with his family, and for twenty years has continued to live in Washington, but has been in the habit of returning to Ohio to vote at elections. Held: That the property of T located in Ohio is subject to attachment on the ground of non-residence.
    Voorhees, J.; Douglass, J., and Donahue, J., concur.
   This action was one where defendant in error sought to obtain a lien by proceedings in attachment on certain real estate of the plaintiff in error, situated in the city of Delaware, county of Delaware, this state.

The ground for the attachment was that the plaintiff in error, George H. Thomson, was a non-resident of the state of Ohio; and upon that ground alone it was sought to obtain jurisdiction in the action and secure a lien upon the real estate of plaintiff in error.

From the record it appears that in October, 1883, The Cleveland Paper Company obtained three judgments before a justice of the peace against plaintiff in error; transcripts of the judgments were filed, and entered on the lien docket in the clerk’s office of Delaware county. In 1897 the judgments were sold and. assigned to defendant in error, W. R. Ogden. November 27, 1899, one Sarah Thomson conveyed “The Delaware Gazette Block”'to Henry C. Thomson and George H. Thomson. The judgments had become dormant, and on December 1, 1900, said W. R. Ogden, defendant in error, filed his petition in the Court of Common Pleas of Delaware County, setting up as his cause of action said judgments against said George H. Thomson, and at the same time filed an affidavit for attachment. The sole ground for the attachment was that the defendant, George H. Thomson, was a non-resident of the state' of Ohio. The order of attachment was levied on his one-half interest in said real estate. Service by publication was duly made in the action.

Defendant filed a motion to dismiss the attachment on the ground that the allegation in the affidavit. that he was a nonresident of the state of Ohio was not true; and by reason thereof the court had no jurisdiction over the subject matter of the action, or of the defendant.

The issue thus raised was submitted on affidavits and oral testimony to the court below, and the motion was overruled.

The record shows that George II. Thomson was born in Delaware county, Ohio. In December, 1878, he was appointed to a clerkship in the United States Treasury Department at Washington, D. C., He has been continuously so employed ever since. He moved his family to Washington soon after his appointment. He kept house in that city, and his children were raised and educated. there. He returned to said city and county of Delaware to vote at the state and national elections held in said state, and voted at such election in said city of Delaware.

The single question presented by the record is, whether, under the facts stated above, the court erred in overruling the motion to dismiss the attachment?

No controlling authority of our own state has been cited, nor have we been able to find any authority in Ohio directly in point. Whether a person is a legal voter or not in the state does not in our judgment determine the question here involved.

Under the attachment laws of this state, the real or personal property of a non-resident debtor is subject to attachment or garnishment by action in a court of competent jurisdiction, commenced in the county where the property is situate.

If residence, or non-residence, as used in the statute regulating attachment proceedings, are synonymous and convertible terms with domicile, as applied and used in general statutes in regard to questions of citizenship, voting the disposition of property and the like, then the question we have here would not be difficult of solution. But we do not so understand the trend of decisions of our Supreme Court. We therefore proceed with the inquiry, without any special reference to any statute other than the one regulating attachments.

A general accepted definition of “residence,” when the term is used with reference to the qualification of voters, is synonymous with “domicile.” But when applied to attachment laws, “domicile” and “residence” are not convertible terms, for domicile may be in one place and residence for the time being in another. 1 Shinn on Attachment, Section 90, page 148, says: “The term ‘non-resident’ in the attachment law, therefore, means one who has an abode in another state; ’ ’ and again in Section 97,"page 153: “Non-residence,” under attachment laws, “is a fact and is to be determined by the ordinary and obvious indicia of residence. It can not be determined by the place of the debtor’s political domicile. One may become a non-resident by living abroad, although by the fact of his intention to return, his political domicile will continue in the state.” Citing Keller v. Carr, 42 N. W. Rep., 292 (40 Minn., 428).

In Lawson v. Adlard, 48 N. W. Rep., 1019, 1020 (46 Minn., 243), syllabi, the court say:

“It is the actual residence of the debtor/and not his domicile,which determines the status of the parties in such proceedings” (attachments).

The facts in the case just cited were these: Adlard was a government employe; he owned a dwelling in the village of Brown Valley, Minn.; he was appointed government blacksmith at an Indian agency, in South Dakota; he took such furniture as was necessary to furnish the house occupied by himself and family at the agency; stored the rest in the upper story of his dwelling at Brown Valley, and rented the lower story for a time. At the end of fourteen months he returned with his family to Brown Valley. In the meantime an attachment was procured against Adlard on the ground of non-residence from the state of Minnesota. The district court vacated and set aside the attachment. The Supreme Court reversed the district court, and in the opinion the court said:

“It must not be determined by construing the words ‘residence’ as synonymous with the word ‘domicile,’ for one absent from the state on business or pleasure, having the intent to return, may have a political domicile here, although his residence is elsewhere.”

In Carden v. Carden, 107 N. C., 214 (12 S. E. Rep., 197), the Supreme Court held:

“Where one voluntarily removes from one state to another for for the purpose of discharging the duties of an office of indefinite duration, which required his continued presence there for an unlimited time, he becomes a non-resident of the former state for the purpose of attachment, although he may occasionally visit that state and entertain an intent to return and reside there at some uncertain time.
“A non-resident’s property is attachable when his residence is not such as to subject him personally to the jurisdiction of the court, and thus place him upon equality with the other residents of the state.”

Returning again to the facts in this case. The plaintiff in error some twenty or more years ago received a government appointment in the treasury department at Washington, D. C., for an indefinite term of service; he moved with his family to that city, and has lived there ever since; he returned at election times to Ohio, and to the city of Delaware, and at such times voted in said city.

These facts bring his status within Judge Story’s definition of domicile; which definition was adopted by our Supreme Court in Sturgeon v. Korte, 34 Ohio St., 525, 535, viz.:

“It is not, however, necessary that he should intend to remain there for all time. If he lives in a place with the intention of remaining for an indefinite period of time, as a place of fixed present domicile, and not a place of temporary establishment, or for mere transient purposes, it is to all inténts and for all purposes his residence.”

We are unable to distinguish any difference in rule or principle recognized by our Supreme Court in Sturgeon v. Korte, supra, from that in Wheeler v. Cobb, 75 N. C., 21. It is there said:

‘ ‘ That without deciding who, in law, is a non-resident in other respects, but confining the decision to the construction of the statute regulating attachment proceedings, the conclusion is that where one voluntarily removes from this to another state, for the purpose of discharging the duties of an office of indefinite duration, which required his continued presence there, for an unlimited time, such a one is a non-resident of this state, for the purposes of an attachment, and that notwithstanding he may occasionally visit this state, and may have the intent to return at some uncertain future time.
“Non-residence, within the meaning of the attachment law, means the actual cessation to dwell within a state for an uneertain period, without definite intention as to a time for returning, a general intention to return may exist.” Weitkamp v. Loehr, 53 N. Y. Sup. Ct., 83.

C. H. McElroy and W. A. Hall, for plaintiff in error.

Charles W. Knight and Frank Marriott, for defendant in error.

The determinal fact in such cases is that the debtor must be a non-resident of this state where the attachment is sued out, not that he must be a resident elsewhere; in other words, he must be so situated that he has no abode or home within the state where process can be served upon him. His property is attachable if his residence is not such as to subject him personally to the jurisdiction of the court and place him upon equality with other residents in this respect. Waples on Attachment, 35.

We think, under the proof as shown in this record, the plaintiff* in error comes withm the rule recognized by the authorities above cited; and that he had such residence in the city of Washington as to - subject his real estate in the city of Delaware to attachment, under Section 5521, Revised Statutes of Ohio, and the court of common pleas did not err in overruling the motion to dismiss.

The attachment and the judgment is affirmed.


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    REASONABLENESS OF AN ESTABLISHED GRADE.
    [Circuit Court of Hamilton County.]
    Catharine Weber et al v. City of Cincinnati.
    Decided, July 1, 1902.

      Street — Grade—Rule as to Reasonableness of, as Established — Evidence — Exception to Refusal of Court to Permit Witness to Answer Saved, How.

    1, An exception to a refusal by the court to permit a witness to answer a question is not properly saved, unless it appear from the record what the answer would have been.
    2. The limitation of the liability of municipalities by -the Supreme Court to cases where damages result from changing an established grade or establishing an unreasonable grade (34 O. S., 328) does not permit of an inquiry into the reasonableness of an established grade, unless it appear that the establishing of the grade was wantonly or recklessly done.
    Giffen, J. (orally); Swing, J., and Jelke, J., concur.
    This was an action to assess damages sustained by property owners by reason of the proposed improvement of Guy street in this city, pursuant to claims filed by the property owners. Upon the conclusion of the testimony the court directed the jury to return a verdict in favor of the city.
   It is claimed that the court erred because there was testimony tending to show that the city had established by ordinance an unreasonable grade, and that the defendant, Catharine Weber, had constructed her buildings on the premises and her improvements long subsequent to the establishment of this.grade.

It is also claimed that the court erred in refusing to allow witnesses to testify as to the reasonableness or unreasonableness of this grade so established; but in every instance where the court so refused, although the exception was taken to the refusal, it does not appear by the record what the answer would have been had the witness been permitted to answer, consequently the exception was not properly saved.

As to whether the court erred in arresting the case on the ground that the testimony was immaterial under the circumstances of the case, it appears from the testimony that the grade was established in 1875, and that the improvements were made twelve or fifteen years thereafter, and that the resolution for the improvement under this ordinance was passed, I believe,. in 1900, about twenty-five years after the establishment of the grade by the ordinance.

In Akron v. Chamberlain Co., 34 Ohio St., 328, the second proposition of the syllabus is as follows:

“The liability of a municipality for injury to buildings on abutting lots, exists only where such buildings were erected with reference to a grade actually established, either by ordinance or such improvement of the street as fairly indicated that the grade was permanently fixed, and the damage resultéd from a change of such grade; or where the buildings, if erected before a grade was so established, were injured by the subsequent establishment of an unreasonable grade.”

J. D. Creed, Otto Renner and Harper & Allen, for plaintiffs in error.

Frank H. Kunkel and Albert H. Morrill, contra.

Clearly, therefore, had there been no grade established by the city and these improvements had been made, it would have been competent for the jury to inquire whether a subsequently established grade was a reasonable one or not; and it seems on the same line of reasoning that if there is an ordinance, establishing the grade and the city has taken no steps to improve in pursuance to that grade for twelve or fifteen years, that the reasonableness .of that grade established by ordinance could be questioned by abutting owners. But we have been unable to avoid the force and effect of this syllabus in the case just read, and were we to hold that the reasonableness of this grade so established could be inquired into, it would contravene the doctrine laid down by this ease which limits the liability of the city to two’ classes of cases named therein; and following that decision we must necessarily affirm the judgment of the court below.

But we do not wish to be understood that if it appear that the establishment of the grade by the ordinance was wantonly and recklessly done and that an impossible grade had been established, that anyone would be bound thereby and that that question could not be inquired into; but we think that the testimony offered in this ease does not tend to show that the city authorities were not in the proper exercise of the power vested in them.


text:
    OVERWORK RESULTING IN NEGLIGENCE AND PERSONAL INJURY.
    [Circuit Court of Summit County.]
    India Rubber Company v. Vincent Anthony Tobin.
    Decided, April Term, 1902.

      Master and Servant — Negligence—Resulting in an Injury to an Employe — Who Was Overworked and Half Asleep — Assumption of Risk — Charge of the Court Insufficient, When.

    1. An employe exhausted and half asleep from overwork is not thereby relieved from the exercise of ordinary care and prudence to avoid injury.
    2. One who is employed at a machine of the usual kind, which is adapted to the purpose and is in good repair, and of the construction and operation of which he has full knowledge, assumes the risk and danger incident to such employment. Van Duzen Gas & Engine Co. v. Schelies, 61 O. S., 298, distinguished.
    3. The requirement that the charge of the court to the jury shall be confined to the law applicable to the facts of the case, which the evidence tends to establish, is not satisfied by a reference in a general way to the allegations set out in the petition, without explanation as to their bearing upon the controversy, or effort to distinguish the controlling points of the ease from matter of less importance.
    Hale, J.; Caldwell, J., and Marvin, J., concur.
    Heard on error.
   The ease of the India Rubber Company against Tobin, error to the court of common pleas. We have encountered much difficulty in determining what ought to be done under this record, but after as mature consideration as we are able to give it, we h’ave reached the conclusion which I will announce.

Tobin was in the employment of the rubber company as an ordinary workman, and was injured while in that employment. He seeks compensation of the rubber company for the loss he has sustained by reason of that injury, and says that is was caused by the negligence of the company, without his fault. The negligence charged, in substance is, that the manufactory had, as a part of its machinery, a machine known as a washer, which consisted, in part, of massive corrugated iron rolls, less than three-quarters of an inch apart, at the end of which were large and powerful cogwheels by which these rolls were rotated; that the defendant was guilty of carelessness and negligence in not having appliances for stopping the rolls of said washer when in motion, and in not providing any safeguards or appliances for preventing those near the washer from being drawn into and injured by them; that the plaintiff was, at the time of the grievances hereinafter specified, an employe of the said defendant, subject to the orders and directions of one Charles Wheeler, a foreman of said defendant, and superior of plaintiff; that said plaintiff worked on a machine called a calendar, about three feet from said washer; that on or about April 17, 1893, the said defendant had a large amount of work to do, and was running its manufactory night and day, and said defendant carelessly and negligently did not at the time have a sufficient number of skilled operatives to run said calendar without requiring the plaintiff to work much longer each twenty-four hours than ha was able to keep fully awake, as defendant then well knew. It is then alleged that by overwork Tobin became so' exhausted that on this morning in which he was injured he was so sleepy and so completely exhausted that he was unable to tahe good care of himself, and being directed by this foreman, Wheeler, to wash his hands at this washer — which is said to be dangerous machinery — in performing that order, his hand was caught within the rollers and he received the injury that he complained of.

It will be noticed then that there are, in this petition, several distinct acts of negligence charged against this company.

Having read the pleadings to the jury, the trial court then said, after stating some propositions of law applicable to the case:

“The pleadings, to which I have called your attention, present for your consideration and determination three principal propositions, which are as follows:
“Was the defendant negligent in one or all of the acts complained of ?
“If so negligent, was this negligence the proximate cause of the injury to plaintiff of which he complains?
‘"‘Did the negligence or the want of care on the part of the plaintiff contribute to cause or produce the injury which he sustained ? ’ ’

Throughout this charge’ reference to the acts of negligence. charged are only called to the attention of the jury by reference to the petition. No explanation of them, or what would constitute negligence in each particular ease, is made except in a general way, as follows:

‘ ‘ Coming, therefore, to this case, you will first inquire whether the defendant was guilty of the negligence or some of. the acts of negligence specified in the petition.”

There are quite a number of references throughout the charge in that general way, and the trial court permitted these allegations-of negligence in the petition all to go to the jury with the equal sanction of the court as a ground of recovery on the part of the defendant in error. A glance at those would show that some of them at least could not be the basis of any recovery. A statement of these issues is followed by a number of abstract propositions of law, but without explaining to the jury the application to the particular facts of the case then on trial.

Our Supreme Court has, in a number of cases, referred to charges of this kind; and in Coal Company v. Estievenard, 53 Ohio St., 43, 44, the court say:

‘ ‘ The charge of the court to the jury should not be as to abstract propositions of law, but should be confined to the law applicable to the facts of the case which the evidence tends to establish, and the attention of the jury should be called to the controlling point or points of the case, so that the verdict may not be founded upon unimportant matters.”

And on page 59, the judge, in delivering the opinion of the court, says:

“The defect in the charge, on the question of contributory negligence is, that it is, in the abstract, dealing with generalities, and failing to deal with the facts of the case as claimed by the parties. Defendant below, by its requests, urged the court to say to the jury, that certain facts, if found by the jury, would prevent a recovery, but the court refused to say what acts on part of plaintiff would defeat a recovery, and contented itself by telling the jury to look at all the evidence, to look at the knowledge of plaintiff, to look at his acts and conduct, etc., without telling them what use to make of such looking, or of the result thereof. ’ ’

The court, instead of the general propositions, should have called attention to the charges of negligence upon the subject of the machine, the washer, and explained to the jury if it was one in ordinary use in manufactories of that kind, and that the defendant in error had knowledge of that fact, knew about its operation, it was one of the risks he assumed, and could not be considered by them in determining whether the defendant was responsible or not, that the fact whether they had a large number or small number of men had nothing to do with the negligence of the company while this defendant was washing at the washer; and should have explained to the jury the effect of the- exhausted condition and' the bearing it had upon the questions at issue about which there was not a word said in the entire charge. The jury were permitted to find under this charge that the defendant company did not have men enough in its employment, and, therefore, responsible for this injury; that it did not have this washer properly guarded, and although the defendant in error knew all about it and assumed all risks of danger incident to its use, the company was responsible.

And it seemed t'o us that the jury were not sufficiently instructed as to the allegations of negligence, by saying, ‘£ I refer you to the petition to determine what the allegations of negligence are and how to deal with them, under some general propositions that apply to the relation of master and servant.”

Upon this subject of the 'overwork the attention of the court was called to it by requests, which were refused — the eleventh and fourteenth requests. The fourteenth .reads:

“If the plaintiff, a/t the time of the injury, was in a sleepy or exhausted condition, that fact will not relieve him from the exercise of ordinary care and prudence while using a machine dangerous to operate, and such care and prudence must have been commensurate with the obvious or apparent danger to be apprehended from using the machine in question for the purpose for which he did use it; nor will such sleepy condition excuse him from failing to take reasonable precautions for his own safety while washing his hands at said washer.”

We think that charge should have been given. Whether his . sleepy and exhausted condition enhanced the responsibility of the company in taking care of him, it did not excuse him from the exercise of ordinary care. It is barely possible that the charge covered this in a general way, that the defendant in error must be without contributory negligence himself, use all reasonable care to take care of himself, but on the effect of the particular condition he was in, nothing was said. We think the charge failed to get before the jury definitely the negligence charged in the petition, which could, under the facts of this ease, have been made the foundation of a recovery.

Upon another subject the court charged the jury in these words:

‘ ‘ It -is alleged in the petition, and evidence has been offered to you tending to show, that the plaintiff, at the time, or just before he received this injury, was ordered and directed by the foreman, Mr. Wheeler, to go to this washer and wash his hands, and that in obedience to said order and command he went to the machine called a washer, and while so engaged his hand was drawn in between the rollers and crushed. On that subject the rule of law is this: That one who, as a servant, does that in his employment which he is ordered to do by his master, and is injured by the culpable negligence of the latter, is not deprived of a right to recover for the injury by the fact that it was apparently dangerous, if a person of ordinary prudence would, under the circumstances, have obeyed the order, provided he used ordinary care in obeying it.”

A correct rule of law in a proper case. But the trial court applied to the facts of this ease the proposition that is stated in Van Duzen G. & E. Co. v. Schelies, 61 Ohio St., 298. This case is sometimes erroneously treated as stating an entirely new proposition recently discovered in fixing the relation between master and servant, and the tendency is to apply it indiscriminately to all kinds and classes of negligence cases in suits by the employe against the employer.

The rule stated in that case has no application whatever to a transaction in which the employe is ordered to work in a place of danger, the risk of which he assumed in entering into his employment. It certainly is not negligence of the master to require or order the' employe to work upon machinery, or in a place of danger, the dangers of which he assumed in his contract of employment. In such a case the servant, not the master, continues to take the risk of the danger. Now, in that ease, on page 311, the court, in the opinion, says:

“At the time the injury occurred, he (that is, the complainant) was in the employ of the defendant as a ‘vise-hand,’ and had been called by the foreman to assist in the adjustment of a portable gasoline engine with pump and circular saw attached. The saw was in motion at the time and not properly protected; and he was ordered to adjust the shafting of the pump, which was close and next to the saw. He suggested that it was not safe to do so without stopping the 'saw. The foreman peremptorily renewed the order; he obeyed, his clothing was caught by the saw and he was seriously injured.”

As we understand it, as to the ordinary usual risks in the business in which the employe is engaged, there being nothing-unusual, nothing out of-the ordinary line, the rule there stated as to the orders of the master has no application; but if in the transaction between the master and the servant, either by what was said between them, or what was done between them, the fair inference is to be drawn that the master in that particular matter, and as to that particular act, assumed the risk of doing that thing, then he alone stands responsible and the employe is relieved, but it must relate to something out of the risk which the employe assumed in the natur'e of his employment..

An employe working at a machine dangerous in some respects, assumes the risk; and if he continues to work without any notification to the master, upon that machine when out of repair, he still would take the risk of its danger, b.ut if he calls the attention of his employer to the defects and is promised a repair and continues, then the fair inference between them is that the servant is relieved for the time being from the assumption of risk for which he otherwise would be responsible.

Grant & Sieber, for plaintiff in error.

E. F. Voris and Rogers, Rowley & Bradley, contra.

Now, in this particular case it is shown beyond any controversy that this washer was of the usual kind used and proper in a manufactory of this kind, adapted to the purposes for which it was to be used, was in good repair; that the employe had full knowledge of all its construction and its parts. It required no skill to ascertain, apprehend and appreciate the dangers connected with it; he had washed at this very washer in this way, as the proof shows, many times, and we are constrained to say that he assumed, in this particular case, the risk and dangers connected with that employment and working about that machinery.

Again, in this particular ease, the order that is shown in this proof was no more than a simple direction, if it existed at all, to this employe to go about the work in the usual way. It was a long time before he could be got to say, while on the stand, that the order was to him to wash at this particular washer. In our judgment nothing more took place here than a simple direction in the usual and ordinary course of doing that business; nothing to relieve the employe from the responsibility he assumed under his employment; and that the charge that I have read had no application whatever to the facts of this particular case.

The result of our investigation is that we hold that the charge of the court was misleading, and, therefore, erroneous; that the particular proposition of the charge that I have quoted as applicable to the ease was erroneous; that the court erred in overruling the motion for a new trial because of the fact that the verdict is not sustained by sufficient evidence, and the judgment is reversed and case remanded to the court of common pleas for a new trial.