text:
    PRIORITY OF LIENS — FOREIGN DEEDS OF ASSIGNMENT.
    [Circuit Court of Monroe County.]
    The Keystone Bank of Pittsburgh v. Union Oil Company et al.
    Decided, April Term, 1903.

      Lien of a Foreign Deed of Assignment Prior to an Unrecorded Transfer of Interest in Oil Leasehold — Power of Majority of Stockholders of Corporation to Make Deed of Assignment — Distribution of Fund in What Forum.

    1. A deed of assignment duly executed under the laws of the state of Pennsylvania by a corporation of that state, conveying all its real and personal property to a trustee for the benefit of all its creditors and duly recorded in this state, is a prior lien upon the working interest of the corporation in oil wells, property, and production, situated upon and arising out of an oil leasehold within this state, to that of prior transfer made in writing by the corporation to parties within that state to secure an existing indebtedness of the grantor and not left for record until after the record of the deed of assignment; the creditor holding such transfer not being in the actual and open possession of such leasehold at the time of the execution and recording of such deed of assignment.
    2. The stockholders of an insolvent corporation at a meeting regularly called for that purpose, may authorize and direct the transfer of all its property to a trustee for the benefit of all its creditors, when at such meeting a large majority of its stock is represented; and an assignment made in pursuance of such authority and direction will be upheld, the minority stockholders having full opportunity to do so, making no objection thereto.
    3. In an action for the sale of property situated within this state, conveyed by a deed of assignment for the benefit of creditors made in a foreign state, for the marshalling of liens, and for the distribution of the proceeds of sale, in which action the assignee is a party and a receiver is appointed who makes sale of the property, the fund arising from such sale will not be delivered to the assignee appointed in the foreign state, but the receiver will be directed to disburse the same.
    Cook, J.; Laubie, J., and Burrows, J., concur.
    Appeal from Common Pleas Court of Monroe County.
   Tbe plaintiff, The Keystone Bank of Pittsburgh, is a corporation located at Pittsburgh, state of Pennsylvania, and the defendant, The Union Oil Company, is a corporation with its principal office in the same city.

The Union Oil Company was the owner of an oil and gas lease upon the premises of J. W. Martin, situated in Washington township, this county, and had drilled and was operating a number of oil wells upon such leasehold. Its working interest was three-fourths of the oil, Martin receiving the other one-fourth as royalty.

On August 27, 1900, the oil company had become indebted to the Keystone Bank for money loaned it, in drilling and running its wells, in the sum of $15,000 — twenty-five hundred dollars of said amount being advanced on that date; and it was then agreed between the bank and the oil company, that its line of credit should be further extended to the sum of $20,000, the oil company to transfer to it as security its interest in the leasehold premises, the following memorandum of agreement being entered into:

“Pittsburgh, Pennsylvania, August 27th, 1900.
“To the Buckeye Pipe Line Company, Macksburg Division.
“We have this day sold 3-4 W. I. Wells Nos. 1 and up on J. W. Martin farm, Washington township, Monroe county, state of Ohio, as below:
“3-4 interest Keystone Bank No. 13 account, Pittsburgh, Pa. You will therefore transfer their credit on your books. Pipe Line Tanks Nos. 10227-10228.
“Union Oil Company,
“S. B. Forst, President.
“The assignee above named hereby certifies and agrees that it is the legal owner of the well interest above transferred, and authorize the Buckeye Pipe Line Company, until further notice, to receive oil for transportation and storage pursuant to above transfer. * * *
“Keystone Bank,
“W. H. Nimick, Vice-President.”

On the 17th day of October, 1900, The Union Oil Company having become insolvent, at Pittsburgh, Pennsylvania, made a general deed of assignment to Morris Forst, its vice-president and secretary, of all its property for the benefit of all its creditors. This deed of assignment was duly executed under all the formalities necessary in the state of Pennsylvania to convey real or personal property; it was delivered to the trustee, Morris Forst, and by him left for record with the recorder of this county on the 20th of October, 1900, and was duly recorded in the record of deeds in his office. This deed is in the ordinary form of deeds of assignment generally used in this state, and provides that the trustee shall reduce all the property to money, and after payment of costs and expenses, divide the residue equally among all the creditors of the oil company.

After the execution and record of the deed of assignment, the trustee, Morris Forst, was removed by the Common Pleas Court of Allegheny County, Pennsylvania, for his failure to give bond as required by the laws of that state, and The Equitable Trust Company of Pittsburgh was appointed in his place.

The evidence, we think, clearly shows that no possession was taken by the Keystone Bank of the property in this county. Morris Frost still continued to operate the property after the execution of the memorandum of agreement, as he had done before, and he testifies that after he was appointed trustee in the deed of assignment, he held the property as such trustee until it was turned over to his successor, The Equiable Trust Company, and there is nothing to contradict his testimony.

On June 6, 1901, the Keystone Bank left the memorandum of agreement transferring the leasehold interest of The Union Oil Company to it with the recorder of this county, when it was duly recorded by such recorder, and the bank immediately commenced this action in the common pleas court of this county against The Union Oil Company, The Equitable Trust Company, as assignee of The Union Oil Company, and others, for the purpose of determining the rights of the parties in the property in controversy. In this action a receiver was appointed, and by consent of all parties the property was sold; the money brought into the common pleas court, and the question that is made is as to the manner of its distribution.

The claim of the Keysone Bank is, that the transfer to it by The Union Oil Company by the memorandum of agreement, created an equitable lien upon the property, and further, that The Equitable Trust Company as assignee holds the property under the insolvent layra of the state of Pennsylvania primarily for the benefit of the assignor, and therefore it is estopped from setting up any claim against the equity of the bank, or at least under these circumstances, the equity of the bank is preferable and prior to the equity of the trust company as such assignee.

Many authorities have been referred to in the exhaustive arguments and briefs of counsel for plaintiff, for the purpose of demonstrating that under the law of Pennsylvania the memorandum of agreement between the bank and oil company created an equity in favor of the plaintiff, that it was an equitable assignment of the property from the oil company to the bank; but the question to be determined, as we view it is, not what the law of Pennsylvania makes it, but what is its legal effect under the laws of the state of Ohio. The property is situated in this state, and under our law oil and gas are a part of the realty, and special provision has been made by statute for the manner of its sale and transfer by deed or lease.

This agreement on its face purports to be, and the transaction shows, that it was a transfer of the leasehold estate of the oil company to the bank, for the purpose of securing it for money already advanced and to be advanced.- It says, “We have this day sold three-fourths working interest, wells number one and up on J. W. Martin farm, Washington township, Monroe county, state of Ohio.” In the amended petition filed by the bank and upon which petition the case was- tried it avers: ‘ ‘ That in the execution and delivery of the transfer, plaintiff and the said Union Oil Company believed that the same was a sufficient transfer to plaintiff of said wells, property and production, and vested in plaintiff a good and indefeasable title thereto; that it was then the intention of the said Union Oil Company to transfer to plaintiff by said written agreement, all its right, title and interest in said property to be held by plaintiff as security for said loan of $15,000, and accepted the written agreement aforesaid.”

Section 4112a of Revised Statutes provides:

“That all leases and licenses and assignments thereof, or of any interest therein heretofore executed, given or made for, upon or concerning any lands or tenements in this state whereby any right is given or granted to operate, or to sink or drill wells thereon for natural gas and petroleum, or either or pertaining thereto, shall be recorded in the lease record in the office of the recorder of the proper county by the first day of September, 1888, and all such leases, licenses, and assignments hereafter executed given or made shall be filed for record as aforesaid forthwith, and recorded in said lease record without delay, and shall not be removed until recorded, and no such lease or license hereafter executed or given, or unless the person claiming thereunder is in actual and open possession, shall have any force or validity until the same is filed for record as aforesaid except as between the parties thereto. ’ ’

The remainder of the section provides for actions to cancel oil and gas leases and licenses, and provides that no person shall be necessary parties to such action or to any action involving the same except such as are shown by the lease record to have an interest in the lease, or license, or such as are in the actual and open possession of the premises.

We think this section is controlling as to the legal effect to be given to the agreement between the plaintiff bank and the defendant oil company, and that this agreement had no effect whatever as to third parties until it was filed for record with the recorder of this county.

But if we were in error about the agreement between the parties being controlled by this section of the statute, certainly it would be controlled by the provisions of the statute of this state respecting mortgages of real estate and personal property, as the transfer was made as a security, and therefore, under the decision of our Supreme Court, would be a mortgage, and being a mortgage would have no validity until it was duly executed and left for record with the proper officer. Van Thorniley v. Peters et al, 26 O. S., 471, and eases therein cited.

This brings us to the consideration of the question as to the legal effect of the deed of assignment made by The Union Oil Company to Morris Forst.

A large amount of evidence has been introduced for the purpose of showing what the law of the state of Pennsylvania is respecting deeds of assignment under the insolvent laws of that state, and the evidence shows from the decisions of the supreme and other courts and the testimony of competent attorneys learned in the law, that under the insolvent laws of that state the assignee primarily represents the assignor; indeed stands in the place and stead of the assignor, and it is contended with much force that therefore the assignee can not contest the claim of the plaintiff, and that under Section 4112a the assignee comes under the exception, “except as between the parties thereto.”

As we view the case it is a matter of no importance what the law of Pennsylvania is respecting the mode of administering insolvent estates under deeds of assignment for the benefit of creditors. Our courts take no cognizance of the insolvent laws of other states in administering assignments. Assignments made within our own jurisdiction are only administered by our own courts as courts of insolvency. Johnson v. Sharp, 31st Ohio State Rep., 611, and cases therein cited.

At the same time such deeds will be given full force and effect when properly executed, and, when necessary, recorded in accordance with our registry laws, as conveyance of property, and a court of equity in this state will enforce the trust created in the deed when the same is not in conflict with the law and policy of the state as to distribution of the property. Johnson v. Sharp, supra; Pendleton v. Galloway and others, 9 Ohio Rep., 178; Wright et al v. Franklin Bank et al, 59 O. S. Rep., 80.

Under our law such deeds are ordinary deeds in fee simple to a trustee upon an express trust, and as to property situated in this state will be treated and enforced as such in accordance with the laws of this state. Cases supra.

The case of Wright et al v. Franklin Bank et al, supra, is very much like the case under consideration. T. B. Youtsey, of Newport, Kentucky, assigned and transferred his interest in the Hyde Park Syndicate property in Hamilton county, Ohio, to James C. Wright to secure the payment of certain promissory notes. The transfer was made by a simple memorandum to that effect signed by him and of date January 16, 1895. It was neither acknowledged nor recorded. January 21, 1897, T. B. Youtsey, still being a resident of Newport, Kentucky, executed a deed of assignment for the benefit of his creditors to C. N. Nagle of same city. This deed of assignment was left for record with the recorder of Hamilton county, Ohio, January 22, 1897, and duly recorded, and the controversy was between Wright and Nagle, assignee, as to who held the prior lien and claim upon the interest of Youtsey in the Hyde Park Syndicate property.

In deciding the case the court conceded that the body of the writing of January 16, 1895, signed by Youtsey, was sufficient in form to create a lien upon his interest in the syndicate property in favor of Wright, but the court says on page 93 “that the statutes of this state require all instruments in the nature of a mortgage, either legal or equitable, to be signed, acknowledged, witnessed and recorded; and until so signed, acknowledged, witnessed and delivered for record, the same are without effect as .to third persons.”

And then on page 95 as to the deed of assignment:

“The deed of assignment was executed and delivered in the state of Kentucky, where all the parties resided, and' conveyed property in Hamilton county in this state. Such a deed could not be filed with the probate judge and take effect from the time of its delivery to him as required by Section 6335, Revised Statutes. The deed in this ease was in due form and took effect from the time of its delivery to the assignee. Johnson v. Sharp, 31 O. S., 611.”

The court then finds that the Circuit Court was right in holding and adjudging that Nagle, assignee, had the superior lien.

Another question is made, and that is, that the deed of assignment is not a legal one. This claim is based upon the fact that all the stockholders were not present either in person or by proxy at the meeting at which the deed of assignment was directed to be executed. It is true that the deed purports to convey all the property of every character and description of which the Union Oil Company was possessed, and that as a general rule all the property of a corporation can only be conveyed by the assent of all the stockholders. But there are exceptions to this rule.

In the 7th volume of the American & English Encyclopedia, page 735, it is said:

“Some courts hold that a majority of the stockholders of a strictly private corporation may thus sell and convey all of its property even against the dissent of the minority, when the exigencies of its business renders it necessary or expedient to do so.”

The text is supported by a number of eases from different states, especially from Massachusetts.

The business of The Union Oil Company had failed and it had become insolvent. Under such circumstances the corporation should hold its property for the benefit of all its creditors; justice required it should do so. It did only what a court of equity would have compelled it to do upon proper application— distribute its property equally. Furthermore there were but thirty-five shares of stock out of five hundred that were not represented at the meeting. The holders of these thirty-five shares never have objected and are not now objecting to the execution of the deed, although they have had ample opportunity to do so. No one connected with the corporation is objecting; the objection alone comes from the plaintiff who claims the prior lien against the general creditors, who are numerous. Every intendment should be in favor of the validity of the deed, which makes an equal distribution of the property. We are not informed as to what the law of the state of Pennsylvania is respecting the transfer of property by a corporation, and therefore we are at liberty to apply the law of our own state, and we do not think that the law of this state requires, under all circumstances, all the stockholders of a corporation to consent before it can convey all its property. Stetson v. Bank of New Orleans, 12 O. S., 577; Wiswell v. The First Congregational Church, 14 O. S., 31; Rolling Stock Company v. Railroad Company, 34 O. S., 450; Revised Statutes, 5651, etc.

One other question is made, and that is, who should control the fund? The Equitable Trust Company situated at Pittsburgh, Pennsylvania, the assignee appointed by the court of that state, insists that it should be turned over to it, while the receiver appointed by the common pleas court of this county, as well as a number of creditors of the oil compay from this state and also of Pennsylvania, insist that the receiver should control and disburse it, as it will be attended by much less expense. We see no reason to remove the fund from our own courts. It is doubtful if The Equitable Trust Company has any standing in the ease; as we have seen the deed has no effect under the insolvent laws of Pennsylvania. Probably a trustee should have been appointed by the lower court in this action. AVaiving that, it has no legal, right to remove the fund to another jurisdiction; but as it has been to expense in the litigation it should be reimbursed out of the fund for all such expenses, including reasonable counsel fees.

Mattery & Sears, for plaintiff.

Hamilton & Mats, Lynch & Moore and Boyce, for defendants.

It is ordered and adjudged that the receiver—

First. Pay the costs of the action, including expenses and reasonable counsel fees, to The Equitable Trust Company.

Second. He pay the mechanics’ liens, which are conceded to be a prior lien.

Third. He disti’ibute the residue of the fund to the creditors generally of The Union Oil Company, including the claim of the Keystone Bank, and if there is any surplus after paying the creditors, it be paid over to the Union Oil Company.

Cause is remanded to common pleas court for execution,

If there is any difficulty in arriving at the amounts to be paid each party, which is hardly probable, that court can determine the question.


source: Caselaw Access Project

license: Public Domain

text:
    DELAY IN APPEARING BEFORE A JUSTICE OF THE PEACE.
    [Circuit Court of Wood County.]
    John W. Brownsberger v. The Cincinnati, Hamilton & Dayton Railroad Company.
    Decided, April 25, 1903.

      Justice of the Peace — Margin of One Sour for Appearing Before— Sot Available to a Defendant, When.

    When a case is called before a justice of the peace and a jury is ' impanneled, it is the duty of the defendant to be there at the time appointed, or if the case is adjourned he should be present at the time to which it is adjourned, and there is no authority upon which a defendant may demand a postponement of the case for one hour after the time to which it is first adjourned.
    Haynes, J. (orally); Parker, J., and Hull, J., concur.
    Error to the Court of Common Pleas of Wood County, Ohio.
   This is a petition in error, the main question, and the only one perhaps, being as to the right and claim of the defendant in error, the railroad company, that its attorneys had a right of one hour to appear when a ease was adjourned.

The facts are that Brownsberger had a claim some two years old against the railroad company, and it not being adjusted he brought it to a suit before a justice of the peace in Weston township, this county. The suit was commenced and service was made upon the agent of the Cincinnati, Hamilton & Dayton Railroad Company at Weston, although the return is not in fact correct.

At 9 o’clock on the return day the agent of the railroad company at Weston appeared with a telegram from the general counsel of the railroad company asking that the ease might be postponed until he would have time to look into it, and this the justice declined to do. The agent was there, and remained there. The plaintiff then demanded a jury trial. The amount sued for was $17.93, which with the interest would amount, as we figure it, to a little over twenty dollars — principal and interest. When the plaintiff’s attorney demanded a jury the justice issued a venire and asked the agent of the railroad company to strike off the jurors; he declined to have anything to do with the matter, and thereupon the justice struck off for the company and a jury was impanneled. The case was postponed until 1:30 that afternoon, and at 1:30 o ’clock the jury was called, and the case proceeded to trial, and at 1:40 o ’clock the case had been heard, a verdict returned and judgment rendered. Soon after that, or about that time, there appeared before the court Mr. Watts, as attorney for the railroad company, and he promptly filed a motion to set the judgment aside, and allow him to come in and have a trial; the court refused that and entered the judgment, and a bill of exceptions was taken and the case was brought to the court of common pleas, and the court of common pleas reversed the judgment of the justice on the ground that the defendant railroad company was entitled at 1:30 o ’clock to an hour within which to appear; that is, to say, they could not go to trial before 2:30 o ’clock p. m., and to reverse the judgment of the court of common pleas a petition in error is filed by Brownsberger. The statute bearing upon this subject is 6482, which is as follows:

1 ‘ The parties are entitled to one hour in which to appear after the time mentioned in the summons for appearance, but are not bound to remain longer than that time, unless both parties have appeared, and the justice being present, is engaged in the trial of another cause; in such ease the justice may postpone the time of appearance until the close of such trial.”

It will be seen from that section that each party has a right to an hour within which to appear. Section 6547 provides that either party may demand a jury, and how it shall be composed; and Section 6548 provides:

“When a jury is demanded, the trial of a cause must be adjourned until a time fixed for the return of the jury; if neither party desires an adjournment, the time must be determined by the justice, and must be on the same day or within the next two days; the jury must be immediately selected as herein provided.”

Section 6576 provides that the action may be dismissed by plaintiff:

“When he fails to appear at the time specified in the summons, or upon adjournment, or within one hour thereafter.”

G. P. Thompson, for plaintiff in error.

A. V. Watts, for defendant in error.

It will be seen that nothing is said in that section about the right of ‘the defendant to have an hour to appear. Now so far as that point is concerned, we are unable to find any statute that authorizes a defendant to demand that there shall be a postponement of the ease for one hour after the time to which it is first adjourned. If the case is called and the jury is impanneled, it is the duty of the defendant to be there at the time appointed, or if the case is adjourned, he should be there at the time to which it is adjourned. For some reason the statute allows the plaintiff to have one hour before judgment can be entered against him dismissing the ease without prejudice, if he fail to appear.

It looked rather upon the face of the petition as if there had been some attempt to hurry the case through and deprive the defendant of its right to be present, but upon a full examination of the record we have concluded that is only seeming; the justice followed the statutes in the case; the claim was an old one — two years old; suit was brought, returnable at 9 o’clock a. m. on the day of trial, and the application of the general counsel of the railroad company was for an indefinite postponement. A demand was made for a jury; the jury was struck in accordance with the statute, no one appearing for the railroad company and the agent refusing to strike the jury, the justice did so as provided by statute, and the case went to trial. The statute provides that the case should be heard the same day or at least within forty-eight hours; it-being contemplated, it seems to us, as though it was to be a continuous matter. The application to set aside that judgment by the defendant is not in accordance with the statute; it gives no reason for non-appearance, neither does it make any offer to confess any judgment or to pay costs.

We are of the opinion that there is no error in the case, nothing to call for the intervention of the court of common pleas; we, therefore, will reverse the judgment of the court of common pleas, and affirm the judgment of the justice and order that a certificate be sent to the justice’s court certifying the fact of this affirmance.


text:
    NEGLIGENT RUNNING OF AN ELECTRIC CAR.
    [Circuit Court of Lucas County.]
    Toledo, Fremont & Norwalk Railway Co. v. David Gilbert.
    Decided, July 1, 1902.

      negligence — Electric Gar Runs Rapidly Into Darkness■ — And Strikes a Wagon• — Driver of the Wagon Exonerated — Charge of the Court— What the Record Must Show as to Requests for Instructions Before Argument — Instructions Given After Argument.

      1. A refusal of the court to give instructions to the jury before argument does not constitute error, unless it affirmatively appear from .the record that the requests for instructions were written requests.
    2. Treating such requests as having been made after argument, the action of the court in refusing them can not be complained of where they are substantially covered in the general charge.
    S. It is negligence for a motorman to run his car into a place where his view is obscured without having the car under control.
    4. Where one driving on a street railway track in the middle of the street looks behind him twice for the approach of a car within a comparatively short distance, and sees no car approaching, and then, while his attention is upon a steam railroad crossing just ahead, a car comes up behind and collides with his wagon, he will not be held to have been guilty of contributory negligence.
    Hull, J.; Haynes, J., and Parker, J., concur.
    Heard on error.
   The defendant in error brought this action in the court of common pleas to recover for injuries which he sustained by being struck by a street ear on the track of the plaintiff in error (defendant below), claiming that the street car company was negligent in the manner of running a car and in not seeing him on the track, and that his injuries were due to the negligence of the street railway company. He asked damages in the amount of $175, and was awarded by verdict of a jury the full amount of his claim. A motion for a new trial was overruled, and the court rendered judgment against the plaintiff in error,-and it is to reverse that judgment that this proceeding in error is brought.

Various errors are complained of by the plaintiff in error, upon the trial of the case. In the admission and exclusion of evidence, in the general charge of the court as given, and the instructions which were given at the request of the plaintiff below, and to the refusal of the court to give the requests of defendant below; and further, it is claimed that the verdict was not sustained by sufficient evidence; is contrary to the weight of the evidence, and that, therefore, the judgment of the court is contrary to law.

The accident occurred on Woodville street in East Toledo, Ohio. Plaintiff was driving on the track at a point near the Wheeling & Lake Erie Railroad Company’s tracks. He was riding on a hay rack, and the car struck his wagon and practically demolished it; the horses were thrown to one side of the track and sustained some injury, and Gilbert jumped to the other side and sustained some injury. Gilbert claims that the car was running at a dangerous and negligent rate of speed at the time; that the_ motorman was negligent in not seeing him and in not stopping or slacking the ear before it struck him, so that he might have had time to get off the track.

The railroad company denies all negligence on its part and claims that whatever injuries Gilbert sustained were due to his own-negligence. There were some exceptions taken during the trial of the case to the exclusion of evidence offered by the defendant below. The defendant below sought to show by the motorman that when he saw Gilbert on the track he supposed he was going to get off. He was asked this question, page 70:

“Now, when you first saw this man turn on the track, what impression did it make on you — what with reference to what he was going to do or was doing?”

An objection to this question was sustained and exceptions taken and the exclusion of this testimony ig one of the errors alleged. In this connection, it may be well to state just about what the surroundings were. At the time of the accident the car was starting on its trip to Fremont, and it came on to Woodville street from East Broadway some 1,500 feet from the Wheeling & Lake Erie railroad track; and about 1,100 feet from where the ear come on to Woodville street from East Broadway, there was an electric light standing in the street. The ear had a headlight upon it, and the motorman testified that, on account of the glare of the electric light and the glare of his headlight, he was unable to see beyond the electric light in the direction of the Wlieeling & Lake Erie railroad crossing, and that he did not see Gilbert on the track with his hay rack until the car was under the electric light and Gilbert was then 150 to 200 feet off, and he says that as soon as he saw him he rang the gong and Gilbert turned his horses off, but did not get off the track, and the car struck the wagon within a very short space of time thereafter. Now the motorman was asked on page 67 of the record, this question:

“What was the party who had the wagon doing, if anything, at the time?”

And he answered:

• “When I first discovered the wagon and started under the light and began to ring the gong hard I noticed the team turn a little to the side, and I supposed that he was going to get out of the way. I kept ringing the gong, ’ ’ etc.

So it will be seen that the witness had already been asked and answered this question, in substance, which was excluded by the court, and which he was not then permitted to answer, and there was no error in the court’s refusal to permit the question and answer to be repeated. On page 69 he was asked whether, in his judgment, Gilbert had time to get off the track. Objection to this was sustained and exception taken. We think it very doubtful whether that question was proper; that was a question for the jury — as to whether he had time to get off the track — under all the circumstances as appeared from the evidence. But he had already answered that question. He says, in his answer to a question which had been put to him before that, page 69 :

“I will ask you to state as to whether or not from the time you rang the gong and discovered that team and wagon on the track — whether they had time to leave before you got down to where he was? A. Yes, sir; they had plenty of time.”

So that there was no error in the court’s refusing to permit that to be repeated; it had been asked once and answered, and that was sufficient at all events.

At the conclusion of the evidence there were certain requests to charges made by the plaintiff, and others made by the defendant. The record shows this: “Thereupon, and before the argument, the plaintiff, by his counsel, requested the court to give to the jury before argument, among other requests, the following, to-wit;” and then follow two requests, made by the plaintiff, and which were given. To that exception was taken. Those I will discuss a little farther along. Then this follows in the record: “And the defendant likewise submitted to the court certain requests which it asked to be given to the jury before argument, as follows, to-wit;” and then follow certain requests to charge made by the defendant, some of which were given and some refused, and exception to the refusal was taken in this language: ‘ ‘ Thereupon the defendant, by its counsel, excepted to the refusal of the court to give to the jury in charge defendant’s request numbered four; and defendant likewise excepted to the refusal of the court to give in charge defendant’s request numbered six; and defendant likewise excepted to the refusal of the court to give to the jury in charge defendant’s request numbered seven, all as above set forth.” Error is claimed here on account of the refusal of the court to give these requests of the defendant below. These requests, it appears by the record, were made before argument, as the language of the record is as I have read: “And the defendant likewise submitted to the court certain requests and which it asked to be given to the jury before argument, as follows, to-wit.” They were made under paragraph five of Section 5190, Revised Statutes, which gives to counsel this additional right (which was not had before) to submit instructions in writing before argument, and have them given to the jury before argument. It reads as follows:

“When the evidence is concluded, either party may present written instructions to the court on matters of law, and request the same to be given to the jury, which instructions shall be given or refused by the court before the argument to the jury is commenced.”

To constitute error in the action of the court under this provision, however, the record must show affirmatively that the provisions of the statute were complied with. As is said by the Supreme Court in the case of Monroeville v. Root, 54 Ohio St., 523:

“Section 5190, Revised Statutes, as amended March 3, 1892 (89 O. L., 60), confers upon parties the right to have such correct written instructions as may be requested given to the jury before the argument.
“To constitute error under this provision of the statute, the record must affirmatively show that the court was requested to give such instructions before the argument, and that its refusal to do so was the subject of an exception.”

In this case decided by the Supreme Court the record did not show affirmatively that it was requested that the instructions be given before argument. The language of the statute being that “either party may present written instructions to the court on matters of law, and request the sme to be given to the jury, which instructions shall be given or refused by the court before the argument to the jury is commenced.” The Supreme Court say, in the opinion, on pages 527, 528:

“But, notwithstanding this provision of the statute, it must frequently, if not usually, be a matter of indifference to counsel whether the requested instructions precede or follow the argument. And it will still be proper for counsel to present their requests to the court before argument, even if they are willing that they should be given after it. The record submitted to the circuit court did not show that this was not a case of that character. It does show that the propositions were submitted to the trial judge before the argument, and that there was a request that they be given to the jury. But it does not appear that it was desired that they be given before the argument. Nor does the exception show that it was taken to a refusal to give the instruction before the argument. It can not be inferred from this record that the attention of the trial judge was in any way called to the right conferred by the amended statute. There was, therefore, no case for a reversal upon the ground stated by the circuit, court. ’ ’

And the circuit court was reversed. This record before us does not show that these instructions that were requested of the court were written instructions; it simply shows that the’ defendant submitted to the court certain requests which they asked to be given to the jury before- argument, and shows that the court gave some of the instructions. It does show that the court read those which were given, and if there could be any inference at all it might be inferred that those were committed to writing, or printed, by some one, but by whom it does not appear. And as to those which were refused, the records shows nothing, and for aught that appears in the record, the requests, as is often the case after argument, may have been the oral requests of counsel, and not made in writing. To constitute error in the action of the court in this respect, the record must show affirmatively that the requests for instructions were written requests, which the statute clearly contemplates the court shall have opportunity to examine and deliberate upon, if it desires, before they are given to the jury or refused.

This record does not show that the exceptions* were taken, as suggested by the Supreme Court in this case to which I have referred, to the refusal of the court to give the requests before argument. The record states: “Thereupon the defendants by its counsel excepted to the refusal of the court to give to the jury in charge defendant’s request number four,” etc. But it is sufficient to say that the record does not show, affirmatively, that these were written instructions; that they had been prepared by counsel in writing before they were requested of the court; and if these requests which were refused were covered by the general charge, no error can be predicated upon the action of the court in refusing to give these requests before argument, for in case of requests made after argument, and refused by the court, if they are substantially given in the general charge, the party can not complain, as was held by the Supreme Court in the case of Schweinfurth v. Railway Co., 60 Ohio St., 215, where the court say:

“It is error to reverse a judgment for the refusal to give an instruction requested by a party, the substance of which is contained in the charge given, or one that contains an inaccurate statement of the law, or assumes the existence of a material fact in dispute.”

So if the substance of the request is given in the general charge, where the request is made after argument, it is not error to refuse the request; in other words, the court is not bound to give the instruction in the exact language requested by counsel, if it is given in substance in the general charge. And on examination of the general charge in this case we think that these requests, so far as they were proper and the defendant below was entitled to have them given, were given by the court in the general charge, and these requests are to be considered the same as though there were not requests asked to be given before argument, but as though they had been requested after argument.

We, therefore, find that the record does not show any error in the action of the court in refusing these requests. It is not necessary to discuss the requests in detail, but we hold that they were substantially covered, insofar as they were proper, by the general charge of the court.

The defendant below excepted to the giving of two instructions that were given at the request of plaintiff below. Request No. 1 was as follows:

“Woodville street in the city of Toledo was originally laid out and established for the use of pedestrians and vehicles; and this use has not been taken away because electric cars have been permitted to run along and over the same. The use of streets for railways is allowed only because it is considered not to be a substantial interference with their free and unobstructed use as highways. ’ ’

This portion of the instruction is based practically upon the decision of the Supreme Court in the case of Cincinnati St. Ry. Co. v. Snell, 54 Ohio St., 197, and some of the language contained is perhaps taken from the words of the opinion in that case. No serious objection is made to that part of the request, but the following paragraph is objected to:

“It was, therefore, not negligence on the part of the plaintiff to drive in the center of this street, and along the track of the defendant, but in so doing, plaintiff must have exercised the care that would be exercised by an ordinary prudent man under the same or similar circumstances. ’ ’

The particular language objected to is this:

“But in so doing, plaintiff must have exercised the care that would be exercised by an ordinarily prudent man,” etc.

Defendant’s counsel argue that the use of the words “must have exercised the care,” was improper and erroneous; that it amounted to charging the jury that the plaintiff below did exercise such care when the court stated to the jury that he must have exercised such care. It does not seem to us, considering those words in connection with all the court said in this paragraph, that they would bear that construction, but that they meant to the jury simply that the plaintiff should exercise care, or ought to exercise care. If the word must is used at all, it is •difficult to see how any expression could 'have been used different from that which the court did use. He could not have said that the plaintiff must exercise, for that would have been the present, or the future, and this related to the past. ■ This instruction, “but in so doing plaintiff must have exercised the •care,” etc., we think the jury must have understood to mean simply that it was the duty of the plaintiff to exercise ordinary care, and there was no error in the court giving this instruction as written.

Request No. 2 was given, and it was also expected to. We are of the opinion that this instruction, as a general proposition of law, is too broad and goes too far in laying down the duty of the railroad company to observe and look out for persons upon the track and to slacken its cars when the motormen observe them upon the track; that it goes further than the company should be required to go and imposes more on the railroad company than the law requires. The instruction might be construed to mean that whenever a motorman saw a man on the track, however far he was away, it was his duty to at once get his ear under control and slacken its speed so that he might stop it in ease the man did not get off the track. This, it seems to us, leaves out the doctrine of ordinary care and the presumption that the motorman might have that the man would get off the track in time to avoid injury, so as a proposition of law, relating to a case where a man had been seen for some distance ahead of the ear on the track, when he might be presumed to get off in time, we think this instruction goes too far; but we are to consider whether it was error to give it under the facts of this case.

The negligence in this case,-if there was any negligence, consisted in allowing the car to run at a negligent rate of speed before the car reached the electric light. According to the testimony, there was at this place in the street quite a steep grade and the electric light stood at the brow of the hill in the road. The motorman testifies that he could not see beyond the electric light, on the night in question, on account of its glare and the glare of the headlight, and when he did see the plaintiff that he was within from 150 to 200 feet of him. The testimony shows that this ear was running at quite a high rate of speed, just how many miles an hour it was running; of course, can not be exactly determined. Gilbert testifies that it looked to him as though it was going at least forty miles an hour, and almost immediately after he saw it it struck his wagon. The conductor and motorman thought it was not going over eight or ten miles an hour; but it is clear that it was going at a high rate of speed; that it was going so fast that after the motorman discovered Gilbert upon the track, as he himself testifies, he was unable to stop the car before it struck Gilbert’s wagon, the ear being on the grade, and there being snow on the ground at the time and the track slippery. And the negligence of the company consisted in the motorman’s running the car at such a high rate of speed before he reached the electric light and at such a speed down the. grade in the street into the darkness, or what to him was darkness, where he could not see any object until he reached the electric light. We are of the opinion that ordinary care required him, running his car upon the hill in the middle of the street as this was, to have his car under such control and to be running it at such a rate of speed that in case he discovered a man on the track in the vicinity of the electric light, he would be able to stop the car. He knew this was a highway and knew it was being used for travel and was in the city of Toledo, and that there was. liable to be on the other side of the electric light some one on this track, and it turned out that there was, and he was bound to run his car with this state of facts in mind, to run it according to the ■ circumstances that existed there. He was not permitted to run his car as though no one had the right to use the track except the railroad company, as laid down by the Supreme Court in Cincinnati St. Ry. Co. v. Snell, supra, where the question is fully discussed as to the rights of the public and the rights of the railroad company, each being equally bound to exercise ordinary care in keeping a lookout. The railroad company is bound to the exercise of ordinary care in regard to people upon the track, and looking out for cars. The traveler is to exercise ordinary care in getting off the track, and the railroad company has no exclusive right to use that portion of the street upon which its track rests. So it appears to us that, according to the testimony of the motorman himself, he was guilty of negligence in approaching this hill at this rate of speed, when he was unable to see beyond the electric light. He says in his testimony that he did not see the man until he was near the brow of the hill under the electric light, and then he at once rang the gong and had not rung it loudly until then, and that he at once applied the air as hard as he could and put sand on the track. This he says on page 69 of the record. And on page 70 he says the track was slippery and he was not able to stop the ear; that the wheels were locked by the brakes and slid.

Now the motorman having been guilty of negligence before he saw Gilbert, in approaching this portion of the track at the high speed he did, we are of the opinion that the giving of this instruction was not prejudicial to the defendant below, and that, therefore, the case should not be reversed on that account. It was, it may be said, the duty of the motorman, as is said in this instruction, under the facts and circumstances of this case, when he discovered this man on his wagon, only 150 feet or a little more away, and his ear on this slippery track, going at the rate of speed at which it was going, it was his duty in the exercise of ordinary care, to do all he could to stop the car and prevent the possible sacrifice of human life and the destruction of property, which was imminent when the motorman discovered that Gilbert would not be able to get off the track before the car reached him.

It is argued, strenuously, that the verdict was against the weight of the evidence and not sustained by sufficient evidence. The discussion already had on the instructions has covered that part of the case to some extent. The railroad company were bound to use ordinary care in the running of their ears. The track was in the middle of a public street, of the city of Toledo; /the ears were heavy, a car weighing, it was said, some thirty tons; and the company knowing that travelers, in vehicles or on foot, were liable to be upon the track at that time and place, were bound to run their cars with that in view and in such manner as would be ordinary care under all the circumstances and facts, and we are of the opinion that it was negligence for the motorman to approach this grade in the street at the high rate of speed with which he did without having his car under control so that he might slacken its speed or stop it in ease he discovered any one on the track beyond the electric light.

It is urged that Mr. Gilbert himself was guilty of contributory negligence. He testified that he looked for ears when he turned onto "Woodville street at East Broadway, which was about 1,100 feet from the • electric light, and saw none, and that when he reached the brow of the hill, just before he began to descend, he again looked, being then about 1,100 feet from East Broadway. He neither saw nor heard any car, and he then began to descend the hill and was then approaching within a few hundred feet of the "Wheeling & Lake Erie railroad, which would require some attention on his part, and after starting down the hill he did not look again until he heard the gong of the street ear as it passed under the electric light, and then he looked back and saw the car coming down and turned his horses and endeavored to leave fhe track, and his horses got off the track and his wagon was turned partly off the track, when he saw that the ear was about to strike his wagon and he jumped to the side of the track opposite to where his horses were and saved his life. The car struck the wagon and cut it in two, and the horses were thrown over the embankment, the harness and wagon were destroyed and the horses somewhat injured. The “biding-pole” on the hay rack struck the front end of the ear and punched a hole through the end of the car. The car went some fifty feet beyond the spot where the wagon was struck before it could be stopped.

We think that here was a fair case to submit to a jury as to whether or not Gilbert exercised ordinary care. He had a right to drive on the street car track. The laying of a street car track on a street does not exclude the public from that part of the street. Street cars are permitted in the streets, as the Supreme Court say in Cincinnati St. Ry. Co. v. Snell, supra, for the reason that they do not- interfere materially with the ordinary travel or obstruct it, and if they did, they would not be permitted in the streets. The street ear is only another kind of a vehicle from a wagon, for the convenience of travelers, and persons and corporations in propelling them over the street must exercise care in running them the same as one driving a wagon or automobile, and Gilbert had the right to presume that the car, if any was approaching him from the rear, would be run with ordinary care. He was bound to exercise ordinary care in looking out for ears, but he was not bound to that high degree of care that he would have been if he had been riding or driving on a steam railroad track, where he had no right to be. Plere he had the same right that the street railroad company had, and was bound the same as it to the exercise of ordinary care; and he having looked twice for ears within a comparatively short space of time on this street, and being at that time approaching a steam railroad track, with that to look out for, and having seen no car approaching from behind and heard none, we think that the jury were fully warranted in finding that he did exercise ordinary care, and that they were justified in finding that the street railroad company was negligent.

Some portions of the general charge are complained of, and especially the language of the court in saying to the jury that the street railroad company were bound to use reasonable care— every reasonable effort, to avoid injury to persons on the tracks. This expression is used two or three times in the charge in connection with other language, however, and the jury was instructed in other places in the charge that the railroad company was bound only to use ordinary care the same as Mr. Gilbert, and we are of the opinion that there was no prejudicial error in the use by the court of this expression, and that the jury was not misled by it. No special exception was taken to this expression or to any part of the charge by counsel. A general exception only was taken to the charge as a whole, and we think that the charge as a whole stated the law fully and fairly.

Kinney, 0’Farrell & Fimelspach, for plaintiff in error.

Charles G. Wilson, for defendant in error.

On the whole record we are of the opinion that the case was fairly tried — fairly submitted to the jury — and that the verdict was fully sustained by the evidence. We find no error in the record to the prejudice of the plaintiff in error. The judgment of the court of common pleas is, therefore, affirmed.


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    WILLS.
    [Circuit Court of Cuyahoga County.]
    John Coon, Executor, v. Wm. B. DeMoore et al.
    Decided, July 25, 1903.

      Husband Not Mentioned in Wife’s Will — Bequests of Realty, Where Decedent’s Holdings Were Technically Personalty, Distributed in Accordance With Manifest Intention as Expressed in Will.

    Mrs. DeM. died, leaving a will in which her husband was not mentioned. She bequeathed to Mrs. C. and Mrs. S. each a “one-half interest in fee simple in all my realty, wheresoever located, of which I may die possessed.” It developed after her death that she owned no real estate whatever,' but was a cestui que trustent of real estate in New York City, devised by her first husband. This interest, it was conceded at the trial, was as to her personalty.

      Held: That the estate of her second husband, who was surviving at the time of her death, takes the share to which the husband would have been entitled had the wife died intestate, including his interest in the will devising the New York property; and, following the evident intention expressed in the will, Mrs. C. and Mrs. S. each take one-half of the testatrix’s interest in the property in New York.

      Marvin, J.; Laubie, J., and Winch, J., concur.
    Appeal by defendant, V. A. Coon.
   The case of John Coon, executor, against William B. DeMoore and others is here on appeal, and the purpose of the suit is to determine the rights of the several defendants in the property of which Ruth DeMoore was seized at the time of her death.

William B. Moore, since the suit was brought, has died, and one Snyder has been appointed as executor of his will, and he is made a party in the ease, the case being revived in his name in place of that of William B. DeMoore.

Ruth DeMoore was the wife of William B. DeMoore. She died in this county and left a will, a codicil of which is the matter to be considered here, for it is under this codicil that the rights of the parties are to be determined in connection with the will. It reads as follows:

“I hereby give and bequeath to Mrs. Verona Coon one-half interest in fee simple in all my realty wheresoever located of which I may die possessed, and the other half of said realty I give, devise and bequeath to Mrs. Julia Stevens, wife of A. J1. Stevens, of Cleveland. I also give all my personalty, including, jewelry, diamonds, clothing and furniture of which I may die possessed of to said Julia Stevens.”

In the will of Ruth DeMoore she nowhere mentions her husband. She made no provision for him.

The Revised Statutes of Ohio, Section 4176, provide for the distribution of personal property where one dies intestate, and it provides that one dying intestate, leaving a widow or widower, that said widow or widower shall be entitled to have distributed to him one-half of the first $400 of the personalty which shall be left after the payment of debts, and one-third of all the balance.

Section 5963 of the Revised Statutes provides that where one shall die testate, owning personal property, and leaving a will in which no provision is made for the widow or widower, such widow or widower, the relict of the testator, may elect whether to take the provisions of the will or the distributive portion to which said relict would be entitled in case the testator had died intestate.

It, of course, is conceded that under the exact language of these statutes, this widower would be entitled to no distributive portion, because the distributive portion is provided for one intestate, and it is provided for one leaving' a will in which some provision is made for the relict widow or widower. In this case neither of these two facts existed. The widow did not die intestate, and she did not die leaving any provision for her surviving husband.

The Supreme Court of our state, in Doyle v. Doyle, 50 O. S., 330, have construed those statutes, and have said that the estate, when one dies leaving a well in which no provision is made for the surviving widow or widower, the estate in such case is to be treated as though the party had died intestáte. Each of the sections which provides for a widow, provides, in the same connection, for the widower, and reads that when one shall die leaving a widow or widower, as in the ease of Doyle v. Doyle, it is provided that in whatever personal estate the testator (I say testator because I think it is the right word for either sex) leaves, the husband is entitled to a distributive portion as though the wife had died intestate.

What was that personal property of which she was seized at the time of her death?

She had certain moneys, certain chattels, and she had whatever came to her by the third item of the will of Robert M. Walduck, deceased. She, at the time of his death, was left his widow, and subsequently married William DeMoore.

The third item of the will of Robert M. Walduck provides:

“I give, devise and bequeath all that certain house and lot situate, lying and being at the northeasterly corner of Sixth avenue and Eighth street in the city of New York, being the same property as mentioned and bounded in a certain deed made and executed by Philo T. Ruggles, master in chancery, to me, the said Robert M. Walduck, bearing date 24th March, 1847, and recorded in the office of the Register of the City and County of New York in liber 48 of Conveyances, page 161, March 24th, 1847; the dimensions whereof being twenty-four feet three inches in width by seventy-seven feet seven inches in length, more or less, and which premises is now subject to two separate mortgages amounting together to the sum of fifteen thousand five hundred dollars as subsisting liens therein, said property being also subject to a certain lease to James W. Scott and John W. Earle for the unexpired term of eight years from and after 1st October, 1875, at an annua] rent of thirty-nine hundred dollars, payable monthly. Also all the rest, residue and remainder of any other real and personal estate of what kind or nature soever, or wheresoever situated, other than that hereinbefore bequeathed in and by the second clause of this, my will, of which I may die seized or possessed, unto David M. Walduek, as my executor and trustee as hereinafter named, to have and to hold the same upon trust, to take charge of, manage, collect and receive the rents and profits thereof, and out of the same to pay taxes, assessments, interest and insurance or other charges in relation thereto, and also pay all or any just debts — funeral and testamentary expenses appertaining or connected with the management of said estate, for, during and until my said executor and trustee in his judgment shall deem it safe and for the interest of the cestui que trusts, hereinafter named, to have a sale of said trust estate without sacrifice, and during such period until such disposition and sale of said trust property, my said trustee, or his successor after he shall have made said collections and payments as herein last above stated, he shall pay out of the net balance, if any remaining in his possession, the sum of seventy dollars per month to my dear wife, Ruth Walduek, for and during the present period until the said property shall be sold as herein-before mentioned; and for and during the like period after the payment of the said seventy dollars per month out of said fund, the net balance of said revenue shall be equally divided and paid over by my said trustee to” certain parties named in this item of the will.

This property had not been sold by that trustee Avhen Mrs. (Walduek) DeMoore died.

It is conceded by counsel representing all the parties here, and would be so if it were not conceded, that whatever interest Mrs. DeMoore had in this real estate described in the will of Robert M. Walduek, was personal as to her. She had no title to any real estate. Hence all the personal property, other than this interest in this real estate — all this interest was as to her personal. That being true, the surviving husband was entitled to distribution out of the entire estate.

But there remains still this question.

It should be said that when Mrs. DeMoore died she had no interest in any real estate in the world except so far as the evidence shows, whatever interest she had in this New York property. Yet, by her will, she says:

“I hereby give and bequeath to Mrs. Verona Coon one-half interest in fee simple in all my realty wheresoever located of which I may die possessed, and the other half of said realty I give, devise and bequeath to Mrs. Julia Stevens, wife of A. J. Stevens, of Cleveland. I also give all my personalty, including jewelry, diamonds, clothing and furniture of which I may die possessed of to said Julia Stevens.”

Now it is said on behalf of Julia Stevens that since Mrs. DeMoore left nothing but personal property, her interest in the New York property being personal, there was nothing for Mrs. Coon; Mrs. DeMoore had no realty and as she gave all her personal property to Mrs. Stevens, Mrs. Coon was left without anything. If this language of the will is to be held to this strictly technical meaning, that result would follow.

It is evident that Mrs. DeMoore, wrhen she executed this will, meant something when she used this word “bequeath” applicable to personalty and real estate. When she bequeathed this to Mrs. Coon, she meant something in her will. It could mean nothing if by the interpretation or construction of this codicil it is to be said that her interest in that property in New York was personal. It was technically, personal.

Her husband was entitled to distribution in it as personalty.

Indeed, the first consideration of wills is to give such construction as will carry out the intention of the testator, if that can be done without violating the words of the will.

It is said that Mrs. Coon can get nothing, for this woman had no real estate; she had no realty; her estate in this property was not real; that she only had personalty. It is true that Mrs. DeMoore had no fee title; all the interest she had was an equitable one.

Can it be doubted that she meant by this item in her will, that whatever interest she had in this realty should go one-half to Mrs. Stevens and one-half to Mrs. Coon? The language in which Mrs. Coon’s name is mentioned would be idle, would be meaningless, unless this woman had this in her mind.

Without going further into this, the authorities are numerous that in the construction of a will one must look into the meaning. Another is, that you must not make a will for the testator, or substitute anything, but if you know just what the testator meant and intended to do and can ascertain that from the language of the will, you can carry that into effect.

John T. Sullivan, for plaintiff.

J. 8. Grannis, John T. Sullivan, Caskey .£ Calhoun, for defendants.

Numerous authorities have been examined, but we have not had time to write out an opinion in this case.

The authorities are so well collected in Underhill on the Law of Wills, and especially in Chapter 14 of Underhill on the Law of Wills and the authorities so fully cited there, that we think, in that chapter and the authorities there cited, and especially in Section 24 as I recollect it, that they fully justify the conclusion at which we have arrived.

There is not a particle of doubt in my mind, or in that of any of the court, that the authorities authorize us to make this finding: That Snyder, the executor of Wm. B. DeMoore, take the distribution to which DeMoore would have been entitled if his wife had died intestate, including his interest in this will; that Mrs. Coon take one-half and Mrs. Stevens one-half, together with all the other personal property, and the decree will be drawn accordingly.


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    OFFICIAL COURT STENOGRAPHERS.
    [Circuit Court of Summit County.]
    Gideon Carr v. Summit County.
    Decided, October Term, 1902.

      Official Stenographers — Fees Payable to for Malcing Transcripts in . Criminal Cases — Differing Provisions Applying to Different Counties — The Statute Applicable to Summit County.

    1. Tbe fact that tbe different provisions of the statutes applicable in different counties of the state with reference to official court stenographers bear unequally upon persons accused of crime within the state, in that in some counties the fee for preparing a bill of exceptions is paid for out of the county treasury, and in other counties the accused is obliged to pay for it himself, does not render the statute unconstituional which denies the favor of a free transcript in the counties in which it is applicable.
    2. In Summit ■ county the appointment and duties of official court stenographers are governed by Section 1 of 90 O. L., 68, and Section 2 of 87 O. L., 93.
    3. Whether the various statutes relating to official stenographers are in contravention of the constitutional provision requiring that all laws of a general nature have uniform operation throughout the state — Quaere?
    Marvin, X; Caldwell, X, and Hale, X, concur.
    Error to the court of common pleas.
   This case arises upon the following state of facts: Gideon Carr was, upon trial in the court of common pleas, convicted of a crime and sentenced to imprisonment in the penitentiary. For the purpose of prosecuting error to the circuit court he had prepared by the official stenographer of the court a bill of exceptions, the expense of which was $90, and this sum Carr paid to the stenographer. He thereafter presented to the Commissioners of Summit County a bill for said amount, which was rejected by the commissioners, and Carr took an appeal to the court of common pleas. Hearing was had in said last named court upon the following agreed statement of facts:

“First. That the bill presented to the board of county commissioners herein was for a transcript of the testimony for a bill of exceptions in the criminal'case of The State of Ohio v. Gideon Carr, who was tried in this county for murder in the first degree, and convicted of murder in the second degree at the April Term, 1900.
“Second. Said cause was taken to the circuit court on error, said bill of exceptions being filed in the circuit court, and upon hearing, the judgment of said common pleas court was reversed by said circuit court.
‘ ‘ Third. During said April Term, 1900, of said court of common pleas, one W. H. Collins was the official stenographer of said Summit county, having been appointed by the Court of Common Pleas of Summit County, Ohio, at the September Term, 1899, at a salary of $1,500 per annum.
“Fourth. Said Collins, as such official stenographer, took the testimony given upon said trial in the court of common pleas, and at the request of one E. F. Yoris, attorney for said defendant, transcribed said notes into longhand, and thereupon demanded payment of said Voris for such transcript, whereupon said Voris, for and on behalf of said defendant," paid said Collins therefor $90, being the amount due said Collins for said transcript at eight cents per 100 words.
“Fifth. That the population of Summit county by the federal census of 1880 was 43,788.
“Sixth. That said Collins, after his appointment as such official stenographer, drew his salary monthly from the county treasury of said Summit county and the clerk of courts taxes $4.00 per day for the reporting in shorthand in the cases so reported by said Collins, which costs, when paid into the clerk’s office, were by him turned into the county treasury. ’ ’

And the court thereupon found and entered judgment against the plaintiff. To this finding and judgment plaintiff excepted, and by proper proceedings, brings the- case into this court.

The judgment of the court of common pleas in this case is affirmed.

The question in the case is whether, where a prisoner, upon conviction of a crime in the court of common pleas, has a bill of exceptions prepared by the official stenographer of the court in this county, the county is responsible for the payment of the stenographer’s fees.

In support of the contention on the part of the plaintiff in error, the case of Clinton Co. v. Martin, 65 Ohio St., 287, is cited, and it is clear that if the official stenographer of the eourt in Summit county were appointed under the same section as that under which the appointment is made in Clinton county, this contention must be decided in favor of the plaintiff in error. The appointment in Clinton county is made under Section 475, Revised Statutes, and this and the following sections, up to and including Section 481, Revised Statutes,, make provision for the appointment of official stenographers, and require such appointment to be made by the judges of the courts of common pleas and probate courts.

Section 480, Revised Statutes, provides that:

“The fees of the official stenographers for making such transcripts shall be eight cents per folio of one hundred words, and shall be paid forthwith by the party or parties for whose benefit the same is ordered, and when paid shall be taxed as other costs in the case; but all transcripts made in criminal cases and transcripts ordered by the court, where not asked for by the parties, shall be paid out of the county treasury, in the manner herein provided for the payment of fees for taking shorthand notes.”

In Clinton Co. v. Martin, supra, the court held that under this last quoted section the defendant in a criminal case, having paid the fees of the stenographer for his transcript, was entitled to be reimbursed out of the county treasury.

The appointment in Summit county is made under Section 1 of an act passed March 8, 1893, and found in 90 O. L., 68. This section provides for the appointment of an official stenographer by the court of common pleas, and in that regard differs from the section under which the appointment was made in Clinton county. The section is an amendment to a statute found in 88 O. L., 190, and this is an amendment to Section 1 of an act found in 87 O. L., 92. The several sections found in 87 O. L., 92, together with the amended section under which the appointment is made in Summit county, make complete provision for the duties and compensation of the official stenographer.

Section 2 of the act which still remains in force, and is found in 87 0. L., 93, provides, among other things, that:

“It shall also be the duty of such stenographer to make, or cause to be made, at the request of either party, his attorney, or the court, an accurate transcript into longhand of the notes so taken in any case, to be paid for forthwith by the party or parties ordering the same, but no transcript of the notes into longhand shall be paid for out of the county treasury in any case, unless such transcript shall be ordered made by the judge trying the ease for his own use, and in criminal cases by the prosecuting attorney.”

It is conceded that if this section is to govern, the judgment of the court of common pleas was right. But it is urged that the entire law, as to appointment of stenographers in Summit and the other counties to which these last mentioned sections, in terms, apply, is unconstitutional because of its making classification of counties upon an arbitrary basis of population; that it is special legislation on a general subject matter, such as is inhibited by Section 26, Art. II of the Constitution of Ohio, which reads: “All laws of a general nature shall have a uniform operation throughout the state.”

Nathan Morse, for plaintiff in error.

E. M. Eagelbarger, Prosecuting Attorney, for defendant in error.

Whatever may be said as to the construction to be given to this constitutional provision under the recent decisions of the Supreme Court of the state, it seems a sufficient answer in this case to say that the statute under which the plaintiff in error makes his claim is equally obnoxious to this provision of the Constitution. And, further, that unless the statute under which the official stenographer for Summit county is appointed is constitutional, he has never been lawfully appointed, because if the appointment is to be made and the stenographer governed by the provisions of Section 475, Revised Statutes, et seq., the appointment should have been made by the judge of the court of common pleas and the judge of the probate court acting together, so that either Summit county is without an official stenographer, or the official stenographer is in the performance of his duties under the statutes found in 90 O. L., 68, and 87 O. L., 93. In either case the plaintiff here would not be entitled to recover.

There is force in the argument made by counsel for plaintiff in error that this construction gives to one tried for a crime in certain counties of the state rights which are not given to him in Summit and some other counties, and there seems no good reason, in the nature of things, why this distinction should be made; but the Legislature has made it and has not thereby deprived those tried for crime of any constitutional right.

It can hardly with reason be said that the statute under which the stenographer for Summit county is acting is an injustice to one tried for crime, but only that a favor has been granted to those tried for crime in the counties to which the other statutes apply, which favor has not been extended to those tried in Summit county.

Whatever reasons may have influenced the Legislature in making this distinction, the court of common pleas followed the law as it is, and, hence, no error was committed and the judgment is affirmed.


text:
    SALE OF MORTGAGED LIFE ESTATE.
    [Circuit Court of Wood County.]
    Charles W. Sherman and Lester D. Hill v. Hattie May Sherman.
    Decided, April 25, 1903.

      Life Estate — Covered by a Mortgage — And Yielding an Income Insufficient to Pay Taxes and necessary Improvements — Expenses of Sale — And of Reinvestment of Proceeds — How Distributed.

    S, as the owner of a life estate which was under mortgage, peti- , tioned for its sale and a reinvestment of the proceeds, on the ground that the taxes and necessary improvements exceeded the income. The court ordered a sale and appointed- a trustee to reinvest the fund, directing that the costs, plaintiff’s attorneys’ fees, taxes due, and a fee to the guardian ad litem should he paid out of the fund, but refused to order that the present value of the mortgage be ascertained and the amount paid out of the fund, although directing that the amount due the mortgagee be paid out of the income arising from the fund, prior to the payment of any other claim or lien, except the cost of investing and caring for the fund.

      Held: There is no authority of law for the payment out of the fund of the costs in such a case, or a fee to plaintiff’s attorney, or the taxes, unless after a forfeiture is declared. The fee to the guardian ad litem was properly paid.
    Haynes, J. (orally); Parker, J., and Hull, J., concur.
   In this case a petition in error was filed by the plaintiffs in error to reverse the judgment of the court of common pleas, the general ground alleged being that the court erred in rendering judgment against the plaintiffs in error, Lester D. Hill and Charles W. Sherman, and in favor of the defendant in error, Hattie May Sherman.

The petition of Charles W. Sherman in the court of common pleas sets forth that his father died having made a will, and had willed to him for life certain real estate, about eighty acres of land, with remainder over to the heirs of his body. He had one child, Hattie May Sherman, the defendant. Sherman had with all reasonable promptitude mortgaged his life estate to Lester D. Hill, and Hill comes in by way of answer and cross-petition and sets up Ms note and mortgage. The plaintiff in his petition sets forth that operation of the land under his life estate is not profitable, that the taxes and improvements thereon required are high, so that it yields nothing to him, and can be in its present condition of no value to the owner of the remainder; that from the rents it can not be kept in repair with the necessary ditches, taxes and improvements, and is therefore depreciating in value, and he prays that the land may be ordered sold, and the proceeds invested under order of the court in accordance with the statute in such case, and averring that it would be no injury to the person holding the remainder in doing so.

After a hearing an order was made by the court of common pleas that a sale be made, and the plaintiff was appointed to make the sale, and a sale was made and the money was turned into court, and is there now. The petition also prayed that the present value of the mortgage given by Sherman be ascertained, and the same ordered paid out of the fund; the court refused to do that, and thereupon the plaintiff filed his petition in error.

We think the court is perfectly right in doing that; that it was a wise thing to do, and further that we do not find any provision in any statute that would authorize a court of common pleas to make an order of that kind, and so far as we can see, the court would have no authority to do so The statute provides that the money made by the sale be invested in such and such a form. A sale was made and a certain party was appointed as trustee to take charge of the fund and make the investment That was under the provision of the statute all right. The court further directs that certain payments be made, that the amount found due the defendant, Hill, upon his note and mortgage set forth in Ms answer, be paid out of the income arising from said fund prior to the payment of any claim or lien, excep^the costs of investing the same.

The court has done one thing, which is not alleged as error, but I will call attention to it, for so far as we know there is no law for the order that is made. The court has ordered the appointment of a trustee, that he shall give bond, and then -when the bond is given to the clerk of the court “the amount of said fund remaining to which said trustee may be entitled, after retaining the costs of this action, including a fee for plaintiff’s attorney and also a fee for the guardian ad litem heretofore allowed, which costs are taxed at $101.30, and the taxes due on the land amounting to $26,75; and it is hereby further ordered that after the payment of said money due the said L. D. Hill on his note and mortgage the subsequent income arising from said fund be paid to said plaintiff, Charles W. Sherman after deducting such costs and expenses as shall be allowed said trustee,” etc. Now the tenant for life is bound to keep the taxes paid, else he forfeits his life estate, and further we know of no authority for paying the plaintiff’s attorney fee in this case; nor do we know of any law that the costs of the court be paid out of the fund, or the taxes, unless they should be paid after a forfeiture is made. The fee of the guardian ad litem should be paid out of the fund.

P. J. Chase, for plaintiffs in error.

E. G. McClelland, for defendant in error.

The whole thing is carried through here at the expense of this girl, a minor. The plaintiff, and Hill, the owner of the mortgage, are not out a cent. The sale is made for the benefit of the plaintiff, and upon his petition, and we know of no reason why he should not pay his own attorney fee and why he should not pay the costs of the suit, or why the mortgagee should not pay the taxes, or the whole amount should be forfeited. I do not care to have the matter pass by this court without entering our views upon the question.

The judgment of the court of common pleas so far as his order appointing a trustee to invest the funds and refusing to find the present value of the mortgage and pay it, is affirmed. ■