text:
    EPERJESI v JACOBS
    Ohio Appeals, 7th Dist, Mahoning Co
    Decided Oct. 4, 1929
    Carlyle, George & Carlyle, Youngstown for Eperjesi.
    Kennedy, Manchester, Conroy & Ford, Youngstown, for Jacobs.
   FARR, J.

First it is contended that the trial court erred in refusing permission to plaintiff below to dismiss his action without prejudice after the trial court had. announced its intention to withdraw the case from the consideration of the jury.The motion to withdraw the cause from the jury was made and argued and thereupon counsel for plaintiff below requested that he be permitted to dismiss his action without prejudice, and at the conclusion of plaintiff’s evidence the court said:

“But after the court had announced this case must be taken from the jury.”

Permission to dismiss the cause was denied, and counsel for plaintiff then made a request to amend his pleading in some four different particulars. This was refused, and counsel then requested that the record show that his application to dismiss was made prior to the ruling upon the motion to withdraw the case from the consideration of the jury. The trial court refused to allow the Record to so show.

To sustain the view of plaintiff in error, attention was called to two cases in Ohio, as set out in the brief of plaintiff in error. However, there is a recent announcement by the Supreme Court upon this particular subject, and it is found in the case of Baking Company v. Middleton, and Guarantee Corporation, Ltd. v. Middleton, 118 Oh St 108, and the first proposition of the syllabus reads as follows:

“Where, after the parties have introduced their evidence and rested, a defendant moves the court for a directed verdict in his favor, the submission of such motion is a submission to the court within the purview of 11586 GC. After such submission and subsequent announcement of its conclusion favorable to the defendant, the plaintiff cannot have his cause dismissed without prejudice over the objection of the defendant.”

And of course the above is controlling in the instant case, and in passing upon the issues in the case just cited it was observed:

“I am inclined to the opinion that form the facts in this case as they were adduced upon this witness stand that the advice of Sweigert must be held to be a complete defense under the circumstances.”

And there are some other observations that are pertinent here. However, it is sufficient to say that the principle now controlling in Ohio is that .after the trial court has announced its conclusion to direct a verdict, that it is,then too late, for the plaintiff to have his cause dismissed without prejudice. There was, therefore, no error upon the part of the trial court in refusing plaintiff’s* motion below.

Next, it is insisted that the trial court was in error in directing a verdict for the defendants. It will not be profitable or necessary here to rehearse in detail all of the testimony in this case. It is shown that the Ford car was struck by the Oakland car about the middle of the intersection; that the Oakland then ran up upon the sidewalk and struck Eperjesi, turned and went back and struck the Ford again, so that it is quite clear from the Record in this case that the trial court was right in its conclusion that there was no testimony disclosed upon the part of the plaintiff below tending to show negligence on the part of Jacobs. For the reason given the judgment of the court below is affirmed.

Pollock and Roberts, JJ, concur.


source: Caselaw Access Project

author: FARR, J.

license: Public Domain

text:
    AALTO v BISHOP et
    Ohio Appeals, 7th Dist, Mahoning Co
    Decided Oct 11, 1929
    P. J. Melillo, Max Brunswick and T. E. Antonelli, .all of Youngstown, for Aalto.
    Jas. S. Cooper, Youngstown, for Bishop, et.
   FARR, J.

It is urged here that this verdict and judgment are contrary to and against the weight of the evidence and contrary to law. The record discloses that the defendant trustees were in charge of this unimproved highway, and that in their employ was a Road Superintendent by the name of Beard. If liability attaches in this case, it is under 3298-17 GC, which reads as follows:

“Liability of Township Trustees for damages. Each board of township trustees shall be liable in its official capacity for damages received by any person, firm or corporation by reason of the negligence or carelessness of said board of trustees in the discharge of its official duties.”

And it is urged here that it was the duty of these township trustees to have so maintained this road that there would have been no ruts or depressions in it. On the other hand, it is insisted that Aalto had passed over the ro,ad the day before and that he was chargeable with knowledge of the condition of the road. Aalto upon the witness stand testified as follows; at page 35:

“Q Had you noticed any other holes along the 400 feet from Savon’s home until ypu stepped into this hole?
A The whole road was full of holes.”

Gus List testified for plaintiff and at page 85 of the record says that the road was in fair condition for that time of year. So that the issue to be determined here is whether or not after having traveled over the road the day before in day light, and in view of his statement that the road was full of holes, and having started out after dark in the evéning of February 27th, and sustaining this injury, Aalto is entitled to recover therefor.

It is a well settled principle of law in this jurisdiction, as well as in many others, that he who goes in a place of known danger can not recover for injuries if sustained, and ps supporting this view the case of Village of Conneaut v. Naef, 54 Oh St, 529, is interesting. The syllabus is ,as follows:

“Onq who goes voluntarily upon an accumulation of ice on a walk of a village can not maintain an action against such village for a personal injury resulting to him, if the source of danger is plainly visible.”

Another case,in line with, the above is May Company v. Cummings, 17 C. C., N. S., 548. The syllabus reads as follows:

“One who goes upon an escalader with knowledge that it is'out of order and in a dangerous condition, can not recover if she is injured by.reason of the defect of which she knew.”

And conclusive upon this proposition is the case of City of Norwalk v. Tuttle, 73 Oh St, 242. The second proposition of the syllabus reads as follows:

“One who voluntarily goes upon a sidewalk of a city which is obviously and by him known to be in a dangerous condition, can not recover on account of injuries which he may thereby sustain, even if the negligence of the city is admitted or shown. Schaeffer v. City of Sandusky, 33 Oh St, 246, and Village of Conneaut v. Naef, 84 Oh St, 529, .approved and followed.”

In the instant case this injury was sustained in the winter season at a time when it is difficult to kep unimproved roads in good condition, the rain and snow of the winter time having its effect upon the surface of the road, traffie^over it having the effect .to cut in and make depressions and ruts. It can not be said but what the road was at least, in the light of the testimony of List, in reasonable condition, having in mind the time, of year, but. that is not the only proposition of importance here. Aalto says that he- went over the road the day before, that.it. was full of ruts, and then testified that on this evening, walking on the west side of the road where there was this deep rut, and of which he is charged with having knowledge because of having had the opportunity to see the rut or depression, he went out upon this highway with the knowledge of its condition. It may be said that no sidewalks were provided on either side of this highway. That is true. Such is not customary along public highways in the country, and this was outside a municipality, and the inquiry might be what could Aalto have done which would have inured to his safety?- The answer is that he could have carried a light which would have shown him this dangerous depression, but he went upon this roadway, a place of known danger, and he failed to take heed for his own safety. He stepped into the depression and was injured. The conclusion reached by the jury was correct and the judgment therefore must be affirmed.

Pollock and Roberts, JJ, concur.


author: ROSS, J.

text:
    STATE ex UIBLE v HARLAN, Auditor
    Ohio Appeals, 1st Dist, Butler Cq
    No 462.
    Decided May 12, 1930
    P. P. Boli, Hamilton, for State ex.
    Benjamin F. Primmer, Hamilton, for Harlan.
   ROSS, J.

The facts presented by this case are of such nature as to appeal strongly to a sense of justice. It is manifest that all the parties involved proceeded under the assumption that the contract was upon a unit price basis, and that this conception continued until the Auditor insisted upon a strict application of the provisions of 6945 GC.

The County received full value for the excess material, the value of which is now sought to be secured by the relator through the process of mandamus. The contract itself uses language clearly indicating that unit prices were contemplated as ,a basis for estimates at least.

The previous section in the contract quoted hereinbefore under the well known rules of construction must be determined to have been modified by the latter section quoted, which contemplated unit prices. Certainly an ambiguity existed which common justice should resolve in favor of the contract- or under the circumstances outlined above.

The statute permits the commissioners to “order” the contract let upon either a lump sum bid or unit price bid. The resolution of the commissioners shows no reference to either lump sum or unit price except that ,a lump sum of $33,000 is mentioned in the resolution, it being obviously necessary to have some figure approximately the cost of the improvement.

It would seem strange that when all the county officers openly admit the mutual understanding that the contract was to be let upon a unit price basis, and there be-ing not the slightest question but that the County received full value for the excess amount requested, ,and there being not the slightest hint of fraud in the whole transaction, that the county should not in all justice pay for what it received, and be permitted to take advantage of an ultra-technical construction of 6945 GC. We can not conceive that the legislature intended any such result in enacting this provision. However, the act of the legislature in 1929, quoted hereinbefore, furnishes ample authority for the supplementary proceedings of the commissioners in doing justice to the relator. We consider the case of Spitzig v. State, 119 Ohio St., 117, controlling on all the objections urged by the respondent as against this legislation. Such being the case, the judgment of the court of common pleas will be reversed, and there being no dispute ,as to the facts involved in the case, the cause will be remanded to the court of common pleas of Butler County, with instructions to grant the writ of mandamus, as prayed for.

Cushing, PJ, and Hamilton, J, concur.


author: BY THE COURT

text:
    EMMA O. McCORMICK v WM. F. McCORMICK
    Ohio Appeals, 2nd Dist, Franklin Co
    No 1915.
    Decided July 17, 1930
    Cowan, Adams & Jackson, Columbus, for Appellant. t
    Mooney, Bibbee & Edmonds, Columbus, for Appellee, Wm. F. McCormick.
   BY THE COURT

The prayer of the amended petition is quite broad and asks for such further relief as may be equitable and proper in the premises.

The lower court seemed to treat this case merely as one for the assignment of dower.

We think the pleadings warrant a more liberal view of this case and that it should be disposed of as one in which the principal relief urged was the setting aside of the deed in question, insofar as the plaintiff’s dower rights are concerned.

We have read with care the record in this case, which is brief, and have also considered the very exhaustive briefs which have been filed by counsel. We shall not attempt to discusd in detail the various authorities cited ,as we do not deem it necessary so to do. We can not escape the conclusion but that under the reasoning of the decision of our Supreme Court in the ease of Ward v. Ward, 63 Oh St 125, that the transaction of Richard McCormick in conveying this real estate to his son without consideration and without knowledge or consent of his intended wife constituted at least a constructive fraud as .against her and that she is entitled to have this deed set aside to the extent that it affects her dower rights by reason of such fraudulent conduct.

The syllabus in the case above quoted is as follows:

“A conveyance by, a man who has entered into a contract of marriage, which subsequently takes place, of a portion of his land to his sons by a former marriage, without consideration other than love and affection, and without the knowledge or consent of his contemplated- wife, is a fraud on her marital rights, and she. at his death, is entitled to dower therein.”

As above stated, we can not escape the conclusion but that the .record clearly shows that the conduct of Richard McCormick in making this conveyance resulted in at least a constructive fraud as against the plaintiff and that she is entitled to have this, deed set aside insofar as her dower rights are concerned. We do not think the unreported decision in the case of Umbaugh vs. Fast, 68, Oh St 672, reverses or modifies the decision in the case of Ward vs. Ward, 63 Oh St 125.

This case comes into this court both on appeal and error.

We think the case is clearly appealable and will be disposed of upon the appeal case.

At the conclusion of the hearing of the lower court Emma McCormick asked leave to file a supplemental petition. The case being in this court on appeal we think such leave, if requested should now be granted. The supplemental petition may be filed and if any issue is raised thereon the case may be later called to the attention of the court.

Kunkle, PJ., Allread and Hornbeck,, JJ, concur.


author: SULLIVAN, J.

text:
    MILLER v EAST OHIO GAS CO
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10631.
    Decided May 26, 1930
    Borden & Gaines, Cleveland, for Miller.
    Tolies, Hoggsett & Ginn, Cleveland, for Gas Co.
   SULLIVAN, J.

From a reading of the ordinance, the purpose is not clear and whether it was to furnish a convenient place for the testing of the meter by the gas man, such as being placed in the light instead of the dark, or whether for some other purpose, is immaterial for the reason that it is obvious from a reading of the oridnance that its purpose was not for the benefit of the tenant the plaintiff.

The gas meter, whether at thirty-two inches or four feet above the floor, has no connection, in our judgment, with the safety of the tenant. It is not unreasonable to say that one of the purposes of the placing of the gas meter was to establish uniformity but it cannot be said that the height of the meter would vary in its danwas intended to bear any result which might affect the safety of the tenants, because it is self-evident truth that all tenants are not of the same stature and the height of the meter would vary in its danger with the height of the tenant.

We must keep in mind the law in the interpretation of a case based solely, as the case at bar, upon the violation of an ordinance. It is laid down in 45 C. J. 727-28 that in order to constitute negligence for the violation of an ordinance or statute it is necessary that the obligation imposed be for the benefit of the person alleging injury and this, of course, means that one so claiming must stand upon the proposition that the ordinance was intended for protection. This is not the case in the instant case. It is not sufficient to show negligence of. the duty imposed by the ordinance but it is necessary to go further and show that the injury would not have happened had the ordinance been conformed to in the respect questioned and it is also necessary to show that the imposition of the duty was for the security and benefit of the party claiming right to recover. 20 R. C. L. 51.

Again, actionable negligence with respect to an obligation imposed by ordinance, in order to secure a recovery for injuries, it must be shown that the injury was under the contemplation -of the purposes of the ordinance and which the ordinance was created to prevent. L. R. A. 1915 E. 410.

The ordinance in question is found under a subdivision of the Building Code of the City of Cleveland and the purpose of the code was to provide uniformity in building and its design is for the benefit and convenience of persons using the structure. We think a reading of the ordinance makes manifest the fact that the City Council in passing it had in mind the necessity for uniformity so that the agents of defendant could conveniently find the location of the gas meter and could find access to it with the least inconvenience possible, but in any event uniformity of its location was necessary to a convenient and proper monthly examination and reading of the meter. All this is for the convenience of all parties but there does not issue the interpretation that its puropse was for protection.

From the reasoning employed in the discussion of the case we do not think that the plaintiff can recover from defendant because the placing of the meter and its purpose is not an act of negligence or if it was it is not the basis of recovery because its purpose was not for the benefit or protection of plaintiff. In this connection see Hamilton vs Manufacturing Co. 79 Am. State Rep. 350; 78 Minn. 3. Taking an excerpt from the opinion in the case just cited we read:

“In an action for neglect of duty, it is not enough for the plaintiff to show that the defendant neglected a duty imposed by statute for the benefit of somebody else, and that such person would not have been injured if the duty had been performed; but he must also show that the duty was imposed for his benefit, or was one which the defendant owed to him for his protection.”

Thus it will be seen from the line of decisions cited that there was no breach under .all the facts of the record on the part of defendant. From a, reading of. the record it seems clear on the question of contributory negilgence, that the plaintiff could not recover for it is conclusive from the record that when she picked up the coal, the meter with which she came in contact was in the same line of vision before her as the coal itself and when she stooped to nick up the coal she could have avoided contact with the gas meter which w,as in front of her. It is obvious that if she could see the coal she could see the meter.

We think the trial court committed no error in ruling that as a matter of law, plaintiff was guilty of contributory negligence.

Plaintiff cites in his argument to show that the case was one for the determination ■ of the jury, the case of City vs Wald, 103 Oh St 373. In this case the question concerned a defectively built sidewalk and curb and there was proof in the case that plaintiff, had she looked, would have discovered the defect and there was no evidence that she saw it. In the Wald case supra, plaintiff had a right to .assume that the sidewalk was unobstructed and in the absence of knowledge she could not be held guilty of contributory negligence as a matter of law. We do not think such an assumption arises from the record in the case at bar.

Another case cited by able counsel for plaintiff is Tresise vs Ashdown, Admr, 118 Oh St 307. This case involved ,a highway and we think there exists in this case the same distinction as we have noted in Wald supra.

The court below directed a verdict for defendant at the conclusion of plaintiff’s case, on the ground that the duties imposed by the ordinance were not for the benefit of plaintiff, and that she was guilty of contributory negligence as ,a matter of law.

We hold that there was no error in this judgment and the same is hereby affirmed.

Vickery, PJ, and Levine, J, concur.


text:
    ST MICHAELS RUSSIAN ORTHODOX GREEK CATHOLIC CHURCH v CLARK
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10577.
    Decided June 2, 1930
    M. M. Lucak, Jr. and C. J. B,annick, both of Cleveland, for Church.
    Harry J. Elconin, Cleveland, for Clark.
   SULLIVAN, J.

It is claimed that there was an implied grant even though not an express one which is binding and therefore has the force and effect which gives to the church the right to control and have dominion over the east lot with respect to the drainage through the sewer wherein permission to construct, was given by Mrs. Antonoff.

Of course there was nothing but ,an oral agreement. In order to be an easement there should be a compliance with the statute of frauds because an easement is a grant' which the owner of one estate may exercise over the property of another for the benefit of the party exercising the power.

The statute of frauds provides that no lease or interest in land shall be granted or assigned except by a deed or note in writing or memorandum signed by the party to be charged, or his agent duly authorized in the premises, and of course an easement may be granted by eipress or implied authority or by prescription. The latter doctrine is not applicable in the case at bar because twenty-one years had not expired. It w.as not an express agreement because whatever was done was based upon conversation. An easement cannot be created by parol.

Yeager vs Tuning Co. 79 Oh St 124.
Thompson on Real Property Sec. 314.

In Rodifer vs Pittsburgh R. R. Co. 72 Oh St 272 it is held that a permanent right in property, owned by another, for a particular purpose and without his consent is such ,an interest that cannot pass on oral authority and therefore the statute of frauds in such a case is applicable.

It appears to us from the record that the conversation instead of being an easement relates to a simple permission or a grant for a temporary purpose ,and not irrevocable under the same authority as Yeager supra, because a license is personal, nonassignable, conferred by parol and for the purpose of doing a certain act upon land but without the conferring of any right of possession or interest in the land itself.

At the pleasure of the licensor the promise or grant or license is revocable even though there is an acquiescence for a certain period of time as in the case at bar. The authority quoted has gone so far as to make this rule applicable even where absolute improvements have been made. It has been held in Wilkins vs Irvine, 33 Oh St 138, as we read in the syllabus, that the pleasure of the licensor determines the period of the license and under that holding even if there is a written license to enter upon and plant pipes in the land of another with the privilege of entering and repairing the same that even then it creates no interest or incumbrance upon the land and thus a warranty deed conveying the premises may be executed because the grant'is no incumbrance and is no interest running with the land.

In the instant case there is no record of the grant, no knowledge on the part of any one else excepting th,e contracting parties and its nature and character are such that it could not, in any event, bind a subsequent purchaser and owner of the land in question. The question of strict necessity does not arise in the instant case because connection could be made with the sewer on Union Avenue and the question of additional expense does not alter the doctrine because land cannot be permanently encumbered as against the provisions of the statute of frauds, on a private oral agreement.

It is laid down in Meredith vs Frank 56 Oh St 479, that it is a general rule that to warrant a right of w,ay reserved by implication, that there must be foundation for the rule of strict necessity and it is not merely a matter of convenience providing the grantor has another mode of access, however inconvenient it may be, and he cannot claim implication even though there has been a use of the .adjoining property for a period of time. This holding is supported by Jordan vs Bruce Mfg. Co., 89 Oh St 311 and in 7 O. N. P. 245 it is held that necessity does not exist where there is no unity of ownership in the dominant and servient estates, and the reason given is that no one can have a right of way by reason of necesisty over the land of a stranger, but, as before stated, the question of strict necessity is not claimed in the instant case but it is practically admitted that such a condition does not exist and the only claim that is made is that it would cost more to necessitate the use of the sewer on Union Ave.

The question, therefore, is one of pure law and we are bound by the decisions of the courts and the facts as recorded in the instant case, and holding as herein set forth, a decree may be entered for the defendant accordingly. O. S. J.

Vickery, PJ, and Levine, J, concur.


author: LEMERT, PJ.

text:
    RICE, et v DANVILLE (village)
    Ohio Appeals, 5th Dist, Knox Co
    No 303.
    Decided March, 1930
    F. O. Levering, Mt Vernon, for Rice, et.
    Koons & Ferenbaugh, for Village.
    LEMERT, PJ and SHERICK, J (5th Dist) and FUNK, (9th Dist) sitting.
   LEMERT, PJ.

The record discloses that the amount assessed against the property owners w,as less than the amount that could have been lawfully assessed against them, assuming that they were benefitted to that degree.

Section 3896 GC provides for the items of cost which may be included and contains the phrase, “any other necessary expenditure.”

Plaintiff’s chief contention seems to be and stress is made upon the subject of the question of exceeding the benefits conferred upon the property. We do not believe that- the term “benefits” means simply an advance or increase in market values, but they are the increase in actual money value and also the potential or actual .added use and enjoyment of the property.

In connection with this phase of the matter we note that some twenty-six witnesses were called and they all no doubt being upright and respectable citizens and no duobt their opinions were honest, and we note how the opinions of these witnesses differ and vary as to the manner or extent to which the adjoining or abutting property may be or has been benefitted.

Plaintiffs claim that because it was not possible to show at the completion of the improvement an improved change in the market value of the properties that they were not benefitted to the amount of the assessments. We do not believe that this argument is logical, for the reason that the value mav be present in the properties 'and there still be no market value for them. The market value of all properties at this time, both rural and in cities and villages, has not increased or enhanced in value, and we believe that it would not be right and proper in this case to hold to the rule contended for by counsel for plaintiffs, because the actual value to the lots in question and benefits may in reality be there, vet the property may not have advanced in value and the lots might not sell for any more than they would have sold for before the assessments and improvements were made. The fact that there is not and has not been a market value for these lots is not controlling in the instant case. It might be that the owners may not desire to sell them or they may desire to hold them in connection with their homes or other adjacent or abutting property.

While the history of this Case and particularly the assessing ordinance is somewhat varied, yet we are only concerned with it in its present condition. So the question is, does it violate any right? And we note that the ordinance as presented, to the Court below in this case was adopted by the present Council after a prolonged suit and consideration of the rights .and obligations of the plaintiffs, and it is to be presumed. as a result of their fair and honest judgment, and the facts show that in dealing with several of these properties the Council specifically found that they were not benefitted to the amount which would have been charged against them had the rate been uniform and have given relief to some five or six owners of the less valuable properties. So we are- inclined to believe that the actions and conduct of Council bears silent but strong testimony to the fact that no righs of the plaintiffs have been violated.

While as a matter of law it is true that assessments must not exceed the benefits, we believe that the ordinance regards this limitation as well as the limitation of one-third of the value; hence there is no necessity whatever for attempting to make the assessments uniformly according to benefits. In other words, the Statute provides that while these limitations must be observed, the Village may still have the right to assess by the foot front, and this contention is upheld by the Supreme Court in 68 Oh St 603, and also Page & Adams’ General Code, 38112, Note C, Subdivision 1.

The Courts of our State have well defined the cases involving and defining what benefits may be:

11 C. C., N. S., 299; 10 C. C. N. S.; 38; 78 Oh St, 412.

In the absence of proof to the contrary the assessing ordinance in this case is presumed to be valid .and it was incumbent upon the plaintiffs to show and convincingly that some or one of the limitations were violated, which in the instant case has not been done.

Therefore it follows from the foregoing conclusions of fact and law that the plaintiffs in this case have failed to make a case, .and the finding and judgment of this Court is that plaintiff’s Petition be and hereby is dismissed at plaintiff’s costs. Motion for new trial is overruled. Exceptions may be noted.

Sherick, J, and Funk, J, concur.


text:
    DAVIS et v MORAINE CENTER INC
    Ohio Appeals, 2nd Dist, Montgomery Co
    No 980.
    Decided July 26, 1930
    McMahon, Corwin, Landis & Markham, Dayton, for Davis, et.
    McConnaughey, Shea, Demann & Mc-Connaughey, Dayton, for Moraine Center Inc.
   BY THE COURT

We have examined with considerable care the rather exhaustive briefs which have been filed by counsel, and in which many of the leading authorities of this and other states are cited and discussed. We shall not attempt to discuss these authorities in detail, but our examination of the same leads to the conclusion that this case is controlled by the principles announced by our Supreme Court in the case of Elliott v. Lawhead, 43 Oh St., 171; and the case of Long v. Newhouse 57 Oh St., 348 and other Ohio authorities discussed in the briefs.

In the case of Elliott v. Lawhead the Supreme Court say:

“It is true the defendant ‘comes for the purpose of filing this motion and for no other purpose,’ and had the motion been confined to the want of proper service it would not have operated’as an appearance. It was not so limited, but embraced an additional reason, to wit, the right of the court to hear .and determine the subject-matter. The rule is that where a defendant appears solely for the purpose of objecting to the jurisdiction of the court over the person, such motion is not a voluntary appearance of defendant which is equivalent to service.

Where, however, the motion involves the merits of the case made in the petition the rule is otherwise. Handy v. Insurance Co., 37 Oh St, 366; Maholm v. Marshall, 29 Oh St, 611.”

The fifth paragraph of the syllabus in the Elliott case is as follows:

“The appearance of defendant in court for the sole purpose of objecting, by motion, to the jurisdiction of the court over his person, is not an appearance in the action, but where such motion also asks to have the cause dismissed on the ground that the court has no jurisdiction over the subject-matter of the action which motion is not well founded, it is a voluntary appearance, which is equivalent to service of summons.”

From the reasoning found in the case reported in the 43rd Oh St, 171 and in the 57th Oh St, 348, we cannot escape the conclusion but that the plaintiffs in error being non-residents of Ohio by virtue of the particular joint answer, which they filed entered their appearance in the case and that the ruling of the lower court was correct. Judgment affirmed.

Kunkle, PJ, Allread and Hornbeck, JJ, concur.


author: HORNBECK, J.

text:
    WEST SIDE LUMBER CO v SAYLOR, et
    Ohio Appeals, 2nd Dist, Montgomery Co
    No 967.
    Decided July 22, 1930
    Ozias & Ozias and W. S. Rhotehamel, all of Dayton, for Lumber Co.
    I. L. Holderman, Kreitzer & Ratchford and Charles W. Dale, all of Dayton, for Saylor, et.
   HORNBECK, J.

This case is in this Court on error, so that, if the trial Judges were right in their determination of any of the propositions upon which the judgment was based, their action must be sustained. We have recently held in the case of Kuntz-Johnson Company v. E. O. Pryor, No. 971, Montgomery County, that the form of affidavit under consideration in this ease w,as sufficient under 8314 GC.

It is vital to the establishment of a lien that the proof disclose that the material or labor was furnished under contract with the owner directly, or through a contractor who traced his contract to the owner. There is an insufficiency of proof of such relation between the plaintiff and the owner of the premises ,at the time the construction began, Benn & Company, or Saylor, who be-, came the subsequent owner.

It would seem that the theory of the plaintiff was that Holtzmuller and Seebaldt owned the lot upon which the building was erected and for which the lumber was furnished. This conclusion was erroneous and would have been discovered by an examination of the title records.

There is evidence in the record tending to sustain the claim that the plaintiff in error had signed a waiver of its right to a mechanic’s lien against the property described in the petition. It is suggested that the burden of proof in this matter was upon the plaintiff in error. This is true, and it is to be presumed that the Court applied the rules of law in determining this question and that he found this burden had been sustained.

Jn view of business practice he may have concluded, that, inasmuch as it was not unusual for mechanic’s lien claimants to execute waivers of liens in favor of mortgagees, it was highly improbable that an institution like the West Side Building and Loan Company would advance $6500.00 on the property unless such waiver existed.

However, if there was but one question, viz; the existence of a waiver of lien on lot No. 89 by the plaintiff, we would hesitate to support the judgment of the Trial Court. The trial court at page 134 of the record said,

“Up till this time the preponderance of the evidence clearly shows that there never was a release of lien.”

We find nothing subsequent to this page which makes its claim in this respect more certain. We are convinced that Saylor saw something which he believed, or was led to believe, was a waiver of lien on lot No. 89. Holtzmuller will not say that there was not such a waiver. In fact the gist of his testimony is to the effect that he had it. But this does not bind the plaintiff and, in view of the express testimony of every officer, whom the record discloses would have been authorized to sign such a waiver, that they did not do so, we would hesitate to hold that proof had been made that the waiver existed.

It is urged by plaintiff in error that the issue raised on the second cause of action in the petition and answers thereto is res adjudicata, having been determined in the first trial before Judge White. A presumption of the correctness and validity of the acts of a trial' court attends this record in this Court. Error must affirmatively appear. Inasmuch as Judge Snediker assumed to hear and decide the sufficiency and validity of a claim to a mechanic’s lien of plaintiff in error, it must be presumed, in the absence of a showing to the contrary, that he was authorized so to do. The record does not disclose that former adjudication is pleaded as required. Fanning v. Hibernia Insurance Company 37 Oh St, 344; Fistel Meiss v. Gill 44 Oh St., 258.

The first cause of action in the petition of the plaintiff in error is one at law, and the plaintiff in error had a right to a jury in determining the issue there raised. The second cause of action is directed to the equity side of the Court. Nothing inconsistent with the normal progress of this case appears in the submission of these •questions separately ,and to different Judges. The record does not disclose a state of facts from which a legal inference may be drawn that the claim of the plaintiff in error to1 a mechanic’s lien had been adjudicated before Judge White at the time it was presented to Judge Snediker.

On the question of the delivery by plaintiff company of the material itemized in the two invoices subsequent to February 11, 1925, and the date thereof, the trial court was clearly within its province in holding that the evidence did not support the claim of the plaintiff. Saylor’s express testimony is to the effect that no such material was delivered to lot NO. 89, that the physical conditions of the street in front of his property were such that it could not have been delivered by truck, as claimed by the driver of plaintiff company, and finally, that the lumber included in said delivery did not go into his building. This is corroborated, in part or in whole, by the witnesses, Brown, Mrs. Saylor, Chmabers and Ellison.

We find no error in this record so prejudicial to the plaintiff in error as would justify a reversal. The judgment of the trial court will therefore be affirmed.

Kunkle, PJ, Allread, J, concur.


text:
    MILLISON et v DRAKE et
    Ohio Appeals, 2nd Dist, Franklin Co
    No 1904.
    Decided July 24, 1930
    D. B. Sharp, Columbus, for Millison, et. Wilson & Rector, Columbus, for Defendant in Error, the Buckeye State Building & Loan Co.
    C. P. McClelland, Columbus, for Beneficiaries under will of Stephen C. Priest, deceased.
    George Marshall and D. W. Gearheart, both of Columbus, for Defendant in Error William B. Drake.
   HORNBECK, J.

The issue presented is, did the Priests, the widow and children of Stephen C. Priest, deceased, by their deed of general warranty, convey such an interest in the real estate described in the second cause of action of the petition as supported a valuable consideration therefor.

Their interest under the will at the time the deed was made, was a life estate in the widow of Stephen A. Priest, deceased, with a vested remainder- in his children, the' share of each child subject to be divested at the death of the widow, if such child were dead. leaving child or children then living. Jeffers vs. Lampson, 10 Oh St 101. Niles et al vs. Gray, 12 Oh St. 320.

As suggested by counsel for defendant in error, the Buckeye State Building & Loan Company, the principal test of a vested estate is the oower of alienation. All of the children who survive their mother, though thev may take a greater share than they possessed at the time of making the deed, will be estopped under their covenant of general warranty, from asserting any right of title to the real estate in question.

At this time, the whole title in the real estate is vesed in the widow and her children, no superior claim of title has arisen, and there is nothing operating to warrant the plaintiffs in error demanding any relief under the covenants of seizin and general warranty of title in their deed.

In 11 Ohio Jurisprudence, Page 925, it is said:

“It seems well established that no breach of the covenant of warranty occurs by reason of an outstanding title until there is some hostile assertion thereof, to which possession is yielded, or which is purchased in. It is not broken until the grantee, his heirs or assigns, is evicted or disturbed in the enjoyment of the premises by a superior title.”

Also 1 Syl. The Great Western Stock Co. vs. Felix Saas, 42 Oh St 542.

Not only has the situation not reached the status set forth in the above quotation, but there is no outstanding title which can be asserted at this time.

In Stock Co. vs. Saas, supra, the deed carried covenants of general warranty and seizin and was made by a grantee claiming under a deed from the life tenant only, yet the Court at Page 549 said:

“The Great Western Stock Company was in undisturbed possession of the lands, under its deeds from Saas. By this deed Saas had undertaken to convey to the stock company the whole of the premises in fee, with covenants of seizin ,and general warranty of title. According to the well settled law of this state applicable to the undisputed facts of this case, there has been no breach of either of these covenants at the date of the judgment.”
“It is not claimed that the covenant of general warranty has been broken; and . it is no longer an open question in this state that a covenant of seizin is not broken until eviction, either actual or constructive, in ,a case where the grantor was in actual possession of the lands at the time of conveyance, and where the grantee entered under the deed. 23 Oh St 584, and cases there cited.”

The part of the quotation underscored disposes of the claim that the covenant of seizin has been broken in this case and the citations from Thompson on real property to support the claim.

If this transaction between Drake and the Millisons had been a cash purchase of the real estate, there would be no question that they would not at this time have any legal or equitable action against the Drakes. First, because there is no paramount title to that which comes from the Priests, and second, no person is seeking to assert any superior title.

But it is asserted that 11902 GC. applies. We do not think so. As a basis for any form of relief provided in the section, there must be a breach of the covenant of title and a claimant of an adverse interest, neither of which is found here.

In addition to invoking the provisions of 11902 GC, the plaintiffs in error seek relief on the equity side of the court. There are equities with them which appeal to the court. There is a possibility, which seems remote, that their title may be impaired. It is true that the land will not sell for as high a price as a perfect title would assure. However, plaintiffs in error had full advantage of the title record and by their deed secured all that the record would support and in addition thereto the covenant of seizin and general warranty from defendant in error Drake. In Hays v. Skidmore, et al., 27 Oh St, 331, cited by counsel for plaintiffs in error, Hays received but three-fourths of that which his deed purported to convey to him. There is no doubt that the Priests held a vested title in the property conveyed. There is left to the plaintiffs in error their right of action on the covenants in their deed, when and if it develops, which is at law only. Note to Foote vs Burnet, 10 Ohio 319. to attempt to protect the plaintiffs in error from a contingency upon which they were put upon notice would logically provoke a series of suits between Drake and his predecessors in title all based upon the happening of an event which may never occur. We, do not believe the facts require equitable intervention by the court.

Our attention has been directed to the cases of McCarthy v Hensel, et al., 4 Oh Ap 425, and LaRoche v LaRoche, 10 Oh Ap 242. We have examined both of them carefully and are satisfied that the courts in both instances were correct in their judgments. However, in both of them, an event had occurred which divested those who had attempted to convey their interests by deeds of general warranty, and the court properly held that for this reason, the deeds did not operate to pass the, title to the grantees. The second proposition of the syllabus of McCarthy versus Hensel et al, seems to be in conflict with our decision in this case, and for that reason, we are willing, if desired, to make certificate of conflict to the Supreme Court of Ohio.

We find no error in the judgment of the trial court and it is therefore affirmed.

Kunkle and Allread, JJ, concur.


author: LEVINE, J.

text:
    UNION INDEMNITY CO v GAINES
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10723.
    Decided May 26, 1930
    A. E. Sweigert and Lieghley, Halle, Haber & Berick, all of Cleveland, for Indemnity Co.
    Alexander H. Martin, Cleveland, for Gaines.
   LEVINE, J.

In our opinion the sequence of events detailed in the record justifies a finding that the insured died as a result of bodily injuries caused solely and independently of all other causes by external, violent and accidental means. It is conceded that the assured weighted two hundred pounds and was knocked off his wagon by a collision and that within ten days thereafter he died.

The medical evidence introduced in this case indicates that despite the various ailments from which the assured was suffering, he would in all probability have continued to live for a considerable time thereafter, and that the violent falling caused by the collision brought about his death.

As to the assignment of error that the plaintiff failed to file proof of loss within ninety days after the date of death, we find on page 90 of the record, the following stipulation of counsel; “We are agreed that we were served with notice. Our conduct was such that we admit we were served notice. We admit it in our statement of defense.”

On page 35 of the record, defendant in error Mrs. Gaines, testified as follows: “They refused to give me the blanks, but they said they would take care of it.” In our opinion this evidence justified the trial court in finding that there was a waiver of the omission of proof of loss.

We are now brought to the lást and most important assignment of error, namely, that the plaintiff failed to file her action within the two year limitation provided by Section 14 of the policy. It may be taken as an established fact that suit was not filed until the expiration of the period of limitation provided for in the policy. Defendant in error, however, relies upon what is termed “waiver by conduct.” The correspondence disclosed a course of dealing in which the company was called upon to pay the amount of the policy and waited until the two year limitation had elapsed before definitely stating that the claim would not be honored. The Company did not deny liability but at all times stated that it needed more time for investigation.

From November 22, 1925, which is the date of the death of the assured until July 22nd, 1928, the Company constantly asked for further time to investigate; time to locate lost records; time to make its final decision.

When the period of limitation provided for in the policy had finally elapsed by a good margin, the Company on July 2nd, 1928, finally made a definite statement rejecting the claim.' We hold that the defendant in error was not required to sue until the Insurance Company finally rejected the claim, and that the action is not .effected by lapse of time, for the reason that a postponing of bringing suit was at the request of the Company.

The following authority supports this last statement of the law:

“The general statute of limitations of actions on contracts applies and ordinarily may be pleaded by the company as a defense to an action on a life insurance policy, except where a special limitation on such an .action is prescribed either by special provisions in the policy or by special statute, and except where the company has waived or is estopped to plead the statute of limitations, as where it leads a party to delay the bringing of suit or to dismiss a suit already pending, by holding out hope of adjustment or by making promises to pay.”

When the Company held out hope of adjustment the defendant in error was justified in waiting until the Company’s final decision. It asked for an extension of time on several occasions and it would be inequitable to permit the Company to assert the defense of the two year limitation because clearly the postponing of bringing suit was had if not at the express, at least at the implied, request of the Company. There is, in our opinion, clearly a waiver by conduct on the part of the Company.

We find no error in the record and the judgment is affirmed.

Vickery, PJ, and Sullivan, J, concur.


author: ALLREAD, J.

text:
    STATE ex WENCLEWICZ v BEREDA
    Ohio Appeals, 2nd Dist, Montgomery Co
    No 982.
    Decided July 22, 1930
    D. H. Wysong, Dayton, for State ex.
    I. L. Jacobson, Dayton, for Bereda.
   ALLREAD, J.

According to the testimony of the defendant he was acting merely as a friend in suggesting this plan to the complainant. We cannot escape the conclusion that this note is in fact, under the circumstances here, a statement tending to show guilt of the defendant and is sufficient to require this Court to reverse the judgment on that ground. We cannot conceive of the defendant writing this note if he was in fact innocent and cannot conceive that he would undertake the responsibility which he must have known he was assuming by having the complainant follow the directions therein contained. He must have known that he was advising a course, which, if carried out, would make him, along with the complainant, guilty of a serious offense against the laws of the state. Analyzing this statement and especially the last clause, we cannot escape the conclusion that the defendant in writing the note admitted that he was in the confidence of the complainant and must thereupon have been responsible for the complainant’s trouble.

We have reached the conclusion that in view of this testimony this Court is bound to hold that the verdict of the jury and judgment of the trial court are contrary to the manifest weight of the evidence.

The judgment of the trial court must, therefore, be reversed and the cause remanded for a new trial.

Kunkle, PJ, and Hornbeck, J, concur.


author: VICKERY, PJ.

text:
    VON QUIRAM v CLEVELAND (city)
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10440.
    Decided April 28, 1930
    John H. McNeal, Cleveland, for Von Quiram.
    Walter Booth, Cleveland, for City.
   VICKERY, PJ.

There is practically only one question for us to consider in this lawsuit and that is: Is the verdict so inadequate that the court should grant a new trial for that reason? It is a well settled doctrine that a court has just as much power to set aside a judgment because of its inadequacy, as it has because of its excessiveness. I do not believe that anybody will seriously question this propostion.

Now, in this case the plaintiff offered evidence of photographs and her testimony and that of her daughter and perhaps others, that there was a defect in the sidewalk and that it had been there long enough so that the City had at least constructive notice of its defective condition. There can be no question but that a City is liable for injuries which result from defects in sidewalks or in streets where it has caused the defect or where it has had actual notice, or where the defect has existed long enough so that by the exercise of ordinary- care it should know of its existence or have what is known as constructive notice.

The City offered no evidence to show that this defect did not exist or that it was of such a character that it would excuse it from having constructive notice, nor is there any evidence to show that it did not exist there as long as the plaintiff said it did. That being so, if this woman fell on that defective sidewalk and injured herself, she was entitled to a verdict in her favor.

Now then, the amount of the verdict would depend upon the seriousness of her injury. The evidence in this case shows, and it is admitted in court, that this woman had a rupture and that she injured her ankle and her knee and other parts of her body; that she had fallen away in weight very materially and that she is more or less crippled permanently from this injury.

The record in this case shows that after this injury she had a hernia or rupture and both she and her daughter testified that she did not have it before. The evidence in this record shows that hernia may come from trauma when the blow is inflicted upon the place where the hernia develops. There is evidence in this récord to show that this woman fell on a jagged or protruding curbstone and that she fell hitting her groin on the sharp edge of this curbstone, and that she immediately called a doctor and was under a doctor’s ministrations, and that the doctor testified that within two or thre days there w,as a hernia developed in this woman.

Now; that taken with the testimony of the mother and daughter makes it pretty nearly conclusive that this hernia resulted from this fall. It is argued that from the way in which this woman says she fell, the hernia could not have been caused from the fall. One does not know what may happen when a person falls. One does not know what strain might be brought upon a person. One does not know just how a person strikes and it is difficult for a person to describe afterwards just how the fall affected him.

It is claimed that she injured her ankle and' her hand. Now, there is nothing in this record to show that this woman w,as malingering. The doctors testified that this woman was suffering and had suffered from the injury she claimed. If, as the evidence shows, this woman had a hernia and that it was caused by this fall, as well as the other injuries which she claims to have sustained, one cannot account for the smallness of this verdict unless the passion and prejudice of the jury were aroused against her; and there is a line of questioning from which" there would be insinuations against the daughter of the plaintiff which could not hlep but mislead or confuse the jury and perhaps arouse their prejudice against the mother. Of course, if all the insinuations that were contained in the questions about the daughter were true, it would not affect the mother’s claim. True, the City had a right to introduce evidence which would tend to lessen the credibility of the daughter, but the asking of question which would insinuate that a certain thing exists without showing that it did exist, can have only one purpose, and that is to inflame the jury against the plaintiff because of her daughter, her principal witness.

While there must be a large latitude allowed attorneys on cross examination of witnesses, yet we think it must be kept within bounds, and to insinuate by questions acts which could not be proven, or at least which it was not sought to prove in this case, could only tend to inflame the jury to show that the daughter perhaps might have been a malingerer and, ergo, the mother must be so too, and that could be the only basis on which this verdict could have been rendered when it is admitted in this case that this woman was entitled to a verdict; because inasmuch as the City did not dispute the question of liability, from the evidence in this case she was entitled to a verdict and judgment on the verdict, which would fairly compensate her for the injuries she received.

Reading this whole record, we do not think that the record would bear out that she did receive adequate compensation.

Now we think this judgment was rendered in the small amount that it was through passion and prejudice engendered, perhaps, by calling attention to the daughter, whereupon the mother had to suffer for it.

1ve think on the whole record that this plaintiff was entitled to a substantial verdict, and while we have repeatedly reversed cases because the verdict has been excessive, we claim the right and power to reverse because of inadequacy of the verdict, and we think this verdict was wholly and entirely inadequate for the injuries this record shows this woman received in this injury, and the judgment will be reversed because of its inadequacy ,and the cause remanded to the Common Pleas Court for a new. trial.

Sullivan and Levine, JJ, concur.


author: FUNK, PJ.

text:
    SUMP v FAUVER
    Ohio Appeals, 9th Dist, Lorain Co
    No 523.
    Decided April 30, 1930
    John K. Nece, Elyria, for Sump.
    A. H. West, Elyria, for Fauver.
   FUNK, PJ.

The issue presented by the pleadings is clearly whether the dissolution agreement was as claimed by plaintiff, which is in substance that defendant agreed to take over all the assets of the partnership, pay all its debts, allow plaintiff all he had received on drawing account, and pay plaintiff the sum of $100 for his interest in the fixtures and equipment, separate and paart from the dissolution agreement, or whether it was ,as claimed by defendant, which is that defendant agreed only to dispose of their stock, fixtures and equipment, collect the accounts owing said partnership, pay its debts, and account to plaintiff for the balance, if any, and that said paper writing was given only as a memorandum for the purpose of showing the estimated value of plaintiff’s half interest in the fixtures and equipment as a basis of settlement, and was a part of and only one item of the whole agreement of dissolution.

The Issue thus being whether the dissolution agreement was as claimed by plaintiff or ,as claimed by defendant, it is apparent that the question of want of consideration is not in this case.

Under the pleadings, the burden was with plaintiff to prove that the dissolution agreement was as he claimed. Even if the paper writing could be said to be a promissory note, it would be only prima facie evidence of the debt and subject to explanation, so that, under the pleadings, the burden would be upon the plaintiff to prove, by a preponderance of the evidence, the purpose for which it was given.

We therefore hold that the court erred in holding that the burden was upon the defendant “to show it (the paper writing) was without consideration,” and in requiring the defendant to first introduce his testimony and placing the burden upon him to prove the allegations of his pleadings, and that it was error for the court to direct a verdict for the plaintiff upon the testimony of the defendant without any testimony being offered to support the allegations of the plaintiff’s pleadings.

The judgment will therefore be reversed and the cause remanded for further proceedings according to law.

Pardee, J., and Washburn, J., concur.


author: ROBERTS, J.

text:
    JONES v STATE
    Ohio Appeals, 7th Dist, Monroe Co.
    Decided April 30, 1930
    Kremer & McKisson, Woodsfield, for Jones.
    John K. Sawyers, Jr., Woodsfield, for State.
   ROBERTS, J.

Briefly stated, it is the contention of counsel for the plaintiff in error that the line of demarcation between cases in which the defendant has a constitutional right to a trial by jury, and those in which he has not such right to a trial by jury, likewise between cases presented to the Court upon indictment in the first instance, and by information or affidavit in the second instance; that is, it is claimed by counsel for the plaintiff in error that having been indicted, and being brought to trial upon an indictment, he was entitled to trial by jury, to- which, he would not have been entitled had the charge been preferred against him otherwise than upon indictment.

The industry of counsel has not resulted» in the discovery of any reported case in Which this proposition has been expressly considered.

It is claimed by the prosecuting attorney that so far as a right of trial by jury is concerned, that it is unimportant whether the charge be placed by indictment, information and affidavit, but that the true rule is that a charge of an offense punishable by imprisonment entitles the person so charged to trial by jury, and that where imprisonment is not a part of the penalty, a right to a trial by jury does not exist.

' In the case of Inwood v. the State, 42 Oh St., 186, the syllabus reads as follows:-

“A statute, which authorizes a penalty by a fine only, upon a summary conviction under a police regulation or of an immoral practice prohibited by law, although "imprisonment, as a means of enforcing the payment of the fine is authorized, is not in conflict with either section 5 or 10 of article I of the constitution, on the ground that no provision is made for a trial by jury in such cases.”

In the case of Cochran v. the State, 105 Oh St, 541, it is said in the opinion on page 542:-

“It has been frequently announced in the decisions of this Court, some of which are quite recent, that the right of trial byfjury obtains only (Where under the provisions of the statute claimed to have been violated, a sentence of imprisonment may be imposed as a part of the punishment for such violation.”

In this opinion, the Court quotes from Hoffrichter v. State, 102 Oh St, 65:-

“It has long been the settled doctrine of this state, confirmed by repeated decisions of all our courts, that where the penalty imposed by criminal statute is merely a fine, the right of trial by jury as guaranteed by the constitution does not apply.”

There is no contention in this case but that the statute, under which the plaintiff in error was prosecuted, provided a fine only as a punisment.

In the case of Steward v. State, 117 Oh St, 568, it is said in the opinion on page 570:-

“On the first of these grounds, plaintiff in error seems to have labored under a misapprehension. He had apparently found that section before it had been amended, when imprisonment was made a part of the penalty.
During the period laid in the affidavit, ,and during the time when the offense was alleged to have been committed, imprisonment was no part of the penalty.

The situation is therefore governed by the unbroken line of authorities.” Then, follows citation of authorities including those hereinbefore quoted.

This rule has been adhered to in the case of Weimer v. State, 118 Oh St, 129. The opinion in this case is per curiam and very short and reads as follows:-

“This cause has been filed in this court under claim of right, upon the ground that a constitutional question is involved. It is only necessary to inquire whether the constitutional question is an unsettled one.
Weimer was convicted in the probate court of Greene County, Ohio, for violation of the state prohibition laws. Imprisonment was not a part of the penalty.
It is contended that, by virtue of the provisions of Section 10 of Article I of the state Constitution, he is entitled to jury trial. A motion to dismiss the petition in error was filed by the state.
The motion to dismiss must be sustained upon the authority of Work v. State, 2 Ohio St., 296; Inwood v. State, 42 Oh St 196; Smith v. Smith, 69 O. S. 196; St. v. Borham, 72 O. S., 358; Hoffrichter v. St., 102 O. S., 65; Stiess v. St., 103 O. S., 33; Decker v. State, 113 O. S., 512; Sheward v. St., 117 O. S., 568.”

The rule thus seems to be clearly and unmistakably recognized in numerous decisions by the Supreme Court, that the test of a right to a jury trial depends upon the provision of law under which the offense is .alleged; that if it charges an offense punishable by imprisonment, a right to a jury exists. If the punishment does not include imprisonment, that the right does not exist.

This rule seems to be so strongly entrenched as to exclude the contention made by counsel for plaintiff in error, that the right depends upon whether or not the charge is made by indictment from consideration as a test of right.

The judgment of the Court of Common, pleas is affirmed.

Pollock and Farr, JJ, concur.


text:
    CHAGRIN FALLS CREAMERY CO In Re Assignment of
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10408.
    Decided April 28, 1930
    Jos. B. Keenan, Cleveland, and J. A. Butler, Cleveland for Plaintiff in Error.
    Wheeler & Adrion, Cleveland, and M. S. Hewgley, Cleveland, for Defendants in Error.
   LEVINE, J.

It will be seen that $2500.00 was deducted from the purchase price by the return of some of the mortgaged chattels to the mortgagees, and by the assumption of a mortgage for $2000.00 in favor of the Ohio Creamery Co. After making these deductions and also deducting the $100.00 which was paid in cash by the purchaser, there would be due to the Aissignee $711.24. It may be taken as settled law that in the absence of express authority by the court, the Assignee must sell the insolvent property for cash and that he is not authorized to extend credit to the purchaser.

Sec. 11118 GC provides:

“Court may order private sale. — When the court is satisfied that it would be for the advantage of the creditors of the assignor to sell part, or all, of the real or personal property in this state assigned at private sale, it may authorize the assignee or trustee thus to sell it either for cash, or upon such other terms as the court orders. No real estate lying in this state shall be sold for less than two-thirds of its appraised value, nor shall any personal property, be sold for less than two-thirds of its appraised value unless upon good cause shown the court orders the assignee or trustee to sell it for a less amount.”

In the brief of counsel for defendants in error, it is urged that the duties of the Assignee are fully set forth and controlled by 11092-11145 GC; that they hold title to the property upon well defined legal conditions ,and for certain specific purposes and are powerless to do any act independent of the rights of creditors; and can make no disposition of real or personal property without the action and order of the Insolvency Court.

Our attention is directed to 11115 GC, which provides that the Assignee shall convert the assets received by him into money. Sec. 11140 GC requires the Assignment to be completed, distribution to creditors and all, within eight months, excepting only certain cases wherein upon proper application and proof the court may extend the time.

Three contentions made by defendants in error were upheld by the common pleas court and furnished the basis for the court’s decision, namely:

“1st. The Assignee has been guilty of gross neglect of his duties and of gross mismanagement of his trust, and of failure to comply with statutory requirements; that by reason thereof he should be held responsible for the appraised value of the property assigned to him in trust for the benefit of creditors, less the amount of claims settled, and plus interest on such balance from 8-3-1922 to date:
2nd. That the Assignee should not be allowed any compensation for his services because of his misconduct and mismanagement.
3rd. That the Assignee should not be allowed expenses incurred by him while operating the business unlawfully and without authority.”

The judgment which the common pleas court allowed was based upon the appraised value of the property, which was $4967.50 less $2500.00 represented by certain chattel mortgages. A detailed statement enumerating the unauthorized acts of the Assignee are contained in the brief of defendants in error. Authorities are cited to the effect that when it is proved that the Assignee has been guilty of negligence, the appraised value of the property may be taken as a basis for measuring the extent of the Assignee’s liability.

We are satisfied from a perusal of the record that the Assignee acted in good faith; that the various attempts made by him for the disposition of the property were made with a view of enhancing the proceeds of the sale of the property. Since these efforts, presumably unauthorized by the code, had failed we do not consider the same as decisive of the question before us. When the sale was actually made in July, 1924, it was so made, long after the eight-month limit set forth in 11140 GC had elapsed. We are of the opinion that if the Assignee fails to dispose of the property within eight months it furnishes a basis for his removal by the court, if the court chooses so to do. In this case the court permitted the Assignee to continue as such; none of the creditors took any steps to effect his removal and there is credible evidence in the record that the creditors knew not only that the Assignee continued as Assignee after the expiration of eight months but also that he had made various efforts to dispose of the property. No objection of any kind was entered by any of the creditors until March 22, 1928, which was some seven months after the sale made by the Assignee in July 1927 was approved by the court.

We are of the opinion that even though the statutory period of eight months had elapsed, that if the Assignee was permitted to continue to act as Assignee without objection by any of the creditors, and if such creditors had knowledge of the fact that the Assignee was endeavoring to dispose of the property, that upon recognized principles of equity they are estopped from asserting their objection upon purely technical grounds.

Under the terms of 11118 GC above referred to, the Assignee is authorized to sell the property at private s,ale when so authorized by the court. He may sell the same at two-thirds of the appraised value and in the absence of express authority by the court, must sell the same for cash. He is authorized by the terms of this section of the code to sell the property at two-thirds of the appraised value without any express authority from the court to that effect. This he did in the instant case and the measure of his liability is the actual price received for the property. His act in extending credit in the sum of $711.24 is clearly unauthorized and he is liable personally for that amount.

It is therefore our holding that the judgment of the common pleas court is to be modified so as to fix the measure of the Assignee’s personal liability, in accordance with the price actually obtained for the property which is not less than two-thirds of the appraised value. In view of the fact that the Assignee did not strictly comply with the terms of the statute no compensation is to be allowed to him nor is he to be allowed anything for expenses incurred by him. A journal entry may be drawn accordingly.

Vickery, PJ, and Sullivan, J, concur.


text:
    COMMERCIAL CASUALTY INS CO v KNUTSEN MOTOR TRUCKING CO
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10685.
    Decided May 5, 1930
    E. A. Binyon, Cleveland, for Casualty Co.
    Klein, Harris & Diehm, Cleveland for Trucking Co.
   VICKERY, PJ.

The errors alleged are: First, that the Knutsen Company had concurrent insurance with the Travelers Insurance Company and that by virtue of a contract between them that it was to look to each company for the amount in proportion to the insurance of each company, to the judgment that was rendered against it, and that the Travelers Insurance Company was liable to it, if anybody was, for the amount sued for in this action, and that the Knutsen Company had no right or claim against the Commercial Casualty Insurance Company and that the judgment, therefore, rendered in the Common Pleas Court was wrong and should be reversed.

Now it is admitted in this record that the truck that caused the injury to Steiner was especially and particularly insured by name in the Commercial Casualty Company’s policy: but it is claimed by the Commercial Casualty Insurance Company that the policy of the Travelers likewise, by a blanket clause, covered all the trucks that were used by Knutsen Company and, therefore, it was liable likewise and the Knutsen Company should have pursued its remedy against the Travelers for the balance.

There is a grave question whether the Travelers Insurance Company, besides Knutsen’s Cleveland property, covered anything more than emergency trucks, that is, trucks that were used temporarily to take care of added or emergency business demands by the Knutsen Company; and covered the emergency trucks and automobiles only. It is admitted that the truck that caused the injury was specifically insured in the Commercial Casualty Company’s policy and that it was regularly used. It belonged to a man by the name of Benson of Canton, Ohio, at the time of this accident and the policy covered that particular truck which was used regularly by Knutsen through Benson. Benson was employed regularly by Knutsen and the policy in question contained this particular truck and named Benson so as to insure it particularly.

The claim made by the plaintiff in error is that it was not liable because the policy of the Travelers Insurance Company had insured this same truck. There was one possible theory of the lawsuit which escaped the attention of both sides. Let us assume, for the sake of argument, that the Traveler’s policy did cover this truck. Then we have the relationship of the Commercial Casualty Company and the Travelers Insurance Company as being co-sureties to cover the same obligation, or the same loss that might occur.

Now it is well settled law that where two or more parties become liable for the same obligation, even though on separate papers in separate contracts, as between themselves they are co-sureties, and the person who has the right to enforce the obligation may enforce it in its entirety against either of the co-sureties and recover a judgment against either surety and issue an execution and collect the whole amount from that one. If he fails to get his entire amount or cannot collect any part of it on account of the insolvency of the co-surety or for any other reason, he may then sue the other and collect the full judgment, notwithstanding the judgment against the other; but a satisfaction or payment by either surety discharges the obligation so far as the creditor is concerned; but that creates a relation between the two co-sureties, so that the one who paid could sue and recover contribution from his co-surety or co-sureties, even if, as already stated, the.contract arose on separate obligations, or father in separate contracts or separate writings.

I think there can be no question under the law of suretyship that where the same obligation is protected by two companies in separate papers, that each or both are liable and they may be sued and, perhaps, must be sued separately, and a judgment against one does not bar the right to a judgment against the other; but á satisfaction against one does bar the right of action against the other; and in the case of satisfaction by either, the one that paid has a right to contribution against his fellow co-surety.

Now if the theory of the plaintiff in error is right, that the Travelers Insurance Company is liable for this obligation, we think in that view of the case the plaintiff had the right to pursue his remedy in its entirety against the Commercial Casualty Company, and if the Commercial Casualty Company paid it, it would have a right to contribution against the Travelers. If, on the other hand, the Traveler’s policy does not cover this truck, if this was not an emergency truck ,and the Travelers only purpose was to cover trucks that were called in emergencies, then, of course, the Travelers would not be responsible, inasmuch as this accident was not caused by an emergency truck.

So, however one looks at the case, we cannot see but that the Commercial Casualty Insurance Company was liable, inasmuch as the maximum of its policy was greater than the judgment rendered against the Knutsen Company and the Knutsen Company having paid as it was compelled to under the circumstances, it can recover against the Commercial Casualty Insurance Co. for the full amount of its loss, it being less than the amount covered in the policy. And so we can come to no other conclusion but that the Court of Common Pleas reached a right conclusion, and that the judgment was properly rendered, and that there is no error that would warrant us in disturbing the verdict and the judgment thereon, and it will, therefore, be affirmed.

Sullivan ,and Levine, JJ, concur.


text:
    MAFFIA v STATE
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10847.
    Decided May 19, 1930
    Charles N. Krieg, Cleveland, for Maffia.
    Ray T. Miller and David Ralph Hertz, both of Cleveland, for State.
   VICKERY, PJ.

Now the statement of the little girl was wholly and entirely incompetent. It could only be used to contradict her and, inasmuch as she was a State’s witness and testified that she had not had intercourse with her father, and she testified that those answers in that statement were false, but that she had made them, the papel could not be introduced to contradict anything. Then one wonders upon what the State predicates the right to introduce the confession of the father, for the law is well settled that the corpus delicti must first be proven before a confession can be used.

Now it seems that the learned judge in this case said if the doctor would testify that the little girl was still a virgin he would at once direct a verdict for the father. Of course; if the little girl had been a virgin, it is perfectly manifest that there could not have been any incestuous relation between the father and this girl. It seems that because his honor got the notion that the little girl was not ,a virgin, the father must therefore have been the author of her downfall.' The evidence disproves that from her own testimony and that was all the testimony there was up to the time of the introduction of this confession.

From the conduct of this little girl before and after she was in the Sterling Home, running around with boys, it is obvious, had the officers pressed the matter farther, they might have found some other person was the author of her downfall other than her father. The mere fact that she was not a virgin did not tend to prove that the father was the author of her downfall. Therefore, there was no evidence to prove the corpus deliciti against the father when this confession was introduced. Subsequently the father got on the witness-stand and denied that he had had anything to do with his daughter and stated under what circumstances the so-called confession was obtained from him. Under the circumstances, we think that, after the State closed its testimony, the motion for a directed verdict of not guilty should not have been sustained by the court, and after all the testimony was in, the father having testified denying his so-called confession, it was the court’s duty to grant the motion in arrest of judgment and order a discharge of the defendant below, plaintiff in error here, for there was the good record of this man who was a faithful father to his other children. His wife testified that he is a good husband and that he is good to her and to the children, and in face of that record under the testimony, taken under the circumstances that it was, to send a man to the Penitentiary and put his children in charge of charity, it seems that error has been committed by the trial court.

This man is now in the Penitentiary and has been since February, unable to get a bond for his release, since which time his family has been a charge upon the public. We understand that the Illuminating Company stands ready now, and has always stood ready, to give him steady employment, because he is a faithful, honest and steady employee. Under the circumstances, we cannot help but come to the conclusion that this record does not show, with such a degree of certainty that this man is guilty of the crime of incest, that he should be convicted thereof.

This little girl undoubtedly was angry with her father because he remonstrated with her and tried to keep her in bounds. It is almost inconceivable to think that a little girl would lie that way; but she either lied then or on the witness stand, and her conduct at the Sterling Home and elsewhere was bad, for while at the Sterling Home she stole a key and got out of the Institution and went with young men and stayed out all night at Elyria or somewhere. It shows the character of the child, which shows that she should be under the control of authority and should be in some penal institution where girls can be reclaimed, if it is possible. But to convict the father under such circumstancés is not warranted by the record.

In going over this record we can come to no other conclusion but that this verdict is manifestly against the weight of the evidence; that there was error in the court’s permitting the confession to go into the record before the corpus delicti had been established; and error in the admission of the paper signed by the little girl.

For all these errors wg can come to no other conclusion but that the judgment must be reversed, and inasmuch as the State may be able to supply what is deficient in this record, we will remand the case for a new trial.

Judgment reversed and cause remanded.

Sullivan and Levine, JJ, concur.


author: MAUCK, J.

text:
    FORD v COLUMBUS MUTUAL LIFE INS CO
    Ohio Appeals, 4th Dist, Ross Co
    Decided May 16, 1930
    Kenneth T. Stevens, Chillicothe and Jospeh G. Cox, Gillespieville, for Ford.
    John P. Phillips, Chillicothe and Lewis Stout, for Insurance Co.
   MAUCK, J.

In the answer and cross petition it is alleged that the premises described in the petition were conveyed by the plaintiff to Herbert C. Sherman as trustee for and on behalf of these answering defendants on December 26, 1926, and the evidence shows that while the deed from the plaintiff to the Fords was dated in October, 1926, it was actually made and delivered December 16, 1926, and that on December 26, 1926, Oaklev Ford and Cora M. Ford conveyed it to Herbert C. Sherman, trustee, subject to the mortgage. In the deed from the plaintiff to the Fords there is this recitation:

“Possession of said premises is to be given grantees by the grantors so far as may be done at the date of this deed, subject to the rights of the tenant on farm, Lewis F. Metcalf, whose lease expires March 1, 1927.”

This recitation is omitted from the deed made by the Fords to Sherman. It is to be observed that from December 26, 1926, the title .to this property was in Herbert C. Sherman, trustee, and that Mr. Sherman filed no pleadings in the case and is not now complaining of the judgment. It will be further observed that the cross action seems to be based upon the claimed violation of no provision or condition in the deed of conveyance but upon two entirely different contracts. One was the contract preceding the conveyance of the real estate by which the plaintiff agreed to sell to the Fords certain personal property as well as the real estate in question, and the other contract was claimed parol agreement between certain agents of the plaintiff and Ford. From the outset of the trial the plaintiff resisted the attempts of the defendants to prove this latter claimed agreement ,and no proof was made by Mr. Ford of any violation by the plaintiff of any duty it owed with reference to the personal property. Considerable testimony was adduced tending to show that on March 1, 1927, the Fords attempted to move into the dwelling house on the farm in question and that Metcalf, then occupying the premises, resisted their efforts. It further appears that Mr. and Mrs. Metcalf had formerly owned the farm, that they had lost it and that Mrs. Metcalf, not appreciating the fact that the farm had been lost by them, would not give up the place. It appeared that Ford had taken steps to bring forcible detention proceedings and was at the same time appealing to the plaintiff to assist him in getting the possession to which he was entitled. Thereupon, in early March Mr. Ranier and Mr. Backus met Mr. Ford in Chillicothe and advised with him in reference to getting Metcalf out of the house. Mr.'Rainer was-an employe of the plaintiff. His general duties were to look after farm lands in which the plaintiff was interested and prior to the sale of the land in question to Mr. Ford bad looked after this land. By virtue of this he knew Metcalf and sympathized with the misfortunes of the latter and the apparently unhappy condition of Mrs. Metcalf. Mr. Backus was a director and assistant treasurer of the plaintiff corporation. There is nothing in the record to show what powers he had as an officer of the company except as they are indicated by the names of these offices. Mr. Ranier, Mr. Backus and Mr. Phillips advised Mr. Ford that persuasive rather than coercive measures be employed; that forcible detention proceedings would not be speedy because the local officers would be in sympathy with the Metcalfs. Thereupon Mr. Phillips and Mr. Backus conferred with the Metcalfs and secured the latter’s promise to vacate on March 21. This was communicated to Mr. Ford. He adopted the suggestion, did not push his forcible detention proceedings and obtained peaceable possession about the time promised. Mr. Ford testified, however, that he told Mr. Backus when informed that the Metcalfs would vacate on March 21 that “he would take $100 a day for the first thirty days damage. He said they would have to pay me my damage.” This last quoted sentence was stricken out over the defendant’s objection and is one of the refusals of testimony of which the plaintiff in error now complains.

Another question of like import saved is thus disclosed, Mr. Ford being on the witness stand:

“Q Mr. Ford, you may now state to the court what Mr. Bachus said to you here in Chillicothe at the time you mention here, on or about the first of March, as to taking care of you and leaving the tenant stand where he was until they could get him out and they would recompense and pay you for your loss and damage therefor?”

The objection was sustained to this question. Counsel for the defendants -made this statement:

“We expect the answer of the witness to be that Mr. Backus told him that he would take care of him in that manner and would pay and recompense him for any damages he might sustain.”

Unless the court committed fatal error in the rejection of the testimony referred to the judgment must be affirmed. We have set forth the record with some fullness because it seems to afford its own answer to the complaints of the plaintiff in error.

1. It does not show that Mr. Sherman was ,a trustee for Mr. Ford and that the latter had a right to complain of Metcalf’s holding over. This, of course, is somewhat technical and might be cured, by an enlarged bill of exceptions.

2. The vital failure of the defendant’s case lay in his attempt to predicate liability for an independent contract of indemnity on the casual utterance of a director of a corpbration. Bradford Belting Co. v. Gibson, 68 Oh St 442. There is nothing in the record to indicate that there was any existing cause of action against the plaintiff in behalf of Mr. Ford on Ma;rch 1. Mr. Ford by the acceptance of the deed, followed by the letter of his vendor to Metcalf, became the landlord for the tenancy of Metcalf and complete privity existed between these two. Nothing is shown to the effect that the plaintiff - was to warrant the honesty or fidelity of Metcalf or be bound for any of the latter’s defaults in complying with the terms of his lease, one of which was (we assume) to vacate the farm on March 1. The vendor was doubtless bound to Mr. Ford if it be found that Metcalf had a right to hold over after March 1, but it was not responsible for his wrongful holding over. The plaintiff and its agents were consequently performing a gratuitous service in assisting Mr. Ford to secure possession and out of it arose no benefit to the plaintiff. There is consequently no analogy between this case and the doctrine of corporate ratification laid down in Indemnity Co. v. Shovel Co., 112 Oh St 136, because there is no correspondence in the facts. In that case the shovel company secured and retained valuable advantages inuring to it from the express contract of its secretary acting without authority. In this case there were no benefits flowing to the plaintiff. If, therefore, this action had been brought by the only party in interest shown by the record the testimony proffered would have been properly refused.

The record is free from error.

Middleton, PJ, and Blosser, J, concur.


text:
    McNAUGHTON, Exr, etc v PRESBYTERIAN CHURCH
    Ohio Appeals, 5th Dist, Coshocton Co
    No 188.
    Decided May, 1930
    Glenn & Glenn, Coshocton, for McNaughton.
    Leach, Wheeler & Sly, for Church. LEMERT, PJ, and SHERICK, J (5th Dist) and HUGHES, J (3rd Dist) sitting.
   LEMERT, PJ.

As to the first contention made as to error and as disclosed by the record in the instant case; This has to do with Exhibits A, B, C, and D, introduced by the plaintiff below, and the record discloses that E. A. McNaughton, as executor of the estate of Myron W. McNaughton, was called for cross-examination; the right of cross-examination being conceded by the defendant below. The exhibits A, B, C and D, were then handed to the defendant executor and identified by him as the books in which his father as such treasurer had made the entries, in his own handwriting, for the fiscal years ending March 31, 1924, 1925, 1926, and April and May, 1927. These were the books in which the executor’s father in his own handwriting made the entries of the small sums of money which were handed in by envelope and by check of the various members of the Presbyterian Church: That the names written on the margins of the books of the members were written in the handwriting of the Treasurer, Myron W. McNaughton, the executor’s father; and that they contained the weekly system of the amounts of money contributed by the members: That these exhibits A, B, C and D, were the only books in which the individual names of the members of the church and the amounts paid in by them individually were entered and kept.

The record discloses that there was also introduced in evidence Exhibits E and F, which were termed and designated “Cash Book” and “Pass Book”. These books were also kept in the handwriting of the deceased treasurer, showing the amounts that he reported to have received and the amounts which he deposited in the bank on a pass book. The record discloses that Exhibits E and F were admitted in evidence without objection by the defendant below. Exhibits A, B, C and D, were objected to by defendant, but were admitted in evidence by the Court, as shown by the record. We believe that the books, Exhibits A, B, C and D, were properly admitted as books of original entries, for it is shown in the record, as hereinbefore stated, that the entries were in the handwriting of the deceased father, both as to names and amounts entered after each name: That the amounts set forth in the Cash Book, which was admitted without objection by the defendant below, were composed of several items, one of which specified, “From the Envelope Book”, which were Books A, B, C and D. Therefore, the claim of the Counsel for defendant that the Cash Book was the only book of original entries can not be maintained, for the reason that part of ist entries as to the contribution of the church members of their weekly payments was taken from the Envelope Books. This being true, then these books were admissions against interest, in addition to their showing and specifying directly what the deceased treasurer received each Sunday from the members of the church. As to the authority for the admission of these books m evidence, we cite counsel to 12 Oh St, 587; 22 Corpus Juris, 889.

As to the second contention made on the admission of evidence, in the admitting of Exhibits G, H, I, J, K and L: These being a record, made by a public accountant, who w,as duly qualiled as an accountant, and were made after a careful examination and caluculation from Exhibits A, B, C and D, which contained more than one hundred thousand entries; these entries having been made by Myron W. McNaughton, deceased, who had the Exhibits A, B, C and D, in his possession until after his death, when they were obtained by the officers of the church.

It has been held: “Where books and documents are multifarious and voluminous, abstracts and schedules which have been perpared therefrom by an expert accountant may be admitted in evidence, but in such case the books and documents must either be first offered in evidence, or be in the custody of the Court, so that the party against whom such abstracts and schedules are offered, may have opporutnity from their examination to verify their correctness.”

90 Oh St 722.

Counsel for plaintiff in error herein takes exception to but one paragraph of the charge of the Court, given to the jury after the Court had given his general charge. The record discloses that counsel for the defendant requested that the Court charge upon the subject of accepting the report of the deceased treasurer by an auditing committee, to the effect that they were estopped from claiming misappropriation for fraud on the part of the deceased treasurer because they had reported an audit to the congregation and it was accepted. Then the Court added the following paragraph to its charge:

“A corporation does not ratify unlawful acts of its officers, of which it has no knowledge, by the adoption of a general resolution by the Board of Directors commending, and approving the officers and their acts and official conduct, and the officer is not thereby relieved from responsibility for unlawful and unauthorized acts and transactions resulting in profit to him, personally, and in loss to the corporation.”

We believe this charge to be the law and was applicable to the issues made in the instant case.

Citing Ohio Decisions, 323; 79 Oh St 432.

The only other error complained of by the defendant below is error in the Court in permitting the testimony of M\ D. Custer to go to the jury. The witness, M. D. Custer, was called by the defendant below, as their witness,’ to testify on behalf of the deceased, Myron W. McNaughton, as Treasurer of the plaintiff Church. He was not called by the defense for cross-examination, but was made their witness. This witness was interrogated as to what was done with reference to the making of an audit by a committee appointed by the Church, and was interrogated as to the authenticity of certain entries made in the congregational record book setting forth certain actions taken by the Board. We believe that after this witness was called and the subject was opened up with reference to the transactions with the decedent, that it was right and proper to open up and disclose all matters pertaining to the subject matter, and we find and hold that the Court below did not err in admitting the evidence of this witness.

This Court had the same question presented in the case of Stream vs. Barnard, reported in 120 Oh St, 206 wherein it was held:

“Where the representative of a deceased person, party to an action, examines as a witness the .adverse party to such action, with reference to any conversation, admission or transaction of or with deceased, he thereby waives the incompetency of such adverse party to testify as a witness in his own behalf. Thereafter such adverse party is competent to testify in his own behalf to any matter relevant to any issue in the case of which he has knowledge.”

We therefore find and hold that the errors complained of by plaintiff in error herein are not well taken: that the defendant below had a fair and an impartial trial, and that the Court below fairly and impartially charged the law of the case, and that the parties herein had an impartial and fair trial, and that the verdict of the jury was fully warranted by the evidence in the record.

It therefore follows that the finding and judgment of the Court below will be and ■ the same is hereby affirmed.

Exceptions may be noted.

Sherick, J, and. Hughes, J, concur.


text:
    NELLIE STUART v WILLIAM STUART
    ■Ohio Appeals, 2nd Dist, Montgomery Co
    No 996.
    Decided July 2, 1930
    R. R. Cross, Dayton, for Nellie Stuart.
    J. J. Hoover, Dayton, for William Stuart.
   BY THE COURT

Exception was taken to this order of the Court and request was made to the court to fix an appeal bond. This was fixed in the sum of $200.00 and .the case is now in this Court on appeal from such order for alimony pending the suit. We do not think this is a final order from which an appeal may be taken, nor is an awarding of alimony appealable. Error would have to be prosecuted in order to present such question to this Court if the order could be considered as a final order.