text:
    BISHOP v MILEY
    Ohio Appeals, 3rd Dist, Henry Co
    No 202.
    Decided Feb 6, 1929
    James P Ragan, Napoleon, for Bishop.
    George S May, Napoleon, for Miley.
   JUSTICE, J.

One of the errors assigned relates to the sufficiency of the evidence.

There is evidence tending to prove the material allegations of the petition.

Painesville Utopia Theatre Co. v. Lautermilch, 118 O. S. 167.

Dean v. King, 22 O. S. 118, 134.

Applying the law as enounced in the above mentioned case to the facts in this case, as disclosed by the record, it becomes at once apparent that this assignment of error is not well taken.

Another claimed error is, that the trial judge erred in the admission and rejection of testimony.

. One Frank Winemiller was called as a witness for the plaintiff. We quote from page 63 of the record:

“Q. Now then from the position of the Bishop car there as you observed it at that time, and from all the indications there, as you observed them, you may state whether or not Mr. Bishop had turned his car to the left before he reached the intersection of the Dunzer road?
Mr. Ragan:-We object.
The Court:-Overruled.
Mr. Ragan:-Exception.
A Yes sir.”

This was wrong. One of the alleged grounds of negligence was violation of a rule of traffic. It was the plaintiff’s contention that defendant had turned his automobile to the east seven feet north of the intersection. It was the defendant’s contention that he turned his automobile on the right of the intersection. Obviously the question called for an opinion of the witness on one of the questions at issue. What the witness Winemiller saw was competent evidence but it was within the exclusive province of the jury to say whether the facts as depicted by him, warranted the conclusion that the defendant turned his automobile too soon. Fowler v. Delaplain, 79 OS. 279. Railroad Company v. Schultz, 43 OS. 270.

On page 109 of the record, in the cross examination of Oral Lieb, we find the following:

“Q. Did you file an action on this collision against, the defendant Joseph Bishop?
Mr. Prentiss:-We object.
The Court:-Sustained.
Mr. Donavan:-We except, and we expect the witness to answer if permitted that he did.”

Again, on pages 118 and 119 of the record, in the cross examination of Marian Miley, we find the following:

“Q. You have an action in this court brought by Joseph Miley your father and your next friend for the injuries you received in this same collision have you not?
Mr. Prentiss:-We object.
The Court:-The objection is sustained. Mr. Ragan:-We except and I expect the question, if permitted, will be answered that he has a case pending in this court wherein he the witness is the plaintiff and brought, by his next friend Joseph Miley the plaintiff in this case, as his next friend against this defendant Joseph H. Bishop for injuries that he the witness received in this same accident to which he has testified.”

This was wrong. Counsel for defendant had the right to show the interest if any, that Oral Lieb and Marian Miley had in the outcome of the case at bar. Counsel by these questions were endeavoring to test the credibility of these witnesses.

In admitting and rejecting said testimony the trial court committed reversible error.

The third claimed error pertains to a certain special request submitted by counsel for plaintiff and given by the trial judge before argument. We quote the request.

“I charge you that under the law the plaintiff is not responsible for and can not be charged with negligence if you should find there was any negligence on the part of the driver of the machine in which the plaintiff was riding as a passenger.”

This was wrong. Although plaintiff was not chargeable with the driver’s negligence, if any there was, there being no evidence to prove joint enterprise,- The New York Central & St. Louis R. R. Co. v Kissler, 66 OS. 326; Moore v. Almendinger, 15 Ohio Appellate, 503. — still plaintiff was answerable for his own negligence, if any, which directly or proximately contributed to his injuries, and that too notwithstanding the driver’s negligence, if any there was.

This error was prejudicial to the defendant and requires a reversal of the judgment.

Holding these views, it follows that the judgment of the court of common pleas should be reversed and the cause remanded.

Before Judges Crow, Hughes and Justice.


source: Caselaw Access Project

author: WILLIAMS, J.

license: Public Domain

text:
    POWELL et v JAFFE et
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9583.
    Decided March 11, 1929
    M S Farmer, Cleveland, for Powell.
    Robert L Clark, for Jaffe, et.
    Judges RICHARDS and WILLIAMS of the 6th Dist sitting in place of Judges LEVINE and SULLIVAN of the 8th Dist.
   WILLIAMS, J.

This section was enacted for the public safety and a violation of it would be negligence per se. Schell vs. DuBois, 94 Ohio St., 93. If the dumb waiter had been fully fireproof at the bottom and the walls of the shaft made of plaster and metal laths, the fire starting in the basement would not have been communicated to the shaft and a fire originating in the shaft would have expended itself by consuming the paper therein.

We think there is also evidence tending to show negligence of the owners in permitting the accumulation of waste paper in the shaft and that such negligence was a proximate cause of plaintiffs’ damage. The accumulation of large quantities of inflammable waste material in the basement of a building is not necessarily actionable negligence, but if such accumulation constitutes a fire hazard and the surrounding circumstances are such that it may reasonably be anticipated that the inflammable material will catch fire, the owners of the building, by permitting inflammable waste materials to so accumulate would be guilty of negligence and liable for damage directly caused to the property of tenants in the building by such negligence.

For the reasons given the court erred in directing a verdict in favor of the defendants, to the prejudice of plaintiffs in error.

For the reasons given the .judgment of the court below is reversed and the cause is remanded for a new trial.

Vickery and Richards, JJ, concur.


author: VICKERY, J.

text:
    KEMPER v HELM et
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9045.
    Decided March 18, 1929
    Boer, Arnold & Tobias, Cleveland, for Kemper.
    Bernon, Mulligan, Keeley & LeFever, Cleveland, for Helm et.
   VICKERY, J.

Without going into the question as to whether the whole law is constitutional or not, for one might well say that the power to limit the right of persons to contract might well be questioned, if the legislature in its hurry or otherwise in passing a law which required the real estate dealers to have a license before they could operate and then failed to provide the machinery whereby they could get a license, and no licénse of any kind could be obtained, so that no person could recover compensation for selling real estate notwithstanding his contract, because he did not have a license when none was procurable, nor was a commission appointed which was the sole source of issuing licenses, I say, it would put our law in a strange situation indeed.

The legislature makes a condition which prevents a 'man from carrying on his trade without complying with that condition, and then does not provide the means, or neglects to provide the means whereby he can comply with the condition. The legislature by its own act made it impossible for the plaintiff or any other real estate man to comply with the conditions of the law. Therefore, the law was ineffectual and without force at the time when this act was performed and the commission earned.

We think the court erred in sustaining this demurrer, and the case will be reversed for the reason that the court sustained this demurrer when it should have been overruled; and be remanded to the, Common Pleas Court with directions to overrule the demurrer.

Sullivan and Levine, JJ, concur.


author: VICKERY, PJ.

text:
    DURBIN & KORYTA CO v TANNENBAUM et.
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9785.
    Decided March 18, 1929
    Harry R Scobie, Ceveand, for Co.
    Bishop & Bishop, Cleveland, for Tannenbaum.
   VICKERY, PJ.

Where a real estate broker has been employed and he is the means of procuring the sale, if the seller of the property sells direct to this purchaser at a lower price than the real estate man or broker had been given authority to sell it, the broker could not thus b'e deprived of the right to compensation. The broker was the moving cause of producing the purchaser, and it would be inequitable and unfair, and would open the door wide for fraud if, after a prospective purchaser has been introduced to the sellers, they then, by a simple act of their own terminate their relation with the broker and make a sale direct to the purchaser and thus defeat the broker in his right to recover compensation.

We are not saying that there could not be a mutual rescission of the contract and all rights of the brokers given up, so that the seller might deal with the customer that had been theretofore introduced to them by the brokers, but the rescission of that contract must be by mutual consent. An owner of the property cannot himself terminate that relation without the consent of the broker, and particularly where he immediately deals with a customer produced by the broker.

We are cited the case of Dethloff vs. Starbuck, 116 OS. 29, by the plaintiff in error, who claims it to be a case sustaining his contention. We do not think an examination of that ease will bear out his contention at all.

We think the second syllabus is much more in point in the instant case than the first syllabus of the case.

We think an examination of this record will show that the plaintiff brokers were entitled to their commission and the court erred in holding, as he did for the defendants.

Sullivan and Levine, JJ, concur.


text:
    MATHENY et v ZINK
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9747.
    Decided March 11, 1929
    E D Lewis, Cleveland, for Matheny.
    Klein, Harris & Diehm, Cleveland, for Zink.
   VICKERY, PJ.

We have the situation of a man appealing to equity to have a lien removed from premises because he claims he had a prior deed when on the very face of it, it shows at best that he got this deed and recorded it by a trick.

Now a well known maxim of equity is that “he who seeks equity must do equity” and another maxim just as overpowering and prevailing is that “a man must come into equity with clean hands.” He is seeking by a subterfuge to have his deed placed on record before the attachment, or while, by agreement amongst all the parties, the attachment was released with the distinct understanding that the case would be heard and the matter thrashed out and the rights of all the parties established..Not waiting, for that, he seeks by a subterfuge to circumvent the judgment of the court and thus deprive Mrs. Zink, the mother, of the security for the money which she loaned to her daughter, and for which she got judgment.

We think that on this record the lien of Mrs. Zink is a valid subsisting and bona fide lien upon this property, and it was before the plaintiff had acquired any deed to the property, and when he went into possession, if he did so, he knew all the circumstances and' he knew the claims, and he is not in a position that the law would favor. In other words, he is in a court of equity, and the equities do not seem to be in his favor.

For that reason a decree may be entered for the defendant refusing, to quiet title against this lien. Order see journal.

Sullivan and Levine, JJ, concur.


author: LEVINE, J.

text:
    HORWITZ et v MURRI
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9622.
    Decided March 4, 1929
    Stanley & Horwitz, Cleveland, for Horwitz, et.
    Geo S Myers, Cleveland, for Murri. ■
   LEVINE, J.

The sole question before the court is confined to the question of what is the province of a • supplemental petition. Generally speaking the office or province of a supplemental petition is to bring to the attention of the court facts which are material to the cause of action of the plaintiff and which facts occurred subsequent to the filing of the original petition. There are not very many cases to be found in Ohio directly bearing upon the point in question. The plaintiff in error cites the case of Schofield v. Excelsior Oil Co. 60 C.C (NS) 169 which was affirmed by the Supreme Court in 74 OS.. 513. While that case involves in part questions as to the office or function of a supplemental petition, it cannot be said to be exactly like the case at bar.

In the case of Glenn vs Hoffman, 2 Dec. Reprint 401, it was held that in an action to foreclose a mortgage for failure to pay interest due on the note secured by the mortgage the plaintiff may, where the note matures pending the action, file a supplementary petition upon leave of court and have a finding of the amount due upon the note and order a foreclosure and sale of the property.

It may well be said that the trial court has discretion in the first instance to permit or not permit the filing of a supplemental petition embracing facts which occurred subsequent to the filing of the original petition but the court having granted such leave and the supplemental petition having been filed with leave of court, such supplemental petition is not, in our opinion, demurrable. It is the policy of the law under our code and of civil procedure ■ to discourage a multiplicity of suits, and since the matter involving the particular transaction upon which the causes of action are founded is already before the court, it is within the sound discretion of the trial court to permit an amendment by way of supplemental petition so as to bring the new causes of action founded upon the notes which matured since the filing of the original petition, to the attention of the court and seeking a determination thereof in one lawsuit.

We are of the opinion that the court committed error in limiting the function or office of a supplemental petition under our code because such construction of the statute is out of harmony with the policy of the State which is to discourage a multiplicity of suits.

Another point raised in the discussions of counsel, dealt with the question of the sufficiency of the petition in that it does not disclose upon its face either by reading of the note or by any allegation of the petition that the plaintiffs in error had any right or title to the note. In Sargent v. Railroad Co, 32 OS. 449, this point was settled by the Supreme Court.

The petition is in short form and alleges that there is due plaintiffs from the defendants etc. This allegation by force of settled law in Ohio is sufficient to imply title to the notes in the plaintiffs.

Holding as we do the judgment of the Common Pleas court will therefore be reversed and the cause remanded with instructions to overrule the demurrer.

Vickery, PJ and Sullivan, J, concur.


text:
    ANTORZEK v LAKEWOOD (city)
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9758.
    Decided March 4, 1929
    Krueger & Pelton, Cleveland, for Antorzek.
    R G Curran, Cleveland, for City.
   LEVINE, J.

That there was trafficking in intoxicating liquor in a private residence may be shown either by direct evidence, or by circumstance. Whether it retains its character as a bona fide private dwelling depends upon the further question of whether the evidence justifies a finding that there was in that residence trafficking in intoxicating liquors.

One of the plaintiff in error’s witnesses testified that there were six bootlegging establishments in that immediate vicinity and that many people parked their machines in the neighborhood and that she had seen an intoxicated man enter the home of Mr. Antorzek and come out again ,a few minutes later. A police officer testified that he had had the Antorzek home under surveillance for four or five months; that he had observed in one evening as many as twenty different men drive up and park their machines nearby and enter the Antorzek home and fifteen or twenty minutes later come out again. There was evidence that as the police officers approached the Antorzek home with a search warrant that Antorzek’s wife refused to open the door and began to shout and Antorzek’s son immediately ran into the kitchen with a bottle, and emptied the contents into the sink. The front and side doors were fastened with heavy wooden bars and the rear door was bolted. It was- under these circumstances that a search warrant was obtained and the 32' bottles of beer which admittedly contained intoxicating liquor, were found.

We are of the opinion that the trial court was justified in finding from the circumstances detailed in this case that there was tráfficking in intoxicating liquor at the residence of the plaintiff in error. We adhere most faithfully and strictly to our decision in the Bender case because only by so adhering to it can we give force and effect to the Eighteenth Amendment of the Federal Constitution, without nullifying the Constitutional guarantees as to the sacredness of private homes. We reiterate that the mere possession of intoxicating liquor in a private residence does not destroy its character as a private residence, and as such it is immune from searches and seizures and. no search warrant can lawfully be issued to search such a private dwelling house. A different state of the law arises when the evidence shqws that there was trafficking in intoxicating liquor in said dwelling house. When by direct or circumstantial evidence the fact that there was trafficking in intoxicating liquor at a residence is established, such residence loses its character as a private residence and is not immune from search under the law.

In the case at bar the circumstances given in evidence justified a finding on the part of the trial judge that there was trafficking in intoxicating liquor at the residence of plaintiff in error, and ¿the trial court was therefore correct in holding that since there was trafficking in intoxicating liquor in said residence, that the same lost its character of a private residence and may be subjected to search under the laws of Ohio. It would be otherwise if no evidence, direct or circumstantial, tending to show trafficking in intoxicating liquor in said residence were shown. In that case the mere showing that there was possession of intoxicating liquor would not be sufficient. It would still be regarded as a bona fide residence and no search warrant could be issued under the law to search such residence despite the f,act that there was possession ¡of intoxicating liquor at said residence:

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

Vickery, BJ and Sullivan, J, concur.


author: ROBINSON, J

text:
    BUCYRUS (city) v STATE HEALTH DEPARTMENT
    Ohio Supreme Court
    No 21501.
    Decided Apr 24, 1929
   Syllabus by

ROBINSON, J

STATE

(540 P2) The provisions of Article XVIII of the Constitution of Ohio do not deprive the state of any sovereignty over municipalities in respect to sanitation for the promotion or preservation of the public health which it elects to exercise by general laws.

The holdings of this court in the case of State Board of Health v. Greenville, 86 Ohio St., 1, are as applicable to municipalities since the adoption of Article XVIII as they were before the adoption of that article, and will be adhered to.

The report of an investigation required by Section 1249, General Code, is competent evidence at a hearing provided for in Section 1250, General Code, but is not conclusive, and the persons" securing the data and compiling, the report are subject to cross-examination land impeachment.

Marshall, CJ, Kinkade, Jones, Matthias, Day and Allen, JJ, concur.


author: ROBINSON, J.

text:
    HAAS v JENNINGS HAAS v LaPENAS HAAS v MURPHY
    Ohio Supreme Court
    Nos 21371-3-4.
    Decided Apr 24, 1929
   Syllabus by

ROBINSON, J.

CONTEMPT OF COURT

(145) An executive officer has only such power to punish for contempt as has been expressly conferred upon him by legislative act or by constitutional or charter provision. COURTS

(180 M2) A charter provision that confers upon the mayor the “power to cause the witness to be punished ‘ as for contempt”, without defining the mode or extent of the punishment, is not self-executing.

The provisions of Sections 3515-37 and 3515-59, General Code, are not effective to invest the mayor of a municipality with a power to punish for contempt, for the reason that they do not define the extent of the punishment.

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


author: MARSHALL, CJ.

text:
    ROYAL INDEM CO et v STATE ex STANDARD SANITARY MFG CO
    Ohio Supreme Court
    No 21578.
    Decided Apr 24, 1929
   Syllabus by

MARSHALL, CJ.

CONTRACTS

(150 P7) It is within the power of the legislature to enact that at the time of the letting of a contract the state or any political subdivision of the state shall require the contractor to give a bond with sufficient sureties conditioned not .only for the proper performance of the work but also that the contractor will pay all persons such sums as may be due them for labor and materials furnished for or used in the construction for which such contract is made.

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


author: DAY, J.

text:
    LIMA USED CAR EXCHANGE CO v HEMPERLY
    Ohio Supreme Court
    No 11477.
    Decided Apr 24, 1929
   Syllabus by

DAY, J.

TRIAL

(590 Cg2) Section 11477, paragraph 5, General Code’ providing that in civil actions “when after the evidence is concluded either party may present written instructions to the court on matters of law and request them to be given to the jury, which instructions, shall be given or refused, by the court before the argument to the jury is commenced.” is mandatory, and a refusal to give a requested instruction, if it is in writing and contains a correct proposition of law applicable to the issues in the case, is erroneous even though the court ■in its general charge may give it or the substance thereof, in its own language.

AUTOMOBILES

(50 Eb) A violation of either Section 6310-1 or Section 12614-3, General Code, which provides for the display of lights upon the front and rear of motor vehicles operated upon the highway, at night, is negligence per se, warranting a recovery by the one damaged as a direct and proximate cause of such negligence, provided such person is in the exercise of due care for his own safety at the time and place in question. (Schell v DuBois, Admr., 94 Ohio St., 93, and Chesrown v. Bevier, 101 Ohio St., 282, approved and followed.

(50 Rh) A motor vehicle allowed to stand at night, in whole or in part, upon the public highway, without displaying such lights in the manner and during the time as provided in Sections 6310-1 and 12614-3, General Code, is within the inhibition of such sections, even though such motor vehicle is at such time not actually in motion.

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


author: JONES, J.

text:
    STATE ex MICK v BURKE et
    Ohio Supreme Court
    No 21424.
    Decided Apr 24, 1929
   Syllabus by

JONES, J.

ACTIONS

(10 Q2)' The writ of quo warranto cannot be Utilized by an individual acting in his private relation for the purpose of nullifying corporate franchises or voiding a municipal charter.

MUNICIPAL CORPORATIONS

(360 C2) The relator was elected to a municipal office in 1925. In the following year the municipality adopted a charter, under the provisions of which new offices were created and filled by the election of respondents in 1927, who jduly qualified therefor. The relator, under the provisions of Section 12307, General Code, then instituted his private action seeking, to oust the respondents from office, by assailing the validity of the charter election, on the ground that the charter was not adopted by a majority of the electors voting at the charter election, and offered proof sustaining his claim which the court excluded. Held: The court did not.err. While relator’s action ostensibly was one'to test his title to office, it was in fact an indirect and collateral attack upon corporate municipal functions and the legal existence and validity of the municipal charter. Section 12307, General Code, does not authorize a private relator to employ quo warranto for such purpose.

Marshall, CJ, Kinkade, Matthias, Day and Allen, JJ, concur. Robinson, J, not participating.


author: ALLEN, J.

text:
    TRUSCON STEEL CO v TRUMBULL CLIFFS FURNACE CO
    Ohio Supreme Court
    No 21427.
    Decided Apr 24, 1929
   Syllabus by

ALLEN, J.

EMPLOYER & EMPLOYE

(250 W3) An employer, whether self-insurer or otherwise, cannot recover from any source any sum to reimburse an amount paid under the Workmen’s Compensation Law to injured employees, whether the injury results from the negligénce of some third party, or otherwise.

The third paragraph of the syllabus in the case of the Ohio Public Service Co. v. Sharkey, Admr., 117 Ohio St. 586. is hereby overruled.

Marshall, CJ, Kinkade, Robinson, Jones, Matthias and Day, JJ, concur.


author: SULLIVAN, J.

text:
    JOHNSON v CLEVELAND (city)
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9790.
    Decided March 25, 1929
    Harold T Gassoway, for Johnson.
    L O Payne, Cleveland, for City.'
   SULLIVAN, J.

It is well settled law that the doctrine of reasonable doubt employed in criminal cases applies vitally to the question of knowledge upon the part of the accused, so that upon this question, under the rulé of law universally adopted, if under all the circumstances upon this question there is a reasonable hypothesis of innocence fairly and justly derivable from the entire record in the case, the law prevents a verdict of guilty.

Again, upon the question of unlawful possession there must be evidence of sufficient legal strength that the person accused had such physical control and custody of the liquor that the logical result of it would be unlawful possession of the same.

It appears from the record that the automobile was halted by an officer of the law on account of the speed of same, and that in connection with this incident, a search and seizure of the liquor were made but without the authority of a search and seizure warrant. While the lack of this warrant would not of itself alone discharge the .accused from g.uilt, inasmuch as an automobile cannot be treated in the same light as a bona-fide home, yet, it is 'an incident in the case which cannot be entirely ignored.

Our unanimous judgment is that on the question of the commission of the offense, the record is obviously impregnated with reasonable doubt and while the accused may possibly be guilty - of the offense charged, it is our unanimous judgment that the record admits of too much uncertainty to form a conviction by applying the rules of the criminal law.

Thus it appears that upon the question of the ownership of the car and the further issue of guilty knowledge there is no challenge in the record excepting the circumstance of a bottle of whiskey being found- in the rear of the car owned by the brother of the accused who was using the car apparently under the authority of the brother who had control and possession of the machine. , With this state of the record there is no question about the same being permeated with uncertainty and doubt.

Thus holding the judgment of the lower court is reversed and inasmuch as the record shows the ultimate facts, the plaintiff in error is 'discharged.

Vickery, PJ and Levine, J, concur.


text:
    BECK v BAILEY et
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9492.
    Decided April 15, 1929
    John A Cline, Cleveland, for Beck.
    Edward W Dissette, Cleveland, for Bailey, et.
   VICKERY, PJ.

Now because this money was not paid within the year, it is claimed that the title to the real estate had been divested from the sons and became as though it was undisposed of property and descended to all the heirs of the testator in proper proportions.

We think a proper construction can be placed upon this language in the will that would be consistent with the intention of the testator, by construing this proviso to mean that the sums to be paid were to be a charge upon the estate, and that even though the sons did not succeed in actually paying it within the year, yet by paying it or offering to pay it within a reasonable time, the provisions of the will had been complied with and’ the title to the real estate' will be secure in the sons, and in that event the plaintiff in this action will not be entitled to maintain a partition suit. The plaintiff and those who have interest with him would only be entitled to recover the amount of their legacies together with interest" perhaps up to the time that it was tendered from the decease of the mother of these men. In other words, the intention of the testator is best served by holding that this proviso in the will, under the circumstances of this particular case, is complied with by making the legacies a charge upon the estate, rather than in diverting the title that is already vested in the two sons and making it pass as undisposed of property by last will. We think to hold any other way would be to do violence both to the interrtion of the testator and to the greater weight of authority upon this proposition.

We, therefore, are compelled to find in favor of the defendants, and a decree may be drawn accordingly.

Sullivan and Levine, JJ, concur.


author: WASHBURN, J.

text:
    BRINKER et v BARBERTON (city) et
    Ohio Appeals, 9th Dist, Summit Co
    No 1627.
    Decided April 1, 1929
    Wanamaker & Russell, Akron, for the Motion.
    G R Platt, City Solicitor, and S A Decker, both of Barberton, Contra.
   WASHBURN, J.

As we understand the law, when a final judgment in either an action at law or a suit in equity is entered in a court of record, as is the Court of Common Pleas, that judgment, so entered, becomes a finality at the end of the term at which it. is entered, so f,ar as that court is concerned, and that court does not have any power to vacate or modify said judgment in such a way as to change the judicial action already taken, except by the method provided by statute. But if the judgment is entirely void for want of jurisdiction, the court has power to vacate it or set it aside after the term at which it is rendered, and that may be' done on a motion filed in said court, where the court obtains jurisdiction over all of the parties interested in the judgment.

Such motion or the proceeding under the statute, constitute proceedings in rem, which attack the judgment itself, and such judgment may be modified by the court in the manner provided by the statute, or upon the motion the judgment may be declared void for want of jurisdiction.

In addition to these remedies, the validity of the judgment may be attacked in equity and an equitable remedy invoked; but such equitable remedy is not a proceeding in rem and does not assail the court in which the judgment was rendered or seek to change, modify, suspend or vacate the judgment, but is a proceeding in personam, against a party or parties to the judgment, seeking to deprive him or them of the benefit of the judgment so improperly obtained, by enjoining. Mm or them from enforcing it. Such remedy in equity w,as known before the adoption of the civil code and still exists.

Darst v. Phillips, 41 OS. 514.
Michael v. National Bank, 84 OS. 370.
Kundert v. Kundert, 24 O. App. 342, at p. 348.
Eckfield, Auditor, v. State, ex rel. Stone, 23 O. App. 150, at pp. 153-154.

By the petition filed by the plaintiffs in the instant case, they sought to have the judgment obtained in the original suit vacated or modified, and they did not ask any relief at all in any way against the defendants themselves. They did not seek to enjoin them from the enforcement of said judgment; it was strictly and solely a proceeding in rem, and not a proceeding in personam; and the relief they sought related entirely to the original judgment.

The right of no third party was involved, and the petition did not seek any relief which could not be obtained by a retrial of case; and it was plainly not a suit in equity, but an application for a modification of a judgment under the statute, which was unknown to chancery, and such a proceeding is not appealable.

Taylor v. Fitch, 12 OS. 169.

Motion to dismiss appeal granted.

Funk, PJ and Pardee. J, concur.


author: PER CURIAM

text:
    ROCHESTER CANDY WORKS CO v BERMAN
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9807.
    Decided March 25, 1929
    Frey, Oliver & Maerlander, Cleveland, for Candy Works.
    Wm L Cohen, Cleveland, for Bgrman.
   PER CURIAM

The affidavit upon which the order of attachment was issued set forth a ground in the language of the statute. It is the settled law of Ohio that a cause of attachment may be sufficiently stated in the language of the statute. Emmitt v Yeigh, 13 OS. 335.

We can readily concede that if the defendant had offered some evidence in support of the motion to dissolve the order of attachment either in the form of affidavit or by oral evidence, showing that the ground of attachment set forth in the. affidavit was untrue, that the trial court would be properly within its province to sustain said motion, but in the absence of any evidence whatsoever either by affidavit or otherwise, offered in support of the motion to dissolve the order of attachment, it is error for the trial court to sustain said motion.

Seville v. Wagner, 46 OS. 52.

Baer, Harkeimer & Co. vs Otto, 34 OS. 11.

Garner v. White, 32 OS. 192.

The judgment of the Municipal Court is therefore reversed, and the cause remanded for further proceedings according to law.

Vickery, PJ, Sullivan and Levine, JJ, concur.


text:
    GOWDY v ROBERTS
    Ohio Appeals, 9th Dist, Summit Co
    No 1601.
    Decided March 29, 1929
    Grant, Thomas & Buckingham, Akron, For the Motion.
    Ralph G. Thomas, Akron and Hyre & Hyre, Cleveland, Contra.
   WASHBURN, J.

Where a petition contains two causes of action — one an action at law, which is triable by a jury, and the other a recognized chancery proceeding, which is triable by the court — and both causes of action are disposed of together in a single trial in the Common Pleas Court upon the issues made in the petition, the question of whether or not the case is appealable depends generally upon whether the action at law is the primary one,- the relief sought in the chancery action depending upon and being ancillary thereto,- or whether the chancery action is the principal one, the relief sought therein being a necessary foundation for the action at law.

Looking to the petition alone in the instant case, it is clear that the case is not appealable, for the right to foreclose depended upon the right to recover on the note.

In the case at bar, the answer sets forth that plaintiff’s signature to the note and mortgage was obtained by fraud and that defendant'knew that fact when he obtained the note and therefore was not a bona fide holder for value, and prays that the petition be dismissed; except for the last line of the prayer of the answer, where it is asked that the note and mortgage be canceled, it is purely and simply defensive and relates entirely to issues triable to a jury.

The reply denies the fraud charged or any knowledge thereof, and alleges that plaintiff is a bona fide holder of said note and mortgage for value before maturity, and prays that the answer be dismissed and that plaintiff may have judgment as prayed for in his petition.

The defense made and relief asked as to the mortgage was identical with the defense made and relief asked as to the note.

It is therefore apparent that the issues thus made by the first cause of action in the petition and the answer and reply, which were heard and determined by the court, were only jury issues; to-wit, whether defendant’s signature to the note was obtained by fraud, and if so, whether plaintiff was a bona fide holder for value before maturity; and the mere fact that there was included in the answer a prayer for the cancellation of the note and mortgage, did not change the character of the issues or present a cause of action which required a trial in advance of the trial of plaintiff’s cause of action on the note. If the judgment was in favor of the defendant on the jury issues involved in plaintiff’s first cause of action and the answer thereto, the foreclosure of the mortgage would necessarily be defeated and the cancellation of the mortgage would be but a mere incident of such judgment; and the prayer therefore invoked only such relief as the court had the right to grant as a result of a judgment against the plaintiff on the note. No interposition of a court of equity was necessary to give the defendant the full benefit of the facts pleaded in his answer, by way of defense and therefore no affirmative relief by way of cross-demand was really prayed for in the answer. (Bank v. Weyand, 30 OS. 126.

Raymond v. T., St. L. & K. C. R. R. Co., 57 OS. 271.

The case of Lust v. Farmers’ Bank & Sav, Co., 114 OS. 312, is not controlling.

Gill, et al., v. Pelkey, et al., 54 OS. 348, at p. 361.

Our consideration of the pleadings in the case at bar leads us to the conclusion that the .answer set ¿forth a defense merely and not an equitable cross-demand, and that therefore neither the mode of trial nor the right of appeal was affected by the answer.

The case made in the petition was not appealable, and was not made so by the filing of the answer, and therefore the motion to dismiss the appeal must be granted.

Funk, PJ and Pardee, J, concur.


text:
    ELLIOTT v WOOSTER FARM DAIRIES CO et
    Ohio Appeals, 9th Dist, Wayne Co
    No 851.
    Decided April 12, 1929
    Weygandt & Ross, Wooster, for Elliott.
    Weiser & Weimer and L R Critchfield, both of Wooster, for Wooster Farm Dairies Co.
    Clark & Costello, Cleveland, for Ohio Farmers Co-Operative Milk Assn.
   PER CURIAM

In the light of the facts in this case, it is not important that the contract of sale was signed by the officers of the Wooster company.

Moine had in his possession several contracts of sale signed by said officers, but blank as to number of shares and name of purchaser, which he had been provided with in order to make sales to farmers, and the Ohio company and Elliott and Moine all knew and understood that it was not the intention of the Wooster company to authorize the use of such blank contract to make a sale of said stock or any part thereof to the Ohio company or any one acting in its behalf.

The contract sued upon was obtained in pursuance of a fraudulent scheme, which at' the time it was entered into was known to Elliott and the Ohio company, for which Elliott was acting.

Decree for the Wooster company, denying specific performance.

Funk, PJ, Pardee, J, and Washburn, J, concur.


text:
    CURTIS et v STATE ex LENGEL
    Ohio “Appeals, 5th Dist, Stark Co
    No 984.
    Decided Feb 11, 1929
    James E Kinnison, Russell H Mack and H C Pontius, all of Canton, for Curtis.
    Ammerman & Mills and W. B. Rodgers, both of Canton, for State ex.
    Judges WILLIAMS, LLOYD and RICHARDS, of the sixth district, sitting.
   WILLIAMS, J.

The sole question is whether or not the court below erred in issuing the peremptory writ of mandamus upon the ground that the relator was removed from his office as Chief of Police by the Mayor without being given a reasonable time in which to make and file an explanation under Section 486-17a, General Code.

The contention of the relator is that he was not given a reasonable time in which tp make and file an explanation with the Mayor, and he relies upon the case of State ex rel Bay vs. Witter, 110 Ohio St., 216.

In the instant case the notice of removal contained no reference whatever to an explanation. While the court in State ex rel vs. Witter, supra, held that in order to sus.pend an employe in the classified service the appointing power must give the employe reasonable time in which to make and file an explanation, the court did not have before it in that casé the question whether failing so to do would render the proceedings in all cases an absolute nullity. We have before us in the instant case a different question from that before the Supreme Court, and that is, did the relator by failing, to file an explanation with the Mayor, and by filing an appeal to the Civil Service Commission within two days after his removal, and submitting to trial therein, waive whatever right he may have had to file such explanation? The right to file an explanation was given to relator by statute and his failure to file such explanation with the Mayor was his own default. He submitted himself to the jurisdiction of the Commission and permitted the appeal to the common pleas court to be dismissed without pursuing such remedies as he had, and we must assume, for the purposes of this case, that the trial before the commission was a fair one. The relator has had his hearing before the commission and waived his right to. make exDlanation before the mayor and is bound by the order of removal.

The judgment of the court below will' therefore be reversed and final judgment entered in favor of the plaintiff in error, dismissing the petition of relator and denying. the writ of mandamus.

Lloyd and Richards, JJ, concur.


author: MAUCK, J.

text:
    FIDELITY MORTGAGE CO v MAHON et
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9223.
    Decided Feb 11, 1929
    Krueger & Pelton, Cleveland, for Mortgage Co.
    Albert Mendelson, Cleveland, for Ma-hon et.
   MAUCK, J.

It is now claimed by the second mortgagee that the language quoted gave to him a specific lien upon the rents and profits arising from the mortgaged property, and by virtue thereof he is entitled to the same as against the general lien of the first mortgagee.

After a condition is broken the mortgagor is entitled to rents and profits so long, as he retains possession. A mortgagee, however, after bringing an action in foreclosure and by making to the court such showing as is required by section 11894, General Code, has a right to have a receiver appointed for the property, and this receiver by virtue of his possession is entitled to the rents and profits that may issue from such possession to be received and held by him for the benefit of the parties in interest.

In the instant case, as we pointed out, the receiver was appointed upon the motion of the second, mortgagee, but this fact did not change the substantive rights of the parties and the receiver was appointed for the benefit of all the parties. Williams vs. Gerlach, 41 OS. 682.

The section referred to is not confined in its operation to mortgages in which the rents have been specifically pledged, but is a right conferred upon all mortgagees. Since, therefore, the Fidelity Mortgage Company would have unquestioned right to the funds in question as against the mortgagor, it follows that the mortgagor, by his second mortgage, did not take away any of the rights of the Fidelity Company and grant them to the second mortgagee. This conclusion is supported by Wiltsie on Foreclosure of Mortgages at page 754.

This case has reached this court both by appeal and by a proceeding in error. It has been heard upon appeal. In the appeal case an entry will be made in favor of The Fidelity Mortgage Company and the cause will be remanded to the Common Pleas for execution. The proceeding in error will be dismissed.

Middleton, PJ, concurs.


author: SULLIVAN, PJ.

text:
    ATLANTIC & PACIFIC TEA CO v DAVIS
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9439.
    Decided Feb 11, 1929
    Squire, Sanders & Dempsey, Cleveland, for Tea Co.
    L E Appleton, Cleveland, for Davis.
   SULLIVAN, PJ.

It is argued that the record upon this point is insufficient to make the company liable because there is no application of the doctrine applying to master and servant, or to put it another way, to the principle of respondeat superior, and many authorities are quoted by learned counsel for defendant below, to support this contention, but it must not be forgotten that there is some substantive evidence in the record at least tending to show that the son in question had previously worked at the store and had performed acts of a similar nature for the clerk or manager and that he therefore could be characterized in law as a servant and employe of the defendant.

Keeping in mind that the former employment by the manager of the son on previous occasions remained unchallenged, it follows as a circumstance and inference that the clerk was acting within the scope of his authority, especially when we consider that to apply a different theory would be to establish a doctrine that would approve of the authority exercised in the case at bar by the manager to the detriment and danger of a patron, and customer of the store, who might be injured as a result of the act imposed upon the third person by one who is unquestionably in sole authority upon the premises.

It is apparent from the record that the open hatchway was in plain view of the manager and from this fact in the record it is unreasonable to conclude that it does not attach itself directly to the 'manager himself, independent of the order that was given to the son of the customer to open the trap door in the floor.

Our Supreme Court, under circumstances similar to those of'the case at bar, in the case of Schnable, a minor vs Cleveland, Chicago & St. Louis Railroad Co., 102 OS. 97, has laid down this ..doctrine and we think it applicable to the instant case.

It is our unanimous judgment that the doctrine in Ohio applicable to the facts in the record is laid down in Schnable supra, and governs this case.

Thus holding, the judgment of the Common Pleas Court is hereby affirmed.

Vickery and Levine, JJ, concur.


author: PARDEE, J.

text:
    KOPACHY v BLANK et.
    Ohio Appeals, 9th Dist, Lorain Co
    No 482.
    Decided April 12, 1929
    M C Harrison and J DeKaiser, both of Cleveland, for Kopachy.
    Squire, Sanders & Dempsey, Cleveland, H C Johnson, Elyria, and G A Resek, Lorain, for Blank, et.
   PARDEE, J.

The grounds relied upon for a reversal are the following, to wit: first, error in the exclusion of evidence; second, error in the refusal to give a special request ■ before argument; and third, error in the general charge.

As to the first ground of error.

This error relates to the withdrawal, by the trial judge, of certain testimony given by one Dr. Nicholas, who testified as á medical expert for the defendants.

From our examination of the record, we are of the opinion that it does not clearly appear just what part of the testimony of Dr. Nicholas the trial judge was attempting to withdraw from the consideration of the jury. If he was referring to the two questions objected to by the defendants as they appear on page 82 of the bill of exceptions, then no harm was done, as the answers thereto could not have "helped the jury in arriving at a proper conclusion.

But if the trial judge referred to the long question put to Dr. Nicholas by the attorney for the plaintiff, and designatéd by the trial judge as the hypothetical question, and the answer thereto, as appear on page 83 of the bill of exceptions, in, which answer the witness stated that he thought he would know what proper practice would require under the circumstances stated in the question, we are of the opinion that the trial judge was correct in his ruling, as the question was not properly framed as a hypothetical question, in that it related to what the witness would have done in this particular case, rather than what should have been done generally under the same or similar circumstances. So, if the trial judge only withdrew the hypothetical question and the answer thereto, it still left in the record the questions and answers given prior and subsequent thereto. Therefore, upon this state of the record, we do not find any error prejudicial to the plaintiff.

As to the second gro.und of error.

The foregoing request expressly stated to the jury that the plaintiff was required to establish certain issues in his favor by a preponderance of the evidence, and then said, in substance, that if the jury found that it was more probable that one of the plaintiff’s claims was true than the contrary, then that particular issue of fact was established by a sufficient degree of proof to support a verdict in plaintiff’s favor. This was misleading, as it amounted to telling the jury that if they found one issue of fact in favor of the plaintiff that finding would support a verdict in plaintiff’s favor, “and this would be true even though there might still be *** some doubt and uncertainty upon that issue” — notwithstanding that there were several issues required to be established in favor of the plaintiff by the same degree of proof.

In order to predicate error upon the refusal of a trial court to give a written request before argument, the request must be an accurate and precise statement of the law; otherwise the rule recognized in Scharff v. Levine, 29 O. App. 340, 163 N. E. 581, would work great injustice upon litigants, where there did not appear other prejudicial error in the record.

The third assignment of error relating to the general charge, we do not find to be well taken, although we do find some unhappy statements therein. Considering the charge as a whole, we find it tó be free from prejudicial error.

Not finding, the assignments of error to be well taken, we affirm the judgment of the trial court.

Funk, PJ, and Washburn, J, concur.


text:
    STAHL PROPERTIES CO v LOEBIG et
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9203.
    Decided Feb 18, 1929
    Krueger & Pelton, Cleveland, for Properties Co.
    Bulkley, Hauxhurst, Jamison & Sharp, Cleveland for Loebig, et.
   VICKERY, PJ.

The main error relied upon in this court is that the contract between these persons, the plaintiffs and the defendant below, was in writing, and that the evidence which they sought to introduce and did introduce as to the inducement, would violate the parol evidence rule, and was admitted con-contrary to law and over the objection of the defendant below, as it was an effort to change or modify a written contract by parol agreement, and this has been the main argument before our court. We do not so regard the introduction of this evidence.

Now the books are filled with cases and the text books on contracts all differentiate between the conversations and the promises which were the inducement to the parties entering into the contract from that evidence which tends to modify or change the contract by parol evidence, so that it would be other than appeared in writing. There is no effort to reform this contract; there is no effort to show that these promises which were the inducement to enter into this contract were to be made a part of the contract itself. Consequently the parol evidence rule does not apply.

The evidence was admissable as already stated, not to change or modify the contract by parol, but to show by what inducement these parties were led to enter into this contract.

Having covered all the errors complained of and finding none whereby we would be justified in reversing this judgment, the same will be affirmed.

Sullivan, J, concurs.. Levine, J, dissents.


text:
    STATE ex MAYFIELD HTS (village) v HIGHAM
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10053.
    Decided April 15, 1929
    Jules Eschner, Cleveland, for Relator.
    Gurney, Gurney & Gurney, Cleveland, for Higham.
   SULLIVAN, J.

It is our judgment that inasmuch as the retiring councilman attended the regular session the ordinance could not be made ineffectual or invalid simply because the member left the council chamber prior to adjournment.

As we understand the record the only taint claimed to be on the proceedings of the special sessions is because of the absence of notice and no substantial contention is made of the absence of any quorum oi the right to transact business at the special sessions unless the mere absence of notice as is claimed by the defendant with respect to the retiring councilman is sufficient to invalidate the proceedings, but according to our ánalysis of the record it is our judgment that his presence at the regular meeting relieves the record of any cloud upon the proceedings of the special sessions.

Holding these views the writ is allowed as prayed for in the petition.

Vickery, PJ, and Levine, J, concur.


author: LEMERT, PJ.

text:
    SHIPLEY et v. WHITE
    Ohio Appeals, 5th Dist, Knox Co
    Decided April 4, 1929
    Blair & Blair, Portsmouth and J S Mc-Devitt, Mt Vernon, for Shipley, et.
    Columbus Ewalt, Mt Vernon, for White.
   LEMERT, PJ.

We believe that it is not within the power of a legislature to take away rights which have once been vested by a judgment.

Legislation may act on subsequent proceedings, may abate actions ■ pending but when this action has passed into judgment the power of the legislature to disturb the rights created thereby ceases..

In the 64th Ohio State 39, and the 101 St Ohio State 235, it is held that a statute which imposes a new or additional burden, duty, obligation or liability, as to past transactions, is retroactive and in conflict with that part of Section 28, Article Two of the constitution, which provides, that “The General Assembly shall have no power to pass retroactive laws.”

“It is a well settled principle that the legislature has no right or power to invade the province of the judiciary, by annulling, setting aside, modifying !or impairing a final judgment previously rendered by a court of competent jurisdiction.”

In the. instant case “the prohibition against locating, a cemetery within two hundred yards of a dwelling,- Section 1453 Revised Statute confers on the owner of the dwelling a vested right in the nature of an appurtenance which cannot be taken away by repeal after he has begun an injunction suit.” 4 Ohio C. D. 422. 54 O. S. 682, 101 O. S. 387.

Therefore, the question meets us squarely: “is Section 3455 as amended is it prospective only or is the same also retrospective?

The restriction of establishing a cemetery or an addition thereto within two hundred yards from a dwelling house is still in the statute, except as to dwellings erected within two hundred yards from an established cemetery.

“Provided, however, if any person shall erect a dwelling house within two hundred yards of an established cemetery, in such case the restriction . of 3442 shall not apply.”

We face in this statute the words “shall erect”.

If the Legislature so intende°d, it could have very easily have said, “if any person shall erect or shall have erected etc.”

It is conceded in this case that it was unlawful to establish this cemetery, or addition, at the place sought to establish it, prior to the passage of the amendment, so that any claimed right now to establish same necessarily must come from the amendment itself, and therefore of necessity said amendment must be retroactive; if not retroactive then the same would not and could not affect the present case, for it is conceded that this dwelling house was erected before the pasage of the amendment.

It is conceded that plaintiffs had no cause to act before the passage of the amendment and it is not claimed that the dwelling house in question was erected within the two hundred yards distance after the passage of the amendment.

So, therefore, it follows that the amendment created a cause of action on past events or that the amendment does not apply in this case.

Therefore, it is obvious in this case that the statute heretofore referred to does not apply 'to past 'transactions because the statute itself fails to expressly provide that it shall so apply.

We are of the unanimous opinion in this case that the finding and judgment herein should be and the same is herein rendered for the defendant and the plaintiffs petition hereby dismissed, at the cost of the plaintiffs.

Houck and Sherick, JJ, concur.


text:
    MILLER v AUBLE
    Ohio Appeals, 9th Dist, Lorain Co
    No 488.
    Decided April 11, 1929
    John K Nece, Elyria, for Miller.
    Robert L Walden, Wellington, for Auble.
   WASHBURN, J.

If it is not .alleged in the petition that the contract was or was not in writing, and a general denial is filed, the plaintiff, upon trial, is required to sustain the issue by competent evidence, and the statute is available to the defendant by objection at the trial to oral evidence to prove the contract.

Birchell v. Neaster, 36 OS. 331.

In this case the petition expressly alleges that the contract sued upon was not in writing, and of course it was unnecessary for the defendant to plead the statute; and having filed a general denial, he did not waive the defense of the statute by not interposing the same before the trial of the case.

The petition does not allege facts constituting a partnership, and therefore the case of Furth v. Farkasch, 26 O. App. 258, is not applicable.

The transaction described in the petition in the case at bar is more like the one passed upon in Cohen v. Spitz Co., 28 O. L. R. 379. It is true that in that case the contract was in reference to a specific piece of property, while in the case at bar no specific property is referred to in the agreement; that difference we do not regard as of controlling importance.

Plaintiff’s action is riot one to recover for services in furnishing prospective purchasers, as was the case in McHugh v. Marshall, 164 NE. 778, where there was no claim made that the plaintiff was employed to or that she did assist in making sales of real estate.

It is apparent that he was to be paid a commission upon sales of real estate which he assisted in making, and that the contract was within the terms of the statute to pay “a commission for or upon the sale of an interest in real estate,” unless said statute should be construed as applying only to contracts between an owner of real estate and a broker or agent who agrees to render services for such owner in the sale of his real estate.

It may be, in view of the well-known evils connected with such transactions, that it was the intention of the legislature to limit the operation of the law to such contracts, but if so, the legislature could easily have employed language to express such intention, as was done by the legislature of the state of Nebraska, and by the legislatures of several other states. The legislature of Ohio failed to so limit the operation of the statute, and it would be judicial legislation for us to do so.

Where a statute is plain and unambiguous in its terms, it is the duty of courts to enforce rather than construe the same.

In respect to this matter, the statute of the state of Michigan is the same as our GC. Sec. 8621, and the Supreme Court of Michigan has determined that said statute is not limited in its operation to contracts between ,an owner and a broker, but applies to a transaction very similar to the one involved in the case at bar. (Smith v. Starke, 162 N. W. 998.)

Judgment affirmed.

Funk, PJ, and Pardee, J, concur.


author: FARR, J.

text:
    METROPOLITAN SAV & LN CO v GLOVER et
    Ohio Appeals, 7th Dist, Mahoning Co
    Decided March 22, 1929
    A M Henderson and W P Heasley, both of Youngstown, for Sav & Ln Co.
    Barnum, Hammond, Stevens, Patchin & Hoyt, Youngstown, for Glover.
   FARR, J.

Upon an examination of the record it is disclosed that no motion for a new trial was filed before the Referee. It becomes important, therefore, to determine the effect of the failure to file such motion. The section of the General Code of importance here is 11478.

Further assistance would not be needed other than the statute in question. However a case of interest in this connection is that of Hanner v. Brewing Company, et al., 8 O. D., 399, in which the statute just read was construed, and it is a case worthy of notice here. The second proposition of the syllabus reads as follows:

“When exceptions to a Referee’s report will be overruled. Exceptions to a Referee’s report will be overruled when no motion for a new trial was made before the Referee and no bill of exceptions taken.”

So that it becomes readily apparent that if the parties excepting in the instant case desired to have these findings reviewed, it was necessary to make a motion for a new trial before the referee and to have his finding upon the same.

No motion or motions were filed in the instant case. For the reasons given it follows that the exceptions must be overruled, the report of the Referee approved and a judgment entered thereon.

Pollock and Roberts, JJ, concur.


text:
    CITY ICE & FUEL CO v KARLINSKY
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9804.
    Decided April 22, 1929
    White, Cannon & Speith, Cleveland, for Ice & Fuel Co.
    Thomas Long and Cerrezin & Wilson, all of Cleveland, for Karlinsky.
   VICKERY, PJ.

We think the question in this case is whether this man received his injury while in the course of his employment. Now upon that there can be but one answer, and that is he was employed to deliver coal for the plaintiff in error company, and was returning with their team and wagon from delivering coal when this accident occurred. Whether that injury resulted in his death might be questionable, but that he received an injury in the course of his employment, there can be but one answer, and that to the effect that he did receive such an injury and even though he was intoxicated, it would not make him any the less an employee of the company, nor would it make him any the less entitled to compensation.

We do not understand that if a person is seeking compensation, he is debarred because of his own negligence. We do not understand that the law in Ohio anywhere says that if a man is intoxicated when he is working for' another and is injured, he cannot recover compensation.

We think that the record shows that this man died from the injuries that were received while he was in the course of his employment ,and that the defendant in error was a dependent and filed her claim in the proper manner, and that being refused, a proper appeal was taken to the Common Pleas Court and the case was properly tried and we can see no error in the judgment rendered.

The judgment of the court below will, therefore, be affirmed.

Sullivan and Levine, JJ, concur.


text:
    STATE ex MOOCK v CINCINNATI (city) et MOOCK v CINCINNATI (city) et
    Ohio Supreme Court
    Nos. 21360 & 21361
    Decided May 1, 1929
   Syllabus by

JONES, J.

MUNICIPAL CORPORATIONS

(360 P5) The adoption of regulations pertaining to health and sanitation, including the process of collection and disposal of garbage, is within the proper exercise of the police powers of the state and of its municipalities.

(360 P4f) It was within the province of the city authorities to commit the power of issuing permits for the collection and disposal of garbage upon a designated officer, leaving to him the terms and conditions under which they should be issued. Such action on the part of the city does not invest the officer with legislative power.

The city of Cincinnati advertised for and received bids and entered into a contract with a single contractor who, for a consideration paid by the city, engaged to collect and remove garbage therefrom in accordance with the city’s specifications. A permit was thereupon issued to the city’s contractor but denied to the relator who had contracts for garbage removal with various hotels and restaurants in the city. This garbage, consisting of animal, vegetable and other products, had a commercial value, much of which being adaptable for the feeding of swine. Held: Neither the city ordinance nor the refusal of the city manager to issue relator a permit for the collection and removal of garbage contravened any provision of our state or Federal constitutions.

Kinkade, Matthias, Day and Allen, JJ, concur. • •


text:
    GREAT LAKES STAGES INC v P U C
    Ohio Supreme Court
    No 21532..
    Decided May 1, 1929
   Syllabus by

ALLEN, J.

PUBLIC UTILITIES COMMISSION

(480 P) Under Sections 614-53 and 614-55, General Code, the Public Utilities Commission has not jurisdiction to grant to an interstate public utility authority to issue stock, bonds, notes or other evidence of indebtedness for the acquisition of property, the construction, completion, extension or improvement of its facilities or the improvement or maintenance of its service outside of the state.

Kinkade, Robinson, Jones, Matthias and Day, JJ, concur.


text:
    N Y C & ST L RD CO v KOVATCH
    Ohio Supreme Court
    No 21272.
    Decided May 1, 1929
   Syllabus by

ALLEN, J.

RAILROADS — Trial (590 E3a)

(500 D2e) When the issue upon the trial is the question whether a child has been killed upon ,a public street by the engine of a railway,' and there .is some evidence to show that an unidentified child screamed immediately after the accident that “The engine runned over David,” and there is evidence which justifies the inference that a child was standing at the time of the accident at a point where she could have observed the accident, it is not reversible error to refuse to exclude the testimony.

Marshall, CJ, Kinkade and Day, JJ, concur.


author: JUSTICE, J.

text:
    CENTRAL COMMUNITY CHAUTAUQUA SYSTEM v RENTSCHLER et
    Ohio Appeals, 3rd Dist, Henry Co
    No 196.
    Decided April 5, 1929
    James P Ragan, Napoleon, for Chautauqua.
    Fred Gribbell, Deshler, for Rentschaler et.
   JUSTICE, J.

Several errors are assigned. One of them alludes to the overruling of plaintiff’s motion for judgment notwithstanding the verdicts.

Section 11601, of the General Code, provides that:

“When, upon the statements in the pleadings, one party is entitled by law to judgment in his favor, judgment shall be so rendered by the court, although a verdict has been found against such party.”

This Section is mandatory, but it authorizes a judgment non obstante verdicto, only when the pleadings require it. Challen v. Cincinnati, 40 O. S. 113. McCoy et al., Trustee, v. Jones, et al., 61 O. S. 119. No such requirement appears in the instant case. To the contrary, however, the pleadings clearly disclose an issuable fact, which the trial court was required to submit to the jury under proper instructions. The motion, therefore, was properly overruled.

Another claimed error pertains to the admission of testimony.

Counsel for plaintiff insists that the trial 'court, in admitting testimony, violated the so-called “Parol Evidence Rule.” With this contention we do not agree. Parol contemporaneous evidence, of course, is inadmissible to contradict, vary, add to or substraet from, the terms of a valid written instrument. 1 Grenl. Ev. Section 275. But the testimony under consideration, as we see it, did not tend to contradict, vary, add to or subtract from, the contract of guaranty. It simply tended to show the inducing and moving cause of said written contract and, in addition thereto, tDnat said contract in law never existed.

Commentaries on Evidence, 2nd Edition:

Clearly the testimony was relevant to the issues as made by the pleadings. It, therefore, was not only competent but obviously of much moment to the defendants. Its reception by the trial court was proper.

Another claimed error refers to the charge.

Did the trial court, in so charging, place upon the plaintiff an unwarranted burden? We do not think so.

The pleadings reveal that plaintiff predicated a recovery in this cause upon an alleged present and absolute contract, while the defendants bottomed their defense upon an alleged conditional signing of said contract.

In Leisy & Company v. Zuellig, 7 O. C. C. Reports, 433, the Circuit Court of the Sixth District, held:

(Here follows quotation)

In the instant case the trial court correctly put the burden upon the plaintiff of proving the material- allegations of its petition. The defense, being based upon a different agreement than that upon which plaintiff sued, was nothing more or less than a general denial. Simmons v. Green, 35 O. S. 104.

We have carefully examined the charge and are of the opinion that, when construed as ,a whole, it is free from prejudicial error. Ohio & Indiana Torpedo Company v. Fishburn, et al., 61 O. S. 608.

Entertaining these views, it follows that the judgment of the trial court should be affirmed.

Before Judges Hughes, Justice & Crow.


author: RICHARDS, J.

text:
    HILL v. SCHATZMAN
    Ohio Appeals, 6th Dist, Erie County
    No. 290.
    Decided April 22, 1929
    John F McCrystal. Sandusky, and F R Hoover, Columbus, for Hill.
    Krueger & Rosino, Sandusky, ,and Frank T Dore, Tiffin, for Schatzman.
   RICHARDS, J.

The case was tried in the court of common pleas in May, 1928, and a motion for new trial was overruled and final judgment rendered in December, 1928. On March 20, 1929, the Supreme Court decided the case of Pavlonis vs. Valentine, (7 Abs 206), holding by a divided court that it was not error in examining a prospective juror on his voir dire to inquire as to his connection with a casualty insurance company, where such company was interested in the result of the trial. That decision disposes of the contention made by plaintiff in error in this case that there was error on the part of the trial court relating to casualty insurance, at least in so far as the examination of prospective jurors is concerned. In the instant case the trial court refused to permit such examination. This case was' briefed in the court of appeals before the Supreme Court decision just cited, but since that decision the practice in Ohio is determined and such inquiry as to prospective jurors is proper.

It is further insisted that the trial court erred in permitting a recovery by the plaintiff below without the introduction of expert testimony and that such verdict could not be rendered in a malpractice case without the support of that class of testimony. We do not understand that in all malpractice cases expert testimony is required, and this court so held in the. case of Francis vs. Brooks, 24 Ohio App., 136.

However, in the instant case, the plaintiff below called a physician who had eleven years’ experience in the use of an X-Ray laboratory in his practice, and who testified that it w,as not in accordance with the usual or customary practice, nor was it good practice, to continue the application of X-Rays through the clothing without any examination to see the result of prior similar treatments.

The evidence in this case discloses very serious injuries resulting to Mrs. Schatzman. The evidence contained in the record shows that the trial court would not have been justified in directing a verdict for the defendant, and the whole record discloses that the finding of the jury, for the plaintiff is sustained by ample evidence.

Finding no prejudicial error, the judgment will be affirmed.

Williams and Lloyd, JJ, concur.


author: HUGHES, J.

text:
    CREDIT ALLIANCE CORPORATION v FINDLAY DAIRY CO
    Ohio Appeals, 3rd Dist, Hancock Co
    No 263.
    Decided Apr 20, 1929
    Nally, Dally & Nally and Aubrey R Moul, Findlay, for Credit Corp.
    Marshall, Melhorn, Marlar & Martin, Toledo, for Dairy Co.
   HUGHES, J.

As a general rule, a receivership is a purely ancillary remedy and cannot be maintained in a proceeding instituted solely for that purpose. But there are some well recognized exceptions to this general rule, where the appointment of a receiver may be and is, the main object and purpose of the suit or proceedings. 23 R. C. L. page 11, Section 5. 23 R. C. L., page 27, Section 22, also page 21.

In the case at bar, the plaintiff has shown without dispute that it has a judgment against the Old Company upon which an execution has been issued and returned for want of any property upon which to make a levy; that all of the assets of the company left, that is, the consideration which was in the form of stock in the New Company, has been disposed of by the Old Company by a transfer to the' stockholders of the Old Company; and that the Old Company has a valid claim against this indemnity company, as above indicated.

We can conceive of po better, if there is any other satisfactory means by which this judgment creditor could enforce his claim, than to have a receiver appointed who would, under the supervision of the court, recover back the stock so transferred to the stockholders and reduce the cause of action against the indemnity company to money, and make distribution according to law.

Therefore the judgment will be for the plaintiff against the defendant Old Company, and a receiver will be appointed, the individual to be agreed upon by the parties forthwith; upon failure in such agreement' he will be named by the court.

Before Judges Hughes, Justice and Crow.


author: ROBERTS, J.

text:
    EVANS v YOUNGSTOWN (city)
    Ohio Appeals, Seventh Dist, Mahoning Co
    Decided March 22, 1929
    Nathan Kaufman, Youngtsown, for Evans.
    W B Spagnola, Youngstown, for City..
   ROBERTS, J.

It is provided in Section 3, Article XVIII, of the Constitution of Ohio, that:

(Here follows quotation)

Section 3628 General Code, in enumeration of municipal powers provides:

(Here follows quotation)

So that we have this concrete proposition presented in issue as to whether or not a municipal ordinance is void which provides for a penalty in excess of five hundred dollars, although the penalty was not imposed excessively in the case under consideration. This proposition has been under the consideration of several courts of appeals, one holding that this law is not operative or effective to control in cities operating under a charter government, and another that while the fine exceeded five hundred dollars, the cáse generally was affirmed and the cause remanded to the lower court for the imposition of sentence within the limits of the statute.

Another court, however, thát of the First Appellate District of Ohio, sitting in Clinton County, in the case of George Brannon v. City of Wilmington, Ohio Law Bull. March 25, 1929 (7 Abs. 136) has recently held differently upon this issue. In this case the fine was only one hundred dollars. The court held that owing to the fact that the ordinance authorized a fine of not to exceed one thousand dollars, and this being in excess of the power of municipalities as provided under Section 3628 G. C., which has just been read, that the ordinance was wholly void and invalid. Counsel for the defendant cite the Village of Struthers v. Sokol, 108 O. S., 263, in support of the ordinance, but this case involved a conflict between the ordinance and the Crabbe and Miller Acts and not the conflict between the ordinance and Section 3628 limiting power to fine, and it is not thought applicable to the present issue. Counsel for the city ignore the refusal of the Supreme Court to order the record certified in Brannon v. Wilmington, which is a more recent case than Marko v. City of Youngstown, (6 Abs. 477) which held otherwise.

This case of Brannon v. Wilmington, to which reference has just been made, and which holds the ordinance invalid, was followed by an application to the Supreme Court to order the record certified, which was overruled. It is, therefore, a reasonable deduction that the Supreme Court did not find that error had probably intervened in the decision made by .the Court of Appeals.

We feel constrained,. under the circumstances, the Supreme Court having declined to order the record certified in this case, to follow that decision, which is done, and the judgment of the lower court is reversed and final judgment entered.

Pollock and Farr, JJ, concur.


text:
    YOUGSTOWN PACKING & PROVISION CO v GALIATO et
    Ohio Appeals, 7th Dist, Mahoning Co
    Decided April 5, 1929
    Ewing & Ewing, Youngstown, for Packing Co.
    D W Mumaw, Youngstown, for Galiato et.
   FARR, J.

After an examination of these sections the court is of the opinion that Section 11105 applies, and this section carries the provision that in order to set aside such conveyance for fraud the grantee in the conveyance must have knowledge of the intended fraud.

There is the further question as to the right of Frank Galiato to be reimbursed for any improvements he may have made upon this property, and, there is testimony going to show that he did make improvements to the amount of about $1,000. In view of the fact that the court reached the conclusion that Section 11105 GC. applies, and that there is not sufficient testimony in this record to bring home to Frank Galiato guilty knowledge as to the purpose of the transfer from his brother Patsy to him, Frank Galiato may be entitled to be reimbursed for the betterments he placed upon the property after he acquired or believed he had acquired title to the same. However, the law relating, to occupying claimants may be applied in that regard and when the cause is certified to the Court of Common Pleas for such proceedings as are authorized by law, whatever rights Frank Galiato may have .as to these betterments upon the property should be worked out and determined according to the provisions of the occupying claimant law in Ohio.

It is also contended that whatever' consideration passed between Frank Galiato and his brother Patsy, had passed at a period previous to the making of the intended deed, and it is claimed that a preexisting debt could not be and was not in the instant case a sufficient considertion. After having examined this question the conclusion is that a pre-existing debt would be a sufficient consideration for this property, and especially is that proposition good in view of the fact that the court reaches the conclusion that whether the deed is good or not that Frank Galiato for want of guilty knowledge may be entitled to have returned to him or secured to him the return of whatever money he invested in this property.

The plaintiff, the Packing & Provision Company, obtained its judgment and it is significant that P,atsy near the time of the securing of this judgment executed the deed to his brother Frank. This perhaps would fasten upon Patsy guilty knowledge or guilty purpose in making the transfer, but would not necessarily bring home to his brother Frank the same knowledge obtaining upon the part of Patsy in transferring his property.

For the reasons given the same judgment will be entered as below and the cause certified back to the court of common pleas for such proceedings as are authorized by law, where the mortgage company holding the mortgage executed by Frank Galiato may have its interests adjudicated. So that the same judgment will be entered here as below and the cause certified back to the court of common pleas for such proceedings as are authorized by law.

Pollock and Roberts, JJ, concur.


text:
    WYMAN v NEWBERRY et
    Ohio Appeals, 9th Dist, Medina Co
    No 86.
    Decided April 18, 1929
    Van Epp & Porter, Medina, for Wyman.
    Guy O Farquharson, Cleveland, for New-berry et.
   PARDEE, J.

It is conceded that the plaintiff and his wife were joint owners and' in possession, of all of said property at the time of her death, and that he was devised the life use of the one-half owned by her and that upon her death he elected to take under her will and went into possession of her half by virtue of said devise.

So, is plaintiff, under those circumstances, disabled from having partition of said property or from having, it sold if it cannot be divided?

We think he is not so disabled.

The plaintiff owned in his own right, at the time he acquired his life estate, one unincumbered undivided half of said property, and he was in the lawful possession thereof, with the right to ask for a partition and to have his one-half set off in severalty or the whole property sold, as provided by the partition laws of this state. There was not then and is not now, a prior life estate upon the whole of said premises, nor upon the half which he owns in fee, and his election to take under his cotenant wife’s will and the rights which accrued therefrom, were not related to or connected with the rights which he previously possessed as the independent owner in fee of the other one-half of said property, and the will did not contain any provision which by his election to take thereunder, estopped him from asserting the rights' which he possessed as such independent owner; and the mere fact that he owned one-half of said property and that he acquired the life use of the other half thereof, does not affect or prevent him from asserting those precedent rights which were attached to his interest in the property at the creation of said life estate.

Lauer v. Green, et al., 99 O. S. 20.

See also—

Morgan v. Stoley, 11 Ohio 389.

Taber v. Wiseman, et al., 2 O. S. 208.

Eberle v. Caier, Jr., et al., 89 O. S. 118.

We are therefore of the opinion that the plaintiff does state a good cause of action and is entitled to. have partition or sale of said property as provided by law.

The next question presented is, can the plaintiff have the value of his life estate determined and paid to him' in money out of the proceeds of the sale, if the commissioners determine that the property cannot. be divided and that a sale of the entire 'tract is advisable?

We do not think so.

The plaintiff relies upon GC. Sec. 12042.

The defendants object to having the value of the life estate determined and the value thereof paid to the plaintiff in money out of the proceeds of the sale.

The foregoing statute does not give to the plaintiff, as the owner of the life estate, the affirmative right to ask for a determination of the value thereof, but only gives him that right by inference from the terms, used; but it does provide that if the commissioners find it for the interest of the parties so to do they may appraise the whole interest and the widow and the tenant for life shall receive the value of their interests out of the proceeds of such sale

When the decedent gave the plaintiff the life use of her real estate, she did not give him the option to ask for the sale thereof and for a determination of its value and the payment of th,at value ¿o him in money. This she might have done, but for reasons of her own she did not do. The laws of this state give a person of full age and of sound mind and memory and not under restraint, the right to dispose of oroperty by last will and testament lawfully executed. This was done by said decedent.

If it is competent for the legislature to give the plaintiff, as the owner of the life estate, this right, it is a limitation upon the power of disposition of property by will, and is in effect an enlargement of the statutes giving the courts the power to sell entailed estates. If the legislature has this power, it is sufficient to say that it has not exercised it.

We are therefore of the opinion that the plaintiff does not have, this right and that the foregoing statute does not have any application to the instant case; but if it be found that the estate cannot be divided without manifest injury and a sale for that reason is necessary, the plaintiff should be paid the value of the one-half owned by him in fee, and the proceeds of the other one-half should be held by a trustee appointed by the court for that purpose .and invested as provided by law, and the income, after paying proper charges, should be paid to plaintiff, and' the corpus upon his death distributed to the remaindermen, ,as their interests may appear.

Punk, PJ, and Washburn, J, concur.


author: WILLIAMS, J.

text:
    OHLEMACHER etc v BENNETT
    Ohio Appeals, 6th Dist, Erie County
    No 291.
    Decided April 22, 1929

      King Ramsey & Flynn, Sandusky, for Ohlemacher.
    G F. Eshenroder, Sandusky, for Bennett.
   WILLIAMS, J.

Plaintiff ip error claims that the trial court erred in refuging to direct a verdict in favor of the defendant.

This court has held in the case of Valentine vs. Pavilonis, Vol. 33, Court of Appeals Opinions, Sixth District, unreported, p 33, (6 Abs 462) that where a pedestrian looks both ways before starting across a street and it does not appear from such testimony as to whether he looked in either direction after he left the curb, and he is struck by an automobile just before he gets to the center of the street, he can not be held to be guilty of contributory negligence as a matter of law.

In the case of Taylor vs. Bauman, Vol. 26 Court of Appeals Opinions, Sixth District, unreported, p. 9. (1 Abs 734) the pedestrian entered the highway in the business section of Castalia in the daytime between cars which were parked closely together and. were so high as to obscure the pedestrian’s vision until he passed into the street beyond the rear of the autos and was struck by an automobile as he came out from the rear of such cars, it was held that the pe.destrian was not guilty of contributory negligence as a matter of law, although it did not appear from the evidence that he looked to see whether a vehicle wás approaching after he had proceeded beyond the line of the automobiles. In that case the judgment was reversed on another ground and the cause remanded for a new trial. Upon retrial a verdict was returned in favor of the plaintiff, which was sustained by this court.

We cannot say that the plaintiff below was guilty of contributory negligence as a matter of law, and as there was evidence tending to show actionable negligence on the part of the defendant below, the court did not err in refusing to direct a verdict for the defendant.

It is also contended that the court erred in failing to charge the law as to Section 6310-34, General Code, which provides in substance that pedestrians shall not walk upon the portion of a highway travelled by vehicles except at crossings or cross walks, unless the crossings or cross walks are an unreaonable distance apart. The trial court in the charge read this section of the statute to the jury but did not comment upon it. It does appear, however, from the record, that any request was submitted by the defendant below. We think the charge is not misleading as given and that the plaintiff in error, having failed to make request that the court charge upon this subject, can not now complain.

We find that substantial justice has been done as between the parties and that there is no prejudicial error apparent upon the face of the record. The judgment will-therefore be affirmed.

Richards, J, concurs. Lloyd, J, concurs in judgment.


author: VICKERY, PJ.

text:
    NATIONAL REFINING CO v CLANCY
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No. 9331.
    Decided March 4, 1929
    Tolies, Hogsett & Ginn, Cleveland for Refining Co.
    Ralph Stickle, Cleveland, for Clancy.
   VICKERY, PJ.

The error upon which a right to have this case reversed is predicated, is that the court erred in not directing a verdict after all the plaintiff’s testimony was in, and ag.ain erred in not directing a verdict after all the testimony was in, for the reason that there was no evidence to show negligente or carelessness on the part of the defendant company, that nothing but an inference could be drawn, or, as is argued, an inference from ,an inference, and under the ruling of the Supreme Court, unless there is more than that, the plaintiff is not entitled to recover.

It is perfectly manifest in this case that the plug was put in, but, according to the testimony of the experts, if it had been properly put in and a wrench had' been properly used, it could under no circumstances have come out, so that, then, the inference from this fact, —not an inference from an inference, —would be that the plug W.as not properly screwed in; that is, no wrench had been properly used on it.

Now, of course, ¡after some refreshing of his recollection, the attendant who worked on this car, who apparently had no knowledge of it at the time, testified that he remembered that he not only put the plug in but that he used a wrench and turned it in tight. This is the question of fact; did he, or did he not? If he did not turn this in with the wrench and that was the cause of the plug coming out, that is, that he left the plug loose so that the vibration of the car on rough roads would shake it out and cause the draining of the crank-case, it would be an act of negligence, and he was acting within the scope of his employment for his company and it would be their act for which there would be responsibility.

Now the two theories of this case were submitted to the jury and the jury having all the evidence' before it apparently did not believe this attendant when he said he used a wrench, for they had the evidence of at least two Buick experts that if the wrench had been used this could not have come out. The jury apparently did not believe the attendant when he said he used the wrench.

It seems to us that here was a jury question. It was fairly submitted to the jury under proper instructions and the jury having found for the plaintiff below, we do not see how we can disturb the finding. We think that counsel for the plaintiff in error is wrong, when he says this is only a case of an inference upon an inference. We think it is an inference, from the facts in this case. One thing, is sure: Clancy drove his car on that rack and the defendant company undertook to refill his crank-case; they did refill it and for some reason the' plug was put in so badly that, during the course of a sixty mile drive it shook out of its place and the damage occurred as a result thereof. We think the jury was fairly warranted in coming to the conclusion that this plug was not properly replaced and that was the cause of the injury.

There being nothing more than the weight of the evidence as we view it, involved, the judgment of the court below will be affirmed.

Sullivan and Levine, JJ, concur.


text:
    METZGER v METZGER
    Ohio Appeals, 4th Dist, Pickaway Co
    Decided April 23, 1929
    Irvin F Snyder, Circleville, for plaintiff in error.
    C A Leist and Barton Walters. Circleville, for defendant in error.
   MAUCK, J.

The substance of the second defense was that on. November 13, 1925, the defendant commenced an action in a District Court of the State of Nevada for divorce; that his wife, Leota Metzger, was subjected to constructive service and later on December 28, 1925, entered her appearance in the Nevada court; that thereafter on January 9, 1926, the divorce case came on to be heard in Nevada, and was heard and a divorce granted to Joseph Metzger, the plaintiff in that case. It is claimed that this decree of divorce, by reason of the personal appearance therein of the wife Leota Metzger, estopped her from further prosecuting her cause for alimony in the courts of this state.

Gilbert v. Gilbert, 83 OS. 265.

The claim in the case at bar by the plaintiff in error' is not that Mrs. Metzger sought an allowance of permanent alimony 'in the Nevada court but that she might have done so as an incident to her resistence of her husband’s petition for divorce in that state, and the broad claim is made by the plaintiff in error that the defendant in error was bound by the Nevada decree not only as to everything litigated in the Nevada case but to everything that might have been litigated. This statement of the law is too broad. Divorce and alimony are separable causes of action, Woods v. Waddle, 44 Oh. St. 459, and the Common Pleas Court of Pickaway County had jurisdiction to entertain the action for alimony at the time the same was filed.

It has been determined that a fact once litigated is forever settled by the judgment in the case. Hixon v. Ogg, 53 Oh. St. 361. It has also been authoritatively determined that when a party has been sued he must set up all the defenses he had to that cause of action and that upon his failure so to do he is barred in a subsequent suit from further setting up those defensive facts of which he might have availed himself in the earlier litigation. See Rotham v. Engle, 97 Oh. St. 77. In both the syllabus and opinion in that case the Supreme Court has been careful to emphasize that this rule binding parties to what might be litigated in a case runs only to facts which are strictly defensive and not to other facts.

The answer in this case to which a demurrer was sustained does not set forth the recitations of. the pleadings in the Nevada case and the answer is defective for that reason. It is not claimed, however, even in argument that there was litigated in the Nevada case the one question upon which the plaintiff’s right to alimony in the Ohio court depended, and, that was the question as to whether or not the husband had been guilty prior to April 28. 1925, of any gross neglect of duty entitling the plaintiff to an award of alimony. If upon the date last mentioned the husband had been guilty of a gross neglect of duty in failing to provide for his wife she was not estopped by the Nevada court’s decree unless that question was tried in the Nevada case. In the fifth edition of Freeman on Judgments, Sections 674 and 675, it is said that the general expression often found to the effect that a judgment is conclusive of every matter which the parties might have litigated is misleading; that what is really meant by this expression is that a judgment is conclusive upon the issues made or tendered, and so far as those issues are concerned of everything which might have been urged for or against them.

Our conclusion is that the answer in this case did no more than plead that Mrs. Metzger was a party to a divorce case in Nevada. It does not show that there was tried out in that case the question of whether or not her husband had been guilty of gross neglect of duty to her prior to April 28, 1925. It does not even show that by the laws of that state such a question could have been tried out. The second defense of the answer was therefore insufficient and the demurrer thereto was properly sustained.

We find no other assignments of error requiring. a discussion. The judgment entered was authorized by the evidence. m

Houck and Lemert, JJ, concur.


text:
    LESLIE v STATE
    Ohio Appeals, 3rd Dist, Hancock Co
    No 243.
    Decided April 8, 1929
    John W Hackett and W H Kinder, Find-lay, for Leslie.
    John E Priddy and A G Fuller, both of Findlay, for State.
   HUGHES, J.

There is nothing disclosed showing that any officer or agent of the State of Ohio did anything unreasonable or unlawful in obtaining possession of this property, and we find no error in the refusal of the court to grant this motion.

This also disposes of the alleged error in permitting the state to use in evidence, the shoes that were taken from the trunk, using, the same for the purpose of fitting on a pair of overshoes that were discarded by the fleeing murderer or murderers.

The weight of the evidence is presented-to us for consideration, and we have read the record carefully.

Even in the face of all the circumstances, one might be persuaded to entertain a doubt of the guilt of the defendant, were there not added to this chain of circumstances the fact that he did not testify in his own behalf. When one is being tried for a crime which may mean even his life, and in any event his liberty, it seems almost unbelievable that if innocent he could be persuaded to refrain from raising his own voice in'a protest of innocence. It is such a fact as warrants a~ jury and also a reviewing court, in giving much thought and consideration thereto.

We cannot come to the conclusion that the verdict is not sustained by the required degree of proof.

There was some evidence permitted to go to the jury regarding the flight of one Willis and a woman, and other testimony regarding conversations held with, and declarations made by, this Willis to the witness. But during the course of the trial, this was taken from the jury’s consideration, with appropriate instructions and comment by the trial judge, and we find no prejudicial error in this respect.

The other errors complained of are such that we are satisfied to say, without an elaborate discussion of the questions raised, that there is found in none meriting, the finding of prejudice.

For the reasons given, the judgment must be affirmed.

Before Judges Hughes, Justice & Crow.