author: DAY, J.

text:
    EAST BAY SPORTING CLUB v. MILLER et.
    Ohio Supreme Court.
    No. 20555.
    Decided Feb. 29, 1928.
    Error to Erie Appeals.
    Judgment modified and affirmed.
    1261. water AND water COURSES — 537. Fishing rights of land owners.
    1. Public has right of navigation and fishing in open bays of Lake Erie, without limit as to particular portions of them whether navigable or not. (96 OS. 139, app.)
    2. Waters which are used or susceptible of use, as highways of commerce, are navigable.
    3. Water courses, defined — need not flow continuously; may sometimes be dry and may be filled by freshets or « backwater and still constitute' a water course. 4
    4. Fishing rights — Owners of banks and bed of an] unnavigable stream, not a part of Lake Erie or its bays,! have exclusive right thereto and may enjoin tres- ] passers from entering or fishing thereon. (*7 OS. 336. -j app.)
   DAY, J.

1. The public has a right of navigation and fishing in the waters of the open bays of Lake Erie, and such rights are not limited within such public bays to the particular portions thereof which are navigable in the legal sense, but such rights of fishing and navigation extend to any portions of such waters so long as they are a part of Lake Erie or its open bays. (Winous Point Shooting Club v. Slaughterbeck, 96 O. S., 139, approved and followed.)

2. Waters axe navigable in law when they are used or are susceptible of being used in their ordinary condition as highways for commerce over which trade and travel are or may be conducted in the customary modes of trade and travel upon water.

3. A watercourse is a stream usually flowing in a particular direction in a definite channel having a bed, banks or sides and discharging into some other stream or body of water. It need not flow continuously, and may some times be dry or the volume of such watercourse may some times be augmented by freshets or water backed into it from a lake or bay or other extraordinary causes; but so long as it resumes its flow in a definite course in a recognized channel and between recognized banks, such stream constitutes a watercourse.

4. The owner of land comprising both banks and the bed of a stream or river which is not legally navigable and not a part of Lake Erie or its bays, has the exclusive right of fishing in such waters and may enjoin trespassers from entering upon and fishing therein. (Lembeck v. Nye, 47 O. S., 336, approved and followed.)

Marshall, CJ., Allen, Kinkade, Robinson and Matthias, JJ., concur.)


source: Caselaw Access Project

author: BY THE COURT.

license: Public Domain

text:
    BUTTON v. OLSON et.
    Ohio Appeals, 9th Dist., Summit Co.
    No. 1344.
    Decided Jan. 31, 1928.
    First Publication of this Opinion. ^
    Syllabus by Editorial Staff.
    997a. • REAL’ ESTATE AGENTS — 1100. Specific Performance. ’• •
    • Where real estate agent, acting, for both parties, negotiates contract for" exchange of real estate, false representation to one party that he had bpyer for real estate which such-,party would receive in trade, held sufficient grounds for recission of contract.
    Appeal from Common Pleas.
    Petition dismissed.
    W. J. Laub, Akron, for Button.
    D. W. Alexander, Akron, for Olson, et.
   FULL TEXT

BY THE COURT.

This is a suit in equity to compel the specific performance of a land contract for an exchange of improved real property, which contract was entered into by the defendants, and which they refuse to cany out.

The defendants admit the signing and delivery of the contract, but claim it was obtained through the misrepresentations of a real estate agent who, the plaintiff claims, acted for both of the parties to the contract.

Assuming that the agent was acting' for both of the parties, although from the iecord we are inclined to the opinion that he was really acting' for the vendors, from whom he was to receive his compensation, he was required to act in the utmost good faith towards them both, and would not be permitted to make false material representations to one of the parties to induce that party to enter mco the contract.

“vv'hen a professional land agent acts as agent for both the seller and the buyer, and that is known to them, the law exacts the most perfect good faith, honesty, and fairness on his part, and will not adjudge ■the specific performance of a contract thus made, unless it has been entered into with perfect fairness, and without misapprehension or misrepresentations.”
Morgan v. Hardy, 16 Neb. 427, 20 N.W. 337, at p. 342.

We have carefully read the transcript of the evidence, and L om such examination we are of the opinion that the agent who negotiated said contract, did represent to the defendants that he did have a purchaser for the property which the defendants were to receive in the trade, and that the defendants relied upon said representations and agieed to make the trade upón the terms set forth in said written contract as a consequence of said representations, whereas in truth and in fact said agent did not have such a purchaser at the time he represented to said defendants that he had one. These representations being false and material and relating to an existing fact, justified the defendants in their refusal to carry out the terms of said contract.

Defendants claim also that the plaintiff, as a matter of law, would not be entitled to specific performance in this case, as she has disabled herself from carrying out her part of the contract, for the reason that she has made a conveyance, to another, of her property since the institution of this suit.

The evidence offered in this court shows that she has deeded her property to another, and there is no evidence that the property is still hers and that the one in whose name the property stands holds it for her or is willing to carry out said contract. This, then, disables the plaintiff from carrying out her contract, and would, of course, prevent her from having specific performance; but before we would decide against the plaintiff upon this point, we would, in view of, the statements of her attorney made in open court, give her the opportunity to'offer additional evidence.

For the reason first hereinbefore given, the prayer of the petition will be denied and the case dismissed, at the costs of the plaintiff..

CWashburn, PJ., Funk, J., and Pardee, J., concur.)


author: HOUCK, J.

text:
    DUNLAP v. DENNISON LUMBER CO.
    Ohio Appeals, 5th Dist., Tuscarawas Co.
    No. 319.
    Decided July 26, 1927.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    480. EVIDENCE.
    Error to admit written statement made long prior to testimony at trial, not made under oath, with no opportunity to cross-examine, for purpose of determining whether statements made on witness stand were different, and for testing credibility of witness.
    Error to Common Pleas.
    Judgment reversed.
    W. S. English, New Philadelphia, and W. B. Stevens, Uhrichsville, for Dunlap.
    Wilkin, Fernsell, Fisher & Limbach, New Philadelphia, for Lumber Co.
    STATEMENT OF FACTS.
    On or about the 4th day of December, 1923, Dunlap gave to the Lumber Co. a promissory note for $2,000. On or about December 7, 1923, he gave another note to the Lumber Co. for the same amount and embodying the same terms. The note dated December 4th, was discounted at the bank, and was later paid by Dunlap.
    On March 19, 1926, the Lumber Co. took a cognovit judgment on the note dated December 7th, for the principal and interest then appearing due thereon.
    This judgment was set aside by the Common Pleas, and leave was given to Dunlap to file an answer in the Case. In- the answ^^^^H lap avers that the note dated Decem1|M^M upon which this suit is based,, was erSNPM and delivered to the plaintiff as a duplicate for, the note dated December 4th, upon the request of the plaintiff and after he had represented to defendant that the note dated December 4th had been lost; that, by reason of the fact that the note dated December 4th had been paid, the note herein sued upon is void and of no- effect. To this answer the plaintiff filed its reply, denying that the note dated December 7th was issued as a duplicate of the note of December 4th. Upon the issues thus joined, the case was tried in the Common Pleas and submitted., to a jury whjch returned a verdict for the defendant.
   OPINION OF COURT.

The following is taken, verbatim, from the opinion.

HOUCK, J.

We have read all of .the testimony offered in the trial and examined and analyzed the ques7 tioned Exhibit No. 3, which reads:

“Dennison, Ohio, March 30, 1926.
Statement of Margaret Feeney.
I, Margaret. Feeney, recall that in December, 1923, S. B. Boyce, Treas. of The Dennison Lumber Company, issqed to S. P. Dunlap a note for $2,000 in payment of money due him on Company houses No. 1 and No. 2 which he was building under Contract. I also recall that two or three days later Mr. Dunlap repoited to Mr. Boycé that he had lost or misplaced the note given him and Mr. Boyce issued another note for the same amount to take the place of the one that was lost. This is -a true statement and I remember the transaction well.
Witness: S. B. Boyce.
(Signed) Margaret Feeney.”

In admitting the exhibit, the trial judge said to the jury:

“I will admit Exhibit No. 3 for this purpose only. The jury will remember that this witness, Margaret Feeney, was cross-examined as to conversations recently with Mr. Limbach and Mr. Fisher and Mr. Boyce and it is admitted for the purpose only of the jury considering whether or not the státement made by her at this time, March 30, 1926, in writing, is any different from what her statement was today in this respect. In other words, was her statement today on her cross-examination any different from what her statement was at the time this statement was purported to have been given, to-wit: March 30, 1926. That is the only purpose for you to consider it. Not as evidence in the case but as reflecting on whether or not her testimony today is any different from what it was at that time, and for that purpose too reflecting upon the credibility of her testimony if you find there is any differ-enee.”

It must be remembered that the one issuable and disputed question of fact, which is in controversy in this law suit and is determinative of the case is:

Was or was not the note in suit given in lieu of the first note which was paid by the defendant ?

We are unanimous in our conclusion that the teial judge committed prejudicial error in admitting in evidence Exhibit No. 3.

However, the real mischief was in the court’s statement to the jury as to the purpose of admitting said exhibit and to what extent it might be considered by it.

The contents of the exhibit was in the nature of a self-serving statement in behalf of the witness, Feeney, and which was not made under oath. It will be conceded that her deposition, under the circumstances, would not have been admissible as evidence.

Then under what reasonable rule pertaining to the admission of evidence in a trial is the consistent statement of the witness Feeney, made long prior to her testimony at the trial and which is- the same as her oral testimony, competent to go to or be considered by the jury?

Yet, this written statement, not made under oath and with no opportunity to cross-examine or interrogate the author of same, by those of adverse interest, is permitted to go to the jury and be read and considered by it in the jury room.

And the trial judge said to the jury, it was admitted for the purpose of determining whether or not her statement made on the witness stand was different from that made in the written document some months before, not as evidence but as reflecting on whether or not her testimony given orally was different from that contained in the writing; and for the purpose of reflecting upon her testimony, if you find any difference.

The legal effect of this instruction being that if the jury found both statements the same, then in that event she was a truthful witness.

Under the record in the present case, we are fully convinced that for the errors herein pointed out and the reasons given for same, that the judgment of the lower court should be reversed and the cause remanded.

(Shields, J. and Lemert, J., concur.)


author: HUGHES, J.

text:
    CLEVELAND, CINC. C. & ST. L. RY. CO. v. GEER.
    Ohio Appeals, 3rd Dist., Crawford Co.
    No. 1158.
    Decided Jan. 26, 1928.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    396. DIRECTED VERDICTS — -941. Practice and Pro-ceáure — 791. Motions and Orders.
    Rule, that when plaintiff and defendant move, at same time, for directed verdict such motions require court to determine questions of fact and thereby waive jury, held not to apply when plaintiff's motion for directed verdict is not filed until after defendant's motion for same has been overruled.
    Error to Common Pleas.
    Judgment reversed.
    McBride & Wolfe, Mansfield, for Railway Co.
    W. J. Geer, Galion, for Geer.
   FULL TEXT.

Before Judges Crow, Hughes and Justice.

HUGHES, J.

This is an action brought to recover damages for the wrongful death of the deceased of whose estate plaintiff was administrator.

At the trial, plaintiff offered in evidence a certain written lease after all the other evidence was in, and objection thereto was made by the defendant. The jury was retired to their room, whereupon counsel for defendant, apparently addressing counsel for plaintiff, inquired, “We understand you rest with the introduction of this paper?” Whereupon plaintiff’s counsel replied, “I think so.” And thereupon the defendant, at the close of plaintiff’s testimony, moved the court to direct a verdict in its favor, which motion was argued by counsel.

The court thereupon overruled the objection to the introduction of the written contract, and admitted it in evidence, and thereupon overruled the motion of the defendant for a directed verdict.

The jury was thereupon returned to the jury box, when it was announced by counsel for plaintiff that “We rest,” followed by the same announcement from the defendant.

Thereupon counsel for plaintiff asked the court to instruct the jury to return a verdict for the plaintiff, whereupon the court immediately sustained said motion, to which ruling exceptions were saved by the defendant.

The court thereupon charged the jury to return a verdict in favor of the plaintiff, hut instructed the jury, and permitted it, to ascertain the amount of damages to he given to plaintiff.

The evidence of plaintiff under what circumstances the clam shell shovel was operated, and the same relative to the movements of the trains of the defendant over its tracks passing the shovel.

Whether under all the circumstances the defendant used the degree of care required of it in the transportation of passengers for hire, was a question of fact for the jury to determine, the evidence depicting such a situation from which reasonable minds might arrive at different conclusions.

Inasmuch, therefore, as there was this evidence before the jury tending to support the claim of the plaintiff, the overruling of the defendant’s motion for a directed verdict, was not error.

T^e motion of the defendant for a directed verdict having been overruled by the court be-fo1 e plaintiff’s motion for a directed verdict had been made, presents a different case than was before the court in the case of Bank v. Hayes & Son, 64 OS. 100, as well as the case reported in the 112 OS. at 321.

The theory upon which it has been held by our Supreme Court and courts of other states, that the parties waive the right to have an issue of fact submitted to a jury, when they move for a directed verdict, is based upon the theory that the parties by both submitting at the same time, such a motion, call upon the court to determine the questions of fact to be found from the evidence, and thereby waive a jury.

In the case at bar, there is no such situation. The defendant’s motion had been ruled upon and was not further before the court for consideration The next step was taken, that' is, the defendant determined that it would not adduce evidence at the trial, but rely upon the failure of the plaintiff to prove his ease.

The defendant had, under these circumstances. a right to submit to the jury all questions of fact. It was for them to determine the ultimate fact from the evidence before it, and it was therefore error for the trial court to sustain a motion in behalf of plaintiff for a directed verdict- The judgment is therefore reversed.


author: LEMERT, J.

text:
    EVANS v. MOLYNEUX et.
    Ohio Appeals, 5th Dist., Muskingum Co.
    No. 351.
    Decided Nov. 22, 1927.
    Syllabus by Editorial Staff.
    1271. WILLS AND LEGACIES.
    Words “To have and possess all of my real, and personal property to have and use for her own. personal benefit and to distribute as she may direct” held to pass fee simple title. Words of perpetuity not necessary.
    Y’’"’Appeal from. Common’.Pleas. , , ’ ’
    Findings approved.
    STATEMENT OF FACTS.
    The only question involved in this ca^^H the construction of the will of William^BI Cowell. The estate taken by his widow is determined by the construction placed upon this will. The contesting defendants claim that the will created a trust of some kind in Catherine Cowell, and that the property reverts to the Cowell heirs entirely. Article 2 of the will, reads as follows: “It is my will that my beloved wife, Catherine Cowell, to have and possess all of my real and personal property to have and use for her own personal benefit and to distribute as she may direct.”
   OPINION OF COURT.

The following is taken, verbatim, from the opinion-

LEMERT, J.

At the time this will was executed, the record in the case shows that the testator was then a resident of South Zanesville, Mus-kingum County, Ohio, died testate and left a widow, Catherine E. Cowell, surviving him. They had no children. The nearest relatives consisted of brothers and sisters of the husband and wife. Mrs. Cowell died Feb. 17, 1925. At the time of testator’s death, Mr. Cowell owned in fee simple title a residence in South Zanesville, Ohio. After the death of the widow, her brother, Charles H. Evans, brought a proceeding to partition said real estate under favor of the Statute that gives one-half to the brothers and sisters of the deceased husband, and one-half to the brothers and sisters of the deceased wife. A cross-petition was filed seeking construction of the will of William E. Cowell, and seeking such a construction as would deprive the brothers and sisters of Catherine E. Cowell from, taking any part in said real estate. A hearing on said construction was had in the Common Pleas Court and the will was construed as to bear out the contention of the plaintiff herein, and the Court, in a separate finding of facts, found that Catherine E. Cowell was the owner in fee simple by devise from her.husband, William Cowell, of the real estate sought to be partitioned.

The defendants claim this will created some kind of a trust. They do not name the character of the trust or kind of a trust it should be. If the language of this will creates a trust at all it.might be termed a “testamentary trust-” It would follow that there must be a trustee and a beneficiary; that the legal title, during the continuance of the trust, must be separated from the equitable title. Now, does the language of the will permit such a construction ?

The will in question does not provide, a trustee nor does it separate the title into a legal and equitable title, nor do the words control the disposition thereof by the devisee, so it appears clearly to us that no trust is created in favor of the heirs of William Cowell or anybody else. We find nothing in this will to clearly .indicate that William Cowell -intended to pass less than a fee simple, to his wife. It is a well known principle-of law that in Ohio words of perpetuity are not essential in .a will to pass an estate of inheritance., 6 OS.- 408. On the other hand, we believe this will is supported by much authority, "when we construe it to give to the widow of William E. Cowell ^^^HsTmple. Johnson v. Johnson, 51 OS. 446; v. Smith, 7 O. C. D. 264; Widows’ Home Lippardt, 70 OS. 261.

^So that in this case we find:

First: That by the will of William E. Cowell, his wife, Catherine Cowell, became seized in fee simple of the real estate desciibed in plaintiff’s petition herein.

Second: That the same descended in equal parts, one-half to the brothers and sisters and the legal representatives of deceased brothers and sisters of said Catherine Cowell, and one-half to the sisters of the deceased husband of Catherine Cowell; (the legal representatives of one of said sisters, who has since deceased, taking the share of one of said sisters of William E- Cowell.)

Third: That said premises are subject to partition among the heirs at law and legal representatives, determined as aforesaid.

The same judgment may be entered in this Couit as was entered in the Court below.

(Lemert, J., Shields, J., Houck, J., concur.)


author: VICKEEY, J.

text:
    COPELAND v. GRASSELLI CHEMICAL CO.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8245
    Decided Jan. 16, 1928.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    631. INDUSTRIAL COMMISSION — 480. Evidence — 396. Directed Verdicts.
    1. All evidence, including hearsay evidence, if received by Industrial Commission, is competent before Common Pleas Court.
    2. where there is some evidence, including such hearsay, in support of plaintiff’s contention, case must go to jury.
    Error to Common Pleas.
    Judgment reversed.
    M. C. Harrison and Cerrezin & Wilson, Cleveland, for Copeland.
    Squire, Sanders & Dempsey, .Cleveland, for Chemical Co.
    STATEMENT OF FACTS.
    One James Copeland was an employee of The Grasselli Chemical Company,. who was a self-insurer under the compensation laws of Ohio. On or about Dec. 31, 1923, Copeland, while working at the company’s plant, claims to have inhaled fumes which immediately made him so ill that pneumonia developed, from which he died within a period of five or six days.
    Anna Copeland was his widow and beneficiary, and she made a claim against The Gras-selli Chemical Co., before the Industrial Commission of Ohio, for compensation under the law. The Commission refused compensation, and, within the period allowed by law, an appeal was taken to the Common Pleas of Cuya-hoga County. The cause was tried before a jury in the Common Pleas in which hearing all the evidence, both original or direct, and hearsay, that was admitted before the Commission, was introduced and properly admitted, but at the conclusion of all the testimony a motion was made by the Company to direct a verdict in its favor, and that motion was granted.
   OPINION OF COUKT

The following is taken, verbatim, from the opinion.

VICKEEY, J.

We have gone over this record and we have read it with much care and have gone over the briefs of counsel, and, while the briefs dwell at length upon the question of hearsay testimony, really that is not the question that confronts the court. We have held, in other cases, and it has been repeatedly held, that all evidence, including hearsay evidence, if received by the Industrial Commission, is competent before the Common Pleas Court. In other words, the matter of the hearing befoie the Commission is more informal than in a court of justice and evidence is not introduced with the same degree of technicality and particularity as it is in court. Under the law as it now stands, which provides that the case in court must be heard upon the same evidence and no other, that is introduced before the Commission, that applies to hearsay evidence and evidence which would be incompetent in a court in the first instance, as well as to other evidence. The trial court seems to have recognized this rule and he admitted the hearsay evidence, but then held that there was not sufficient evidence to go to the jury, and that is the only question that we care to pass upon, and it is the only question that it is necessary to pass upon.

There was evidence, much more than a scintilla, to go to the jmy, and the jury might well have found against this man and they might well have found that this pneumonia came from some other source and that he was ill before. There was evidence upon both sides of that proposition, but it was surely a question for the jury to have heard and determined the facts-

We think, therefore, that the court ened in directing a verdict for the defendant in this case, and for that reason the judgment will be reversed, and the cause remanded to the Common Pleas Court for a new trial.

(Sullivan, PJ. and Levine, J., concur.)


author: VICKERY, J.

text:
    ZIZELMAN v. MAYER.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8581.
    Decided Dec. 19, 1927.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    1271. wills and legacies.
    Where husband dies without issue and wife fails to elect to take under will, Section 5964 GC. positively precludes her from taking more than dower interest in property. Status of estate is same as though husband had left children.
    Appeal from Common Pleas.
    Findings approved.
    C. B. Eobinson and A. L. Talcott, Cleveland, for Zizelman.
    Warren L. Smith, Cleveland, for Mayer-
    STATEMENT OF FACTS.
    This action was brought by Frank Zizelman, as executor, for the interpretation of certain clauses in a will made by William Gellerman.
    It seems, that Gelleiman, prior to his death, was the owner of certain parcels of real estate and some personal property; that he was married and had no children, and that all the property came to him by way of purchase and not by way of descent. His will was duly admitted to Probate, and provided that his wife, Phil-lipine Gellerman should have a life estate in all of his property, both real and personal, and that after her death certain legacies were to be paid. Several years after his death, the executor having taken charge of the property and found it necessary to sell certain of the real estate, Phillipine Gellerman died intestate, and Mayer was appointed administratrix of her estate. The claim was made by her that, inasmuch as all the property in the Wm. Gel-lerman estate came to him by way of purchase, that outside of the legacies mentioned, there being no residuary clause, Wm. Gellerman died intestate, and, there being no children, his wife Phillipine Gellerman succeeded to the real estate as heir at law, and that when she died, this property was a part of her estate, and May Mayer claimed the property as the property belonging to Phillipine Gellerman.
    This case was tried in the Common Pleas upon an agreed .statement of facts, and among the facts agreed upon, was that Phillipine Gel-lerman never elected to take under the provisions of the will.
   OPINION OP COURT.

The following is taken, verbatim, from the opinion.

VICKERY, J.

When this will went into effect and all the rights thereunder accrued, Section 5964 was in force. It will be noticed, from this section that the widow, never having elected to take under the provisions made for her in the will, that is, having failed to make an election, all the property that she got was her dower interest and her distributive share of the personal property, and the balance of the property, after the legacies weie paid, would go to the heirs at law of William Gellerman. It will be noticed that the statute postively precludes her from taking any more of the property, but the status of the estate would be exactly as though Gellerman had left children and they, of course, would have inherited his property.

Now in the instant case, the importance of this statutory provision must be very apparent, because in Oglesbee v. Miller, 111 OS. 426, there is a case on all fours with the instant case, and if the widow, in the instant case, had elected to take under the will, there would have been no question of the controlling force and effect of the Oglesbee case.

It would be manifestly absurd to say that the statute would limit her to the exact portion of the property that would be coming to her as the widow of a man. who died leaving children, if in the same breath the purpose of that statute could be defeated by making her the residuary legatee-

In view of this statute, and in view of the statement of the record in this lawsuit, we aie compelled to come to the conclusion that the decree of the Common Pleas Court was right, .and the same decree should be entered here.

(Sullivan, PJ. and Levine, J., concur.)'


author: POLLOCK, J-

text:
    WATSON v. STATE
    Ohio Appeals, 7th Dist., Mahoning Co.
    Decided Oct. 14, 1927.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    661. INTOXICATING LIQUOR — 615. Husband and wife.
    Married woman, living with husband, cannot be convicted of possession of intoxicating liquor found on premises, except by showing special ownership.
    Error to Common Pleas.
    Judgment reversed
    Crumpler & Crumpler, Youngstown, for Watson.
    Wm. E. Lewis, Youngstown, for State.
    STATEMENT OP FACTS-
    An affidavit was filed in the Municipal Court, charging Eliza Watso-n with possessing intoxicating liquors contrary to law. She was tiied and found guilty. Error was prosecuted to the Court of Common Pleas, where the judgment was affirmed, and this action in error was brought to íeverse the judgment of both courts below.
    About five o’clock on the morning of June SO, 1926, two police officers went down about Poland Avenue. While driving along the alley in the rear of Poland Avenue, they saw a man standing, some distance from them. He started to go away and they stopned their automobile in the rear of lot No. 759 Poland Avenue. They saw this partv go to the rear door of this house and knock. In a few minutes the door was opened, a man came out carrying four glass jars with some kind of liquid in them. He started to run and the police officers started after him. Running some distance, he dropped the jais, .some distance from the house, and got away. The two officers then went around to- the front door of the house and knocked, and the accused came .to the door and opened it. They went in, and went into the kitchen and discovered a five gallon can containing a small amount of intoxicating' licraor. They opened it and evidently it had contained intoxicating liquor. They also went out and, a short distance from the house, thev found these four glass jars of liquor that had been taken from the house, as we have stated, by this party who ran out. They also testified that they saw Eliza Watson come to the door, that she opened it and let the man out who was carrying the liquor. She testified in her own behalf and denies that she opened and closed the door, claiming that she was in bed at the time the officers came to the door and knocked and she got up and opened it. She also testified that she was married, living with her husband, that her husband had gotten up that morning, dressed and went out of the room.
   OPINION OP COURT.

The following is taken, verbatim, from the opinion.

POLLOCK, J-

There is no doubt about -the four glass jars of liquor. There is no doubt but that the five gallon can found had a small amount of liquor in it, that it possibly had far more than that in it a shoit time before Giying full credit to what the officers testify to, is there sufficient here to charge this woman with possessing intoxicating liquor? , There is no attempt to de'ny her testimony that she is a married woman, she and her husband living in this house, that he had gone out a short time before. The probabilities are that he took the four gallons of liquor with him when he left. Can we convict the wife of possessing intoxicating liquor when she is living with her husband and liquor is found in the house ? Section 7996 GC. says that the husband is the head of the family. The next section says that he must support his wife and children, if able, and there are other modifications of the common law rule in this state, but has it destroyed the presumption that the husband.is the owner and possessor of the property found in the dwelling ? 30 C. J. pg. 825, under the head of Husband and Wife, Sec. 495, first refers to the common law rule that the personal property of the wife becomes the pioperty of the husband, when married, then it discusses the changes made in the ordinary statutes in recent years, and then it says:

“Although some authorities have held that there is no presumption that personal property in the joint possession of the husband and wife belongs to the husband, the general rule is that where husband and wife are living together the husband is presumptively the owner of personal property on the premises, and that this presumption continues until the wife shows that she acquired it as her separate property. The presumption of the husband’s ownership applies especially to articles such as furniture and household goods' adapted to the use of and used by the head of the family.”

This is a well known principle. While intoxicating liquor was found in this house, there is no attempt to show that the husband and wife were not living together or that this was the property of the wife.

We think the legal conclusion must be that the liquor was the property of the husband and not of the wife; therefore the judgment is reversed and the plaintiff in error is discharged.

(Parr and Roberts, JJ., concur.)


author: SULLIVAN, PJ.

text:
    NATIONAL LIFE INS. CO. v. PATRICK
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 7511.
    Decided Dec. 5, 1927.
    Syllabus by Editorial Staff.
    16. ACCIDENT INSURANCE.
    1. Freezing oí Angers,' while unloading coal, held to he injury resulting from accidental means.
    2. Provision, in total disability clause, that injuries must be such that they required and received, at least • •once in seven days, attendance of legally qualified physician or surgeon, and that no liability otherwise, held unreasonable.
    Error to Common Pleas.
    Judgment affirmed. , ^
    H' E.'Elliott, -Cleveland, for"Life‘Ins. Co.
    S. B." pitzsiinih’ons,' Cleveland, for Patrick. -■
    STATEMENT OF FACTS.
    George Patrick, plaintiff in the court below, had a policy of insurance in the defendant company, and while working for the Albright Coal Co., hauling coal, and while attempting to make delivery of the same, the wagon wheels sank into the mud, as the ground was not sufficiently frozen, although there was a blizzard and the weather was cold, to support the wheels on the surface. He proceeded to unload two tons of coal, consuming about an hour and a half, and discovered, as the unloading was about completed, that the fingers of one of his hands were frozen stiff. Thereupon, he went into a store and had them treated by the administering of coal oil. Sometime later, parts of all of his fingers and thumb of the right hand, and parts of all of his fingers on the left hand, excepting the thumb, were amputated by a surgeon, by reason of their freezing while doing the work herein noted.
    The final proofs of claim were dated April 8, 1924, and on April 4th was given as the date of the last treatment by the surgeon, although it appears that a nurse gave some electrical treatment up as late as April 17th, and also on May 17th. Theré was no further proof of claim filed after April 8, 1924.
    This suit is based upon a claim for compensation, under the policy, for the month of June, 1924, and subsequent months.
    The plaintiff rested after establishing the above facts. The defendant then moved for a directed verdict in favor of the defendant, and this motion was overruled, whereupon the court, on its own motion, directed a verdict in favor of the plaintiff for $385, which was the amount claimed in the petition.
   OPINION OF COURT.

The following is taken, verbatim, from the opinion.

SULLIVAN, PJ.

Error is charged, because of the directing of this verdict, and two reasons are given.

First: that the facts doi not establish an accidental freezing.

Second: that under paragraph A of the policy and the admitted facts, no liability arises Paragraph A is as folows:

“TOTAL ACCIDENT DISABILITY — A”
“At the rate of $35 per month for the period not exceeding five consecutive years, that bodily injuries effected during the life of this policy, solely through external, violent and accidental means, shall, directly and independently of all other causes, wholly and continuously, from date of accident, disable and prevent the insured from performing every duty pertaining to his business or occupation and require and receive at least once in each seven days the attendance of a legally qualified physician or surgeon, but' shall not result in any of the losses mentioned in paragraph “C.”

The -first claim is that the freezing- of the fingers was not accidental. This cour-t has heretofore- defined what an accident was under the'terms of -an-insurance-policy,-and it again cites -the following cases: Burkhard v. Travelers' Ins. Co. 102 Pa. 262, 48 Am. Rep. 205; N. A. Life & Acc. Ins. Co. v. Burroughs, 69 Pa. (19 P. F. Smith) 43, 8 Am. Rep. 212; Aetna Life Ins. Co. v. Vandecar, 86 Fed. 282, 30 C. C. A. 48; Richards v. Travelers’ Ins. Co., 26 Pac. 762; Williams v. United States Mut. Acc. Assn., 14 N. Y. Supp. 728.

It is our holding- that, under the facts in the case, the injury was due to accidental means, and the basis of our finding are the above authorities. Had the plaintiff’s fingers come in contact with a hot iron without any volition and in an unusal and unexpected manner, there would he no question but what the injury resulted from accidental means. There is no evidence that he was reckless in caring for himself as much as possible while he was performing his work in freezing cold weather. Hence, we think, under the record, that the injwy resulted from accidental means. It further appears, referring again to paragraph A of the policy, that the result of the accident disabled and prevented the insured from performing every duty pertaining to his business or occupation, which was that of a driver of a coal wagon and a heaver of coal.

It is claimed, however, that inasmuch as under paragraph A the injuries must be such that they required and received, at least once in each seven days, the attendance of a legally qualified physician or surgeon, that there is no liability and can be no recovery, because the evidence is silent as to that part of paragraph A just quoted, but under the record, however, it appears that when the fingers of the hands healed, there was no necessity for surgical attention every seven days. This clause is unreasonable because his recovery would depend, after the loss of his fingers, which disabled and prevented him from following his calling, upon his requiring and receiving surgical attendance every seven days when it was not necessary.

Referring again to the question as to whether the injury was caused by accident, we add that unquestionably all cases of freezing are not necessarily accidents. If the insured had imperiled himself in weather that was unusually cold or extremely severe and to the extent that its severity would be sufficient notice of its danger, then it might be said, and could be said with reason that the injury was not caused by an accident, but there is no such situation appearing in the present record, and it would be absurd so to claim, as one of the reasons that the wheel of the wagon sunk was because of the unfrozen condition of the highway.

The judgment of the lower court is hereby affirmed.

(Levine and Vickery, JJ., concur.)


author: MAUCK, J..

text:
    HUNTINGTON NAT. BK. v. REMINGTON et.
    Ohio Appeals, 4th Dist., Meigs Co.
    Decided Jan. 10, 1928.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    1271. WILLS1 AND LEGACIES — 1197.-. - Trusts and Trustees. .J' *.
    1. Where paragraphs, in different, itmes, of will are in conflict» one paragraph may be disregarded * in order to carry out intention of testator.
    2. Where one paragraph in item is idsregarded, paragraphs in same item may remain effective.
    Heard on Appeal.
    Arnold, Wright & Harlor, Columbus, for Bank.
    D. Curtis Reed and Peoples & Peoples, Pomeroy, for Remington et.
    STATEMENT OF FACTS.
    In this action the plaintiff, trustee under the will of Benjamin R. Remington, deceased, seeks a construction of that will. The will was executed July 10, 1926. The testator died February 5, 1926, leaving Frederick Randall Remington, a son, his sole issue. Mr. Remington’s wife died insane in 1922. The son Frederick, now thirty-seven years old, has not been adjudged insane but is so in fact, and had been detained in a private sanitarium of his father’s selection for some nine years preceding his father’s death and is now so detained, and there is no expectation of his recovery. Minnie Utnahmer was the testator’s housekeeper after the mother’s commitment to a state hospital and cared for and nursed Frederick from his infancy until his detention became necessary. The estate is valued at more than $60,000, practically all in real estate. Prior to making the will in question, the testator had a will substantially embodying all the provisions as found in the first three items of his last will, and, following a conference with the officers of the plaintiff trustee, executed his last will which, in addition to the provisions of the former will, undertook to create the trust now being executed by the plaintiff. The second item of the will contained four paragraphs. The first gives the housekeeper a right to certain real estate together with some household goods. The second provides that the housekeeper shall visit the son as often as she desires at the expense of the estate. The third provides for the maintenance of the residence as a home for the son and the housekeeper, and for the payment to the housekeeper of $25.00 per month during her life. The fourth paragraph reads as follows:
    “The remainder of my estate, both real and personal, I give and bequeath to my only son and child, Frederick Randall Remington.” The fourth item of the will reads as folllows:
    “I devise and bequeath the residue and remainder of my estate, real and personal, to The Huntington National Bank of Columbus, Ohio, as trustee with the following power;” etc.
    The powers are to provide for Frederick’s maintenance out of either the income or corpus of the estate; to manage, sell and reinvest at trustee’s discretion, and, at .Frederick’s death, to distribute the corpus of the estate among beneficiaries thereafter designated in item five.
    The petition first seeks a determination of the validity of the trust thus sought to be created, and the next inquiry goes to the power of the trustee to sell the real estate of the testator. .
   OPINION OF COURT.

The following is taken, verbatim, from the opinion.

MAUCK, J..

¡ We find that-Ahe:.¡trust is a va-nTone. ,:We. are cognizant of the fact that, in the second! item, the residue of the estate is devised to Frederick outright and that in the fourth item such residue is devised to the plaintiff trustee. The trust so created is, however, primarily for the benefit of Frederick. The apparent conflict is accounted for by the fact that the testator used the form of his older will and attempted to follow that with the terminology necessary to create the trust. He knew that his son’s condition was piactically hopeless; that he could enjoy the estate only to the extent of having his maintenance therefrom and so undertook to employ a trustee to practically nccomnlish for his son’s benefit all that that son could realize out of full possession of the estate and with less trouble and expense. The last sentence of item second must yield to item four and we find that the last sentence of the second item must be and is read out of the will.

The next inquiry goes to the power of the trustee to sell the real estate of the testator. The power to sell generally is unequivocal. The power, however, has some special limitations. While we find it necessary to hold that the last sentence of the second item, assuming to make Frederick the residuary legatee, is ineffective because of the subsequent disposition of that residue, we cannot ignore the other provisions of that item unless subsequent provisions imperatively require it. Now the subsequent provisions not only do not require us to ignore the first provisions of item second but they, on the contrary, imperatively require us to enforce those provisions. The fourth item does not devise all the estate of the testator to the plaintiff but only “the residue and remainder of my estate.” What residue and what remainder? Clearly that remainder after the satisfaction of the provisions of item two. The trustee is, therefore, ("npowei ed to sell the estate in remainder in “the one story cottage on lot 189” subject to the life estate therein of Minnie Utnahmer, but cannot divest Minnie Utnahmer of her life estate.

As to the property described as the testator’s residence the purpose of the testator ms that so long as Frederick and Minnie Utnahmer should both live there was a possibility that Frederick might return home. On" determination is that the residence cannot be sold so long as both of them live and that it can be sold after the death of either of them.

For the reasons alreadv expressed, Minnie Utnahmer is entitled to $25.00 per month to be paid during her life, by the trustee.

A decree will be drawn by counsel in accordance herewith.

(Middleton, PJ., and Thomas, J., concur.)


text:
    MILLER v. MILLER et.
    Ohio Appeals, 5th Dist., Knox Co.
    No. 252.
    Decided Nov. 22, 1927.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    «33. INJUNCTION.
    1. Equity' vyill not errant injunctive relief unless right of plaintiff1 is clear and evidence satisfactory.
    2. Injunction to prevent defendant from hauling timber from premises, will not be granted where evidence shows that such timber is of little, if any, value.
    Appeal from Common Pleas.
    Judgment- for defendant.
   PULL TEXT

BY THE COURT.

The cause here is one. in equity and comes into this court from the Common Pleas Court of Knox county on appeal.

The cause was submitted to this court upon the petition, answer and evidence.

The relief sought is injunctive in its nature and seeks to enjoin the defendants and each of them from cutting ceitain timber and committing waste in and to certain real estate described in the petition and from disposing of or hauling certain timber from said premises. The final prayer of the petition is that defendants be perpetually enjoined from doing each and all of the things hereinbefoie enumerated.

We have read the evidence as contained in the transcript filed in this court, being the same evidence submitted in the Common Pleas Court. The answer of the defendants is in the nature of a general denial to all of the material allegations set forth in the petition and they pray that the petition of plaintiff be dismissed and that they may go hence without day. The defendants for a further defense affirmatively aver that whatever timber was cut and removed from said premises and whatever they and each of them have done in and on said premises they were authorized and empowered and in law had a clear right to do it.

The evidence offered upon the material points involved in this case is not very conflicting. The value of the timber cut is small and if the testimony is to be relied upon was-of a beneficial character and nature to the growing timber remaining on said premises. Most if not all of the timber cut and attempted to be removed by the defendants was what is known and termed “dead timber" and as at least one witness testified, was of very little, if any, value. Another witness testified that most of the timber cut could not be removed because it wourd cost more to remove it from the premises than the timber would bring in the market.

It is well known that a court of equity will not grant injunctive relief unless the right of the plaintiff is clear and the evidence satisfactory.

As we view this case, under the facts and. the law we are bound to reach but one conclusion and that is that there is a failure of proof on the part of plaintiff to establish the material allegations in his petition as the law requires. It, therefore, follows that a judgment should be entered for the defendants, which is now done.

Judgment for defendants and petition of plaintiff dismissed.

(Houck, J., Shields,> J. and Lemert, J., concur.)


author: MIDDLETON, PJ.

text:
    SAVAGE v. STATE.
    Ohio Appeals, 4th Dist., Washington Co.
    Decided Feb. 9, 1928.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    681. JURISDICTION — 328. Court of Appeals.
    Court of Appeals is without jurisdiction to entertain error proceedings direct from Mayor’s Court.
    Enor to Mayor’s Court.
    Proceedings dismissed.
    C. D. Fogle, Marietta, for Savage.
    F. C. Myers, Marietta, for State.
   FULL TEXT

MIDDLETON, PJ.

This proceeding in error is dismissed under the authority of State v. Allen and State v. Williams, decided by the Supreme Court of this state on Decembei 28, 1927. This dismissal is made for the reason that the record shows that this proceeding was brought directly to this court from the Mayor’s Court of the city of Marietta, Ohio. We are of the opinion that under the provisions of Section 6 of Aiticle IV of the constitution of this state this court is without jurisdiction to hear and determine the complaint of the .plaintiff in error in this proceeding.

In the cases above cited the Supreme Court held that a justice of the peace is not a court of record and that the section of the constitution above leferred to does not confer jurisdiction upon the Court of Appeals to entertain an error proceeding direct from a justice of the peace. In the course of the opinion in said cases, which was delivered by Marshall, CJ., it is said:

“This conclusion necessarily results in inferentially overruling the case of Hein-inger v. Davis, mayor, 96 O. S. 205, because the jurisdiction of a mayor is defined to be that of a justice of the peace, and in all essential respects similar provisions are made for conducting judicial proceedings before a mayor.”

We rega d this language of the court as equivalent to a holding that the Court of Appeals is also without jurisdiction to entertain an error proceeding direct from a Mayor’s Court.

The petition in error is theiefore dismissed.

(Mauek and Thomas, JJ., concur.)


text:
    SIPE, Admr. v. WILSON et.
    Ohio Appeals, 5th Dist., Morrow Co.
    No. 221.
    Decided Jan. 25, 1928.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    389.- DESCENT AND DISTRIBUTION.
    Where widow dies intestate, and without issue, seized of property which came from deceased husband by will, property goes one-half to heirs of such widow and one-half to' heirs of such husband.
    Appeal from Common Pidas.
    Findings approved.
    H. H. Harlan, Mt. Gilead, for Sipe.
    Benj. Olds, C. H. Wood, and T. B. Mateer, Mt. Gilead, for Wilson et.
   FULL TEXT

HOUCK, J.

Appeal from the Common Pleas Couit of Morrow County, Ohio.

This action seeks to determine the proper distribution of the balance of the personal estate of Mary S. Eccles, deceased, to-wit: $1451.58.

This cause was submitted to this court on a written agreed statement of facts together with certain other facts admitted to be true by counsel in their oral statements made to the court.

Under the facts William M. Eccles departed this life long prior to the death of his widow, Mary S. Eccles. The husband died testate, devising his entire estate .to his widow, Mary S. Eccles, who departed this life intestate, leaving no children or their representatives, and that the property in question “is the proceeds, increase or accumulations from the property willed to her by her husband.”

Section 8577 General Code reads:

(Heie follows quotation of this section.)

This court must rely upon the facts as agreed to and not add to or take from them in reaching its conclusion. This we have done and it leads us to the unanimous judgment that under the facts measured by the provi-s:ons of said Section 8577 General Code that the money now in the hands of the administrator of Mary S. Eccles must and should be distributed as follows: One-half to the heiis of Mary S. Eccles who take per capita; and one-half to the heirs of William M. Eccles who take per stirpes.

The legal effect of the facts — as agreed to— clearly brings this case within and under the provisions of said Section 8577 General Code and distribution of the fund in dispute must be and now is ordered distributed accordingly.

It follows from the statements and finding' herein made that the same judgment should be entered in this court as was entered in the' Common Pleas Court.

(Shields, J. and Lemert, J., concur.)


text:
    MULBY v. DUNHAM et.
    Ohio Appeals, 5th Dist., Knox Co.
    No. 261.
    Decided Nov. 22, 1927.
    Syllabus by Editorial Staff.
    1012. REFORMATION OF INSTRUMENTS — 775. Mistakes — 165. Bonds.
    1. In action to reform instrument on mistake, presumption is that contract or written instrument, as-executed, contains agreement of parties, and to overcome this presumption the mistake must be proved by satisfactory evidence.
    • 2. In absence of proof of clear and substantial nature, court of equity not authorized to reform contract or bond unless it appear that mistake has- occurred or fraud has-intervened. • '• ' '• • 1 - l f

      First Publication of this Opinion.
    Appeal from Common Pleas.
    Judgment for defendant.
    B. E. Sapp, Mt- Vernon and R. L. Carr, Cleveland, for Mulby.
    Robt. J. Grossman and F. O. Levering, Mt. Vernon, for Dunham et.
    STATEMENT OF FACTS.
    The relief sought by this suit, in the first cause of action, is to reform a certain super-sedas bond executed by defendant, J. L. Dun-ham as principal, and the other defendants herein as sureties.
    It is based on a claimed mistake in that it was intended that an undertaking in error was being executed and not a supersedas bond. It is conceded that no proceeding in error was prosecuted until two or three weeks after the filing of the supersedas bond.
    The undisputed facts are: That a supersedas blank bond was requested, by one of the counsel for Dunham, of Clerk of Courts Sparks and that counsel and the- clerk filled the blank spaces; that counsel took.the bond and it was thereafter returned, either by counsel or Dun-ham, to the clerk, duly signed by Dunham, the principal, and the other defendants as sureties.
    No evidence was offered to show that the signatures on said bond, by defendants or either of them was done by mistake or inadvertence or that it was done to defraud or wrong plaintiff.
   OPINION OF COURT.

The following is taken, verbatim, from the opinion.

HOUCK, J.

The presumption in law is that they signed the paper in question for the uses and purposes set forth and stated therein and for no other; and in the absence of proof to the contrary they are not legally chargeable with mistake or fraud.

There is no evidence that either of the defendants intended to sign or execute any other kind of bond or obligation than the one now in suit.

“When no question of fraud * * * and the right to reform an instrument is based solely on a mistake, it is necessary that the mistake be mutual * * 23 R. C. L., Section 20, page 327.

The general rule seems to be that in an action to reform an instrument for mistake, the presumption is that the contract or written instrument, as executed, contains the agreement of the parties, and to overcome this presumption the mistake must be proved by satisfactory evidence.

While a Court of Equity is clothed with broad powers, yet, in the absence of proof of a clear and substantial nature, it is not authorized to reform a contract or bond unless it is made to appear that a mistake has. occurred of fraud has intervened; and equity' will not make contract for the parties where they failed to do so themselves, except under the conditions thus indicated. Stewart v. Gordon et, 60 O. S. 170; Railroad Co. v. Bind, 89 OS. 92; Bank v. Carroll, 5 Ohio, 214.

Under the facts and the rules of law herein laid - dówn;"'we aré ;of the. unanimous^ opinion ' that-thfe plaintiff" has '’failed in-his -proof •td“súé-,,‘ tain ""the” á'lleg'atidfis''-of--his' petition arid' that--, judgment must be entered for the defendants1.' '

(Shields and Lemert, JJ., concur-)


author: POLLOCK, J..

text:
    ZANDERS v. YOUNGSTOWN MUNI. RY. CO.
    Ohio Appeals, 7th Dist., Mahoning Co.
    Decided Nov. 4, 1927.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    829. NEGLIGENCE — 225. Charge of Court.
    where plaintiff claims damages for injuries caused by being thrown by jerk of starting street car, not error to charge that if jerk or lurch was necessary and would obtain in proper operation of car, there was no negligence on part of defendant and plaintiff could not recover.
    Error to Common Pleas.
    Judgment affirmed-
    L. L. George, Youngstown, for Zanders.
    Harrington, DeFord, Huxley & Smith, Youngstown, for Muni. Ry Co.
    STATEMENT OF FACTS.
    This is an action by Ada Zanders to íecover damages for injuries which she claimed were sustained while she was a passenger on one of the defendant company’s cars. The result was a verdict in favor of the defendant.
    Plaintiff claims that she entered one of defendant’s cais at Lakeview Avenue. That while she was stepping into the main body of the car, it gave a jerk or lurch and she was thrown forward; that she got up, dusted off her clothing and went to the rear of the car and sat down. At that time, she did not think she was injured in any way, and when the operator asked for her name, she refused to give it, but after being home a few days, she claims very serious consequences resulted from her fall.
    Just three witnesses testified in the case. One was the doctor, and the other witness besides the plaintiff, was James B. Allen. Mr. Allen testified, that some time about the time claimed by plaintiff he was on a car answering this description and there was just one other man on the car; that a lady fell forward as she was entering the car and that he signed a card and gave it to the conductor of the car. There is no _date on the card, and he was unable to fix the date or the time, and he was unable to identify the lady who fell, but he was able to identify the card and the occasion, - but thought it was not at Lakeview Avenue, but a nearer stop to- the city.
   OPINION OF COURT.

1 The following is taken, verbatim, from the opinion.

POLLOCK, J..

The first error complained of is the giving of the request of the defendant below in charge to the jury. This charge is that if the jerk or lurch which she claims caused her to fáll was necessary and would obtain in proper operation of the car, there was no negligence on the part of the • défendánt, ánd therefore she--could-not recover- -Wé do- not -see' any error in that request;-'•- - ■

jit -is*urged -th’at--the''teStimony; 'of' Mr;- Alien -■•is] incompetent because Allen -is'-nót Jabler tó identify the occasion on which he saw an accident, and for that reason' his testimony should not be introduced. This was a question for the jury to determine, whether the accident Allen saw was' the accident plaintiff complained of. The jury determined that question in favor of the accident the lady sustained; and we feel that it had a right to do' so.

Judgment of the court below affirmed.


author: FARR, J.

text:
    METCALS REFINING CO. v. SHERMAN
    Ohio Appeals, 7th Dist., Mahoning Co.
    Decided Oct. 7, 1927.
    First Publication' of- this Opinion.
    Syllabus by Editorial Staff.
    148. BILLS OF EXCEPTIONS — 465. Error Proceed-
    Where bill of exceptions is not filed within period of forty days required by statute, motion to dismiss proceedings will not lie. Motion should be to strike bill of exceptions from files.
    Error to Common Pleas.
    Judgment affirmed.
    Nadler & Nadler, Youngstown, for Refining Co.
   FULL TEXT

FARR, J.

This cause is here upon a motion to dismiss this proceeding in error upon the ground that the Bill of Exceptions was not filed within the time required by law. Upon the issues being joined in the court below the cause came on to be' heard and resulted in a judgment from which eiror is sought to be prosecuted here. It is conceded that the Bill of Exceptions was not filed within the period of forty days required by statute, Sec 11564 GC., and for this reason a dismissal of the proceeding is sought. Such order could not be made because the motion should have been to strike the Bill of Exceptions from the files. That would leave the petition in error pending. It follows, however, that no eiror being disclosed by the other files in this cause, the judgment is accordingly affirmed.

(Pollock and Roberts, JJ., concur in the judgment.)


author: RICHARDS, J.

text:
    RANSON v. BROOK.
    Ohio Appeals, 6th Dist., Lucas Co.
    No. 1982.
    Decided Feb. 6, 1928.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    297. CONTRACTS — 753. Measure of Damages — 997. Real Estate.
    1. Contracts, for sale of real estate, upon which payments have been made, can only be ordered cancelled by court of equity, on equitable principles.
    2. Where, 'to allow all payments and* improvements to be held as liquidated damages would be to allow an amount which is. extravagantly unreasonable and manifestly disproportionate to actual damages sustained, court will require refund.
    Appeal from Common Pleas.
    A. E. Brunskill and Chas. W. Davis, T-oledo, for Ranson.
    L. E. Gorman,.Toledo, for Brook.
   FULL TEXT.

RICHARDS, J.

The plaintiff, on September 8, 1925, entered into a contract with 'the defendant for the purchase of a piece of land in Washington Township, this county, for $4,700.00. She paid $700.00 cash, took possession of the property and thereafter paid $64.00 additional and made improvements which enhanced the value of the property $100.00,

She brought this action to procure a cancellation of the contract on the ground of fraud. We are unable to find that the claim of .fraud is maintained by clear and convincing evidence.

The defendant filed an answer and cross-petition in which he asks to have the contract cancelled and his title quieted because of plaintiff’s failure to comply with its terms in making payments. The plaintiff has- failed to comply with the terms of the contract and that contract provides, in case of such failure, that it shall be forfeited and the payments made be retained as stipulated damages. Literally, by the terms of the' contract, the defendant is entitled to have his title quieted and to retain the payments, but such contracts can only be ordered cancelled by a court of equity on equitable principles.

The plaintiff occupied the premises about fourteen months and the value of the use and occupation would be approximately $250.00. In the meantime the property has increased in value. To allow all the payments and improvements to be held by the defendant as liquidated damages would be to allow an amount which is extravagantly unreasonable and manifestly disproportionate to the actual damages sustained, within the rule announced in Norpac Realty Co. v. Schackne, 107 Ohio St., 425.

The court finds under the evidence that the defendant is entitled to have the contract can-celled and his title quieted upon the repayment to the plaintiff of the amount of $400.00.

(Williams and Lloyd, JJ., concur.)


text:
    ST. CLAIR v. TEEPLES.
    Ohio Appeals, 6th Dist., Wood Co.
    No. 419.
    Decided Feb. 13, 1928.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    923. PLEADINGS — -661. Intoxicating Liquor.
    Petition, alleging that plaintiff, by reason of threat and duress, was deprived of due process of law, and forced to pay money to magistrate, without hearing or opportunity to enter plea, states good cause of action.

      Eiror to Common Pleas.
    Judgment reversed.
    Benj. F. James, Bowling Green; for St. Clair.
    Wm. B. James, Bowling Green, for Teeples.
   FULL TEXT.

RICHARDS, J.

In the Common Pleas Court a demurrer to the petition was sustained and the-plaintiff not desiring to plead farther, his petition was dismissed.

The averments' of the petition show that on September 5th, 1927, the defendant was acting as mayor of the village of Bradner in this county and as such mayor issued a warrant for the arrest of the plaintiff on an affidavit filed before the mayor and caused the plaintiff to he brought before him. The petition then alleges that

“upon the arrival of plaintiff before defendant the defendant stated to the plaintiff that he was guilty of selling one bottle containing about twenty ounces of whiskey to on'e George Clifton, which allegation the plaintiff then and there denied- and of which charges plaintiff avers he was entirely innocent; that the defendant then produced the said liquor and accused plaintiff of selling the same, which plaintiff then and there still denied; that the said defendant then and there without possessing or having any authority so to do and without allowing the said plaintiff to plead to the charge contained in said affidavit or otherwise, peremptorily ordered the plaintiff to pay unto him the sum of One Hundred and Seven and 20/100 ($107.20) Dollars and stated to plaintiff that he could either pay that amount or be taken immediately by the Marshal of said village, Bruce Bryan, to the county jail of Wood County, Ohio; that plaintiff then and there demanded the right to trial upon said charge, but defendant refused the same and stated that defendant could take his choice of the remedies aforesaid, either to pay or be taken to jail; that thereupon while so threatened by said defendant assuming to act as magistrate and under duress exercised by said defendant the plainitff stated to defendant that he would pay the said sum of One Hundred and Seven and 20/100 ($107.20) Dollars provided he could pay the same under protest and maintain his rights in the recovery thereof in the event that he should be allowed opportunity so to do, and • under said arrangement, and not otherwise, the said plaintiff paid the said sum of One Hundred and Seven and 20/100 ($107.20) Dollars.”

The plaintiff avers that by reason of said threats and duress he was deprived of due process of law and of the money aforesaid.

Some discussion has been indulged in relating to the powers and jurisdiction of a mayor whose compensation depends in part upon the conviction of a defendant, but we do not understand any such question is before this court. The averments of the petition show that the plaintiff in error never had a hearing or trial before the mayor nor an opportunity to enter a plea. We can only be guided by the petition itself, which shows that on his appearance in response to the warrant he was informed that he was guilty of an offence and that he must either go to jail or pay $107.20. The allegations show a hold-up rather than a trial.. If these averments are not in accordance with the facts, that can only be made to appear after an answer has been filed. We determine the case only upon the statements contained in the petition. Taking them as true, the petition stated a good cause of action and the demurrer should be overruled. The judgment will be reversed and the cause remanded for further proceedings.

(Williams and Lloyd, JJ., concur.)


author: MARSHALL, CJ.

text:
    PRUDENTIAL CO-OP. REALTY Co. v. YOUNGSTOWN.
    Ohio Supreme Court.
    No. 20675.
    Decided March 7, 1928.
    Enor to Mahoning' Appeals.
    Judgment affirmed.
    997. REAL ESTATE- — -291. Constitutional Law — 801. Municipal Law — 516. Fees and Costs.
    1. Sec. 4346 GO. requiring approval of city plan commission on allotments held constitution.
    2. Ordinance providing for payment of fees to such commission for checking plats held valid.
    903. PAYMENT — Under Protest.
    Payment, under protest, to official, to obtain official action, is voluntary when only damage which would accrue other than that naturally resulting from delaying such official action.
   MARSHALL, CJ.

1. Section 4346, General Code, requiring plats of lands within three miles of the corporate limits of a city to have the written approval of the planning commission of such city endorsed thereon before such plat is entitled to record in the recorder’s office of the county in which such city is located, is constitutional.

2. A city ordinance which provides for payment of fees to the planning commission of such city for examining and checking plats of lands within such city or within three miles of the corporate limits of such city is valid so far as amount of fees is concerned, if the fees permitted to be charged by the provisions of such ordinance are reasonable and designed to cover the cost and-expense of-maintaining the planning commission.

3.A payment unwillingly made under protest by an individual to an official in compliance with a fee or license statute or ordinance, in order to obtain official action in the matter covered by. such statute or ordinance, is voluntarily made when no loss or damage would accrue to such individual other than the damage naturally resulting from withholding or delaying such official action.

(Day and Kinkade, JJ., concur.)

(Allen, J., concurs in propositions 2 and 3 of the syllabus and in the judgment'.)

(Robinson, J., concurs in'proposition 3 of the syllabus and in the judgment, hut'dissents from proposition 1 of the syllabus.)

(Jones, J., concurs in propositions 1-and 2 of the syllabus, but not in the judgment for the reason that the- payment was - involuntary and the fees unreasonable.)'-

(Matthias, J., concurs in proposition 3 of-the syllabus and in the judgment.)


author: ALLEN, J.

text:
    LAKE SHORE ELECT. RY. CO. v. P. U. C.
    Ohio Supreme Court.
    No. 20795.
    Decided March 7, 1928.
    Error to P. U. C.
    Order reversed.
    793a. MOTOR TRANSPORT — 451. Electric Railways.
    1. Additional service upon motor bus route, over protest of competing traction company, cannot be instituted unless public convenience will thereby be served. Convenience of applying carrier not evidence of public convenience.
    2. Change of schedule not justified where main purpose is to take prospective passengers from competing company.
   ALLEN, J.

1. Under the motor ti ansportation act, Sections 614-84 to 614-102, General Code, additional service cannot be instituted upon a mo-torbus route over the protest of a competing traction company serving the same territory, unless the record shows that public convenience and necessity will theieby be served. The fact that the granting of ah additional run upon such route will be for the convenience of the carrier applying therefor does not of itself alone constitute evidence of public convenience and necessity.

2. Under the motor transportation act, Sections 614-84 to 614-102, General Code, a change in schedule is not justified if the recoid shows that the main purpose of such change is to enable a motorbus company to take prospective passengers from a competing motor transportation company serving the same territory.

(Marshall, CJ., Robinson, Jones and Matthias, JJ., concur.)


author: LLOYD, J.

text:
    MEYER et v. MEYER et.
    Ohio Appeals, 6th Dist., Wood Co.
    Nos. 417 and 418.
    Decided Feb. 6, 1928.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    791. MOTIONS AND ORDERS — 887. Parties.
    Overruling of motion, requesting additional party defendants, held not final order within meaning of General Code.
    Error to Common Pleas.
    Petition dismissed.
    N, R. Harrington, Bowling Green, for Ivan Meyer et.
    E. M. Fries, Bowling Green, for Prank and Edwin Meyer.
   FULL TEXT.

LLOYD, J.

These cases involve identically the same question and require the same judgment. For the purpose of this opinion, therefore, we will consider and discuss the question presented to us in the case wherein Edwin C. Meyer is defendant in error.

In the action in the court of common pleas, from an order entered in which this' proceeding in error is prosecuted, a judgment was sought by plaintiff against the defendant upon two promissory notes payable to the order of Henry P. Meyer, one for $226.00, the other for $577.40, each of which was admittedly signed by Edwin C. Meyer and by him only. To the petition of the plaintiff the defendant, Edwin C. Meyer, filed an answer containing four defenses, the purport of which is that Henry P. Meyer was the owner of one-half of the notes and one Clara L. Meyer, not a party to the action, owned the other one-half thereof, each of them having paid to Henry L. Meyer one-half of the consideration therefor.

This answer of the defendant is in the nature of a cross-petition, the prayer thereof in substance being that the notes may be reformed so as to show that the Executors of the estate of Henry P. Meyer are the owners of one-half thereof and that Clara L. Meyer is the owner of the other one-half thereof; that judgment may be entered in favor of plaintiffs for one-half of the amount due on the notes and that upon payment of such judgment the notes shall be delivered to Clara L. Meyer, and that the defendant may he given such further relief and judgments as he may be entitled to in'the premises. A demurrer to this answer having been overruled by the court, plaintiffs filed a motion requesting that Clara L. Meyer be made a party defendant because of the claims made by the defendant in his answer. From the order of the trial court overruling this motion, error proceedings are prosecuted in this court and we have for consideration the question thus presented. After this order was made plaintiffs filed a reply to the answer of the defendant, in effect a general denial of the affirmative claims therein made.

Clara L. Meyer is not a necessary party to the cause of action alleged in the petition of the plaintiffs; if a necessary party for any purpose, it is because of the relief sought by the defendant in his answer. We are of the opinion that the order so made by the trial court is not a final order within the meaning of the provisions of the General Code and that the petition in. error of plaintiffs in error must therefore be dismissed.

Although the question is not now before us for consideration or determination, nevertheless, we would suggest that it would seem that the promissory notes in question must be accorded their legal import unless it be first found and determined that they should be reformed so as to read otherwise; and that if such affirmative relief is to be sought, Clara L. Meyer is a necessary party to the adjudication of that claim.

The petition in error is accordingly dismissed and the case remanded for further proceedings according to law.

(Richards and Williams, JJ., concur.)


author: MAUCK, J.

text:
    HISYLVANIA COAL CO. v. HASKINS.
    Ohio Appeals, 4th Dist., Athens Co.
    Decided Feb. 24, 1928.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    225. CHARGE OP COURT.
    Use of words “likely to result’* instead of words “reasonably certain to result” held not to warrant reversal.
    753. MEASURE OF DAMAGES.
    Not necessary for witness or witnesses to fix value before and after injury. Duty of jury to find such value from all testimony adduced.
    480. EVIDENCE.
    In action for damages for failure of vertical support, due to mining operations, testimony tending to show operations beneath other property, properly admitted.
    Error to Common Pleas.
    Judgment affirmed.
    A. B. Wells, Athens, for Coal Co.
    Woolley & Rowlands, Athens, for Haskins.
    STATEMENT OF PACTS.
    Clyde Haskins, by an amended petition, pleaded his ownership of the surface of about twenty acres of land in Athens County, the coal underlying which was owned by The Hisylvania Coal Co. He charged that the surface, owned by him, had subsided owing to the fact that the defendant had mined and removed the underlying coal and had failed to leave sufficient supports' for the strata overlying that coal. The defendant, after making some unimportant admissions, denied generally. The verdict was in favor of the plaintiff in the sum of $4,000. This proceeding is to reverse the judgment entered thereon.
   OPINION OF COURT..'

The following is taken, verbatim, from the opinion.

MAUCK, J.

Complaint is made that, in .instructing the jury, the trial court authorized the jury “to take into consideration the injury to the buildings, green house, the residence, out houses, spring, well and the surface of the ground itself, and what are the damages likely to result in the future as affecting the market value of. the property.”

Plaintiff in error urges that, while the court might have instructed the jury to take into consideration such damages as might be reasonably certain to result, in the future, from the injury, the instruction, as given, was erroneous in using the phrase “likely to result.” This term was used in an instruction in Missouri and was there held not to he any material variation from the more familiar instruction of reasonable certainty. Holden v. Railway Co. 84, S. W. 133, followed and approved in 105 S. W. 767. In any event the instruction, even tho too liberal for- the plaintiff, would not warrant a reversal in this case inasmuch as the defendant’s own testimony tended to show that the future damages that will accrue to this property are not only reasonably certain hut probably inevitable.

The verdict of the jury was in the sum of $4,000 and it is urged that the testimony did not warrant that finding. Indeed, it is urged that none of the witnesses testified precisely to the difference in the value of the property before and after the injury so that the jury could intelligently arrive at the amount in which the plaintiff ought to have been compensated. The plaintiff in error’s position seems to he that some one witness or witnesses ought to have fixed the value before and after the injury. This position is’ not tenable. It is true that the jury was required to find the value of the property before the damages were sustained and the damages thereafter, hut they were not limited, in their finding, to the opinion of particular witnesses. It was their duty to find the value before the injury, from all the testimony adduced, and it was their duty to find the value of the property, after the subsidence, from all the testimony adduced, and to conform their verdict to such findings.

Complaint is also made that the court admitted testimony tending to show the character of the mining operations of the defendant under other lands than those of the plaintiff. There was nothing prejudicial in this because the jury, by the court’s instructions, were confined to a consideration of the damages resulting from the operations beneath plaintiff’s property. Moreover, there was nothing erroneous in the admission of such testimony. The defendant, properly enough, was permitted to offer testimony tending to show the operations beneath the other property for the purpose of showing that the operations on such other property resulted in the injuries of which the plaintiff complained and that such injuries were, consequently, due to a failure of horizontal support and not to a failure of that vertical support which the defendant owed the plaintiff. The defendant having gone into that feature of the case, there was no reason why the plaintiff should not have been permitted to< traverse the same territory for the counter purpose of negativing the probability that his injuries resulted from the operations on the adjacent lands.

The record is free from prejudicial error and the judgment is affirmed.

(Middleton, PJ. and Thomas, J., concur.)


author: PER CURIAM

text:
    CUYAHOGA BAKING CO. v. REES, Admr.
    Ohio Appeals, 9th Dist., Summit Co.
    No. 1313.
    Decided Feb. 3, 1928.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    753. MEASURE OF DAMAGES.
    In action for damages for wrongful death of seven' year old girl, charge that jury, in arriving at amount of damages, should take into account probable life of child and amount that father and mother and brothers anct-sisters would probably have received from her during life time, held proper.
    226. CHARGE OF COURT.
    Where plaintiff withdraws charge of negligence, based on driving motor truck at rate of speed in excess of that, allowed by statute, and, at conclusion of charge, specifically requests that court charge as to statutory rate of’ speed and court does so, saying again that plaintiff has abandoned that charge of negligence, and, in connection with additional charge, recharges law in reference to-driving automobile at greater speed than reasonable and proper, such recharge not erroneous.
    1265. WEIGHT OF EVIDENCE.
    Court of Appeals cannot reverse judgment on grounds that verdict is excessive and manifestly against the-weight of evidence, unless all judges concur.
    Error to Common Pleas.
    Judgment affirmed.
    Musser, Kimber & Huffman, and C. G. Roet-zel, Akron, for Baking Co.
    Lee J. Myers, Akron, for Rees, Admr.
    Plaintiff in error’s truck, while being driven by one of its employees, ran over and killed a seven-year-old girl while she was crossing-the street, between intersections, on her way to school, and the defendant in error, as administrator of her estate, brought this action to recover damages for wrongful death. The-trial of the case in Hie Common Pleas Court resulted in a verdict by the jury and judgment of the court for $3,000.
   OPINION OF COURT.

The following is taken, verbatim, from the-opinion.

PER CURIAM

The court charged the jury that, in arriving at the amount of damages, they should take into account how long the child would probably have lived and the amount that her father and mother and brothers and sisters, would probably have received from her during her liftetime if she had not met with the accident, and it is claimed that this was error,, because the jury should have been confined to the consideration of her pecuniary value to said beneficiaries during the child’s minority. We find that there was no error in the court’s charge in -this respect.

One of the charges of negligence was that the truck was being driven at a rate of speed in excess of that allowed, by statute, and, at the conclusion of the evidence, defendant in error withdrew that charge and the court instructed the jury that that specification of negligence should be disregarded, but the court did appropriately charge, in respect to the ■p.larm of negligence,-that the car . was driven at a speed that was greater than was reasonable and proper under all the circumstances. At the conclusion of the charge, counsel for plaintiff in error specifically requested that the court charge as to the statutory rate of speed permissible under the law in that locality, and the court did so charge, saying again that the defendant in error had abandoned that charge of negligence, and, in connection with said additional charge, the court recharged the law in reference to the driving of an automobile at a speed greater than was reasonable and proper, having regard for the width, traffic, use, and the general or usual rules of the road or highway; and it is claimed that, in complying with the request of the attorney for the plaintiff in error, the court should have confined itself to charging merely as to the statutory rate of speed permissible in such a locality, without recharging on the subject of speed that . was reasonable and proper under the circumstances. We find that this ground of error is not well taken.

It is also claimed that the verdict is excessive and was given under the influence of passion and prejudice.

There is nothing in the record that raises the slightest inference of bias or prejudice on the part of the jury, and we are unanimous in that conclusion; therefore the judgment cannot be reversed on the ground that the verdict is excessive and was given under the influence of passion and prejudice.

This leaves for consideration the question of whether or not the judgment as to the amount of damages is manifestly against the weight of evidence.

In construing the constitution of Ohio, it is now firmly established, by the decisions of the Supreme Court, that the Court of Appeals cannot reverse a judgment on this ground unless all of the judges of this court concur in the finding that the judgment as to amount of damages is manifestly against the weight of the evidence. We have given to that question in this case very patient and careful consideration, and are unable to unanimously agree that the judgment, in amount, is manifestly against the weight of the evidence.

(Washburn, PJ., Funk and Pardee, JJ., concur.)


author: THOMAS, J.

text:
    MARSH v. ATHENS COUNTY BD. OF COMM.
    Ohio Appeals, 4th Dist., Athens Co.
    Decided Feb. 28, 1928.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    180. BRIDGES — 1053. Roads and Highways — 829. Negligence.
    1. In action for damages for injuries caused by automobile going through guard rail on bridge approach, plaintiff must establish negligence of commissioners and that such negligence was proximate cause of injuries.
    2. Where evidence shows that insufficiency of guard was not proximate cause of injury, plaintiff cannot recover.
    Error to Common Pleas.
    Judgment affirmed.
    Minshall & Phillips, Chillicothe, and M. D. Hughes, Athens, for Marsh.
    R. D. Williams, Pros. Atty., Athens, for Bd. Comm.
   FULL TEXT.

THOMAS, J.

Error in this case is prosecuted to this court from the Court of Common Pleas. The action by the plaintiff was for personal injuries which she sutained while riding in an automobile on the north approach to the Sunday Creek bridge in that county. Her claim for damages is based on the alleged negligence of the defendant board in failing to maintain guard rails on said approach. At the time the state highway commissioner had taken over the highway, a part of which was said bridge, and was improving the same. In making said improvement a detour was constructed by the contractor at the instance of the state highway commissioner for the use of the traveling public and the approach in question was a part of said detour. The contractor, under the directions of the highway commissioner, had moved the north end of the bridge eastwardly fifteen feet or more and had constructed a temporary board approach from the permanent bank of the stream to the end of the bridge, and it is disclosed by the record that he erected barriers on each side of said approach by the use of 2 x 4 scantlings. The plaintiff relies on Section 7563 of the General Code, which prescribes the duties of county commissioners in maintaining barriers on approaches to bridges on county highways. At the conclusion of the plaintiff’s evidence the trial court directed a verdict for the defendant. The question to be determined by this court is whether or not such peremptory instruction was proper.

Before the plaintiff was entitled to recover she must establish by the evidence the negligence of the defendant and that such negligence was the proximate cause of her injuries. In the first place, did the board of county commissioners owe plaintiff the duty to maintain guard rails on this approach? As before observed, the place where the injuries were sustained was a part of the said debtor. Under the highway statute it was the duty of the state highway commissioner to construct or have constructed and maintained the detour. Section 1231-7a determines this question and all that is required of said highway commissioner is to see that the contractor constructs and maintains detours in a passable condition. However, the record clearly shows that at the time and place guard rails were being maintained, which, were the duty under the statute still owing to the plaintiff by the defendant, fully complied with the requirements of the statutes as prescribed by Section 7563. The only complaint that the plaintiff can make under the evidence is that the guard rails were not sufficient to prevent automobiles from going off the approach after being driven thereon. What is the purpose of guard rails ? This court in the case of Harrington v. Board of County Commissioners, 13 Ohio Appellate 410, answers the question. The court by Judge Sayre says:

“The defense, that as the car ran off or dropped off the bridge and not off the ap-proach_the county is not liable, would be complete if the sole purpose of the guard rail or hedge fence was as a permanent buffer, intended to hold back wagons, carriages or automobiles from going over the embankment when such vehicles came in actual contact with the guard rail or hedge fence. But it seems to us that one of the principal purposes of guard rails is to warn drivers of the exact point of danger so that they may know where to drive to avoid it, just as a light house warns of the danger near it.”

A careful reading of the record discloses that the insufficiency of the guard was not the proximate cause of the injury. Owing to the condition of the detour and the speed of the driver he had lost control of the automobile and it went off the approach in spite of the guard rail. •

In our opinion the trial court, under the law and the facts, was warranted in directing a verdict for the defendant.

(Middleton, PJ, and Mauck, J., concur.)


text:
    WENGROW v. WENGROW.
    Ohio Appeals, 6th Dist., Lucas Co.
    No. 2005.
    Decided March 5, 1928.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    45. ADVERSE POSSESSION — 997. Real Estate.
    Proof that fence was built more than 21 years prior to commencement of action, by plaintiff’s predecessor in title, and rebuilt by plaintiff at same point, and that land has been continuously and adversely held by plaintiff from time when original fence was erected, held sufficient to give plaintiff title by adverse possession.
    Appeal from Common Pleas.
    Decree for plaintiff.
    Hackett & Lynch, Toledo, for plaintiff.
    Meyer Geleerd, Toledo, for defendant.
   PULL TEXT.

LLOYD, J.

Lots numbered 17 and 18 in Walbridge’s Addition to the City of Toledo are contiguous lots fronting on Vermont Avenue. Prom December, 1887 to June 30, 1916, Hannah B. Leith owned the south one-half and Ernie C. Leith the north one-half of lot No. 18. On June 30, 1916, the Leiths conveyed all. of lot No. 18 to Bella Wengrow, the .plaintiff herein, since which time she has been the owner thereof and now claims also to have acquired title by adverse possession to the south one and one-half feet of lot No. 17, the record title to lot No. 17 being vested in the defendant, Tan Wengrow, who purchased the same by land contract in 1922, acquiring a warranty deed therefor from the owner Jacob Aftergood, on January 5, 1927.

Some time in 1888 the Leiths built a house on lot No. 17 and planned to have the center thereof 25 feet from the north, and south lines of the lot, that is, from the lines of the contiguous lots Nos. 16 and 18, the house being 35 feet and 6 inches in width. After the house was completed a fence was constructed by them between lots Nos. 17 and 18, on a line .25 feet from that established as the qenter line of the house. This fence was standing where built when lot No. 18 was hold by the Leiths to plaintiff. It was in a dilapidated condition and was torn down by plaintiff and replaced by another fence, which the husband of plaintiff and a Mr. Babel, who built it, testified was placed exactly on the line of the old fence. Thereafter, about the year 1922, the front part of the fence was taken down by plaintiff so that a cement driveway could be constructed. After the driveway was constructed the fence was replaced, the defendant claiming that the entire length of the fence was taken down when the driveway was constructed and that it “was not put back in the same place it was taken from” and that “the concrete driveway was extended over beyond where the fence originally stood.” He then proceeded to tear down the fence and take up that part of the driveway which he claimed was on lot No. 17. Thereupon plaintiff commenced an action seeking to restrain defendant from so doing, and to obtain a decree quieting her title to the one and one-half feet of lot No. 17 which she claims to now own by adverse possession. Prom the decree entered therein by the cpurt of common pleas this appeal was taken to this court.

Without attempting to narrate or comment upon the evidence adduced at the trial, we deem it sufficient to say that the character of the evidence is such as to entitle the plaintiff to the relief sought. It shows that the fence as constructed by the Leiths in 1888, and as rebuilt by plaintiff, was on lot No. 17 and that the one and one-half feet thereof in dispute was continuously and adversely held by them from the time when the original fence was . erected. It is true that plaintiff never obtained a deed thereto, but she and the Leiths, from whom she purchased lot No. 18, continuously and adversely held possession thereof for more than twenty-one years which, finder the law, establishes her title thereto. Zipf vs. Dalarn, 114 Ohio St., 291.

(Richards and Williams, JJ., concur.)


author: MIDDLETON, J.

text:
    WILD v. APPLE et.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 7169.
    Decided May 23, 1927.
    Mauck, PJ. and Middleton, J., of the 4th Dist., sitting.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    57. AID OP EXECUTION — 677. Judgments and Decrees.
    1. To support judgment for plaintiff, under 1X760 GC„ record must show that plaintiff alleged and court found that defendant had no property subject to levy.

      2. Execution may be returned, wholly unsatisfied, for reason other than that defendant had no property.
    Error to Municipal Court.
    Judgment affirmed.
    Wm. H. Chapman,- Cleveland, for Wild.
    J. Paul Thompson and John M. Harris, Cleveland, for Apple.
   FULL TEXT.

MIDDLETON, J.

The statement of claim averred, and the court found that “an execution has been duly issued on said judgment, returned wholly unsatisfied, and no part of said judgment has been paid.” This averment and finding do not meet the requirements of Section 11760, to the effect that it must appear that the debtor has no property, personal or real, subject to levy or execution. An execution may be returned wholly unsatisfied after a levy has been made, and for many reasons, as where the property is covered by mortgage, or under attachment, or subject -to other liens. At the same time such property may be subject to a levy, and the execution under such circumstances may be returned unsatisfied.

Again, the execution may be returned, as it is said in argument it was returned in the instant case, by order of the plaintiff.

To support a judgment for the plaintiff, under section 11766, the record should show that the plaintiff alleged in his statement of claim, and .the court found that the defendant had no property personal or real subject to levy on execution. Clark v. Strong, 16 Ohio, 318.

Such facts are not shown in the record, and the judgment for the defendant must be and is affirmed.

(Mauck, PJ., concurs in judgment.)


author: HAMILTON, PJ.

text:
    CINCINNATI TRACT. CO. v. KRAUSS
    Ohio Appeals, 1st Dist., Hamilton Co.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    148. BILLS OF EXCEPTIONS — 1104. Statutes.
    Where fortieth day after overruling of motion for new trial falls on Labor Day. bill of exception may be filed on following day.
    On motion to- strike.
    Motion overruled.
    James G. Stewart, Cincinnati, for Traction Co.
    Bettman, Riesenberg, Cohen & Steltenpohl, Cincinnati, for Krauss.
    STATEMENT OF FACTS.
    The matter before the court is a motion to strike the bill of exceptions from the files, on the ground that it was not filed in the trial court within the time prescribed by law.
    It appears, from the record, that the fortieth day after the overruling of the motion for a new trial was Labor Day. The bill of exceptions was filed the day following Labor Day.
   OPINION OF COURT.

The following is taken, vertabim,"from the opinion.

HAMILTON, PJ.

It is contended by plaintiff in error, in opposing the motion, that Labor Day, under the statute, has the sáme force and effect as Sunday, and he relies on Section 10216, which reads: “Unless otherwise specifically provided, the time within which an act is required, by law, to be done, shall be computed by excluding the first day and including the last; except that the last day shall be excluded if it be Sunday,” and Section 5977 GC. which reads as follows: “Labor Day. The first Monday in September in each year shall be known as Labor Day, and, for all purposes, shall be considered as the first day of the week.”

The chief argument of the defendant in error, in support of his motion, is that Labor Day is a holiday, and would come under the general rule that holidays are not to be considered as Sunday, and'he cites ample authority in support of that proposition, and, undoubtedly, that is the general rule. But the statute, specially providing with reference to Labor Day, says, “for all purposes shall be considered as the first day of the week.” It is a matter of common knowledge that the first day of the week is called Sunday, and, further, it has been so considered by the Legislature in Section 13044, and, since section 10216 excludes Sunday, when the date in question falls on Sunday, we see no reason for excluding the filing of a bill of exceptions as within the clause in Section 5977 “for all purposes.”

Our conclusion is: The plaintiff in error is protected by the statutes referred to in the filing of the bill of exceptions, and that the same was filed in time.

. The motion to strike the bill of exceptions from the files will be overruled.

(Mills and Cushing, JJ., concur.)