text:
    COST OF IMPROVING JOINT COUNTY DITCH.
    [Huron (6th) Circuit Court,
    1907.]
    Haynes, Parker and Wildman, JJ.
    Crawford Co. (Comrs.) v. Huron Co. (Comrs.) et al. Charles B. Smith et al. v. Huron Co. (Comrs.) Dan'l Ferguson et al. v. Huron Co. (Comrs.)
    1. Jurisdiction oi’ Common Pleas Court of Suit for Apportionment of Cost of Joint County Ditch.
    Where, during proceedings by and before the hoards of commissioners of three counties, for the purpose of improving a joint county ditch, it was decided that the lower county should do certain work upon the ditch in that county, reserving all its rights as to compensation from the other counties, the court of common pleas has jurisdiction, by virtue of Rev. Stat. 4488a (Lan. 7672), of an action against the others for an apportionment of the cost of such ditch improvement. Laning 7703 (B. 4510-10) provides an alternative procedure in the court of common pleas by a county to compel contribution for expense of constructing or improving an outlet for waters from other counties whenever a majority of the boards of commissioners of such counties shall so agree; and voluntary submission to the jurisdiction of such court by tender of issues in pleadings without questioning jurisdiction therein and by assenting to journal entries of such court is equivalent to such agreement.
    [For other cases in point, see 3 Cyc. Dig., “Counties,” §§ 521-537; 3 Cyc. Dig., “Drains and Ditches,” §§ 164-187. — Ed.]
    2. Right to Contribution for Improving Joint County Ditcii.
    By virtue of Rev. Stat. 4510-1 (Lan. 7694) where the county commissioners of a county clean and enlarge that part of a joint county ditch lying within its boundaries so that better drainage is provided for an upper county, contribution may be had from such upper county to meet the cost of the improvement.
    3. Effect on County Rights of Ditch’s Becoming Public Watercourse.
    Where a county ditch has once been established by law and has been used for a period of over seven years it does not, by operation of Rev. Stat. 4510 (Lan. 7681), become a public watercourse in such sense as to take away the right to improve it as an established county ditch.
    4. Time within which Viewers are to Report.
    By the proper construction of Lan. 7703 (B. 4510-10) viewers are given thirty days from the time of their appointment to act and report. They are not limited to a period of thirty days from the filing of the petition.
    5. Parties to Action for Contribution, Who may Be.
    Provision is made, by statute, only for proceedings between the boards of county commissioners of the different counties interested in a suit for contribution for ditch improvements, and the owners of the lands affected by the improvements cannot join in the action and become parties thereto.
    [Syllabus approved by the court.]

      ERROR to Huron common pleas court.
    C. H. Henkel and J. R. McKnight, for plaintiffs in error:
    Jurisdiction of "Commissioners of one county to construct a ditch in another county. Schamp v. Kennedy, 9 Circ. Dec. 213 (16 R. 604) ; Carlin v. Hosier, 58 Ohio St. 694 [51 N. E. Rep. 1096] ; see Lucas Co. (Comrs.) v. Fulton Co. (Comrs.) 3 Dec. 159 (2 N. P. 47) , affirmed, Fulton Co. (Comrs.) v. Lucas Co. (Comrs.) 5 Circ. Dec. 500 (12 R. 563) ; Zimmerman v. Canfield, 42 Ohio St. 463; éee also Buckley v. Lo-rain Co. (Comrs.) 1 Circ. Dec. 137 (1 R. 251), where the land of a party will not be benefited by the improvement; Reclfern v. Hancock Co. (Comrs.) 10 Circ. Dec. 45 (18 R. 233) ; Bluer. Wentz, 54 Ohio St. 247 [43 N. E. Rep. 493] ; Pleasant HUI (Vil.) v. Commissioners, 71 Ohio St. 133 [72 N. E. Rep. 896] ; Cooper v. Van Wert Co. (Comrs.) 16 Dee. 638; Greene Co. (Comrs.) v. Harbine, 74 Ohio St. 318 [78' N. E. Rep. 521],
    L. W. Wickham, for Pluron Co. (Comrs.).
    C. H. Huston, for Richland Co. (Comrs.) .
   WILDMAN, J.

Three eases numbered on the docket, 413, 414 and 415 involve proceedings relative to a joint county ditch, so-called, with regard to which there is some dispute concerning its precise character, and as to what proceedings should have been taken. The first of the cases so numbered is that of the board of county commissioners of Crawford county against the board of county commissioners of Huron county; the second of them, that of Charles R. Smith and others against the board of county commissioners of Huron county, and the third, that of Daniel Ferguson and others against the board of county commissioners of Huron county and others.

These are all based upon claimed errors of the court of common pleas in a proceeding instituted under favor of Rev. Stat. 4488a (Lan. 7672).

It appear^ that at some lime in the year 1905, petitions were filed in the three counties, Huron, Crawford and Richland, for the widening, deepening and straightening of a so-called joint ditch, known as the Noggle joint county ditch and certain ditches draining into the same, known as Spring run and Marsh run.

One of the three counties named, Huron county, is the lower county and the one into which the waters of the other two counties would naturally drain,-or into which waters might be conducted by proper drainage.

The commissioners of the three counties held certain meetings and had certain proceedings; but we are favored with no record of any of them until the date of March 6, 1906, when a meeting was held at the office of the board of county commissioners of Huron county, Ohio, for the purpose of further considering the petition of one J. W. Dawson and others, which was the foundation of the proceedings. An-examination of the record of this meeting is vital to the proper determination. of the controversy here involved.

I may say that the claims of Richland county, as represented by the board of' commissioners of that county, are practically eliminated from the contention here; no petition in error has been filed by the board of commissioners of that county and the, real controversy here is between the. board of commissioners of Huron county and the board of commissioners of Crawford county except in so far as certain residents of the two counties of Richland and Crawford have sought to become parties in the proceedings to contest before the court the claims of Huron county under the statute to which I have referred.

Before entering upon any critical examination of the recorded proceedings, it may be well to. mention, in a general way,' the terms of Rev. Stat. 4488 (Lan. 7671), immediately preceding Rev. Stat. 4488a (Lan. 7672), which provides for the bringing of a proceeding in the court of common pleas. Revised Statute 4488' (Lan. 7671) provides .that when a ditch 'or improvement is proposed, which will require a location in more than one county, application shall be made to the commissioners of each of said counties, and the surveyor or engineer shall make a report for each county. Application for damages shall be made, and appeals from the finding of the commissioners, in joint session, locating and establishing such ditch, and from the assessment of damages or compensation, shall be taken to the probate court of the county in which the greatest length of such ditch or improvement is located; and a majority of the commissioners of each county, when in joint session, shall be competent to locate and establish such ditch or improvement; but no commissioner shall serve in any case in which he is personally interested, and any two of the commissioners may form a quorum for the transaction of business for their respective counties.

There are certain other provisions in the section which it is not necessary to read.

Now, Rev. Stat. 4488a (Lan. 7672) provides:

“If the commissioners in joint session find in favor of the proposed improvement, and are unable afterwards to agree as to the proportion of the costs of location and constructing the improvement, which shall be assessed in each, of the counties, respectively, the board of commissioners of either county may petition the court of common pleas of their county for the appointment of three disinterested freeholders, not residents, of either of said counties, who shall within thirty days thereafter, after being duly sworn and upon actual view of said improvement, estimate and report to said court the amount which should be charged to the land in each county interested in said improvement, respectively.”

Now, examining the proceedings of March 6, 1906, we find it recited that, among other persons present, were two commissioners of Crawford county, Samuel Easterday and J. II. Petri, with all the members of the Richland and Huron county boards.

The meeting was called to order by the chairman of the joint board. It is recorded that the minutes of the meeting of February 23 were read and on motion, duly approved, but we are not' informed as to just what had taken place at the meeting of February 23.

I now read from the record of the proceedings of March 6:

“After a further explanation of their reports by the engineers of the several counties respectively, it was moved by Felton and seconded by Miller, that ‘Noggle Joint county ditch,’ ‘Spring run’ and ‘Marsh run’ be cleaned out, deepened and widened as prayed for in the petition. ,
“Mr. Easterday moved to amend the motion by providing for the elimination of that part of ‘Noggle Joint county ditch’ which lies in Crawford county from the proposed improvement. The amendment being accepted by Mr. Miller, the following vote was had on the amendment: Crawford county — Easterday, aye, Petri, aye; Huron county —Noble, aye, Miller, aye, Felton, aye; Richland county — Finney, aye, Baker, aye, Patterson, aye. The amendment was carried by a unanimous vote.
“Then it was moved by Mr. Finney to further amend the motion by providing that that part of ‘Spring run’ lying in Richland county be eliminated from the proposed improvement. That amendment was accepted and the motion was carried.”

It was moved by Felton and seconded by Miller that the motion be amended by providing that of the cost of said proposed improvement exclusive of that part of “Noggle Joint county ditch” in Crawford county, and that part of “Spring run” in Richland county, there shall be paid by Crawford county, $1,300; Richland county, $750, and by Huron county, the balance of the cost thereof.

. A vote was taken on this motion and it was declared lost. All these are proposed amendments to original motions. Then it was moved by Finney and. seconded by Patterson to amend the motion by providing that Huron county pay all the cost of said proposed improvement.

The vote on this amendment was unanimously no, all the commissioners from the three counties present voting against the proposition to amend the original motion by throwing the entire charge upon Huron county. It was then moved by Finney and seconded by Baker that the motion as amended be laid on the table and the vote was unanimously in favor of so doing.

It was then moved by Finney and seconded by Baker—

“That it is the sense of this joint board that that part of 'Noggle Joint county ditch’ lying in iTui-on county be improved, reserving to Huron county any existing right of recovery for benefits to, or damage caused by, Richland and Crawford counties or landowners therein.”

Up to this time there is no hint that this was not a joint county ditch which was sought to be improved. No question is raised in this meeting, and we are not advised that any was raised in any prior one as to the legality of a proceeding for the improvement of an existing joint ditch, parts of which were in all of the three counties named.

The motion which I have just read was carried by a unanimous vote. It was then moved by Finney and seconded by Petri; that the reports of the engineers of the several counties be accepted, and this motion was carried by a unanimous vote.

It was moved by Easterday, one of the Crawford county commissioners, and seconded by Patterson, that the joint board adjourn subject- to call of its president and this motion was carried by a unanimous vote, and the meeting adjourned.

It will be noted that while there was no question raised as to the legality of the proceeding, under Rev. Stat. 4488 (Lan. 7671), appli-eáble to a joint ditch, still there had been no agreement as to the proportion of the expense which should be borne by the one county or the other. There was no agreement among the commissioners, for instance, that Crawford county should Lear a proportion of the expenses stated, and that Huron county or Richland county should bear another. ¥e are left with the express reservation that Huron county preserves all its rights as'to compensation from the other counties, whatever those rights may be.

On March 8, 1906, the board of county commissioners' of Huron county commenced its action in the court of common pleas of Huron county, Ohio, under Rev. Stat. 4488a (Lan. 7672), alleging a failure to agree as to the proportion of the expenses that should be borne by the different counties, and asking for the action of the court, under said section.

We find that summons was issued upon this petition and properly-served on the board of commissioners of Crawford county and also that the board of commissioners of Crawford county filed an answer. There can be no question, in our judgment, as to the jurisdiction of the court of common pleas of the board of commissioners of Crawford county, authorized to represent the ccunty in the manner provided by this statute, and by the general statute as to county commissioners, making that body capable of suing and being sued.

I have before me the answer of the board of commissioners of Crawford county. There are certain admissions in this answer which may be important in view of some of the contentions of counsel.

It is expressly admitted that on October 10, 1905, a petition praying for the cleaning out, deepening and widening of a joint county ditch, known as “Noggle Joint county ditch No. 370,” was filed with the proper officers in the said counties.

It is expressly. admitted that on November 9, 1905, said boards of county commissioners met in joint session at the place of beginning of said proposed improvement.

It is expressly admitted that said boards of county commissioners met in adjourned joint session at the courthouse at Norwalk, Ohio, on February 23, 1906, and also that the plaintiff, the Huron county board, and the parties defendant, the Crawford county board and Richland county board, were unable to agree as to the proportion of the costs of location and construction of said improvement which should be assessed in each of said counties respectively and that they have ever since been unable to agree.

This substantially admits about all the matters which the statute provides shall constitute conditions precedent to the invoking of the jurisdiction of the court of common pleas under Rev. Stat. 4488a (Lan. 7672). However there are certain denials and averments which should be taken into consideration in connection with the admissions which T have recited.

The answer alleges that no benefit would accrue to Crawford county by reason of the proposed drainage; it alleges that the lands in Crawford county do not need drainage; that they naturally drain their waters into “said” swamp (which does not seem to have'been before mentioned in the answer), and that the same are carried off through said ditch, referring evidently to the “Noggle ditch” concerning which we have this whole controversy, and if so, that that ditch is the natural outlet and drainage of these lands.

Then we find this allegation in the answer:

“And this answering defendant says that the said surface waters from off the lands in Crawford county have been running through depressions in which said ditch is constructed since time immemorial to the same extent that they now do; that said ditch would be the natural drain and outlet for said water, and that all the land in Crawford county claimed to be affected by this improvement is as naturally and sufficiently drained thereby and as well and thoroughly as though this! proposed improvement had been made, or will be when said improvement has been constructed.
“This defendant, for further answer, says that the proposed improvement will not require a location in more than one county, viz., Huron county, Ohio.”

Then it urges that no part of the costs or expense should be placed against Crawford county; that there are no lands in said county which can be assessed for the location and construction of the same, tor the reason that they are not benefited thereby; and also that, if a portion of the'expense for the location and construction of this proposed improvement should be placed against Crawford county, the same woiffd be unjust, unfair and inequitable.

It is urged by counsel for defendant below, plaintiff in error here, the board of commissioners of Crawford county, that this ditch had been in existence for many years and had not been obstructed or interrupted, and that it had become a natural water course under the terms of Rev. Stat. 4500 (Lan. 7681), which provides when a ditch shall become a public water course. The language is:

“When a ditch has been established and constructed for the public health, convenience, or Avelfare, either by private agreement between two or more individuals, whose real property has been affected thereby, or by a board of township trustees, or by a beard of county commissioners, and such ditch has been used for the purpose of drainage of private lands or public highways for seven years or more, without obstruction or interruption, the same shall be, and hereby is declared to be, a public water course, notwithstanding errors, defects, or irregularities in the location, establishment, or construction of the same and such public water course shall, in all respects, be considered and treated as a natural water course, and the public shall have and possess, in and to such public water course, the same rights and privileges which pertain and relate to natural water courses.”

We do not understand, however, when a ditch has been once established by law and has been used for seven years, that all right is lost to the proper authorities to widen or deepen or straighten it; that it has become a natural water course in any such sense as to take away the right to improve it as an established ditch.

It is urged by counsel for plaintiff in error that as the work is required by the joint voice of the boards of commissioners of three counties to be done entirely in Huron county, therefore no such proceeding as we have here is permissible, and that an action should be brought under another section of the Revised Statutes providing for the construction or improvement of an outlet in one county to waters drained therein from another.

Revised Statute 4510-1 (Lan. 7694) provides:

“In all cases where the commissioners of any county in this state shall cause to be constructed or enlarged, or cleaned, or repaired, any ditch, drain or water course, the water from which flows into an adjoining county or into or finds an outlet in any ditch, drain or water course constructed or being constructed in an adjoining county, and in all cases where the commissioners of any county in this state shall cause to be constructed, enlarged, cleaned out or repaired, any ditch, drain or water course, which is or may be an outlet for any ditch, drain or water course, of lands of an upper county” — and I emphasize the term “water course” in view of the argument which has been made under Rev. Stat. 4500 (Lan. 7681), that under certain circumstances, a ditch becomes a public water course and subject to treatment as such — “or which, by reason of any proposed improvement thereof, will provide better drainage or a more sufficient outlet for any ditch, drain or water course, or lands of an upper county, and in all cases where the commissioners of any county in this state find it necessary to construct, or enlarge, or widen, or deepen, or clean out, any ditch, drain or water course of a lower county in order to secure a sufficient and proper outlet for a proposed ditch, drain or water course of an upper county, the commissioners of such upper county shall pay the commissioners of such lower county such sum as may be agreed upon by the commissioners of both counties, for the use and benefit o'f such outlet, which sum the commissioners of said upper county shall apportion to the lands in their county, for whose benefit said ditch was, or is constructed, ’ ’ etc.

There are several sections immediately following this, culminating in Lan. 7703 (B. 4510-10) in which we think that we find authority to the commissioners of any one of these counties for an alternative procedure.

It will be noted that in the section which I have just read, the right is given to the lower county to compel contribution by the upper counties for work done solely in the lower county, in the cleaning out or widening or improving a ditch which drains the lands or water course, or ditch of an upper county.

Laning 7703 (B. 4510-10) provides:

“All proceedings for the construction, cleaning out, repairing or enlarging either of said ditches, in either the upper or lower counties, whether or not the same have been originally constructed as joint ditches or whether or not the ditch to be constructed might be a joint ditch, may be commenced and conducted in the manner prescribed by this act and the law prescribed for single county ditches. ”

I should perhaps pause to say that the procedure in wliat is here called “this act,” is a procedure instituted in the probate court where the parties have not agreed upon the proper proportion of the expenses.

Laning 7703 (B. 4510-10) continues:

“But in addition to the manner of procedure prescribed in this act for the construction, enlarging, cleaning out- or repairing of any ditch, which furnishes or may furnish drainage for more than one county, proceedings shall be commenced and conducted in the manner prescribed by law for the construction of joint ditches, whenever a majority of each board of commissioners of such counties shall so agree.”

This, we think, gives the alternative remedy under which the board of commissioners of Huron county might proceed in the court of common pleas instead of the probate court, provided the boards of county commissioners have agreed to treat the case as one where such procedure may be adopted. Have they done so in this case ? Perhaps not by any formal resolution to that effect; but, by filing their answer in the court of common pleas, by their agreement to what should be the finding of the court, on July 5, 1906, by their assenting to the journal entry and by their taking no exception to the action of the court on that occasion, it seems to us that they have acted as effectually as if they had placed a formal motion adopting this procedure upon their records. The entire procedure on March 6, was entirely in harmony with the action which was taken in the court of common pleas. No objection was made in the court of common pleas to the jurisdiction of the court unless we are to treat the exceptions filed to the report of the viewers on December 8, 1906, as such an objection to the jurisdiction of the court.

Now, the court of common pleas, having- that sort of jurisdiction which we think it might properly assume, from the apparent consent of all parties, and from the fact that summons had been issued and served and answers filed, proceeded upon July 5 to appoint certain viewers, nonresidents of either of the three counties named, to take action provided by law in the apportioning of the expenses.

Revised Statute 4488a (Lan. 7672) provides for the appointment of three disinterested freeholders, not residents of either of said counties, who shall within thirty days thereafter, after being duly sworn and upon actual view of said improvement, estimate and report to said court the amount which should be charged to the land in each county interested in said improvement respectively.

It seems that by some inadvertence perhaps, the persons appointed by the court in July, failed to qualify or to make any examination as required by law or to file any report thereon; and the attention of the court being called to these facts, at a later date, during the same term, on August 6, the court reappointed the same persons as viewers. More than the period of thirty days having elapsed from the time of the filing of the petition, and indeed from the time of their first appointment, it is contended that the court had no jurisdiction to appoint viewers after this lapse of time, and that the thirty-day period specified by the statute is intended to begin with the day of the filing of the petition in the court of common pleas.

This was not the view entertained by the court of common pleas, nor is it ours. We think, as is ably' suggested by Judge Richards in the court below, that many matters might intervene to prevent the court of common pleas from taking immediate action by appointment of viewers upon the filing of the petition. We think that it is the design of the statute to allow viewers thirty days from the time of their appointment and qualification, to do the work entrusted to them, and that the time is none too long.

If the contention of counsel for plaintiff in error is right, the first appointment by the court as well as the second, was, as suggested, invalid for want of jurisdiction, because more than thirty days had elapsed from the time of the filing of the petition in the court of common pleas.

Now, on August 6, the court appointed these viewers and they made their report at a later date, and on December 28, the court heard certain exceptions that were filed by the commissioners of Crawford county. The court, prior to this time, had overruled motions made by the two groups of residents of Crawford and Richland counties, to be made parties to thh proceeding,’ and when it was discovered that the viewers had not qualified or acted under the order made in July, the court set aside its entire order made as of that date, and the motion of these men to become parties seems to have been renewed and was again overruled, to which ruling of the court they took exceptions and they are prosecuting their claims here in the two eases numbered as 1 have already stated, in which they appear as individual plaintiffs in error.

The board of commissioners of Richland county attacked the report of the viewers upon the ground that the apportionment of the expenses to Richland county was unjust, and the court of common pleas, considering those exceptions, so far sustained them as to cut down the apportionment against Richland county. No objection, however, was made to the amount of the expense assessed against Crawford county, but the board of commissioners of that county, in their exceptions, contended that no charge at all could legally be made against Crawford county by reason of the allegations in their answer and the facts which they claimed to exist. They based their contention almost entirely, if not entirely, upon these jurisdictional claims. They claimed that the court of common pleas had no power to appoint viewers after the lapse of thirty days from the time of filing the petition; they claimed that after the court had once appointed viewers, the court had no jurisdiction to reappoint the same viewers or to appoint any others; and they also contended that the -proceeding was not one in which the court of common pleas could act at all; that if the plaintiff had any rights, they were to be worked out in the probate court under Lan. 7703 (B. 4510-10), a part of which I have read.

Perhaps I should qualify the foregoing statement: It is not quite clear that this last contention was made in the court of common pleas. It has been made in this court; and it is being urged now with force and earnestness that the only rights belonging to Huron county to improve a ditch in Huron county and assess any part of the expense .upon other counties drained thereby, must be enforced by proceedings under Lan. 7703 (B. 4510-10), and in the probate court, and not in the court of common pleas at all.

I have already attempted to explain our views as to the contention .of the plaintiff in error upon that subject, by inviting attention to what seems to be an alternative procedure offered by Lan. 7703 (B. 4510-10).

We are of the view, however, that even without this alternative, the proceedings are properly brought in the court of common pleas because of the apparently conceded fact, that this was a joint ditch; and although no part of the work of widening, deepening or straightening was to be done in the other counties, still it was the improving of an apparently already established joint ditch in which the counties were jointly interested and by which they were presumably benefited.

We think that even if this ditch existed in part in Crawford and Richland counties, as well as in Huron county, and lay along the valley of any depression or water course; and if' it had existed for so long a time that it had become what, in Rev. Stat. 4500 (Lan. 7681), is termed a public water course, it would make no difference with the right tc proceed under Rev. Stat. 4488a (Lan. 7672). ’

We are quite clear in the view that the court of common picas, having once obtained jurisdiction by the filing of the petition by the board of commissioners of Huron county, ‘the issuance and service of summons, the filing of the answers of the defendants below and the order of the court, as made, which seems to have been assented to by the prosecuting attorneys of the different counties acting as attorneys for the- parties, the action then taken by the court, to which there was no exception, so far as appears by the certified journal entries before me, could not be subsequently attacked upon exceptions to the report of the viewers. No attack was at any time made directly to the jurisdiction of the court; it was the action of the viewers, or the report of the vieAvers that was. attacked.

Tjie statute provides for exceptions to reports of viewers and counsel filed such exceptions, and those exceptions were heard and disposed of on December 28, 1906.

It is said by counsel in argument that no replies had been filed to the answers, or to the answer of the defendant, the board of commissioners of Crawford county. It is true that no reply had been filed to the answer up to December 28, 1906, and it is a matter of some doubt as to whether any reply was necessary.

The material matters urged in the answer of the board of commissioners of Crawford county was, that there was no necessity for a joint ditch; that the lands of Crawford county were not going to be benefited, etc. All this was a matter for the commissioners to consider in their meeting, their joint meeting of March 6, 1906, or February 28, 'or at some time prior to the determination to go on with the proposed improvement in one county or more.

There was, by the authorizing of the work to be done, a substantial concession of benefit to the different counties joining in this action.

Upon December 28, 1906, the court of common pleas permitted a reply do be filed instanter and a reply was filed in which the various pleas made by the commissioners of Crawford county were denied, except in so far as the allegations were admissions of matters previously stated by the plaintiff board below.

The statutes are somewhat meager as to provisions for forms of procedure. Nothing is said about any pleadings except the petition. It is possible that the procedure of the civil code might be followed so far as it can be made applicable and it seems to have been followed in this case, but whether or not that ivas essential is a. matter which it is not necessary for us at this time to determine.

We think that the court of common pleas committed no error in confirming the report of the viewers in the absence of any evidence shoiving that their apportionment of expenses to Crawford -county was unjust.

Presumably, had there been evidence of unfairness in this regard, Crawford county would have been fairly dealt with. The court of common pleas found no difficulty in determining that too large an amount had been assessed against Richland county and promptly cut it down.

Now, as to.the attempted interposition of the resident landowners in Richland and Crawford counties, it is perhaps sufficient to say that no section can be found in the statutes in which resident landowners can be made parties. The law makes provision only for proceedings between and among the boards of commissioners of different counties interested and the board of commissioners of Crawford county presumably represents the interests of the landowners of that county. It is not necessary that they should come into court to litigate their claims; nor is it necessary for us to determine at the present time just what procedure should be adopted by the board of commissioners or other officials of Crawford county to place in its treasury the means of providing for the expeiises charged against Crawford county in the apportionment of the costs of this improvement.

It is said by the prosecuting attorney of Crawford county that difficulties will arise; that it will be unjust to draw money from the general fund because that would be placing the expenses upon many people in the county who ought not to bear any portion of it, who have no land that would be benefited by the drainage into this ditch, and it is claimed that there is no method under the law, of assessing the expense upon the resident landowners whose land will be benefited.

. We are not inclined to agree with counsel as to this; but however it may be, it is sufficient for us to decide the case in so far as it is presented to us.

We think that under the spirit of the various sections which have been cited to us, and those which we have examined and.some of which I have read in part and commented upon, the judgment of the court of common pleas should be affirmed.

Haynes and Parker, JJ., concur.


source: Caselaw Access Project

author: WILDMAN, J.

license: Public Domain

text:
    ERROR — PLEADING.
    [Lucas (6th) Circuit Court,
    June 8, 1907.]
    Haynes, Parker and Wildman, JJ.
    Wm. Klink v. Toledo Rys. & Light Co.
    1. Poweb of Court to Dismiss an Action.
    When an amended petition, after having several passages struck out by the court, as redundant or improper pleading, still states a cause of action against the defendant, the court has no power to' dismiss the action without prejudice, in the absence of any pleading traversing the aver-ments left in the petition.
    [For other cases in point, see 3 Cyc. Dig., “Dismissal and Nonsuit,” §§ 31-52; 7 Cyc. Dig., “Trial,” §§ 509-521. — Ed.]
    2. ERBOK TO &TRIKB MATERIAL AND PROPER AVERMENTS FROM PLEADING.
    It is prejudicial error for a court in an action for negligence of a street car company in permitting the proximity of two of its tracks in the city upon which the cars were permitted to pass so closely as to endanger the lives of passengers standing upon the running board, to strike from a pleading language that is material and a proper averment of the cause of action.
    [For other cases in point, see 6 Cyc. Dig., “Pleading,” §§ 1431-1442. — Ed.]
    3. Power of Court to Strike Redundant Matter frosí Pleading.
    It is not prejudicial error for a court to strike from a petition matter that sufficiently appears in another part of the petition.
    [For other cases in point, see 4 Cyc. Dig., “Error,” §§ 1592-1599; 6 Cyc. Dig., “Pleading,” §§ 1441, 1442. — Ed.]
    [Syllabus approved by the court.]
    ERROR to Lucas common pleas court.
    O. S. Brumback and T. F.' Connell, for plaintiff*in error.
    Smith & Baker, for defendant in error.
   WILDMAN, J.

This is a proceeding in error, brought to reverse the judgment of the court of common pleas. It is a personal injury case. The plaintiff filed successive petitions, the last one being' designated the ‘ ‘ fourth amended petition, ’ ’ from which, on motion of the defendant, the court struck sev•eral passages, as redundant or improper pleading. Thereupon, as shown by'the journal entry, plaintiff not desiring to avail himself of leave given to amend, or file additional pleadings, the action was dismissed by the court, without prejudice.

The petition alleges error both m the striking of these matters from the petition and the dismissal of the action. So far as the record discloses, the plaintiff below — who is plaintiff in error here- — was objecting as strenuously to the dismissal of the case as he was to the prior ruling of the court on the motion to strike out. The' journal entry shows an exception to both matters, and it is to be noted that the dismissal without prejudice is by the court and not under the provisions of the statute available to a party who, under certain circumstances, may, before final submission of the action, himself dismiss without prejudice:

We have carefully examined this fourth amended petition and our conclusion is, that after the striking out of the several matters, the pleading still stated a cause of action against the defendant. This being so, it follows as a corollary that the court had no power to dismiss the action in the absence of any pleading by the defendant traversing the averments left in the petition. Some notion seems to have been entertained by counsel that, in order to maintain his position in court, it would be necessary for the plaintiff to make some amendment of the petition omitting the objectionable clauses or passages, and that, if the court granted him leave to amend, and he failed to avail himself of such leave, the court might then dismiss the action just as the court might do it after sustaining a demurrer to a pleading. The section of the code under which the court acted in striking this matter from the pleadings is Rev. Stat. 5087 (Lan. 8602), which provides:

“If redundant, irrelevant, or scurrilous matter be inserted in a pleading, it may be stricken out on the motion of the party prejudiced thereby: and obscene words may be stricken from a pleading on the motion of a party, or by the court of its own motion. ’ ’

It is not like a requirement by a court that a party shall make his pleading definite and certain; but the order is self-operating, and in the ease at bar it will be noted that the motion which was filed was, not that the plaintiff be required to amend the fourth amended petition by omitting therefrom or striking out the passages assumed to be redundant, or otherwise objectionable, but the motion was, as to each passage, that the court strike such passage from the amended petition, and in the journal'entry it is said that,

‘ ‘ The portions of said fourth amended petition in each of said paragraphs in said motion set forth are hereby stricken from said fourth amended petition.”

Our judgment, is, that no amendment or further pleading was necessary to preserve the plaintiff’s standing in court.

We think, then, that the court erred in the dismissal of the action after the striking of matters from the pleading which did not so rob it of its vitality as a pleading as to make it inefficient to obtain judgment upon it upon default.

The plaintiff in error claims also that the court erred in the striking Qf these several allegations from the petition. The court had previously stricken certain matters from the third amended petition, after ■which action the fourth amended petition was filed. The court overruled the motion of defendant as to some of its claims, but aS to others, granted it; and we think as to some of the passages stricken from the fourth amended petition, the court erred.

The plaintiff’s claim is based upon an asserted negligence of the defendant company in permitting the proximity of two of its tracks in the city upon which cars were permitted to pass one another so closely as to endanger the lives of persons or passengers standing upon the so-called running board extending along the sides of the cars, used for the purpose of getting upon and off the cars. The plaintiff alleges -that he had stepped upon the running board of one of these cars, on the left hand side of the car, and, before he had time to reach a seat, another car approached, rapidly from the opposite direction, and he was pushed off and severely injured. He alleges various kinds of negligence on the part of the company and makes certain allegations calculated to relieve himself from the imputation of contributory negligence. One of the passages stricken out by the court reads as follows:

“Plaintiff says that he did not know or observe that the defendant had a double track in said Front street upon which to run its cars, * * * ”

And again:

“There being no rail nor other guard upon said lefbhand side of said car to prevent plaintiff from so boarding said car or warn him there was any danger in so doing.”

As to the language in both these passages, we think that the court’s action was not prejudicial — indeed we are inclined to think that, as to a part of it, it was redundant, being otherwise expressed in another part of the pleading.

The court also struck out this language:

“And so it was, that plaintiff was compelled to walk along said running board, while said car was in motion, to reach a seat inside.”

This sufficiently appears in another part of the pleading and we think that the action of the court in striking it out was not prejudicial.

I now come to language stricken out by the court which does seem to us material and matter of proper averment and as to which we think that the action of the court in striking it from the pleading was prejudicial error. I will read the language for the guidance of the court below in such subsequent proceedings as may be had:

“Plaintiff further alleges that the said double track that defendant laid and operated in Front street, at and along the locality where plaintiff was struck and injured, was wrongfully, carelessly and negligently constructed and maintained by defendant, as it well knew, but plaintiff did not know, with such narrow space between the two tracks that there was danger of a passenger standing on the running board of one car being struck by another car operated in the opposite direction. ’ ’
“Plaintiff further says that on the day he was injured, and for a long time prior thereto, the defendant was negligently operating cars along its line of double track on said Front street (including the one so boarded by plaintiff), of such great and unusual widths as to endanger the safety of its passengers who might be standing upon the running board of its ears, all of which was well known to defendant but not known to plaintiff when he boarded said car.”
“Plaintiff further says the defendant wrongfully, carelessly and negligently failed to have the said running board on the left side of the car which plaintiff so boarded turned up or folded against the side of the ear, as was customary under the circumstances, so as not to invite and receive passengers on said side; #

We find no other errors in the record; but for those errors to which I have invited attention, the judgment of the court of common pleas is reversed, and the cause remanded with direction to reinstate the case upon the docket for such other proceedings as may be proper.

Haynes and Parker,. JJ., concur.


author: PARKER, J.

text:
    FORNICATION — PLEADING—SCHOOLS—SEDUCTION.
    [Huron (6th) Circuit Court,
    September, 1906.]
    Haynes, Parker and Wildman, JJ.
    Harry Easley v. State of Ohio.
    1. Averment that Teacher and Pupil Were not Husband and Wife not Necessary.
    In the indictment charging a teacher with having sexual intercourse with a female pupil, under Rev. Stat. 7024 (Lan. 10738), it is not necessary to aver that such teacher and pupil were not husband and wife.’
    2. Definite Term of Employment not Necessary to Convict Teacher of Sexual Intercourse with Pupil.
    A judgment of conviction of a teacher of music, of the crime provided for in Rev. Stat. 7024 (Lan. 10738), having sexual intercourse with a female pupil, will not be reversed because the evidence fails to disclose that the term of employment was for a definite length of time, where the fact is that the teacher was employed to give a certain number of lessons at a stated price per lesson, nothing being provided as to the time within which the lessons should be given. The word “term,” as used in this statute, was not intended to mean a definite period, but the time during which the teacher continues to fill his engagement and, by virtu# of his employment, has unusual opportunities for such unlawful practice.
    8. Other Acts of Sexual Intercourse at Other Times than Charged, Admissible.
    Frequent acts of sexual intercourse between a teacher and his female pupil at times other than that charged in the indictment for such an offense, even acts at a time when the term of employment as such Ite'acher has ceased, and acts outside the county in which the indictment is returned, if such acts are continuous and consecutive with the act charged, may be given in evidence on the trial under such an indictment as reflecting light on the relations between the parties.
    4. Positive Testimony of Witness as to Commission of Act at Different Time than Stated by Complaining. Witness, Sufficient.
    The positive testimony of a witness of an act of sexual intercourse between a teacher and a female pupil that such act occurred at a certain place on Wednesday is sufficient to sustain a verdict of guilty .even though the complaining witness has testified that no such act occurred at that place except on Sunday. Such testimony will not be excluded as not'corroborative of the complaining witness.
    [Syllabus approved by the court.]
    ERROR to Huron common pleas court.
    S. M. Young, for plaintiff in error.
    L. W. Wickham, prosecuting attorney, for defendant in error:
    Evidence of other acts of adultery or of familiarity. 1 Jones, Evidence Sec. 143; Commonwealth v. Nichols, 114 Mass. 285 [19 Am. Rep. 346]; Commonwealth v. Lahey, 80 Mass. (14 Gray) 91; Commonwealth v. Merriam, 31 Mass. (14 Pick.) 518 [25 Am. Dee. 420]; Thayer v.
      Thayer, 101 Mass. Ill; State v. Snover, 64 N. J. Law 65 [44 Atl. Rep. 850]; State v. Jackson, 65 N. J. Law 62 [46 Atl. Rep. 767] • Lawson v. State, 20 Ala. 65 [56 Am. Dec. 182]; State v. Briggs 68 Iowa 416 [27 N. W. Rep. 358] ; State v. Guest, 100 N. C. 410 [6 S. E. Rep. 253]; State v. Wheeler, 104 N. C. 893 [10 S. E. Rep. 491]; State v. Bridgman, 49 Yt. 202 [24 Am. Rep. 124] ; Crane v. People, 168 Ill. 395 [48 N. E. Rep. 54] ; State v. Stubbs, 108 N. C. 774 [13 S. E. Rep. 90] ; Funderburg v. State, 23 Tex. App. 244 [5 S. W. Rep. 244] ; People v. Hendrickson, 53 Mich. 525 [19 N. W. Rep. 169] ; Wharton, Grim. Ev. (9 ed.) Sec. 35; Bishop, Stat. Crimes Secs. 679-80-81-82; 2 Greenleaf, Evidence Sec. 47; State v. Markins, 95 Ind. 464 [48 Am. Rep. 733] ; People v. Jenness, 5 Mich. 305; Barney v. State, 127 Ind. 243 [26 N. E. Rep. 818]; Baker v. State, 69 Wis. 32 [33 N. W. Rep. 52] ; People v. Keefer, 103 Mich. 83 [61 N. W. Rep. 338] ; People v. Schilling, 110 Mich. 412 [68 N. W. Rep. 233]; People v. Jamieson, 124 Mich. 164 [82 N. W. Rep. 835]; LaMatt v. State, 128 Ind. 123 [27 N. E. Rep. 346] ; Harty v. Malloy, 67 Conn. 339 [35 Atl. Rep. 259]; Gemmill v. Stale, 16 Ind. App. 154 [43 N. E. Rep. 909]; People v. Abbott, 97 Mich. 484 [56 N. W. Rep. 862; 37 Am. St. Rep. 360]; Strang v. People, 24 Mich. 1; State v. Young, 99 Mo. 284 [12 S. W. Rep. 642]; State v. Eggleston, 45 Ore. 346 [77 Pac. 738]; State v. More, 115 Iowa 178 [88 N. W. Rep. 322],
    The fact that prosecutrix testified that defendant always forced her does not render the evidence demurrable as- showing another crime, where the circumstances testified to by her tend to show that force was not used. State v. Strattman, 100 Mo. 540 [13 S. W. Rep. 814] ; Slate v. Woolaver, 77 Mo. 103.
    Evidence of subsequent acts. 19 Cye. 1440; Alsabrooks v. State, 52 Ala. 24; Steivart v. State, 64 Miss. 626 [2 So. Rep. 73]; State v. Baby, 121 N. C. 682 [28 S. E. Rép. 490] ; 1 Cyc. 962; Crane v. People, 168 Ill. 395 [48 N. E. Rep. 54] ; Funderburg v. State, 23 Tex. App. 392 [5 S. W. Rep. 244] ; 4 Elliott, Evidence Secs. 2796, 3151, 3168.
    Statute under which convicted, Rev. Stat. 7024 (Lan. 10738). Brown v. State, 38 Ohio St. 374.
    Corroboration. Crusen v. State, 10 Ohio St. 258; State v. Count-right, 66 Ohio St. 35 [63 N. E. Rep. 590]; Boyce v. People,-55 N. Y. 644; Armstrong v. People, 70 N. Y. 38; Spies v. People, 122 Ill. 1 [12 N. E. Rep. 865; 3 Am. St. Rep. 320]; State v. Butts, 107 Iowa 653 [78 N. W. Rep. 687]; Dalton v. Dregge, 99 Mich. 250 [58 N. W. Rep. 57]; People v. Girdler, 65 Mich. 68 [31 N. W. 624]; 2 Greenleaf, Evidence Sec. 55.
   PARKER, J.

Harry Easley was indicted under Kev. Stat. 7024 (Lan. 10738) for having sexual intercourse with Leila Burrell, it being charged in the indictment that he was her teacher in music, that she was his pupil, and that this sexual intercourse was with her .consent and during the time that this relation existed. He was convicted and sentenced to a term in the penitentiary and prosecutes error to this court. Various grounds are alleged and urged upon the attention of this court for a reversal. ,

In the first place it is said that the indictment does not aver that these parties were not husband and wife, and that, since this offense could not be committed if the parties were husband and wife, that fact should be averred. The absence of such relationship is no part of the description of the offense, and it need not be averred, therefore, as a part of the description of the offense. It is true that the statute would not reach a case of this kind if the parties were husband and wife; but it does not follow that it must be averred that they were not husband and wife.

There are various circumstances that might exist that would prevent a conviction that need not be negatived by the indictment. If, for instance, the defendant were insane, that would be a good defense; that would be a circumstance which, if developed, would show that he had committed no crime; but his sanity need not be averred. Other illustrations might be given.

Though it is not distinctly averred, this indictment discloses the fact that they were not husband and wife. The statute describes the different relationship that is essential to the commission of the crime, a relationship, not necessarily inconsistent with that of husband and wife, but one which does not usually accompany the matrimonial relationship, —that of teacher and pupil. It is averred here that they stand in that relation to one another, — the one being a pupil and the other a teacher; and it also.appears that they have different names, — the one is the defendant, Harry Easley, and the .other is the pupil, Leila Burrell.

It is also urged that the testimony does not disclose that this offense was committed during such a term of tutelage as is contemplated by this statute. It is said that when the statute was first enacted, •it applied only to superintendents or teachers in parochial seminaries and other public institutions, and that therefore, when it provided that the offense must be committed during the term of engagement of such instructor, it used the word “term” in the sense that it is used with respect to such avocations and such schools i. e., a time for teaching having certain definite limitations — a term that begins at a certain period and ends at another certain period; and that having had that meaning when the word was incorporated into the statute, when the statute was afterwards amended so as to include instructors of females in music, dancing, roller ákating and athletic exercises, or any branch of learning, the word “term” must be deemed to have still retained the meaning which it originally had-.

The testimony in this case discloses that the plaintiff in error was a music teacher of the girl against whom this offense was committed, and that he was employed to give her a term of lessons. According to the testimony of the girl there is some uncertainty about whether the' employment was for a full term, — whether she or her mother, who seems to have managed the employment, were not at liberty to discharge the teacher at any time even before he had given a term, twenty lessons; but we think the jury was justified in finding from all that was said and done at the time the teacher was engaged and subsequently, that there was an employment in the first instance to give twenty lessons, that these lessons were to be given as often as once a week and, under certain conditions, that they might be given oftener, and that the price of fifty cents a lesson was fixed upon the theory that a full term of lessons was to be given; that the engagement was for that. Now, if they were to be given regularly once a week, a term of lessons would occupy a period of twenty weeks; but if they were to be given oftener, of course, the period would be shorter. It appears in evidence that after about ten lessons had been given they were then given at the rate of two per week and that that shortened the time.

Counsel for plaintiff in error urge that, since there is such uncertainty as to the length of a term — the period of time to be covered by a term — it is not the kind of a term meant in the use of this word in the statute. If this contention should prevail it would destroy the statute, or render it ineffectual insofar as it applies to instructors in music and dancing and roller skating and athletic exercises, and the like; at least it would have that effect in most eases, for it is a matter of common knowledge that terms of lessons of these descriptions, mean a certain number of lessons not necessarily given at a certain stated period, and that a term may be long or short, depending upon the frequency or infrequency of the lessons.

We think that a fair and reasonable construction of this statute is, that if this offense were committed during the time that this relationship existed, — while one is teacher and the other is pupil; while one therefore has certain opportunities for familiarity and m'ay exercise certain wrong influences, if so disposed,— the word “term” should not receive the narrow construction contended for it, but punishment should follow. We bold that the jury were justified in finding that there was a-term of employment within the meaning of the statute.

The evidence discloses that these persons had been guilty of frequent acts of sexual intercourse. The teacher, the plaintiff in error, was a colored man and a married man. The pupil was a young girl, a white girl under eighteen years of age, apparently a girl of not very strong moral sentiment so far as this7 particular line of conduct was concerned, or of very strong resolution, and it fairly appears that this man, older than she, went to work deliberately to seduce and ruin her, and that he accomplished his purpose; that their acts of sexual intercourse covered a period of several weeks running through the months of July and August of 1905. The indictment charges the act upon August 18. The testimony having developed a number of acts, the prosecutor was required by the court, on motion of defendant, to elect upon which act he would rely for conviction, and he elected to rely upon a certain act testified to by a Avitness of the name of Reynolds as having occurred some time in July in a certain woods northeast of the city.

The court, in charging the jury,' was careful to say to them that they could not convict for* any other act of sexual intercourse than that; that they must be convinced by the evidence beyond all reasonable doubt that the particular specified act 'of illicit intercourse transpired. But, in the course of proving the relations that had grown up between these parties, It was shoAvn that a few days after the plaintiff in error had been discharged as the teacher in music of this girl, they met at Cleveland and stayed all night together at a hotel, and there, according to the testimony of the girl, slept together and performed acts of sexual intercourse.

A motion was made on behalf of the prisoner to take this testimony from the jury. The ground of the motion is not stated in the record, but it is sufficiently apparent, and it is now urged that it was incompetent upon the ground that these acts occurred after the termination of the term of the employment, and that, therefore, there could not be a conviction for such acts; and also that they occurred in another county than Huron county and that therefore there could not be conviction for such acts.

The court said, in overruling the motion, that there could be no conviction for such acts but, he added, the jury should understand that the defendant Avas not being tried for those acts; that for acts committed outside of Huron county the defendant could not be convicted in this case. On another occasion, Avhen a like motion was made, this Avas repeated by the court; and in the charge to the jury they are instructed that they are to consider this evidence only as it may reflect light upon the relations of the parties.

It is urged by the plaintiff in error that it was not competent for any purpose, and we are cited to State v. Lawrence, 74 Ohio St. 38, a case recently decided by our Supreme Court. That was a prosecution for having intercourse with a girl under sixteen years of age with her consent. It appears that the defendant in conversation with various people admitted that he had had intercourse with the girl at certain times two years later than the time charged in the indictment and after she had reached the age of consent. The court held that it was error to admit this evidence, and the .judgment of the trial court was reversed on that account by,the circuit court, and the Supreme Court affirmed the circuit court. Judge Price dissents from that proposition but concurs in the judgment. It was concurred in by Shauck, Price and Summers. But that we think is very different from a case like this where the testimony tends to show a continuous and consecutive line of conduct, running along day after day, between these parties. We think that the objection to the admissions of the defendant in State v. Lawrence, supra, might well have been sustained on the ground that the time was too remote, it being two years subsequent to the acts charged, and there,being no evidence, that the record discloses, tending to show that the illicit relation had continued along during that interim of two years, of any acts of sexual intercourse within that period.

I will not stop to read or to comment upon the authorities cited to us by the prosecuting attorney but remark that we think that the very great weight of authority and of reason supports the doctrine that under circumstances like these shown here, such evidence for the purpose for which it was admitted is competent.

The witness Reynolds testified very clearly to the act of intercourse at the time in July, in the woods. It is said that this does not corroborate the complaining witness or the person against whom the offense was committed, because Reynolds testified that this occurred upon a certain Wednesday wdiereas the girl testified that she never had any intercourse with the defendant in those woods at or about that time except upon a Sunday.

If the jury were compelled to rely upon the testimony of the girl as to this act,' — if the jury were basing their verdict upon the testimony of the girl, — it might be logical to urge that the girl was not corroborated as the statute requires in a case of this character. But we have the clear testimony of Reynolds, and Reynolds, under the law, needs no corroboration. The testimony of Reynolds standing alone would be sufficient to sustain a verdict, unless there was something tending to show that he was not worthy of belief, even though the girl did not testify upon the subject, or flatly contradicted him; but aside from that, we see no very serious matter in the difference in the days of the week testified to by these parties. One or the other may be honestly mistaken about the day of the week. As far as the offense is concerned, the testimony is clear that it occurred and at about that time and place.

We find no error in this record that would justify us in reversing the judgment of the court below and it will therefore be affirmed.

Haynes and Wildman, JJ., concur.


author: VOLLRATH, J.

text:
    APPEALS.
    [Allen (3rd) Circuit Court,
    November Term, 1905.]
    Norris and Vollrath, JJ.
    (Judge Hurin, not sitting.)

      F. P. Rusher Lumber Co. v. G. W. Troxel et al.
    Pbayee itoe Personal Judgment Peecludes Appeal.
    Pleadings determine tbe nature of an action as to being legal or equitable. Hence, a petition to foreclose a mechanic’s lien, determine priorities and for personal judgment, sets forth both an equitable and a legal cause of action; and, notwithstanding the parties amicably agree as to the facts determinable by the jury and submit the equitable issues to the court, hut without change of pleadings or withdrawal of the legal issue, appeal will not lie.
    [For other cases in point, see 1 Cyc. Dig., “Appeals,” §§ 110-169; 6 Cyc. Dig., “Pleadings,” §§ 3, 4. — Ed.]
    [Syllabus approved by the court.]

       Affirmed, Rusher Lumber Oo. v. Troxel, 52 Bull. 335.

   VOLLRATH, J.

This cause comes into this court on appeal from the court of common pleas of Allen county and is for hearing at this time on a motion to dismiss the appeal.

The plaintiff is a corporation and filed its petition setting forth, as its first cause of action, an account for material and supplies furnished by it to the defendants, G. W. Troxel and Allie L. Troxel, in the sum of $330.58 with interest from November 30, 1904; a copy of the account is attached to the petition. As a second cause of action the plaintiff alleges that the items charged in said account were so furnished by the plaintiff to said defendants and at their request, in and about the building and construction of a certain house, etc., and then follow the averments necessary to perfect a lien for the amount of said account ■upon the building and premises for which the same were furnished. Proper averments are made with reference to the filing and verification of said account and then, after a reference to possible claims upon the same property by some of the defendants named in the petition, the plaintiff prays judgment against said 6. W. Troxel and Allie L. Troxel for said sum of $330.58 with interest from November 3, 1904, and that it may be decreed to have a. lien in and upon the said house and the building and the real estate described, for the amount of said claim and from a specified date, and that said lien may be foreclosed and said property sold as upon execution; that priorities may be ascertained and the proceeds distributed, etc.

It will be noted that there are two causes of action, one of a legal and the other of an equitable nature. It is claimed by the defendant, the Lima Home & Savings Association, as well as other defendants herein that under the issues thus presented by the petition of the plaintiff, no right of appeal exists and that the petition therefore should be dismissed. All the defendants met the issue tendered by the first cause of action by a general denial.

The plaintiff contends, as against said motion, that .all matters of fact were amicably agreed upon between the parties in the court below and that the only thing that was in reality submitted to the judgment of the court was the question of priorities, matters affecting solely the liens and their order of succession, and that because of this fact the case was tried in the court below entirely within the equitable jurisdiction of the common pleas court and that it ought therefore to be appeal-able and this the more so since no jury was even asked or required.

A correct solution of the question presented will require an examination of the law governing appeals.

The right of appeal in actions of this kind is given in Rev. Stat. 5226 (Lan. 8735), which provides in part as follows:

“In addition to the cases and matters specially provided for, an appeal may be taken to the circuit court by a party or other person directly affected, from a judgment or final order in a civil action rendered by the common pleas court, and of which it had original jurisdiction, if the right to demand a jury therein did not exist, etc.”

Revised Statute 5130 (Lan. 8645), 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 be waived, or a reference be ordered as hereinafter provided.”

It is held in the case of Ladd v. James, 10 Ohio St. 437, that—

‘ ‘ The issues shown by the pleadings in an action will show whether, after a judgment, there be a right to a second trial, under the act passed April 12, 1858 [55 O. L. 81; 4 Curwen 3087; repealed, Sec. 7437 Rev. Stat.]. If there be an issue of fact joined between the parties, which either party has the right to demand shall be tried by a jury, then either party may demand a second trial. If there be a joinder of several causes of action, and an issue of fact as to either of them, which either party has a right to have tried by a jury, a second trial may be demanded, and there cannot be an appeal, though one or more of the causes of action would be such as would authorize an appeal.
“Where an action is brought upon a note and on a mortgage given to secure its payment, and a judgment is ashed upon the note and for the sale of the mortgaged property, any issue of fact which affects the judgment upon the note is an issue which either party has a right to demand that it shall be tried by a jury; and in such a case there may be a second trial, but not an appeal. If there be no such issue of fact or the judgment asked is simply for a finding of the amount due upon the note and a sale of the property mortgaged, either party would have the right to appeal and not a right to a second trial.”

The same principle is recognized by the circuit court of the first circuit in the case of the Lockland Lumber Co. v. Marsh, 8 Circ. Dec. 624 (16 R. 432). The latter ease involved a petition asking for personal judgment and foreclosure of a mechanic’s lien as in the case at bar. See also Keller v. Wenzell, 23 Ohio St. 579; Bugh v. Sturgeon, 41 Ohio St. 402; Mitchell v. Drake, 4 Circ. Dec. 609 (7 R. 308).

These authorities seem conclusive of the proposition that where a petition asks for a personal judgment and aliso for a decree of foreclosure to enforce such judgment, and these issues are met by a general denial, no appeal can be taken by the plaintiff presenting such a petition.

It is claimed, however, in the action at bar, that all issues of fact Avhich might otherwise require the attention of a jury had been amicably disposed of before trial and that the only thing left to be done in the lower court was a finding with reference to priorities.

This view seems to be based in part at least upon the case of Grapes v. Barbour, 58 Ohio St. 669 [49 N. E. Rep. 306], where it is held:

“If, in an action for the foreclosure of a mortgage and for a. personal judgment for the money claimed to be due upon the demand which it secures, the journal entry in the court of common pleas shows that before the action is tried, the plaintiff, by leave of court, withdraws the prayer for a personal judgment, and the court proceeds to find the amount due and to decree a foreclosure, the mortgagor may appeal to the circuit court. ’ ’

In the case just cited, however, there was a substantial amendment of the pleading. The prayer for a personal judgment was withdrawn and this, withdrawal was evidenced by a journal entry. This left nothing for the jury to pass upon and nothing remained but a request for a decree of foreclosure, a finding of the amount due, of sale and distribution. These were all matters within the peculiar province of the chancery powers of the coiirt. The. issues requiring a jury trial had been eliminated by the withdrawal of the prayer for a personal judgment. This is quite different from a mere oral agreement or understanding of counsel, or like arrangement with the court on the trial day with the pleadings still in their original shape. The pleadings determine the nature of the action. This is held in the case of Raymond v. Railway, 57 Ohio St. 271 [48 N. E. Rep. 1093], where, in the third section of the syllabus the court say:

“Whether a case is one in equity or of law, does not depend upon the understanding of counsel, or of the trial court, nor upon the form of the judgment rendered, but upon the nature of the action as shown by the pleadings.”

In view of the foregoing authorities and the nature of the pleadings before us we are impelled to the conclusion that since the petition in this ease asks for a personal judgment as well as a decree of foreclosure it presents an issue of fact upon which either party had the right to a trial by jury, and this being the case, the action is not appealable and the motion to dismiss the appeal must be sustained.

It is the judgment of this court, therefore, that the several motions to dismiss the appeal of the plaintiff herein be, and the same are, hereby sustained and the appeal is accordingly dismissed at the costs of the plaintiff. Judgment for costs, execution awarded and cause remanded to the court of common pleas for execution.

Norris, J„ concurs,


text:
    CRIMINAL LAW.
    [Huron (6th) Circuit Court,
    1906.]
    Haynes, Parker and Wildman, JJ.
    Allen Beamer v. State of Ohio.
    Acquittal on one Charge as Bab to Another Charge Based on Same Facts.
    A person acquitted on an indictment for stealing certain property may be subsequently indicted and tried for receiving and concealing the same property, knowing it to have been stolen.
    [For other cases in point, see 3 Cyc. Dig., “Criminal Law and Practice," 258-266. — Ed.]
    [Syllabus approved by the court.]
    ERROR to Huron common pleas court.
    J. R. McKnight, for plaintiff in error.
    L. W. Wickham! for defendant in error:
    Acquittal on one charge as a bar to another charge based on same facts. People v. Parrow, 80 Mich. 567 [45 N. W. Rep. 514]; State v. Warner, 14 Ind. 572; State v. Martin, 76 Mo: 337; Commonwealth v. Vaughn, 101 Ky. 603 [42 S. W. Rep. 117; 45 L. R. A. 858]; Bishop, Crim. Law (7 ed.) Sec. 1051; Arrington v. Commontvealth, 87 Ya. 96 [12 S.'E. Rep. 224; 10 L. R. A. 242] ; Morey v. Commonwealth, 108 Mass. 433; Burress v. Commonwealth, 68 Ya. (27 Gratt.) 934; Irvin v. State, 7 Tex. App. 78; State v. Littlefield, 70 Me. 452 [35 Am. Rep. 335]; Roberts v. State, 14 Ga. 8 [58 Am. Dec. 528]; State v. Faulkner, 39 La. Ann. 811 [2 So. Rep. 539]; Harrison v. State, 36 Ala. 248; Price v. State,-19 Ohio 423; Bainbridge v. State, 30 Ohio St. 264; 1 Archbold, Crim. PI. & Pr. (6 ed.) 112, n. 2; 1 Bishop, Crim. Law Sec. 680a, 896; Foster v. State, 39 Ala. 229; Dominick v. State, 40 Ala. 680 [91 Am. Dee. 496] ; Durham v. People, 5 Ill. (4 Scam.) 172 [39 Am. Dec. 407]; State v. Reiff, 14 Wash. 664 [45 Pac. Rep. 318]; 1 Bishop, Crim. Law (4 ed.) Sec. 884 et seq.

   PARKER, J.

Allen Beanier, plaintiff in error, was indicted and convicted of the offense of receiving and concealing stolen property, knowing that it was stolen. He filed a plea in bar, setting forth that at an earlier time in the same court, he had been indicted for stealing this same property and* that upon trial he had been acquitted. He sets forth distinctly that it was the same transaction and the same property, and his contention is, that this constituted a good plea in bar. To that plea in bar the state filed a demurrer. This was the proper method of presenting the question of law that the state desired to raise, i. e., as to whether, upon the face of this pleading, it stated sufficient facts to constitute a good plea in bar. Counsel for plaintiff in error demanded a jury to try the issues, and complain because that demand was disregarded.

This question must be determined by the court from an examination and consideration of the record. As there was no controverted question of fact there was nothing to submit to a jury. ' If any of the averments of facts in the plea in bar had been denied by answer,then, of course, the question or issue of fact thus raised should have been submitted to a jury. This demurrer raises simply a question of law, .

True, it is averred in this plea in bar that the offense on account of which he was tried and acquitted, and the offense charged in the second indictment of receiving and concealing the stolen property, was the same offense; but we think the court was not bound to regard that conclusion as raising a question of fact for a jury, in view of the fact that it appeared upon the face of the record that the first crime charged was that of stealing, and the crime charged in the second indictment was entirely different, viz.: the crime of receiving and concealing property stolen by another. ¥e are satisfied that the decision of the court below upon that point was correct; that the offenses, within the meaning of the law on the subject of being twice in jeopardy, and a former acquittal being a bar, were separate and distinct; that the word “offense” in that connection means a crime, and these were not the same offense, — were not the same crime, but were separate and distinct offenses or crimes, so that an acquittal of one would not amount to a bar to a prosecution for the other.

I read from brief of counsel for the state, a citation taken from the case of Arrington v. Commonwealth, 87 Va. 96 [12 S. E. Rep. 224; 10 L. R. A. 242, 246] :

“The test is, ‘not whether the defendant has already been tried for the same act, but whether he has been put in jeopardy for the same offense. A single act may be an offense against two statutes, and; if each statute requires proof of an additional act which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.’ ”

It is apparent that a conviction of one for receiving property stolen by another could not be had upon evidence showing that the defendant had stolen the property. On the other hand, a conviction for stealing property could not be sustained upon evidence that another had stolen the property and that the peí-son on trial had only received and concealed it knowing- it to have been stolen.

Again I cite from brief of counsel:

“ 'Although proof of one particular fact is necessary to a conviction under either of two statutes, yet, if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either is no bar to prosecution and punishment under the other.’ Morey v. The Commonwealth, 108 Mass. 433.”
“Unless the first indictment was such as the prisoner might have been convicted upon, by proof of the facts contained in the second indictment, an acquittal on the first indictment can be no bar to the second. State v. Littlefield, 35 Am. Rep. 344n [70 Me. 452].”

It is very evident that upon proof of the facts averred in this second indictment, i. e., that defendant was the receiver of property stolen by another, the defendant could not have been convicted of theft of the same property.

I cite further from brief of counsel:

“ ‘The test relied on in determining whether a plea of former acquittal or conviction will avail as a bar is, that the facts alleged in the second indictment must be such that if proved they would have procured a legal conviction upon the prior indictment under which the prisoner has been acquitted or convicted.’ Roberts v. State, 58 Am. Dec. 537n [14 Ga. 8].”
“ ‘A former trial is not a bar, unless the first indictment was such that the prisoner might have been convicted upon proof of the facts set forth in the second indictment. ’ ’ ’
“ ‘There was no error in charging a jury that a trial for, and acquittal of, the forgery of an instrument was not a bar to a subsequent indictment for uttering the same instrument as genuine, knowing it to be forged.’ Harrison v. State, 36 Ala. 248-249.”
“ ‘On a plea of autrefois acquit, the true test to determine whether the accused has been put in jeopardy for the same offense, is whether the facts alleged in the second, if proven to be true, would have warranted a conviction in the first indictment.’ Price v. State, 19 Ohio 423, 424.”
“See also Bainbridge v. State, 30 Ohio St. 264.”

Substantially the same test is laid down in the case of State v. Warner, 14 Ind. 572; in 1 Archbold, Crim. Pr. & Pl. (6 ed.) 112, note 2; 1 Bishop, Crim. Law See. 680-a, 896, and some other cases that are cited in the brief.

We know of no law or authority running contrary to the authorities cited. The judgment of the court of common pleas will be affirmed.

Haynes and Wildman, JJ., concur.


author: GIFFEN, J.

text:
    EMINENT DOMAIN — LANDLORD AND TENANT.
    [Hamilton (1st) Circuit Court,
    July, 1906.]
    Jelke, Swing and Giffen, JJ.
    Henry J. Good v. Charles F. Droste.
    Rights of Pabties to Lease to Damages fbom Condemnation of Property.
    Where premises leased with privilege of renewal are condemned for railroad purposes, and the jury fixes the value of the part taken, ‘with damages to the residue, and, in answer to a special interrogatory, finds the rental value of the premises has depreciated by reason of the appropriation, it is error for the court, in its order of distribution, to impound a certain portion of the verdict awarded to the lessee for payment of rent during the additional term in the event the lease is renewed, or to be paid in. full to the lessor in the event the lease is not renewed.
    [For other cases in point, see 4 Cyc. Dig.,'“Eminent Domain,” §§-453-458; 5 Cyc. Dig., “Landlord and Tenant,” §§ 337-339. — Ed.]
    [Syllabus approved by the court.]
    Error to Hamilton common pleas court.
    J. C. Healy and Kelley & Hauck, for plaintiff in error.
    C. F. Droste, for defendant in error.
   GIFFEN, J.

This controversy arises upon the distribution of a fund awarded by the jury in proceedings to appropriate property commenced by the trustees of the Cincinnati Southern railroad.

The defendant in error, Droste, leased to the plaintiff in error, Good, two lots, one on the west side and the other on the east side of Carr street in the city of Cincinnati, for a term of ten years from August 1, 1903, with the privilege of renewal for an additional term of ten years, at a yearly rental of $1,380, payable in monthly installments of $115.

The trustees appropriated a strip of ground forty feet in width across the middle of the lot on the east side of Carr street. The jury awarded damages as follows:

First. For the strip of land taken . $1,693.71
Second: Value of the building._. 1,800.00
Third. Damages to the residue of the property. 1,143.79
Total ... $4,637.50,

and apportioned the same as follows: To Henry J. Good, $2,864.50; to C. F. Droste, the owner, $1,773.

In answer to a special interrogatory, the jury found that $15 of the monthly rental of $115 was taken by reason of the appropriation.

The court on motion of Droste impounded $1,200 of the sum awarded to Good to provide for the payment of rent during the additional term of ten years in the event the lease was renewed or to be paid in full to Droste in the event the lease was not renewed.

It is held in the case of Foote v. Cincinnati, 11 Ohio 408 [38 Am. Dec. 737], that the liability of a lessee to pay rent subsists, notwithstanding the leasehold has been appropriated for a street; but we see no good reason why the lessee should be held for rent during the renewal ■ period before his election to renew. While the jury apparently allowed Good the full amount of the rent at $15 per month for the additional term of ten years, yet an analysis of the apportionment made by the jury will show this not to be the fact. The present value of the annual rental of $180 for the balance of the original term, to wit, eight years, upon a basis of 5 per cent is according to the annuity tables, $1,156.17, which sum or its equivalent in monthly installments must be paid by the lessee to the lessor, and adding this sum to the amount awarded to the lessor, it amounts to $2,929.17, being $91.67, more than the jury awarded for the entire premises exclusive of the value of the building. Deduct the sum of $1,156.17, from the amount awarded to Good, and it leaves $1,708.33, which represents the sum awarded to Good,' as the value of his interest in the building; while the $91.67 represents the sum awarded to Droste for his interest in the building.

Neither the jury nor the court found in terms the respective in-' terests of the lessor and lessee in the building. It is contended by counsel for Good that he furnished substantially the entire sum. If this be true, then the apportionment made by the jury should be confirmed by the court; otherwise it should ascertain from the evidence the interest of each in the building for which the jury awarded the sum of $1,800, and render judgment accordingly. We think the court is authorized under the statute to determine the conflicting claims of the lessor and lessee. Skerrett v. Presbyterian Soc. 41 Ohio St. 606.

The judgment will be reversed and cause remanded for further proceedings. ■

Jelke and Swing, JJ., concur.