author: By THE COURT. By PUTNAM, PJ.

text:
    GLENS FALLS INSURANCE COMPANY, a Corporation, and FARM BUREAU MUTUAL INSURANCE COMPANY, Plaintiffs-Appellees, v. STANDARD OIL COMPANY, a Corporation, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 4939.
    Decided June 26, 1953.
    Wiles & Doucher, Columbus, for plaintiffs-appellees.
    McAfee, Grossman, Taplin, Hanning, Newcomer & Hazlett, H. Vincent E. Mitchell, of Counsel, Cleveland, for defendant-appellant.
   OPINION

By THE COURT.

Submitted on motion of the plaintiffs-appellees seeking an order dismissing the appeal upon the following grounds:

(1) The appeal is not perfected within the time limited by law.

(2) The notice of appeal is defective.

The transcript of docket and journal entries reveals that a judgment was rendered for the plaintiffs on December 12, 1952, in the Municipal Court of Columbus, Ohio; that on January 13, 1953, a motion to vacate said. judgment was filed setting forth the fact that “no notification of the entry of judgment was supplied to the defendant or its attorneys, and that the first notice of the entry of such judgment herein was received by defendant’s attorneys on January 10, 1953”; this motion was sustained on March 6, 1953, and the same judgment was again re-entered on said date; that on March 16, 1953, a motion for a new trial was filed, which was overruled on April 3, 1953, and the notice of appeal which was directed to the order overruling the motion was filed on April 11, 1953. The bill of exceptions filed on April 13, 1953, disclosed that the case was heard on March 6. 1952, and that the defendant-appellant was represented by H. V. Mitchell of the firm of McAfee, Grossman, Taplin, Hanning, Newcomer & Hazlett of Cleveland, Ohio. The case was then submitted to the Court which entered its judgment on December 12, 1952, some eight months after the conclusion of the trial. In support of its motion to vacate, the appellant submitted the following affidavit which sets forth fully the pertinent facts:

“State of Ohio )
“Cuyahoga County) SS
“H. V. E. Mitchell, being first duly sworn, deposes and says that he is one of the attorneys for- The Standard Oil Company, that in March 1952 he tried the above captioned case before Hon. Judge J. M. Matthias of the Municipal Court of Columbus, Ohio, that judgment on the merits was reserved by the court; that on June 10, 1952 counsel wrote the Clerk of the Municipal Court, Columbus, Ohio, inquiring as to the status of the case as shown by the court’s journal and that several days thereafter he received from the court a note signed by Deputy Sachs that according to the journal docket in the Clerk’s office the case had not as yet been returned and decided; that thereafter on January 10, 1953 deponent received a letter from Wiles & Doucher, Attorneys for plaintiff, dated January 8, 1953, in which deponent was informed that on December 12, 1952, judgment was rendered in favor of the plaintiff; deponent says that prior to receipt of said letter on January 10, 1953 he, nor any of his associates in the firm of McAfee, Grossman, Taplin, Hanning, Newcomer & Hazlett had any knowledge of the entry of judgment on December 12, 1952 in the above case, and that no notice was ever received by the office of McAfee, Grossman, Taplin, Hanning, Newcomer & Hazlett of the entry of judgment from the Clerk of the Municipal Court of Columbus, Ohio.
“Deponent further says that because of the failure of the Clerk of the Municipal Court of Columbus, Ohio to notify defendant or its attorneys of the entry of judgment in favor of the plaintiff, defendant The Standard Oil Company has been deprived of its statutory right of appeal because of the lapse of time intervening between the date of December 12, 1952 and the present date.
“Further deponent saith not.
(Signed) H. Vincent E. Mitchell
“Sworn to before me and subscribed in my presence this 12th day of January, 1953.
(Signed) Agnes B. Duncan,
Notary Public.”

It will be noted that under §1608 GC the motion to vacate was filed within term, hence the question presented is whether there was an irregularity in the proceedings which would warrant the Court in vacating the judgment under §11576 GC, or was the judgment vacated solely for the purposes of extending the date for filing a bill? If the latter, there was an abuse of discretion and the motion should be sustained. Hebert v. New York Central Railroad, 92 Oh Ap 512; Tims v. Holland Furnace Co., 156 Oh St 469. However, in considering all the facts presented to the trial court upon the motion to vacate, we are are of the opinion sufficient grounds were set forth to sustain the action of the Court. We can find no fault with counsel for the appellant who did everything reasonably possible to protect the appellant’s interest. The exercise of a sound discretion by the trial court permitted the judgment to be vacated.

It will be further noted, a motion for new trial was filed after the judgment was vacated and to which the appellee filed a brief contra going to the merits of the case. The judgment might properly have been vacated in order to permit the filing of this motion. Hence, it could not have been solely for the purpose of extending the time of appeal, the Court having assigned no reason for its action.

The question raised by the second branch of the motion relates to the finality of the order overruling the motion for a new trial. This question was only recently passed upon by this Court in the case of Jolley v. Martin Brothers Box Company, 90 Oh Ap 416, Syllabus 2; 158 Oh St 416, 430.

The motion to dismiss will be overruled.

WISEMAN, PJ, MILLER and HORNBECK, JJ, concur.

Decided October 23, 1953.

Wiles & Doucher, Arthur W. Wiles, of Counsel, Columbus, for plaintiffs-appellees.

McAfee, Grossman, Taplin, Hanning, Newcomer & Hazlett, H. V. E. Mitchell, of Counsel, Cleveland, for defendant-appellant.

GLENS FALLS INSURANCE COMPANY, a Corporation, and FARM BUREAU MUTUAL INSURANCE COMPANY, Plaintiffs-Appellees, v. STANDARD OIL COMPANY, a Corporation, Defendant-Appellant.

No. 4939.

(PUTNAM, PJ, of the Fifth District, sitting by designation.)

OPINION

By PUTNAM, PJ.

This law appeal comes to this Court from the Municipal Court of Columbus, Ohio, wherein a judgment was rendered in favor of the plaintiffs in the sum of $991.40 on a subrogation claim which plaintiffs were required to pay by reason of a fire on property on which they had insurance and which they claimed was due to a faulty installation by the defendant of a furnace on the insured property. The case was tried to the Court, a jury being waived. The assigned errors are that,

1. There is no evidence in the record of any negligence on the part of the defendant and consequently the judgment is contrary to law.

2. The judgment is against the manifest weight of the evidence and the Court erred in overruling the motion for a new trial.

Obviously, under these assigned errors the sole question presented to this Court concerns the weight and sufficiency of the evidence.

Briefly, the factual situation is as follows: About July 1, 1948, Mrs. Frank Howe, whose husband was athletic coach at Central High School, purchased the property in question. Prior to October 20, 1948, she contacted the defendant concerning additional storage for oil for their oil burner and as to the suitability of their heating unit which was located in the utility room of a basementless one story dwelling. As a result of this contact the defendant advised Mrs. Howe that her installation was improper and would not function as ‘a floor furnace and undertook for a consideration, which was paid, to locate said heating furnace as an underfloor unit at a different place in the home and did so install it about October 20, 1948. The new installation was not satisfactory and on at least three occasions the furnace overheated and service calls were made to the defendant to correct the conditions then existing. The undisputed evidence shows that on two of these occasions the overheating was attempted to be corrected by 1) by fixing the fan, and (2) changing the thermostat control and' oil feed. There is evidence in the record (p. 15) that several weeks before the Are the defendant was notified that water infiltrated into the casing of the furnace and was causing trouble by overheating. In any event, on November 28, 1948, while the owners were away from home the furnace became overheated and caused the fire in question. The evidence is clear that for several days prior to the fire and subsequent to the last service call the furnace had been working properly.

There is no difficulty with the law in this case. The defendant, having assumed to relocate and reinstall this furnace, is bound by the implied warranty that the same would be done in a good and workmanlike manner and in accordance with sound engineering practice. The owners had a right to assume that it would be so installed and as applied to the facts in this case that it would be safely installed. The plaintiffs of course by reason of their subrogation are entitled to the same rights. In the final analysis the dereliction of the defendant is asserted to be in two respects: First, the failure properly to insulate the flue pipe from the furnace to the chimney from the floor joists. On this question the evidence is in dispute. Plaintiff’s evidence is that this six inch flue pipe was up between the floor joists and not insulated. The evidence of the defendant is that it was anywhere from six to twelve inches from the floor joists. Whether this was from the sides or below is not too clear from some of the testimony. If the floor joists were 18 inches apart and the pipe six inches in diameter the pipe could be between the floor joists and yet six inches therefrom. However, other evidence of the defendant indicates that there was a one-fourth inch asbestos covering between the pipe and the floor joists. In any event; this is a disputed question of fact and we cannot say that the trial court resolved this question incorrectly. No finding of facts was made.

The second question as to improper installation has to do with the failure of the defendant properly to guard the heating unit from inundation by ground water. The evidence seems to preponderate that on the occasion of the fire which was certainly caused by an overheating of the furnace, that this overheating was caused by water infiltrating into the metal casing of the heating unit, and thus stopping the air circulation. On this proposition the question becomes as to whether or not under the circumstances the defendant should have anticipated this possibility and made adequate provisions therefor. On the one hand, defendant claims that the rains of two or three days previous were in fact of such intensity as to be an act of God and not to be anticipated. In reference to this claim it is to be noted that an act of God was not plead nor was an application made to amend the pleadings in conformity with this theory of the case. We may here state that there is no proof in the record bringing the situation under such a plea. On the other hand, as before stated, there is evidence that at a service call some weeks prior to the fire the situation as to ground water getting into the casing of the furnace was called to the attention of the defendant. With this situation before us we cannot say that the judgment of the lower court was against the manifest weight of the evidence. The defendant, in view of the service complaints may well have been negligent in either failing properly to insulate the flue pipe or to provide against flooding by ground water. It follows that the judgment must be and is affirmed.

NICHOLS, J, of the Seventh District, MONTGOMERY, J, of the Fifth District, sitting by designation, concur.


source: Caselaw Access Project

author: By CLIFFORD, J.

license: Public Domain

text:
    NORFOLK AND WESTERN RAILWAY COMPANY, and VIRGINIA HOLDING CORPORATION et, Plaintiffs, v. SCHAEFER, Recorder of Franklin County, Defendant.
    Common Pleas Court, Franklin County.
    No. 188669.
    Decided April 22, 1954.

      Alexander, Ebinger & Wenger, Arvin J. Alexander, Vernon W. Wenger, Thomas W. Applegate, Ray E. Hughes, Raglan R. Reid, Columbus, for plaintiffs.
    J. Baxter Evans, Asst. Pros. Atty., W. S. Lyman, Sr., Special Asst. Pros. Atty., Columbus, for defendant.
   OPINION

By CLIFFORD, J.

This cause comes before the Court on plaintiff’s applications by petition, defendant’s answer, the briefs of the parties and the evidence adduced at the trial. The three cases were consolidated and tried together. By stipulation, plaintiffs are interested parties in this cause.

Certain territory within the Township of Clinton, County of Franklin, is sought to be organized into an incorporated village under the name of “Village of Lin Lea.” The papers filed by the Township Trustees pertaining to the incorporation of the proposed village were placed in the hands of the Recorder of this county for record. Plaintiffs bring this action, praying that an injunction may issue restraining the Recorder from making a record of the said proceedings and certifying the transcript thereof to the 'Secretary of State as provided by law.

Although the respective parties have raised many legal questions either in behalf of or against the proposed incorporation, the Court will discuss only two matters upon which this particular incorporation must stand or fall.

Both of these matters are expressly set out in the statutes, and since municipal corporations are creatures of the statutes, a priori, the creation of a municipal corporation must substantially conform to the requirements of the creating statutes. In order to determine if the minimum requirements of the statutes have been complied with in this case, the Court will refer to the statutes which apply.

Sec. 707.15 R. C. (§3526 GC) and §707.04 R. C. (§3519 GO, respectively require, inter alia, that the petition to the Board of Township Trustees shall be accompanied “by an accurate may of the territory” and “an accurate description of the territory embraced within the proposed municipal corporation.” The Court has examined the petition to the Board of Township Trustees of Clinton Township in this matter and it is evident that neither an accurate map nor an accurate description have been submitted to the Board of Township Trustees. The description in the petition inadvertently incorporated therein 8.634 acres owned by Emily P. Benua, which acreage is a part of the City of Columbus An examination of the map submitted, with the petition reveals it to be such a patently inadequate drawing that the Court is compelled to hold that the may does not comply with the statutory re-, quirement that an accurate map accompany the petition to the Board of Township Trustees. Other patent inaccuracies are apparent upon examination of the description of the territory sought to be incorporated. The Court is constrained to hold that the requirements of the statutes have not been sufficiently complied with in the case at bar.

Although it is quite true that the intent of the law is not that the description and accompanying map be meticulously and mathematically correct in all its details, it is the intent of the law that it be possible to ascertain from them the limits of the territory to be incorporated. A map or description from which bona fide disputes may arise concerning the location of boundaries does not have that degree of certainty which the statute requires. This case is not analogous to Coy v. Foster, 2 Abs 230, wherein the court characterized the description “imperfect * * * yet not inaccurate.”

Proponents for the incorporation contend that a more accurate map was prepared after the election was held and that thereby any inaccuracy in the map submitted to the Board of Township Trustees is cured. This is not the law, and if it were, the inaccuracies in the description in the petition submitted to the Board of Township Trustees and upon which the electorate voted, stand incorrected. This Court adopts the view set forth by the court in Wachendorf v. Kearns, 33 O. O. 458, 69 N. E. 64, wherein the court said at page 459:

“In action to enjoin the recording of the proceedings before township trustees and forwarding the record to the Secretary of State, the court has no power to change the limits of the proposed territory. The result of the election stands or falls.”

Since the petition to the Board of Township Trustees contained an inaccurate description of the property and included part of the City of Columbus within the area sought to be incorporated, the Court has no alternative but to enjoin the Recorder from making official record of the said proceedings and from certifying the transcript thereof as provided by statute.

In conclusion, brief comment is necessary to treat the contention of counsel that since the Recorder has already recorded the transcript of proceedings before the township trustees, this Court cannot enjoin an act already performed. This contention has no merit. Even if it be admitted that recordation is complete in the office of the Recorder, no proper certification has been made to the Secretary of State. However, even if all physical acts for recordation and certification have been completed, the power of this Court to enjoin remains unimpaired by express provision of statute. At 28 O. Jur. 59, we find the following language quoting §3531 GC which is now replaced by §707.20 R. C.:

“The statute relating to the incorporation of villages by a proceeding before township trustees further provides with respect to remedies to prevent such incorporation: ‘No injunction shall be brought, as herein provided in case of filing the transcript with the county commissioners, unless the action be instituted within ten days from the filing of the papers by the trustees with the county recorder, but the right of petition to the court of common pleas for error shall exist as provided in the following sections of this chapter.’ ”

In the light of this statute just referred to, Miner v. Witt, 82 Oh St 237, cited by proponents for incorporation, does not apply to the case before this court because this' case is not moot as was Miner v. Witt. In addition to the rights of plaintiffs to file the error proceedings above enumerated, it must be noted that the Recorder is presently enjoined from making certification to the Secretary of State.

Whereupon, the Court finds that there is error in the proceedings to incorporate the proposed Village of Lin Lea and it is ordered that an injunction issue as prayed for to enjoin the Recorder of Franklin County from making a record of the proceedings herein and of certifying the transcript thereof as provided by law. Entry may be drawn accordingly.


author: By BARTLETT, J.

text:
    WEST REALTY, INC., Plaintiff, v. COLUMBUS (City) et al, Defendants.
    Common Pleas Court, Franklin County.
    No. 187674.
    Decided June 19, 1953.
    Knepper, White & Dempsey, Columbus, for plaintiff.
    Richard W. Gordon, City Atty., Ray Snowden, Asst. City Atty., Columbus, for defendants.
   OPINION

By BARTLETT, J.

TEMPORARY RESTRAINING ORDER ALLOWED.

Motion to temporarily restrain City of Columbus from proceeding to appropriate real estate of plaintiff known as 312 West Town Street, Columbus, Ohio, being 110 feet frontage on Town Street and 126 feet on Belle Street located at northwest corner of said streets, said restraining order to continue until the legality of the city program is determined as to the use of the particular property of the plaintiff.

First things should be determined first. It would be a waste of time and public funds to proceed with the appropriation of this property, if it should finally be decided that the city’s program was illegal as to this property on any one of the numerous grounds set up in the petition. It is to the city’s own benefit that these legal objections be determined first: and they cannot be determined in a condemnation proceeding.

The petition does state a cause of action, and if proved at the trial, and cannot be successfully controverted by the city, the plaintiff would be entitled to the relief demanded, then, to preserve the rights of the parties in status quo, the temporary restraining order is authorized. 21 O. Jur., Injunctions, Sec. 51, p. 1057.

It is objected here that the city has no present plans for establishing esplanades, boulevards, parkways, park grounds or public reservations around public buildings in the area where plaintiff’s property is located, and that the city has no present plans for restricting the use of such lands to protect any public buildings, etc. Even the argument of counsel for the city discloses that no definite plans of the city are now in existence, from which one might determine the particular public use for which the city needs plaintiff’s property. Certainly, there are no plans which would enable even the city to say this property is needed for a park or a street, or is needed for the purpose of reselling with reservations in the deeds to protect public buildings, among the many purposes enumerated in the resolution of council of the city.

“Municipal legislation failing to define the purpose of excess appropriations in definite and specific terms cannot be sustained.” * * ■*

“It follows a fortiori that the city is required not only to define specifically the purpose of the appropriation in its legislation, but it is incumbent upon the city to sustain such requirement by proof of its necessity, since the power granted to a municipality to appropriate excess property in furtherance of a public use is only granted when the excess is reasonably needed for that use.”

East Cleveland v. Nan, 124 Oh St 433, 436.

“The power conferred on a municipal corporation to take private property for public use must be strictly followed.”

Cincinnati v. Vester, 281 U. S.439.

Excess condemnation, “the taking by eminent domain of more property than is necessary for the creation of a public improvement, and of subsequently selling or leasing the surplus. The right is claimed in these cases upon three grounds, the first called the ‘remnant’ theory, * * * The second or ‘protective’ theory is that, if the city owned the adjacent land, it could sell it under restrictions that would preserve the beauty of the street, and then facilitate the increase in the values of the surrounding property. The third or ‘recoupement’ theory * * (p. 243.)

The “protective” theory is relied on in the instant case.

"The proofs do not show that the city has any present plan for beautifying or establishing building restrictions on the south side of Fifth Street. Nor does it appear that the ownership of this property any more than that of the adjoining property is essential in the development or the carrying out as a whole of any plans of that character that the city may. hereafter devise.” (p. 244.)

Cincinnati v. Vester 33 F. (2d) 242, 243, 244, affirmed 281 U. S. 439, supra.

These and other legal objections raised in the petition warrant a restraining order and the Court so orders. Bond $500.


text:
    MOZINGO v. BOARD OF LIQUOR CONTROL.
    Common Pleas Court, Franklin County.
    No. 188967.
    Decided April 16, 1954.
    Simon L. Leis, Cincinnati, for appellant.
    C. William O’Neill, Atty. Geni., Kiehner Johnson, Asst. Atty. Geni., Columbus, for appellee.
   OPINION

By CLIFFORD, J.

This cause is before this court on appeal from a decision of the Board of Liquor Control, suspending the appellant’s D-l, D-2, D-3 and D-3A permits for a period of sixty days.

The action of the Board stems from an occurrence on October 3, 1953, in which two police officers visited the permit premises of the appellant and observed an employee of the appellant make a sale of beer in excess of 3.2% of alcohol by weight to one Archie Wesley, a minor who was then seventeen years of age. Two charges based upon this occurrence were made against appellant Mozingo when the case was before the Department of Liquor Control, but only one charge, to-wit: that an employee of the. permit holder had been convicted of selling a prohibited beverage to a minor in violation of §4301.22 R. C. Par. A, §6064-22 GC and §4301.25, Par. A, §6064-25 GC, was prosecuted before the Board of Liquor Control.

The only issue argued to this court on appeal was the identity of the employee of the permit holder. Otherwise stated, appellants argue that the Madeline Mays who was arrested by the officers as the employee who made the sale is not the same person who was convicted of making the sale. Although a journal entry of the conviction of Madeline Mays was admitted in evidence, appellants continue to maintain that the Madeline Mays who was convicted of an unlawful sale to a minor is not the same person as the Madeline Mays who was an employee of the permit holder.

Nothing of this contention appears in the record of this case taken before the Board of Liquor Control. The record does establish that the permit holder had a waitress named Madeline Mays who was arrested for an unlawful sale to a minor on October 3, 1953. The waitress was an employee of the permit holder.

The Department’s Exhibit A, duly admitted in evidence, is a certified copy of a journal entry of the Municipal Court of Cincinnati in which proceeding a person named Madeline Mays was convicted of the offense charged in the Department’s specification.

In this case there is an identity of name, and nothing in the record or elsewhere to show that the Madeline Mays who was convicted of the unlawful sale is not the Madeline Mays who was arrested by the officers for the unlawful sale. The testimony of the police officer adequately establishes that a Madeline Mays was arrested as an employee of the permit holder for an illegal sale to a minor. Exhibit A of the appellee clearly establishes that a Madeline Mays was convicted for such an offense soon after the date of the arrest.

In this state of the facts, a presumption arises that there is only one Madeline Mays in this case; that the one arrested was the one convicted. At 17 O. Jur. 100, 101, we find the applicable law:

“The rule in Ohio seems to be that identity of persons will be presumed from identity of names, especially if the name is not a common one, or if the surnames and given names are identical.”

Further support for this view is found at 20 Am. Jur. 203 and 205, since this court has no evidence in the record or elsewhere rebutting the presumption of similar identity arising in this case. There is no evidence to show that there was in fact more than one Madeline Mays in the vicinity, and furthermore, all the circumstances surrounding the case at bar support the presumption that the Madeline Mays arrested for the offense charged herein is in fact one and the same person as the Madeline Mays convicted of the offense.

This court adopts the statement at 20 Am. Jur. 205 as declarative of the law in the case at bar:

“206. In Criminal Prosecutions.—According to some courts, in criminal prosecutions, where the name is not a common one and there is nothing to indicate that more than one person in the vicinity was known by the same name, proof of the identity of names is sufficient to warrant the conclusion of identity of persons, until the contrary appears. According to these courts, however, the rule is otherwise where the name is a common one and there are several persons who are known by it and are located in the same place. In some cases the courts have denied that in criminal prosecutions prima facie proof of identity can be made by mere proof of identity of names. On the other hand, there are cases in which the presumption of identity of persons or identity of names seems to have been indulged without any qualification.”

The testimony of the permit holder clearly establishes that the waitress Madeline Mays was an employee of the permit holder at the time of the illegal sale. The Court deems it unnecessary in this case to cite authority to the effect that the act of the agent is the act of the principal.

The Court finds the decision of the Board of Liquor Control to be supported by probative, reliable and substantial evidence and the Court further finds the decision of the Board to be in accordance with law. The order of the Board is affirmed.


author: By HURD, PJ.:

text:
    SILBERMAN, Plaintiff-Appellant, v. SILBERMAN et, Defendants-Appellees.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23074.
    Decided September 29, 1954.
    Daus & Schwenger, Harry Kottler, of Counsel, Cleveland, for plaintiff-appellant.
    Bernsteen & Bernsteen, Jos. S. Kreinberg, Cleveland, for defendants-appellees.
   OPINION

By HURD, PJ.:

This is an appeal on questions of law from a final order of the court of common pleas sustaining a motion to quash service of summons by publication upon two individual defendants wno are residents of Michigan. There are three other individual defendants residents of Ohio and two corporate defendants, The Shaw Warehouse Company and The Shaw Holding Company, both domiciled in Ohio with their principal places of business in the City of Cleveland.

Plaintiff, in his petition, alleges in substance that he had in his possession the sum of approximately $45,000.00 being the property jointly of the appellant and his brother and sisters, defendants herein, and that under an agreement said funds were deposited with a third party for the purpose of purchasing two separate parcels of real property described in the petition; that said third party caused the two corporate defendants to be formed and said real property was conveyed by deed to said corporations for the benefit of plaintiff and individual defendants and that subsequently, in violation of said agreement, all of the shares of stock were issued to his brother and sisters and no shares of stock were issued to him covering his proportionate interest in the trust fund. By this action he seeks a decree to impress a constructive trust in his favor upon a proportionate number of shares of stock claimed to be due him in the said corporations.

Personal service was had upon the statutory agents of the resident corporate defendants and upon the other individual defendants residing in this county.

Plaintiff by affidavit secured service by publication upon the two non-resident defendants without any attachment of any property of said defendants in this jurisdiction. The court in sustaining the motion to quash ruled as follows: :

“This is an action to declare a trust and not an action by a trustee as contemplated by the Code and for the further reason that there is no seizure of real estate or personal property whereby jurisdiction might attach.”

The principal assignment of error is that the trial court erred in sustaining the motion to quash service of summons by publication on the two non-resident defendants, and in dismissing them from the action on the ground that there was no seizure of real or personal property of the non-resident defendants.

It is the contention of plaintiff-appellant in this case that the situs of the shares of stock of the defendant domestic corporations, for the purpose of determining title thereto, is in Ohio and that since the action is in rem and the res is before the court, service of summons by publication is proper without the necessity of attaching the shares held by the individual non-residents. Appellant relies upon §2703.14 R. C. subsection (i) (formerly §11292 GC (9) which reads as follows:

“Sec. 2703.14 R. C. (§11292 GO.
“Service by publication: Service may be made by publication in any of the following cases: * * *
“(i) In an action which relates to or the subject matter of which is' real or personal property in this state, when the defendant has or claims a lien thereon, or an actual or contingent interest therein, or the relief demanded consists wholly or partly in excluding him from any interest therein, and such defendant is not a resident of this state, or is a foreign corporation or his place of residence cannot be ascertained.”

It appears that the question, presented is one of first impression in Ohio. It is argued by appellant that a comparable statute has been interpreted favorably to the contention of the appellant by the Supreme Court of the United States in the case of Jellenik v. Huron Copper Mining Co., 177 U. S. 1; 44 Law Ed. 647; 20 S. Ct. 559 where suit was brought in the United States Court for the District of Michigan, by shareholders in a Michigan corporation against the corporation and certain non-resident stockholders. The federal statute upon which that action was based was referred to in the Jellenik case as “the 8th Section of the Act of March 3, 1875.” “An Act to determine the jurisdiction of circuit courts of the United States and to regulate the removal of causes from state courts and for other purposes.” (Presently Title 28, Sec. 1656, Vol. 33, p. 581, Rules Edition, Federal Practice & Procedure.)

The applicable part of that Act provides as follows:

“8. That when in any suit, commenced in any circuit court of the United States, to enforce any legal or equitable lien upon or claim to, or to remove any incumbrance or lien or cloud upon the title to real or personal property within the district where such suit is brought one or more of the defendants therein shall not be an inhabitant of or found within the said district, or shall not voluntarily appear thereto, it shall be lawful for the court to make an order directing such absent defendant or defendants to appear, plead, answer or demur, by a day certain to be designated, which order shall be served on such absent defendant or defendants, if practicable, wherever found, and also upon the person or persons in possession or charge of said property, if any there be; or where such personal service upon such absent defendant or defendants is not practicable, such order shall be published in such manner as the court may direct, not less than once a week for six consecutive weeks; and in case such absent defendant shall not appear, plead, answer or demur within the time so limited, or within some further time, to be allowed by the court, in its discretion, and upon proof of the service or publication of said order, and of the performance of the directions contained in the same, it shall be lawful for the court to entertain jurisdiction, and proceed to the hearing and adjudication of such suit in the same manner as if such absent defendant had been served with process within the said district: but said adjudication shall, as regards said absent defendant or defendants, without appearance, affect only the property which shall have been the subject of the suit and under the jurisdiction of the court therein, within such district * * (Emphasis by the court.)

The court in that case held as appears by paragraph 3 of the syllabus, as follows:

“3. That for the purposes of that act the stock held by the citizens of Massachusetts was to be deemed personal property ‘within the district’ where the suit was brought. The certificates of stock were only evidence of the ownership of the shares, and the interest represented by the shares was held by the company for the benefit of the true owner. As the habitation or domicil of the company is and must be in the State that created it, the property represented by its certificates of stock may be deemed to be held by the company within the state whose creature it is, whenever it is sought by suit to determine who is its real owner.”

The plaintiffs in that case claimed that they were the real owners of certain shares of stock of the corporation, the certificates of which were held by the Massachusetts defendants and sought a decree removing a cloud upon their title to such shares and adjudging that they were entitled to such shares. The analogy between that case and the instant case is immediately apparent. It remains only to determine whether or not there is any substantial difference between the federal statute and the Ohio statute, Sec. 2703.14 (i) R. C. relied upon in this case.

In a comparison of the applicable parts of the two statutes, making allowance for the differences in jurisdiction, we find no substantial difference. Attention is directed to the provisions of §2703.14 R. C. sub-section (i) -where quite definitely service by publication is authorized in an action which relates to real or personal property, when the defendant claims a lien thereon, or is wholly or partly excluded from an interest therein. This provision substantially equates a similar provision in the federal statute “to enforce or to remove any encumbrance or lien or cloud upon the title to real or personal property.” '

In the instant case, the plaintiff is claiming by petition that he is being excluded from his interest in the corporations and that he is entitled to a decree in the nature of a lien upon the proportionate number of shares or to have a trust declared therein in his favor. This is sufficient we believe to bring the plaintiff within the purview of the Ohio statute.

From the foregoing, it is the conclusion of the members of this Court that the Ohio statute is comparable substantially to the federal statute and that inasmuch as the domicile of the defendant companies must be in Ohio, the property represented by the certificates of stock thereof must be deemed to be held by the corporations within Ohio whose creatures they are. This is factually true in this case inasmuch as the principal assets of the corporations consist of real property located in Cleveland, Ohio. As we view it, the certificates of stock held by the non-resident defendants in Michigan are evidence only of their ownership of shares and that the interest represented by the shares is held by the company for the benefit of the true owners. In other words, the situs of the shares of stock for the purpose of determining title thereto in the instant case must be found to be in Ohio. Obviously, no personal judgments can be rendered against the non-resident defendants but the action being one in rem, the court is vested with jurisdiction authorizing service by publication to adjudicate the issues made by the pleadings.

We have examined cases in other jurisdictions which are generally analogous and are cited as follows;

Hook v. Hoffman, 16 Arizona 540, 147 Pac. 722 (1915); Gamble v. Dawson, 67 Wash. 72, 120 Pac. 1060 (1912); Patterson v. Farmington St. By. Co., 76 Conn. 628, 57 A. 853 (1904); Thompson v. Terminal Shares Inc., 89 F. 2d, 652 (C. C. A. 8, 1937); Reeves v. Pierce, 64 Kans. 502, 67 Pac. 1108 (1902); Harris v. Chicago Title & Tr. Co., 338 111. 245, 170 N. E. 247 (1930); Fahrig v. Milwaukee & Chic. Breweries Ltd., 113 Ill. App. 525 (1904); and Andrews v. Qusyaquil & Quito Ry. Co., 69 N. J. Eq. 211, 60 Atl. 568 (1905).

Appellees argue that there are certain factual differences which must distinguish the instant case from Jellinek and other cases. It is true that there are factual differences in certain respects but we have examined the facts in each case carefully and have reached the conclusion that in principle the issues made in each case are the same. The fact that in the Jellinek case the action was on behalf of plaintiff and other stockholders does not change the principle, nor does the fact that the directors and officers had made an illegal assessment on shares of stock of stockholders change the principle so far as the rights of action are concerned.

We are confirmed in this view by decisions of other jurisdictions of later date than the Jellinek case cited above, which upon analysis clearly show that the situs of the shares of stock of a domestic corporation for the purpose of determining title thereto is where the corporation is domiciled and that in such case, where the action is in rem only, service may be had by publication if authorized by statute.

For the reasons stated, therefore, the judgment of the common pleas court is reversed for error of law in granting motions to quash service of summons and the cause is remanded with instructions to overrule such motions and for further proceedings according to law. Exc. Order see journal.

KOVACHY, J, SKEEL, J, concur.


text:
    WITTKAMP, Plaintiff, v. WITTKAMP et, Defendants.
    Common Pleas Court, Franklin County.
    No. 190848.
    Decided November 10, 1954.

      Smith, Clark & Holzapfel, Columbus, for plaintiff.
    A. Millard Armstrong, Columbus, for defendants.
   OPINION

By BARTLETT, J.

DEMURRER TO THE PETITION OVERRULED.

The basis of the demurrer to the petition by Richard Frank Wittkamp, is that the petition does not state a cause of action against him.

The petition avers that on August 11, 1939, the plaintiff conveyed the real estate in question to her son, Frank R. Wittkamp and his wife, the d'efendant Adelaide Wittkamp. based on the consideration that her son and his wife would support the plaintiff with the ordinary necessaries the rest of her life.

The petition further avers that Frank R. Wittkamp died intestate November 16, 1949, leaving his surviving spouse, the defendant Adelaide Wittkamp and the defendant Richard Frank Wittkamp as his sole heir at law; and that the record title to said premises now stands three-fourths in the name of said Adelaide and one-fourth in the name of said Richard Frank Wittkamp.

The petition avers she has not been furnished said ordinary necessaries of life since May 21, 1954. when she was driven from said premises by the defendant Adelaide Wittkamp.

The petition prays the contract of support be rescinded, the defendants ordered to re-convey said premises to plaintiff, and that the Court fix the reasonable value of such support furnished the plaintiff pursuant to said agreement, etc.

The basis of the demurrer to the petition is that the defendant, Richard Frank Wittkamp was not a party to the alleged agreement of his father and mother to support the plaintiff as set -forth in the petition.

It is true, of course, that the defendant Richard Frank Wittkamp was not a party to the agreement to support his grandmother as the consideration for the conveyance of the premises in question to nis parents; out he stands in the relation of privity in blood with his ancestor, his deceased father.

“When the term ‘privity’ is considered in respect to its relationship to estates in realty it must be understood that it implies succession; that is, successive ownership or possession of the identical estate in the same property. In other words, he who is in ‘privity’ with another in respect to an estate, stands in exactly the same position with regard thereto as did his predecessor in title; he takes the estate with all the burdens and benefits attending it. li the estate be burdened or benefited by an easement it may be litigated but once, for its establishment or denial becomes binding upon all thereafter who are in privity with the contesting predecessors in title. If one in the course of title has a right in respect to his estate which he might assert as against another his successor may assert that right unless it be lost by laches, by lapse of time or by operation of law.” 57 Oh Ap 265, 271, Bailey v. Stedronsky, et al.

“Privity in blood denotes the privity between heir and ancestor and coparceners. A privy in blood derives his title by descent.” 72 C. J. S. 961.

“The heirs of an ancestor stand in the shoes of their ancestor, with such rights as he had, and they take his rights, if any, by descent; * “ * Heirs also hold inherited property subject to the conditions and equities attached to it, and encumbered with all the liens existing thereon in the lifetime of their ancestor. If a debt is an equitable lien on land, it must continue so in the hands of the heir, for at the death of the holder of the title all his legal and equitable rights pass, by operation of law, in the same state in which he held them. For example, where a son takes a conveyance of his father’s land under an agreement to support his parents, if the son dies leaving a child and widow, and the widow continues the advances for support to save her dower and the child’s interest, and the child dies and the property goes to his uncles, they take subject to such advances and the future support of the parents.” 14 O. Jur. Descent and Distribution, Sec. 121, p. 253.

“Binding on the heirs, as representatives of their ancestor, are the contracts, conveyances, deeds, and liabilities generally of their predecessor.” Ibid, Sec. 124, p. 256.

“At common law, an heir was bound for the debt of his ancestor only where he was bound by the terms of the contract, or by a bond, and in such case not beyond the assets or estate descended from that ancestor,” Ibid, Sec. 134. p 266.

“In Ohio law, neither the legal heir nor the administrator succeeds the decedent so as to be individually liable for his debts, but the heirs remain liable to the full extent of the assets received from the estate of the ancestor.” Ibid, Sec. 135, p. 267.

“Where lands held in trust descend to the heirs, the trust may be enforced against them.” Ibid, Sec. 123, p. 255.

“The heir of the trustee, on the death of the latter, takes the legal title to the trust res charged with the trust.” 40 O. Jur., Trusts, Sec. 225, p. 522.

“The ground of privity is property, not personal relation, and it relates to persons in their relation to property, and does not relate to any question, claim, or right independent of property.” 72 C. J. S. Privity; Privies; Privy, p 956.

In other words, as to its object, the instant case is more in the nature of a proceeding in rem rather than an action in personam. The function of the instant case is to determine the status of the property in question, and not to acquire a personal judgment against the defendants.

Action for alimony and support of child against a husband who deserted his family and became a non-resident, where the only relief sought is the appropriation of real property of the husband, to the payment thereof, is substantially one in rem. Benner v. Benner, 63 Oh St 220.

So in the instant case, the primary, relief sought, is to apply the property in question to the support of plaintiff, based upon the alleged consideration for the deed from plaintiff to her son and daughter-in-law; and in no sense attempts to make either of the defendants personally liable therefor.

The Court is constrained to and does hereby overrule the demurrer to the petition. Entry accordingly with exceptions by counsel for defendants.


author: PER CURIAM.

text:
    HECKMAN v. GOLDENBOGEN et.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 9572.
    Decided Oct.5, 1928.
    Robert J. Selzer & Walter I. Krewson, Cleveland, for Heckman.
    ' William L. David, Dir. of Law, and Howard H. Webster, Asst. Dir. of Law, Cleveland, for Goldenbogen, et.
   PER CURIAM.

Section 4 of article IX, which article relates to initiated ordinances, provides that the clerk of the council shall, within twenty days after the filing of an initiated petition, ascertain whether it is signed by the proper number of qualified electors, and at the completion of his examination he shall endorse upon the petition a certificate of his finding.

Section 5 of article IX provides that if the clerk’s certificate shows that the petition is insufficient, he shall at once notify each member of the committee designated in the petition of his finding; and this article provides further that said original petition may be amended at any time within fifteen days after the date of the clerk’s certificate, by filing with the clerk an additional petition; and within ten days after such amendment is filed, the clerk shall examine the amended petition and attach thereto his finding as to the sufficiency thereof.

Section 2 of article X provides that within forty days after an ordinance is passed by council, a petition signed by 15 per cent of the qualified electors of the city may be filed with the clerk of the council, requesting that such ordinance be repealed or submitted to a vote of the electors: and section 3 of said article makes it the duty of the clerk to ascertain the sufficiency of said petition. Said section further provides that if the clerk finds the petition to be sufficient, or “be rendered sufficient by amendment,” the clerk shall certify that fact to the council, which shall then proceed to reconsider the ordinance; and if such ordinance, upon such reconsideration, be not entirely repealed, the duty is cast upon the council of submitting the same to a vote of the electors of said city.

No express provision is made in article X for filing supplemental referendum petitions when the original one is found insuffcient by the clerk; but the defendants claim that a part of section 3 of said article X and section 5 of article X, by reference adopt parts of article IX relating to the filing of amendments to original initiated petitions.

This provision of Section 3, Art. 10 merely adopts the machinery of submitting initiated ordinances to the people, so far as the same is applicable to a referendum petition.

Section 5 of article X, in our judgment refers merely to the petitions themselves.

But from reading articles IX and X, we are unanimously of the opinion that the ones who drafted said charter and the people who adopted the same, intended that the electors of said city should have the full period of forty days in which to file a referendum petition upon certain ordinances passed by the council, and that when said petition was filed, the duty was 'cast upon the clerk to determine the sufficiency of said petition, and the drafters of said charter and the people intended that the same standard should be used to determine the sufficiency of a referendum petition as they did in determining the sufficiency of an initiated petition, and that when they provided, in section 3 of article X, as to a petition being rendered sufficient, they had in mind that if the clerk certified that the original petition was insufficient, the petitioners should have the right to file additional names to meet the percentage requirement set forth in section 2 of article X; and while we are of the opinion that the drafters of the charter may have thought that referendum petitions could be amended within the same time and in the same manner as provided in article IX, they failed so to provide.

We are, however, unanimously of the opinion that it is the duty of the clerk, with all convenient speed, to ascertain and determine the sufficiency or insufficiency of referendum petitions when filed with him, and that section 3 of article X clearly provides that supplemental petitions may be filed to an original referendum petition and that this may bé done within a reasonable time after the clerk certifies that the original petition is insufficent; and if this were not true, the phrase “be rendered sufficient by amendment,” contained in said section 3, would be meaningless and of no effect, and there would have been no reason for inserting the same in said section. We are also of the opinion that the filing of the amended petition at the time it was filed, was within a reasonable time — especially when taking into consideration the period of time provided in said charter for filing amended initiated petitions.

The relief prayed for will therefore be denied and the petition dismissed.

W. E. Pardee and Ross W. Funk, Judges, of the Ninth District, and Roy H .Williams, Judge, of the Sixth District, sitting by designation, concur in judgment.


text:
    ARNOFF v. MARINO
    Ohio Appeals, 8th Dist-., Cuyahoga Co.
    No. 8474.
    Decided Oct. 8, 1928.
    Niman & Buss, Cleveland, for Arnoff.
    Gilbert M. Morgan, Cleveland, for Marino.
   PER CURIAM.

We are of the opinion that the contention of plaintiff in error is right, because upon the state of the record, if the judgment obtained by defendant in error individually and in his own favor, were to remain undisturbed, there would be nothing to prevent the partnership which under the evidence was proven to have been the real party in interest and in whose name the the contractual relationship with plaintiff in error was established, to commence suit for the balance due upon such contract.

The judgment of the Common Pleas Court will therefore be reversed and final judgment entered in favor of plaintiff in error.

Sullivan P. J., Vickery and Levine JJ., concur.


author: SULLIVAN, J.

text:
    CARRAN v. SOLINE OIL CO.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8791.
    Decided Oct. 8, 1928
    Schaefer & Lawrence, Cleveland, for Car-ran.
    Bloomberg & Wolf, Cleveland, for Soline Oil Co.
   SULLIVAN, J.

We cannot review the evidence because it is not here in any form, by bill of exceptions or otherwise. Hence it is impossible to determine whether the court below was guilty of abuse of sound discretion, for that could only be determined with the evidence upon which it acted before us. There is however a more important defect than this, which is apparent from the record. Upon a motion or petition to vacate a judgment, during the term or after the term, its essential foundation is some ground enumerated in the statue and thereupon it becomes the duty of the court, first, to hear and determine the question as to whether the statutory ground for motion exists.

Under the decision by McIlvaine, C. J., in Watson et al vs Paine, 25 O. S. 340, the court has not ended its duty by hearing and determining whether the motion is supported by a ground enumerated in the statue. If it is found that a legal ground exists, to suspend or vacate the judgment, then it becomes .the next duty of the court to hear and determine the question as to whether there is a valid defense and this may be determined by proper pleadings and by evidence of a competent nature which sheds legal light upon this issue. If the proceedings to vacate are by motion, an answer to the original petition should be tendered or filed so that it would become a document in the hands of the court assisting in the determination as to whether there was a valid defense. If the proceeding is by petition, and the matters of defense are set forth in such a way as to become issuable, then it might be that the question could be decided by reply or demurrer but in any event the issues when made up should be tried as in other cases.

Ralston et al vs Wells, 49 O. S. 298; Follett vs Alexander et al, 58 O. S. 202.

In an opinion rendered by this court of Appeals, Feb. 4, 1913 Niman, J., these principles annunciated here were affirmed by the Supreme Court of Ohio in the 37 O. S. 518.

Vickery and Levine JJ., concur.


author: WILLIAMS, J.

text:
    RUSSELL v. STATE
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    Nos. 8699 to 8701 inc.
    Decided Oct. 8, 1928.
    Walter I. Krewson, Cleveland, for Russell.
    Edward C. Stanton, Cleveland, for State.
   WILLIAMS, J.

The principal contention of counsel for plaintiff in error is that the sentences were erroneous in that the plaintiff in error was only twenty years of age at the time and could only be sentenced to the Ohio State Reformatory and not to the penitentiary, tinder General Code, Section 2131.

There is no question that the Ohio State Reformatory at Mansfield is a state prison. Under Section 2131 General Code the superintendent is required to receive all male 'criminals between sixteen and thirty years, lawfully sentenced to the reformatory, providing they have not been “previously sentenced' to a state prison,” and the court pronouncing sentence has no power to impose a sentence to the Ohio State Reformatory. where the convicted person has been previously sentenced to the Ohio State Reformatory. If a convicted person between sixteen and twenty-one has not been previously. sentenced to a state prison, the court shall sentence him to the Ohio State Reformatory, but if he is between twenty-one and thirty years and has not previously been sentenced to a state prison, the court may sentence him to the reformatory if amenable to reformatory methods, otherwise to the penitentiary.

The trial judg.e was acting wholly within his power and judgement will be affirmed.

Sullivan, P. J. and Levine, J. concur.


author: VICKERY, J.

text:
    KANTON v. MITCHELL
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8795.
    Decided Oct. 8, 1928.
    ■ Wm. J. McDermott, Cleveland, for Kan-ion.
    C. A. Tsangadas, Cleveland, for Mitchell.
   VICKERY, J.

It is clear that the judgment is erroneous and must be reversed even though under the record in this case the corporation had assumed all the liabilities and indebtedness of Mitchell. This did not exempt Mtchell from his obligation unless plaintiff ‘had entered into a contract of novation, and there is nothing in the record to show that, and the mere fact that plaintiff had a claim against the corporation by reason of its assumption of this obligation, even though she brought suit and procured a judgment, if that judgment was not paid, would not bar her right to recover against Mitchell, and it could not in any case be res adjudicata, but it is simply a case where two parties are liable for the same obligation and she could bring as many suits as there were parties liable, and until she collected from one of them, she could maintain a suit against the other. The record shows that she did not collect for the goods lost and there is no reason in the world why she should not have a judgment against Mitchell.

Sullivan, P. J. and Levine, J., concur.


author: LEVINE, J.

text:
    MAXWELL v. MAXWELL.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    Nos. 9386 and 9316
    Decided Oct. 8, 1928.
    David B.JLove, Fremont, and Smith, Olds, Smith & Shepherd, Cleveland, for plaintiff in error.
    John A. Elden, Cleveland, for defendant in error.
   LEVINE, J.

There is creditable evidence in the record tending to show the plaintiff'in error earned on an average of $600.00 per month. Upon a full hearing of all the evidence, pro and con, the court allowed the application of defendant in error for temporary alimony and granted her $100.00 per month during the pendency of the suit. Later plaintiff in error was cited to answer to a charge of contempt of court for non-compliance with the court’s order. Again evidence was heard' on both sides and at the conclusion of the evidence, the court committed plaintiff in error to the county jail for contempt of court.

Considerable discussion is devoted in brief of counsel on the right of plaintiff in error to have these eases reviewed and it is contended by defendant in error’s counsel that the Court of Appeals has no jurisdiction to consider on review an allowance for alimony pendente lite made by the court of Common Pleas. Plantiff in error’s counsel cites the court to the case of Weeden vs Weeden, 116 O. S. 524.

An examination of that case however, discloses that in that action there was a final divorce decree by the Common Pleas Court and not an application for alimony pendente lite.

The matter was fully gone into by the trial court and apparently the judge who had all the witnesses before him, saw fit to believe the version of Mrs. Maxwell in preference to the version of Mr. Maxwell, and made his ruling accordingly. We would not be justified upon the state of the record, in disturbing the judgment of the common pleas court and the same is therefore affirmed in both cases.

Sullivan, P. J. and Vickery, J. concur.


author: SULLIVAN, P; J.

text:
    STOWE et v. BRANIGAN.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 9263.
    Decided Oct. 8, 1928.
    Paul'Stowe, Cleveland, for Stowe, et.
    Geo. S. Myers,. Cleveland, for Branigan..
   SULLIVAN, P; J.

On an examination of the record and the answer, this court is of the opinion that a valid defense, was interposed and that the court was not guilty of an abuse of sound discretion in vacating the judgment under the authority granted by the statute. The record, and the answer itself, in our judgment, are sufficient foundation for the vacation and suspension of the judgment until the final hearing of the cause, and hence we consider that there is no reversible error in the record.

: The able brief of counsel for plaintiff in error exhaustively argues that there is no valid defense for the reason that under Section 8157, G. C. the plaintiffs in error as . trustees, are holders of the notes in question in due. course. We do not think this claim is well founded for the reason that it appears from the record that the trustees were in possession of the notes by virtue óf a decree of court and therefore the question of due course is not applicable. That the trustees were acting .as officers of the court under the decree, is settled by a letter in the record dated Nov. 8, 1927, from plaintiffs in error to defendant in error in which instrument, over the signatures'of the trustees, they assert in writing that they are acting as officers of the court. The main point, however, is that under the decree of the court it is a fact which is more controlling in its nature than the letter itself, for the reason that ■the decree determines the trustees were acting by reason of the operation of the law and in such an eventuality we think that the doctrine of due course is immaterial. This position is further emphasized by the fact that even if the transfer of the notes in question was in due course, that, in and of itself, w,as not sufficient to cripple or destroy the power of the court, acting under the statute, to suspend the vacation of the judgement until final hearing of the cause where a valid defense was interposed as was shown by the answer itself, and by some of the evidence that was offered thereunder.

It is a well settled rule of lav/ that transfers by operation of law, -such as those that ensue under the bankruptcy laws, insolvency laws or laws pertaining to receiver-ships, are not in the usual coruse of business ¡and there is no better title acquired by the transferee than the title claimed by the previous holders.

The main question however, and which is determinative of the issues in this case is whether the court committed prejudicial error under the answer submitted to it and the evidence bearing thereon and was justified in determining that there was a valid defense. If such justification existed it became the duty of the court under the statue to suspend or vacate the judgment and then and thereupon to set the case for hearing and determination. This latter was not done for the reason that exceptions were taken to the ruling of the court upon the refusal to grant the petition to vacate and upon the order of suspension.

Vickery and Levine JJ., concur.


text:
    STATE ex Hile v. ZANGERLE, et.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 9582..
    Decided Oct. 8, 1928.
    George D. Hile, Cleveland, for State ex.
    Edward C. Stanton, Pros. Atty., and E. J. Thobaben, Asst. Pros. Atty., Cleveland, for Zangerle et.
   VICKERY, J.

Commissioners are men of judgment and are capable of deciding this question as well ás some passers-by might be, and the claim that they did not hear witnesses is not well founded.

Now it is claimed by Mr. Hile that the County has no right to purchase land for a Morgue.

Now does the statute permit this sort of construction? We think it - does. We think, under this section of the statute, it might be possible for the County Commissioners of Cuyahoga County, if they deem it wise and necessary and for the general good, to build a county morgue, they could build one, and for that purpose they could acquire land upon which it is to be built. And so there must have been a purpose in the minds of the Legislature which would authorize the County Commissioners, under certain circumstances, if they deemed it wise or necessary for the general good to build other county buildings than those expressly named in the statute, among which might well be classed the Morgue.

Now as a matter of fact it is not the intention of the County. Commissioners to build a Morgue. They seek to provide in this way for an alley or roadway alongside of the Morgue, for the purpose of properly conducting the business which is done at the Morgue. We think this is a perfectly proper thing to do and all requirements of law that we know of having been complied with and there being nothing in the record to show that the purchase price of this land yas unreasonable or that they are giving the taxpayers’ money away, or that they are not getting value received,for thirty-three feet of land on a street like Lakeside Avenue right in front of the City Hall would easily be worth Twenty-Six Thousand Dollars at the way land goes in the City of Cleveland, -we can see no reason why the injunction should be granted and it- will therefore be refused and the entry will be, decree for defendant, order see journal.

Sullivan, P. J. and Levine, J., concur.


author: SULLIVAN, P. J.

text:
    TELLING BELLE VERNOON CO. v. KRENZ.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8324.
    Decided Sept. 17, 1928.
    Davis, Young & Vrooman, Cleveland, for Telling Belle Vernon Co.
    J. A. Cline, E. T. Carney and R. E. Roehm, Cleveland, for Krenz.
   SULLIVAN, P. J.

The issues of fact we find were submitted to the jury and the record is clear that there was credible evidence to support a verdict.

It is claimed that the verdict is excessive and had its basis in passion and prejudice. It appears that the .judgment was cut down to the. extent of $5,000.00 by agreement .but it does not appear that it was done because there were consessions that the verdict was based upon passion or prejudice, neither does it appear that it was because the court adjudged that the verdict was excessive because of passion and prejudice. Hence we look at the extent of the injuries to assist us in ascertaining whether the verdict is so excessive that it amounts to passion and prejudice in and of itself, and we have come to the conclusion that according to credible evidence in the record the injuries were of such a serious and permanent nature that the verdict as reviewed by the court does not seem unwarrantable or unreasonable according to credible evidence found in the record, although there is evidence of a contrary nature which leaves the facts in issue. ..

The wife it appears from the testimony, had no knowledge of the operation of the machine and that she was not in any manner undertaking to guide or control the driving of the automobile by her husband. She went with her husband involuntarily and assumed the same attitude on the trip as was natural for a person who had no knowledge of driving and could not drive herself. These circumstances left as a naked fact the mere relationship of husband and wife upon which to base a joint enterprise, and this fact is not sufficient in and of itself to give foundation to such a claim, ,as was held in Railway Co. vs Barger, 10 O. A. 443.

'' Noy it is charged that the court committed error in not instructing the jury under this state facts, with respect to a joint enterprise.

In Almendinger v. Moore, 15 O. A. 503, the court overruled a motion to certify where this distinct question was raised and in an examination of Almendinger supra, it is clear that unless there was credible evidence in the record to show a joint enterprise, it is reversible error on the part of the court to charge that doctine of law.

Before negligence can be imputed, under the authorities in Ohio, as laid down in East Ohio Gas Co. vs. O’Hara, 17 O. A. Rep. 352, Syllabus 3, the parties engaged must be nrincipals, each having control of the agents employed for the common purpose and the very relationship iteslf between them must be such as that logically the negligence of the one is imputable to the other.

On the assignment of error that there was contributory negligence on the part of the plaintiff herself, it will be seen from a review of the evidence in the case with respect to the plaintiff’s conduct, and it is our judgement that there is no evidence of contributory negligence on her part because under the authorities cited they were not engaged in a joint enterprise.

We can only repeat what was asid in Cleveland Railway Co. vs. Heller, 15 O. A. 346, that it is not necessary for an occuoccupa&t of a machine owned and driven by another, to keep remonstrating or interfering with the driver or instructing the driver as to how the machine shall be operated.

Another assignment of error is that the bill of exceptions was signed, sealed and allowed by the trial court subsequent to the limit of time authorized by law.

It appears from the record that a bill of exceptions was presented in time to the trial judge.- Objections thereto were filed within the time but it appears that the corrections and changes were not made until after the time had expired and then and thereupon the court signed the bill of exceptions and the cause is here upon that document.

Inasmuch as it is the trial court itself that has the exclusive right to say whether the bill of exceptions is correct or inaccurate, it follows that its truth or falsity lies with the trial court and the tral court alone.

Both counsel, in practical offect, have treated this bill of exceptions as the one before thé court and it is a presumptivev fact from the record that the bill of exceptions was filed by the.party making the complaint in error proceedings. .Hence in the absence of a motion we treat the bill oi exceptions as a proper one because the presumption is that it was corrected by the court to correspond to the facts after its presentation, before the expiraion of the time limit.

Vickery and Levine, J. J., cncur.


text:
    HOLTZINGER et v. CAITO
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8995.
    Decided Oct. 8, 1928.

      White, Cannon & Speith, Cleveland, for Holtzinger et.
    Sol Edgert, Cleveland, for Ciato
   VICKERY, J.

The writer of this opinion would agree with this proposition if that was all that there was to it. Apples, especially in the month of June, necessarily taken out of cold storage, if left to stand on a track for seven days after they arrive would be not accepting or rejecting them in a reasonable time, and the man to whom they were shipped would be responsible for it, if it was because of neglect, but the record does not show that state of facts. It shows that the shipping company had an agent here and Caito immediately took the matter up with him and the subsequent actions between this agent and his principals, the brokers, was the reason for the delay, and until that matter was settled, the defendant in error had no real ground to reject these apples. As soon as it was made known that the brokers refuted any overtures on his part, nowithstanding he had reported that they were defective and that they would make no allowance, he then rejected the apples and the loss that attended it was because of the neglect of the brokers, or the refusal of the brokers to make a proper allowance, and thus warranting the defendant in error in rejecting the apples. The mere fact that he accepted one car out of three, has nothing to do with the case in hand.

Sullivan, P. J. and Levine, J„ concur.


text:
    PLISKE v. VILLAGE OF ROCKY RIVER.
    Ohio Appeals, 3th Dist., Cuyahoga Co.
    No. 9059.
    Decided Oct. 8, 1928.
    Phillip Bártell, Cleveland for appellant.
    Price, Carpenter, Smith & Graves, Cleveland, for appelleés.
   SULLIVAN, P. J.

The Miagistrate had jurisdiction over the person, and unquestionably had authority to pass sentence under the Municipal law.

The question is raised that there was no power on the part of the Magistrate, to sentence the plaintiff to the jail or workhouse of Stark county, but, upon an examination of Section 12384 General Code of Ohio, we find that Counties having no workhouse may contract with a municipality of the State of Ohio wherein there is a workhouse, and an agreement can be had with the City Council or other authorities having control of the workhouse in any other County, with the Board of District Workhouses having a workhouse, upon terms- and conditions agreed upon, and it is provided that prisoners sentenced for violation of ordinances may be sent to and received in such workhouse, even though the same may be beyond the coniines of the County where the crime has been committed.

A reading of the Section discloses that under the law it is simply a question of contract and it appears to be a conceded fact that the Village of Rocky River is authorized' to contract with the authorities of Stark County Workhouse for the commitment of .its prisoners under the above section, and the same section is supplemented by G. C. 12384-1.

Therefore it is our judgment that there is ample authority in the statute for the sentence imposed by the court.

There is another phase of the question which precludes the granting of any injunctive relief as prayed for in the petition, and that is, it is conceded by the record that upon a conviction before the Magistrate the appelent, Pliske, by error proceedings commenced in the Court of Appeals- of the Eighth District, submitted her case to this Court and upon a hearing had, judgment was rendered, affirming the decision of the magistrate and remanding the cause to the Common Pleas Court where previously it had been heard on error by that Court..-'

Prom the judgment of the Court of Appeals, the plaintiff herein did not appeal or pursue error proceedings to the Supreme Court of the State of Ohio, and therefore the judgment of the Court of Appeals became final, and it became the duty of the Common Pleas Court and the Magistrate Court, to carry the judgment of the Court of Appeals into execution, and undoubtedly the same would have been done were it not for the injunction proceedings in the case at bar.

Thus it will be seen that there is no ■basis in law for the injunctive relief prayed for, in' the Court of Common Pleas and in the. Court of Appeals. The . adequate remedy at. law, the existence'bf which is violative of the injunctive'-process, existed because of the Statue providing for the proceedings to vacate or reverse the judgment of the Court of Appeals in the Supreme Court of the State.

Holding to these views, the relief sought for is denied.

Vickery and Levine J. J., concur.


author: ALLEN, J.

text:
    PRENDERGAST v. GINSBURG, et.
    Ohio Supreme Court.
    No. 21078.
    Decided Dec. 5, 1928
   ALLEN, J.

TRIAL.

(590 V2d). Judgment should not be rendered on special findings of fact as against the general verdict unless such special findings, when considered together, are inconsistent and irreconcilable with the general verdict.

(590 Jf). When the trial court enters judgment for the plaintiff upon verdict of a jury, and later upon motion for judgment notwithstanding the verdict, grants such motion and enters judgment for the defendants in considering whether the facts specially found are irreconcilable with the general verdict, the reviewing court should not inquire into the evidence adduced at the trial.

ERROR PROCEEDINGS.

(260A) When error is prosecuted in the Court of Appeals, and when ■ one of the errors assigned is that the court erred in granting the motion filed by defendants below for judgment notwithstanding the verdict, and an additional error assigned is that the judgment is contrary to the law and to the evidence, and the Court of Appeals, upon consideration of all the assigned errors, enters a general judgment of affirmance, it will be assured that the Court of Appeals in arriving at its decision considered the evidence presented in the. record upon the question whether the judgment below was contrary to the law and to the evidence, and not in connection with the answers to the interrogatories.

• Kindkade, Robinson, Jones and Matthias. J.J., concur. Day J., not participating.


author: KINKADE, J.

text:
    CLEVE. RY. CO. v. HUNTINGTON.
    Ohio Supreme Court.
    No. 21007.
    Decided Dec. 5, 1928.
   KINKADE, J.

RAILROADS.

(500 D2b). The fact alone that a motorman of a street car is charged by his employer with the duty of asking for names and addresses of persons on the street and near the car when there is an accident which affects the car or its passengers, and reporting the same to the company, does not impose upon the street car company a liability to respond in damages for a personal assault committed by the motorman on any such person, in connection with the performance of that duty, when the person assaulted has no contractual relation with the street car company.

Marshall, C. J., Day, Robinson, Jones and Matthias, JJ., concur. Allen, J., concurs in the judgment.


author: JONES, J.

text:
    FRANKS v. BLAIR REALTY CO.
    Ohio Supreme Court.
    No. 21088.
    Decided Dec. 12, 1928.
   JONES, J.

REAL ESTATE.

(510 B 2e) On February 18, 1926, the owner of real estate listed his property with a broker and agreed in writing to pay the broker for finding a purchaser a certain commission if the property were sold within the period of five days. At the expiration period owner orally promised to extend indefinitely the time of performance. In reliance upon such, oral promise the broker continued its efforts to find a purchaser. Meanwhile, the owner, in disregard of his oral promise, proceeded on his own behalf and, by employing another broker at a reduced commission, consummated a sale by exchange of properties with a purchaser with whom the first broker was also negotiating: Held:

The time for performance was of the essence of the written contract. The subsequent oral agreement was a new contract and, by substituting a new time for performance, varied an essential term of the written contract and was invalid and unenforceable by reason of the provisions of the Statute of Frauds relating to the payment of real estate commissions. (Section 8621, General Code).

During the existence of the extended time for performance and while the transaction remained unexecuted, such oral promise being invalid, either party could decline to carry out its terms either in the finding of a purchaser or for the payment of a commission.

Since the owner did not complete his contract with the broker and accept the latter’s services in negotiating a sale, but secured another broker who consummated it, the owner is not estopped from asserting the invalidity of his oral promise.

Marshall, C. J., Day, Allen, Kinkade, Robinson and Matthias, JJ., concur.


author: MATTHIAS, J.

text:
    SAFFORD, Supt. of Ins. v. MET. LIFE INS. CO.
    Ohio Supreme Court.
    No. 21398.
    Decided Dec. 12, 1928.
   MATTHIAS, J.

CONSTITUTIONAL LAW.

(140S). A statute which creates a new obligation in respect to transactions or considerations already past is violative of Article H, Section 28 of the state constiution, which forbids the enactment of retroactive laws by the general assembly.

TAXES.

(560F2) To so interpret and apply Section 5433, General Code, as amended May 11, 1927 (112 O. L., 429), increasing the tax upon business done by foreign insurance companies in this state from 2% to 3%, as to exact such additional tax for the privilege of doing business in 1926, would render such provision retroactive in effect.

Marshall, C. J., Day, Allen, Kinkade, Robinson and Jones, JJ., concur.


author: MARSHALL, J.

text:
    DET. CINCI. COACH LINE v. P. U. C.
    Ohio Supreme Court.
    No. 21067.
    Decided Dec. 12, 1928.
   MARSHALL, J.

AUTOMOBILES.

,(50P2b). Where a common carrier by motor vehicle operating over state highways in interstate commerce habitually violates reasonable and lawful rules and regulations of the public utilities commission of the state, carries passengers in intrastate service without a certificate authorizing the same and violates the laws of the state regulating the speed of motor vehicles on the state highways, all such violations being committed in such manner and to such extent as would justify a revocation of the certificate of an operator, the certificate theretofore’ granted to such operator by the public utilities commission to operate as a common carrier in interstate commerce may be revoked.

Day; Allen, Kinkade, Jones and Matthias, JJ., concur.


author: MATJCK, J.

text:
    PRATT v. BRICKEY.
    Ohio Appeals, 4th Dist., Lawrence Co.
    Decided Nov. 27, 1928.
    James Collier, Ironton, for Pratt.
    William J. Mahoney, Ironton, for Brickey.
   MATJCK, J.

We can not reverse the case as being manifestly opposed to the weight of the testimony. We have read the record and, of course, find it full of contradictory testimony. There is nothing improbable in the story of the plaintiff. The testimony of numerous witnesses in behalf of the defendant seriously reflects upon the character of the plaintiff and upon the story which she narrated. It is simply a case of the credibility of the witnesses, and we have no disposition to substitute our judgment for the judgment of the jury who observed those witnesses on the stand.

The special instructions requested by the defendant were these: First, that if the jury found from the evidence that- the prosecutrix had relations with other men at such a time as to make it doubtful as to who was the father of the child her testimony alone should not prevail but that the paternity of the child must be established by some corroborative evidence. And the second request was that the jury be charged that the case might be made by a preponderance of the evidence but that the prosecutrix must be corroborated by other evidence. It is too well settled in this state to justify discussion that a bastardy action is a civil proceeding and that the issues may be proven by a mere preponderance of the testimony. The peculiar nature of such a proceeding and the lack of much direct testimony has evidently resulted in statutes requiring that the complainant have corroboration of her testimony. The law on this subject has been amply reviewed in a note to Overseer of Poor v. Eason, 1 A. L. R. 635. The reading of this note discloses that the general rule is that in the absence of statute requiring corrroboration such corroboration is not essential to a conviction in a bastady proceeding.. The trial court was right in refusing to give the requested instruction.

Middleton, P. J., and Thomas, ,T., concur.


text:
    GOULD et. v. GERKEN.
    Ohio Appeals, 6th Dist., Lucas Co.
    No. 2062.
    Decided Nov. 13, 1928.
    Tyler, McMahon, Smith & Wilson and P. R. Taylor, Toledo, for Gould.
    Fraser, Hiett, Wall & Effler, Toledo, for Gerken.
   The record shows the following state of facts: An action was begun in the court of common pleas by John D. Gerken against Harry M. Gould to recover damages growing out of a contract for the sale of all the corporate stock of The Marshall-Ger-ken Company. Counsel for the defendant conceived' the idea that his client had some equitable defense which could not be set up in that action, and thereupon brought a suit in which he sought an injunction and equitable relief. A temporary injunction was granted restraining the prosecution of said suit for damages, and the injunction bond in question was executed, delivered and filed in the injunction action, with Harry M. Gould, Aaron J. Gould and the United- States Fidelity & Guaranty Company as sureties. The sole question involved in the trial of the action upon the 'injunction bond in the court below was the fair value of such legal services as were reasonably necessary to secure a dissolution of the injunction. The right to recover in such case would be limited by any agreement which counsel may have had for the services performed, but regardless of such contract counsel could not recover more than the reasonable value of such services. The injunction granted became effective at the time of the fling of the bond on March 7, 1927 and was dissolved March 12, 1927. The evidence shows that considerable time was spent by counsel for the defendants in the injunction case between' the time of the filing of the bond on March 7th and the dissolution of the injunction on March 12th. The only question involved was whether or not a defendant in a civil action could set up an equitable defense. There was no dispute as to the facts. In determining whether or not the amount of the verdict and judgment is excessive, we must consider not what services were rendered but what services were reasonably [necessary to secure the; dissolution of the injunction. The law on the question whether or not an equitable defense can be set up in a civil' action under the code of civil procedure is a fundamental one ¡and easily ascertained by a member of the bar by turning to Section 11315, G. C., which, in so far as it bears upon the question in hand, reads as follows:

“The defendant may set forth in his answer as many grounds of defense, counterclaim or setoff as he may-have, whether such as heretofore have been denominated legal or equitable or both.”

The terms of this provision are plain and unequivocal. Under the civil code of procedure there is but one form of action, which is known as a civil action. Sec, 11238, G. C. Distinctions between ¡actions at law and in equity are abolished, although the relief sought may be a money judgment or may be equitable in its nature or both. One of the purposes of the code of civil procedure was to prevvent a multiplicity of suits and to permit the setting up of a defense of an equitable nature in a civil action.

The only services claimed to have been rendered toward the dissolution of the injunction was the time spent in the ascertainment of the law upon this question, and the half day spent in court in the hearing upon the motion for dissolution. Under the circumstances we are of the unanimous opinion that the verdict is so excessive that It appears to have been given under the influence of passion and prejudice.

We find no other error apparent upon the face of the record. For the reasons given the judgment will be reversed and the cause remanded for a new trial.

Richards and Lloyd, JJ., concur.


text:
    SCAFF v. STATE.
    Ohio Appeals, 4th Dist., Lawrence Co.
    Decided Nov. 13, 1928.
    Irish & Riley, Ironton, for Scaff.
    James Collier, Pros. Atty., Ironton, for State.
   If the trial court believed this testimony of this witness it was sufficient to show possession on the part of Scaff regardless of how Scaff took possession of the bottle or from what place the bottle came. By this act Scaff assumed possession and control of the bottle whether it belonged to him or not, and by so assuming possession and control of the bottle he violated the law.

Middleton, P. J., Mauck and Thomas, JJ., concur.


author: BY THE COURT.

text:
    HAZELBAKER v. SCIOTO CO. COMMRS.
    Ohio Appeals, 4th Dist., Scioto Co.
    Decided Nov. 22, 1928.

      McLaughlin & Staker, ,and W. L. Hostetter, Portsmouth, for Hazelbaker.
    Russell K. McCurdy, Pros. Atty., and Emory Smith, Portsmouth, for Bd. Commrs.
   BY THE COURT.

Without minutely examining the instructions complained of we are of the opinion that they were sound. We dispose of the case, however, on other grounds.

The record shows that the bridge and approach were on the Atlantic and Pacific highway. That particular road is specially designated as a main market road by Section 1189-1 G. C. Main market roads are state highways when taken over for improvement by the State. Section 7464. This road had been taken over by -the state, improvement was under way, and the absence of guard rails was due to their necessary removal by state employes for the purpose of making improvements. When the state took over the highway it took over the bridge, Section 1326, and in building the approach it had complete control over the method of so doing, The commissioners had no power in the premises and consequently no duty, and in the absence of a duty they had no liability. Weiher v. Phillips, 103 O. S. 249. Upon the undisputed facts the defendant below was entitled to judgment.

Middleton, P. J., and Mauck, J., concur.

Thomas, J., not participating.


author: WASHBURN, P. J.

text:
    WAHL et v. TRAPAS.
    Ohio Appeals, 9th Dist., Summit Co.
    No. 1518.
    Decided Dec. 7, 1928.
    Falkner, Dotson & Haynes, Akron, for Wahl.
    Samuel Friedman, Akron, for Trapas.
   WASHBURN, P. J.

It is evident from the contract that the trial court considered that language in in said contract, which was signed by the defendants, to be a memorandum in writing as required by statute. In so holding, the trial court was clearly in error.

‘T. The memorandum in writing which is required by the statute of frauds Section 4199, Revised Statutes), is a memorandum of the agreement between parties; and it is not sufficient unless it contains the essential terms of the agreement expressed with such clearness and certainty that they may be understood from the memorandum itself or some other writing to which it refers, without the necessity of resorting to parol proof.”
Kling, Admr., v. Bordner, 65 O. S. 86.

This rule is well established, and there can be no question but that, in the case at bar, there was no memorandum in writing, signed by the defendants, which complied with the requirements of said section, and for that reason the item of $50 for commission on the sale of real estate, was erroneously included in the judgment of $55 which was rendered in this case.

As to the $5 item, the record discloses that there was proper proof that the defendants were liable to the plaintiff for said item, and there was no proof that the same had been paid, and therefore the plaintiff was entitled to a judgment against the defendants for $5 and no more.

The judgment that was rendered is therefore modified, by reducing the same from $55 to $5, and as so modified, is affirmed.

Funk, J., and Pardee, J., concur.


text:
    HANK v. ADAMS CO. COMMRS.
    Ohio Appeals, 4th Dist., Adams Co.
    Decided Nov. 14, 1928.
    Lovett, Young & Bush, West Union, for Hank.
    W. P. Tucker, Pro's. Atty., West Union, for Co. Commrs.
   It is admitted that the defective bridge where the injury occurred is on a‘state highway The Court of Appeals sitting in Allen County has recently held that bridges along and over state highways are a part of such highways, so that our inquiry is limited to the question of liability of the co.unty commissioners for damages growng out' of defects on such highways. THOMAS, J.

Since the enactment of the State Code with reference to highways the courts of th state have held almost uniformly that boards of county commissioners are not liable for defects in highways taken over and maintained by the state. The case of Weiher v. Phillips, 103 O. S. 249, settles the question. In that case the court say:

“It is universally conceded that the county commissioners can not be held liable in their official capacity for negligent performance of a duty unless such liability is created by statute. The law on the this subject has been repeatedly under discussion in this court and is well settled.”

Construing Section 4208 of the General Code which provides that the “board shall be liable in its official capacity for damages received by reason of its negligence or carelessness in not keeping such road or bridge in proper repair” the court say:

“Since the enactment of that section a great deal of litigation throughout the different counties of the state has been predicated upon its provisions, and the courts have uniformly recognized the doctrine that those provisions are in derogation of the common law, and that therefore the provisions of the section must be strictly construed and the county commissioners can not be held liable beyond the plain import of its terms.”

Construing Sections 1224, 1230-1, 1230, 7464, 7467, 7209, 7210, 7202, 7204 of the General Code the court say:

“These sections very clearly place all the control, supervision, maintenance and repair of inter-county and main market roads, otherwise known as state roads, under the exclusive authority and jurisdiction of the state highway commissioners.”

On page 256‘of the opinion the court say:

“If the board of county commissioners has no duty to perform then there could be no negligence or carelessness charged to the board arising out of the failure of others to perform some duty.
If there is no duty there can be no negligence. It is not necessary to resort to a definition of the word ‘negligence’ because the word is defined in Section 2408 as the failure to keep any such road in proper repair.
In this view of the matter there can be only one conclusion and that is that thefe was no duty and therefore no negligence; and therefore no liability on the part of the county commissioners.”

It has been said that “For every wrong there is a remedy”, but the .remedy in such cases ,as this one, if there is a wrong, must come from the legislature.

The judgment of the Court of Common Pleas is therefore affirmed.

Middleton, P. J., and Mauck, J., concur.


author: THOMAS, J.

text:
    CAMPBELL et v. MARTIN et.
    Ohio Appeals, 4th Dist., Athens Co.
    Decided Nov. 14, 1928.
    Emmitt Keenan, Athens, for Campbell.
    Woolley & Rowland, Athens, for Martin, et.
   THOMAS, J.

If this were an action brought by the bank there would perhaps be little difficulty because the bank accepted the note in the form presented, but we are confronted here with a different situation. The record discloses that all the parties involved and other stockholders met in Nelsonville to devise ways and means of financing the oil enterprise after the capital of the company had been exhausted. It was finally decided to make a loan from the bank and as the assets of the company had been exhausted, except some machinery, all the parties well knew that the bank would require individual indorsements. The evidence is conflicting as to the understanding of the parties with reference to the signing, or the promise of Martin to sign the note. He testifies that he did not sign and did not promise to sign the note individually, while others testifiy to the contrary. The testimony of the latter is corroborated by circumstances. Martin was actively interested in the enterprise and perhaps had more to do with the organization of the company and the management of its affairs than any of the other sureties. He was fully aware of the financial condition of the company and of the necessity for obtaining the loan, and he gave his personal attention to the execution of the note. He may possibly not have signed the note in the presence of the other indorsers. The evidence on this point is of little weight, because there was no occasion for scrutinizing the instrument and it is not usual to do so, and a long tme had elapsed when the witnesses testified. However, the record further shows that Martin paid his part of the interest on the note from time to time, that he looked after the foreclosure of the mortgage given to secure the note and that he advanced money to secure the costs of the proceeding. If he were interested in realizing on the mortgage then he could not have been acting for the company which was the mortgagor.

Our conclusion is that it was the understanding at least that Martin was to share the personal liability on the note, that the idea of signing the same as “Pres. Martin”, was an afterthought. For the purposes of' this case the word “Pres.” may be considered as surplusage and as between the parties to this suit of no effect. It is questionable whether he could have interposed this defense had the bank brought an action on the note. The term “Pres.” was only descriptive and for the purpose of identifying the signer and the same as though one should sign as Dr. so and so, or Judge so and so.

Our conclusion is that no reformation would be necesary ¡as the evidence shows that he contracted to sign and did sign the note as an individual.

Middleton, P. J.., and Mauck, J., concur.


text:
    CLEVELAND RY. CO. v. THOMAS.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8874.
    Decided Nov. 19, 1928.
    Squire, Sanders & Dempsey, Cleveland, for Cleveland Ry. Co.
    Harry F. Pattie, Cleveland, for Thomas.
   PER CURIAM.

It is well settled that in cases where the doctrine of res ipsa loquitor is held applicable that the same amounts merely to an inference of negligence which justifies a finding for the plaintiff on negligence but does not compel it and the jury is the judge as to what importance shall be attached to this inference of negligence raised by the doctrine res ipsa loquitor. Likewise the evidence offered in explanation and in an effort to undo the effect of the application of the doctrine is also a question for the jury.

In the case of Glowacki vs The Northwestern Railway & Power Co., Ohio Law Bulletin, June 27, 1927, 392 the court said:

“Where .the allegations in a petition and the evidence offered in support thereof call for the application of the rule of res ipsa loquitor and where the defendant has offered evidence tending to meet and explain the circumstances, it is the 'duty of the court when requested so to do by either party, to submit the question to the jury under proper instructions.
The weight of the inference as well as the weight of the expanation offered to meet the inference is for the determination of the jury in a .jury trial or for the determination of the court when the court is the trier of the facts.”

The jury accordingly may accept the explanation offered or it may reject the explanation as improbable. It all depends upon the particular case and the particular circumstances.

Upon the above consideration we find no error in the charge of the court.

As to the point made that the verdict is manifestly against the weight of the evidence we are unable to find ourselves in accord with such conclusion.

Judgment of the Common Pleas Court is therefore affirmed.

Sullivan, P. J., Vickery and Levine JJ. concur.