text:
    INDUSTRIAL COMMISSION v. AHERN.
    Ohio Appeals, 1st Dist., Hamilton Co.
    No. 3094.
    Decided Jan. 3, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    1283. WORKMEN’S COMPENSATION.
    Receipt of injuries, by an employee of a concern, contributing to the state insurance fund, which permitted such employee to be in another part of the concern than that of employment, does not preclude participation in insurance fund.
    631. INDUSTRIAL COMMISSION.
    Oral application for rehearing of application to participate in state insurance fund is sufficient to start the proceeding for rehearing; hence a petition filed but not signed will not defeat application if filed.
    85. APPEAL.
    Appeal to action of industrial commission denying application to participate in insurance fund is sufficient if filed in Common Pleas Court within thirty days from final notice refusing compensation.
    631. INDUSTRIAL COMMISSION.
    Industrial commission has power to adopt rules, for branch offices, for rehearing of applications to participate in state insurance and courts may take judicial notice thereof.
    1235. VERDICTS.
    Jury, on appeal to action of industrial commission refusing compensation to applicant, having made special finding of facts and special verdicts for medical services, hospital charges, and loss of wages, verdict for lump sum in accord with special verdicts is not erroneous.
    Error to Common Pleas.
    Judgment affirmed.
    Edward C. Turner, Atty. Gen. and Clarence A. Dorger, Spec. Couns., Cincinnati, for Industrial Commission.
    Dinsmore, Shohl & Sawyer and F. B. Mc-Conaughy, Cincinnati, for Ahern.
    STATEMENT OF FACTS.
    This case arises out of a claim by Nanie Ahern for compensation under the Workmen’s Compensation Law.
    Compensation was refused by the Industrial Commission, and an application for re-hearing was denied. Claimant, thereupon, filed an appeal in the Court of Common Pleas. The trial on the appeal resulted in a verdict and judgment for the claimant. From that judgment, the Industrial Commission proscutes error here.
    Four specifications of error are presented.
    1. Error in overruling the motion to strike the amended petition from the files, on the ground that the appeal was not properly perfected and filed as required by law.
    2. Error in permitting the jury to return a verdict for a lump sum.
    3. Error in overruling the motion to strike from the amended petition allegations of hospital and medical expenses in a sum in excess of two hundred dollars.
    4. Error in defining the phrase: “In the course of and arising out of employment.”
    It appears from the record that on April 14, 1925, the claimant sustained an injury while in the employ of The H. & S. Pogue Company, which company is a contributor to the State Insurance Fund; that while so employed, she was permitted a little time to go to another part of the store, to select a rug for herself. While doing so, she received a fall resulting in a fracture of both wrists, which occasioned loss of time and medical and hospital bills.
    Application for compensation was made to the Industrial Commission, claiming the right to participate in the State Insurance Fund. This application was disallowed on September 22, 1925, on the ground that the injury was not sustained in the course of the employment. And, on September 24, 1925, the claimant was so notified. Twenty-nine days later, to-wit on October 23, 1925, the claimant filed an application for rehearing in the branch office of the Industrial Commission in the Duttenhofer Building, in Cincinnati, Ohio. This application for re-hearing was stamped on the records at the main office in Columbus, Ohio, as of November 3, 1925. The application for a rehearing was disallowed, and claimant was notified on November 19, 1925. -The appeal was filed and the action brought in the Court of Common Pleas December 3, 1925.
    It appears that on April 14, 1925, an application was filled out by the claimant and sent to the Industrial Commission shortly thereafter. The application was not signed by the claimant. On May 6, following, the Industrial Commission returned the application for her signature.
    Sometime in June, 1925, a second application was sent to the Industrial Commission, signed with the mark of the claimant. This application was returned to the claimant with instructions: “that the claim be set aside until the proper signature of the injured person is obtained and the employer and others interested so notified.”
   HAMILTON, PJ.

It is in the record that a signed application was submitted; it appearing to have been signed under date of July 8, 1925, and sent to the Industrial Commission of Ohio. Just when the Industrial Commission received this application, the record does not disclose. However that may be, under our view of the law, as pronounced in the case of W. S. Tyler Co. v. Rebic, a Cuyahoga County case, decided November 28, 1927, the claim was filed prior to the effective date of the amendment to the Workmen’s Compensation Law of July 15, 1925. In the Rebic case we held, and we think properly so, that an oral application was sufficient to start a proceeding. In this case, written applications were made, although not signed by claimant in her own name, and were filed prior to the date in question, to-wit: July 15, 1925.

We also held in the Rebie case that the filing of the claim was the commencement of a proceeding, and, under Section 26 of the General Code, the amended law would not apply, but the proceeding would carry through under the law as it existed prior to the amendment. Therefore, it was necessary to file the appeal in the Court of Common Pleas within thirty days from notice of the final action of the Commission, refusing compensation. The question is: When was the final action taken ?

The Industrial Commission is empowered by the statutes to maintain branch offices and adopt rules and regulations not inconsistent with the statutes, and such rules are a part of the law applicable to the administration of the law, and of which the courts take judicial notice. While it is true, the statute prior to July 15, 1925, did not provide for a re-hearing, the Commission adopted rules applicable in administering the law. It adopted Rule 22, entitled “Re-hearing.”

The application of this rule as affecting the right of appeal was before the Cuyahoga County Court of Appeals in the case of Industrial Commission of Ohio v. Patterson, 12 Ohio App. 180, also in the case of Industrial Commission of Ohio v. Glenn, 101 Ohio St. 454.

These decisions settle the question, and are in accord with our view of the law that Rule 22 was within the power of the commission to make, and, under that rule, final action was deferred until after the re-hearing, and that the thirty day limitation in the statute dates from the notice of that action.

This appeal, having been filed in the Court of Common Pleas on the 29th day from the receipt of the notice of the final action on the application for rehearing, the appeal was properly filed.

That the application for re-hearing was filed in the Branch Office of the Industrial Commission in Cincinnati, and not at the main office in Columbus, we do not consider important.

Error is claimed in permitting the jury to return a verdict for a lump sum and make an allowance for hospital and medical services in excess of $200.

In the special verdicts the jury found the amount of the hospital services to be $234.00, and the amount" of medical services to be $210.00. These two items make a total of $444.00. The evidence disclosed loss of wages for a period of eight weeks. While the general verdict gives a total of $561.36, it appears that this sum was made up from the special findings under the law and instructions of the court, within the provision of the statute. No prejudice could result from the fact that the general verdict stated a lump sum, which general verdict was in accord with the special findings and judgment.

It is argued that under Section 1465-89, General Code, compensation for hospital and medical services is limited to the sum of $200.00.

The jury made special findings of fact on the question of medical and hospital services, finding that this was an unusual case and that it was clearly shown that the actually necessary hospital and medical expenses exceeded the sum of $200.00; it apportioned the amount of hospital services at $234.00, and the amount of medical services at $210.00. So that under the law and the special finding of facts, the jury was authorized to return a verdict for medical and hospital services in excess of the sum of $200.00.

It is argued that the injury did not arise out of, and in the course of the employment, and that the court erroneously charged on this point.

We are of opinion from the record that there was evidence upon which the jury could find that the injury arose out of and in the course of the employment, within the rule laid down in the case of Taylor v. Industrial Commission of Ohio, 13 Ohio App. 262, and the Court did not err in its instruction to the jury.

Our conclusion is that there is no error in the record, prejudicial to the plaintiff in error.

The judgment of the Court of Common Pleas is affirmed.

(Mills and Cushing, JJ., concur.)


source: Caselaw Access Project

author: BY THE COURT:

license: Public Domain

text:
    STEIN v. STEIN et.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8758.
    Decided June 25, 1928.
    Middleton, PJ., and Mauck, J., of the 4th Dist., and Lemert, J., of the 5th Dist., sitting.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    791. MOTIONS & ORDERS — 413 Divorce & Alimony.
    Where plaintiff has been decreed alimony for support of children, court may not in absence of plaintiff, and without notice to her of application to that effect, make order reducing the amount.
    Error to Common Pleas.
    Judgment reversed.
    Geo. C. Dissette, Cleveland, for plaintiff in error.
    T. C. Brinsmade, Cleveland, for defendant in error.
   PULL TEXT.

BY THE COURT:

At the September Term, 1926, of the Court of Common Pleas, Katherine Stein was awarded a decree of divorce from Louis Stein and was decreed alimony for the support of the children of the marriage at the rate of Fifty Dollars per month. In the decree appears an agreement to the effect that the plaintiff in error would remove from the house then occupied by her and owned by Jacob Stein. At the September Term, 1927, Jacob Stein sought to have the plaintiff adjudged in contempt of court for her failure to vacate the property. Thereafter, the Court of Common Pleas, at the September Term, 1927, decreed that the plaintiff should receive Fifteen Dollars per month only for the support of her children unless she vacated the property. The court was without power to make this order. It was made in the absence of the plaintiff in error and without notice to her of any application to that effect, and no application was in fact made.

The situation is governed by the principle laid down in Hetrick v. Wilson, 12 OS. 136.

(Middleton, PJ., Mauck and Lemert, JJ., com cur.)


author: WILLIAMS, J.

text:
    MICHALEK v. STATE.
    Ohio Appeals, 6th Dist., Lucas Co.
    No. 2053.
    Decided June 18, 1928.
    225. CHARGE OF COURT — 333. Criminal Law — 61. Alibi.
    Charge that proof on subject of alibi must cover entire time in question, making it definite and impossible for defendant to have been at scene of crime at time alleged, held prejudicial error.
    Error to Common Pleas.
    Judgment reversed.
    Haekett & Lynch and A. C. Czelusta, Toledo, for Michalek.
    Leroy W. Hunt, Pros. Atty., and Cecil Stick-ney, Toledo, for State.
   WILLIAMS, J.

The defendant below, Michael Michalak, who is the plaintiff in error here, was indicted on a charge of burglary and larceny, and on trial of the cause was found guilty of larceny, the value of the property stolen being fixed at $4,811.40. He was sentenced to a term in the. penitentiary, the minimum period being fixed at four years. After the overruling of a motion for a new trial, he brought this proceeding-in error.

The court charged the jury as follows:

“But this jury must understand and bear in mind on the subject of this alibi that the proof thereof must cover the' entire time in question, that is to make it definite and impossible for the defendant to have been at the scene of the crime at the time it is alleged to have occurred.”

The giving of this charge was error prejudicial to the plaintiff in error. State v. Norman, 103 Ohio St., 541; Stevens v. State, 26 Ohio App., 49, Ohio Law Bulletin & Reporter of February 27, 1928.

■ We call attention to the fact that the trial court, in violation of the rule laid down in Wagner v. State, 115 Ohio St., 136, required the defendant below to^ answer, over the objection and exception of his counsel, an inquiry as to whether or not he had been arrested on a charge of stealing mortgaged property, no proof being offered during the trial tending to show that the defendant had been convicted of such offense after arrest.

For the prejudicial error above referred to, the cause is reversed and remanded for a new trial.

(Richards and Lloyd, JJ., concur.)


author: JUSTICE, J. Crow and Hughes, JJ.,

text:
    STERRETT v. HOOVER BOND CO.
    Ohio Appeals, 3rd Dist., Allen Co.
    No. 478.
    Decided June 27, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    677. JUDGMENTS & DECREES — 791. Motions and Orders.
    Where, through misunderstanding of counsel, judgment entry has, without authority, been spread on journal, court may properly order it expunged. Trial court has inherent power to strike such entry from journal at any time.
    Error to Common Pleas.
    Judgment affirmed.
    Mackenzie & Weadock, Lima, for Sterrett.
    , M. C. Light and W. S. Jackson, Lima, for Bond. Co.
   FULL TEXT.

JUSTICE, J.

The plaintiff in error here, was plaintiff below.

The action was originally brought in the Court of Common Pleas of this county to recover damages for the alleged wrongful conversion by defendant of certain household furniture, the property of plaintiff. The case was tried to a jury and a verdict was returned in favor of plaintiff for $554.50. A motion for a new trial was filed, which, according to an entry, approved by counsel for defendant and filed with the clerk, was on January 11, 1926, overruled. On April 5, 1927, the trial court, upon motion of defendant, ordered the entry of January 11, 1926, stricken from the journal. This proceeding in error is prosecuted to reverse that order.

It appears that the verdict was returned during the September term, 1925, to wit: December 8, 1925; that the motion for a new trial was filed during the September term, 1925, to wit: December 12, 1925; that the entry overruling said motion and entering judgment on the verdict, was entered during said term, to wit: January 11, 1926; that the motion to strike the entry of January 11, 1926, from the journal was filed during the January term, 1926, to wit: April 2, 1926, and was overruled during the April term, 1926, to wit: September 18, 1926; that an application for a rehearing of the motion' to strike the judgment entry from the journal, was filed during the April term, 1926, to wit: September 24, 1926; that said application for a rehearing was sustained during the January term, 1927, to wit: February 5, 1927; and, that the order expunging the entry of January 11, 1926, from the journal of the court, was made and entered during the April term, 1927, to wit: April 5, 1927.

It further appears that the motion for a new trial was assigned for hearing on January 8, 1926; that counsel for defendant was ill and by reason thereof was not present in court when the motion was called; that counsel for plaintiff was present and informed the court he did not care to be heard on the motion and that unless counsel for defendant desired to be heard, “the court could decide the ease — overrule the motion”; that on the following day, according to counsel for plaintiff, he met counsel for defendant and told him that unless he wanted to be heard on the motion, it would be overruled; and that counsel for defendant then stated, “Well, that is all right, leave it that way”; that counsel for plaintiff then prepared an entry overruling the motion for a new trial and entering judgment on the verdict and caused it to be submitted to counsel for defendant; that counsel for defendant approved the entry; and, that thereupon it was filed with the clerk. It further appears that counsel for defendant denies he told counsel for plaintiff that it would be all right for the court to overrule the motion, but admits that he approved the entry; that he approved the entry under the belief that the court had overruled the motion; and, that if he had not so believed, he, would not have approved it.

It further appears that sometime after approving the entry, counsel for defendant was told by the trial judge that he had not passed on the motion for a new trial, and that if counsel for defendant desired to argue the motion the court would hear him; that counsel for defendant told the court that he did want to be heard on the motion; that thereupon the trial court assigned the motion for a new trial for hearing; that on the day the motion was assigned for hearing, counsel for plaintiff and defendant were present; that counsel for plaintiff told the court that he, after being told by counsel for defendant that he did not desire to be heard on the motion, had prepared the entry in question, had obtained the approval of counsel for defendant thereto, and had filed it on • January 11, 1926, with the clerk.

It is the contention of counsel for plaintiff that the trial court erred in striking' the entry of January 11, 1926, from the journal, for the reason that the discretionary power of the court over its own orders and judgments ends with the term; that the power of the trial court to vacate its judgment after term, on motion, is controlled by Section 11631, General Code, and that said Section 11631, General Code, is not applicable to the case at bar.

It is the contention of defendant that the entry of January 11, 1926, is false and therefore could be stricken from the journal of the court at any time.

As I see this case it is not necessary for us to determine whether the trial court did or did not have power, under Section 11631, General Code, to make the order complained of.

Concededly, the trial court has neither passed ■ on the motion nor entered judgment on the verdict.

Through a misunderstanding of counsel, the judgment entry was spread on the journal. It ought not to have been placed there, since the entry was not made with authority, and the court properly ordered it to be expunged. The trial court had inherent power to strike said entry from the journal at any time. Freeman on Judgments, Section 226.

Holding these views, it follows that the judgment of the Court of Common Pleas should be affirmed.

Crow and Hughes, JJ.,

concur in the judgment, being of opinion that the vacated judgment was entered by mistake of the clerk, and that when in fact no such judgment had been pronounced by the court, the trial court had power under Section 11631, General Code, to correct its records at the time it was corrected. Elliott v. Platter, 43 OS. 198.


author: FUNK, J.

text:
    WARREN GUAR. TITLE & MORTG. CO. v. WILLIAMS et.
    Ohio Appeals, 9th Dist., Summit Co.
    Paul E. Kightlinger, Warren, and Myers & Dinsmore, Akron, for Mortg. Co.
    Fillius & Fillius, Warren, for successor 2nd Nat. Bk. of Warren.
   FUNK, J.

362. DEBTOR & CREDITOR — 106. Assignments — 112. Attachment.

The assignment, in good faith, for value, of an interest in a pending suit, which suit proceeds to judgment in the name o fthe assignor, is valid as against an attaching creditor, where the assignment is made prior to the time of the attachment, although no notice of the assignment is given to the judgment debtor or attaching creditor prior to the service of the attachment, but is given before the judgment is paid.

(Washburn, PJ., and Pardee, J., concur.)

For reference to full opinion, see Omnibus Index, last page, this issue.


text:
    HARMONY REALTY CO. v. UNDERWOOD.
    Ohio Supreme Court.
    No. 20894.
    Decided May 23, 1928.
    703. LANDLORD & TENANT! — 829. Negligence — 1113. Streets & Walks.
   Landlord held not liable to tenant injured by falling over sidewalk repair material, such material having been placed on such walk by independent contractor, and not by agent or servant of landlord.

For reference to full opinion, see Omnibus Index, last page, this issue.


author: MIDDLETON, PJ.

text:
    VAN CANFORT CO. v. MORRIS.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8424.
    Decided June 25, 1928.
    Middleton, PJ., and Mauck, J., of the 4th Dist., and Lemert, J., of the 5th Dist., sitting.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    480. EVIDENCE — 557 Fraud.
    Testimony, tending to prove fraud in alteration of written contract, after signed, not inadmissible on grounds that it tends to change or modify terms of written contract.
    465. ERROR PROCEEDINGS.
    Where several issues are made by answer and verdict is general one, necessary for plaintiff in error to show substantial error in submission of every issue so raised, to warrant reversal.
    Error to Common Pleas.
    Judgment affirmed.
    Sidney A. Davies, Cleveland, for Van Cant-fort Co.
    E. P. Dowling, Cleveland, for Morris.
   FULL TEXT.

MIDDLETON, PJ.

This is a proceeding to reverse a judgment rendered on the verdict of the jury. An inspection of the record shows that the evidence adduced by the parties to this action in the trial court was conflicting on substantially every ultimate fact involved in the case. If the jury believed the testimony of the defendant, Margaret Morris, their verdict is amply supported by the evidence,

The complaint that her testimony tended to change or modify the terms of a written contract, and for that reason was not admissible, is not well founded. Her testimony is to the effect that the contract relied upon by the plaintiffs, is not the contract she signed, by reason of the alleged fraud on the part of the plaintiff by which certain provisions of the contract she claimed she did sign, was stricken therefrom. Under these claims her evidence clearly was admissible.

As before observed we are not warranted in disturbing this judgment, on the ground that it is against the manifest weight of the evidence, and we find no error in the charge of the court.

There were several issues in the case made by the answer of the defendant, and the verdict in her favor was a general one.

Under this status of the case, it would be necessary for the plaintiff in error to show substantial error in the submission of every issue raised by the .defendant’s answer, to warrant a reversal of the judgment. .

(Mauck and Lemert JJ., concur.)


author: VICKERY, J.

text:
    PICKERING, Admr. v. KOESLING et.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8380.
    Decided Mar. 19, 1928.
    Syllabus by Editorial Staff.
    552a. FOSTER CHILDREN — 362a. Decedents’ Estates.
    Foster children can inherit from foster parents, but cannot inherit through them.
    Appeal from Common Pleas.
    Decree for plaintiff.
    F. K. Pickering, Cleveland, for Pickering, Admr.
    Klein, Harris & Diehm and Payer, Minshall, Kareh & Kerr, Cleveland, for Koesling et.
    STATEMENT OF FACTS.
    It seems that the plaintiff, Pickering, was the administrator of the estate of Mathias Hartman, who died intestate, leaving no wife nor children, and Pickering was appointed by the Probate Court of this County as administrator of the estate which amounted to something like $22,000.
    It seems that Mrs. Koesling, having no children of her own, she and her husband adopted two children and that she died before her brother, the decedent Hartman, of whose estate Pickering is administrator. It seems that the decedent left eight first cousins and six children of three deceased first cousins surviving him, who are next of kin and entitled to inherit this property, unless these two foster children of the decedent’s sister are preferred.
    It is claimed by the foster children that under the statute they are nearer in descent to the decedent than the other claimants of this estate, but they admit in open court, that the contestants are relatives entitled to inherit if they are not, but that these claimants are more remote in relationship to the decedent than the two foster children and they base this contention upon the statute, Section 8030 General Code, which provides that foster children are to be deemed and treated as natural children and entitled to all the benefits that natural children would have from the parents. It is claimed in argument that as the law now stands, they can not only inherit from the foster father and mother, but they can inherit through the foster parents.
   VICKERY, J.

Now it must he remembered that the foster mother, the sister of this decedent, died long prior to the decedent’s death and that the foster mother was never seized, either directly or in expectancy of anything that was left by the brother. Of course, if she had natural children, her own children, they would be the nephews and nieces of the brother of the foster mother, but because the statute makes the foster children capable of inheriting from the father and mother, does that make them nieces and nephews of a brother or sister of the foster father or foster mother? We think not. We think thei law is well settled in Ohio, as cited in the case of Quigley v. Mitchell, 41 OS. 375, where the court expressly holds that foster children can inherit from but not through the foster parents. This doctrine was re-affirmed and reasserted in the case of Phillips, Executor, v. McConica, Guardian, 59 OS. 1, but it is argued that since that case was decided the statute has been changed. It has been changed, but we think the change has still made it clear that from all except the foster brothers and sisters they could not inherit from any other relative. Under the law as it now stands, if the foster parents of these claimants had a natural child and the decedent in the instant case had died intestate, the money would have gone to that nephew or niece, the natural child of the decedent’s sister, and had such natural child died after he had inherited that money, then the foster brother and sister could have inherited from him. That is what the change of the statutes means, and that is all it does mean. It does not enlarge the right to inherit through foster parents, except as is mentioned in the statute.

To show that they are not the same as natural children: If the foster children had parents that were rich and they died intestate, the foster children, notwithstanding they had been adopted by somebody else and somebody else was liable for their support, would still be the heirs of the natural parents, and nobody would claim, because they were entitled to inherit from their natural parents, that their foster brothers and sisters, children of the foster parents would be entitled to inherit with them from their natural parents. This shows a different relation is existing between them, and the statute was passed to protect, so far as it could protect, the foster children, so that they should be treated like natural children out of the estate of their foster parents who died intestate. They can participate in a division of the foster parents’ estate, for it would be manifestly unjust to deprive them of benefits when they have been regarded as children always, but how that can affect the rights of third persons who had nothing to say about their adoption and' were not responsible for their keep nor entitled to their services in any way, how they could say that could apply to third persons, to outside persons, we do not understand.

We think it is clear and unequivocal that the foster children can inherit from the foster parents, but they cannot inherit through them, and a decree will be entered for the plaintiff, order see journal.

(Sullivan, PJ., concurs. Levine, J., not sitting.)


text:
    SCHOONER v. BARON.
    Ohio Appeals, 6th Dist., Wood Co.
    No. 433.
    Decided June 18, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    829. NEGLIGENCE. — 225. Charge of Court.
    Where evidence fails to show any actionable negligence on part of defendant, failure of court to charge doctrine of comparative negligence in accordance with 6245-1 GC., and failure to give plaintiff’s request to charge, before argument, involving question of comparative negligence, not erroneous.
    Error to Common Pleas.
    Judgment affirmed.
    George Cheney, Bowling Green, for Schooner.
    S. W. Bowman, Bowling Green, for Baron.
   FULL TEXT.

WILLIAMS, J.

The plaintiff below, Thomas Schooner, brought an action in the Court of Common Pleas against the defendant below, Henry Baron, in which he sought to recover for personal injuries sustained to his hand in cranking a truck of the defendant, who was his employer. Upon trial in the court below the jury returned a verdict for the defendant and judgment was entered thereon. The plaintiff below, as plaintiff in error here, seeks a reversal of the judgment upon the ground that the court failed to charge the doctrine of comparative negligence in accordance with the provisions of Sec. 6245-1, General Code, and to give plaintiff’s request to charge before argument involving the same question.

It is undisputed that the employer did not come within the provisions of the Workmen’s Compensation Act for the reason that he did not employ the requisite number of men to make that act applicable.

It appears from the bill of exceptions that the plaintiff was assisting the defendant, who was a junk dealer, in hauling certain junk in defendant’s truck, and that when the defendant went away the' plaintiff undertook to operate the truck and that the plaintiff ran “it up in the yard and stopped” and that thereupon the plaintiff got out of the truck and tried to start it and it backfired and kicked plaintiff in the hand, injuring him. An examination was made of the engine and it was found that the crank shaft was broken. We are of the opinion that there is no evidence in the record tending to show that the defendant was guilty of negligence in maintaining, inspecting or caring for the truck, or that the breaking of the crank shaft, even if it arose out of the negligence of the defendant, was the proximate cause of plaintiff's injury. There is no evidence in the record tending to show that the crank shaft was defective, or what caused it to break. For all that appears, the breakage was as likely to have been caused by the act of the plaintiff himself in cranking. it as otherwise. It was therefore the duty of the trial judge, at the conclusion of the evidence, to cause a non-suit to be entered or to instruct the jury to return a verdict in favor of the defendant for the reason that as a matter of law the defendant was not guilty of any actionable negligence. The judgment in favor of the defendant was one required by the evidence, and there was therefore no error prejudicial to the plaintiff in that the court refused to give the request asked and failed to charge the jury as to the doctrine of comparative negligence under the statute.

The judgment, therefore, should be affirmed.

(Richards and Lloyd, JJ., concur.)


author: RICHARDS, J.

text:
    WHEELER v. KUNTSBECK et.
    Ohio Appeals, 6th Dist., Lucas Co.
    No. 2047.
    Decided June 25, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    953a. PRIORITY — 787. Mortgages — 677. Judgments.
    Note and mortgage dated and filed Oct. 23, 1923, given to secure pre-existing debt, constitutes prior lien to judgment in action for tort, which action was commenced on Sept. 28, 1923, and judgment recovered Nov. 18,
    1924. Such lien is prior, nothwithstanding mortgagor insolvent at time of execution of note and mortgage, and notwithstanding intent of mortgagor to create preference by execution thereof.
    Error to Common Pleas.
    Judgment affirmed.
    Tracy, Chapman & Welles, Toledo, for Wheeler.
    Esther Antin, Toledo, for Kuntsbeck, et.
   FULL TEXT.

RICHARDS, J.

This case involves a question of priority between a mortgage held by Andrew Kuntsbeck and a judgment lien secured by C. H. Wheeler, based on a claim for personal injuries. The trial court held that the mortgage had priority and error is prosecuted to reverse that judgment.

The promissory note and mortgage held by Kuntsbeck are for $2500.00 and were executed on October 22, 1923, and filed for record on October 23, 1923. They were not based on any consideration passing simultaneously with or subsequently to their execution, but were based upon a valid consideration existing at and prior to the time of their execution.

On August 11, 1923, Wheeler suffered personal injuries arising by reason of the negligence of Ignaz Lorenz and Frieda Lorenz. For these injuries he brought an action against them on September 28, 1923, and recovered judgment on November 18, 1924, for $4750.00. At the time Ignaz and Frieda Lorenz executed the note and mortgage to Kuntsheek, they were insolvent and had knowledge that Wheeler had brought an action against them to recover damages for personal injuries.

The cause of action existing in Wheeler was one for tort and he was not an existing creditor at the time of the execution of the note and mortgage to Kuntsbeck. Judgment was not secured by him until long after the execution of the note and mortgage and the placing of the mortgage on record, and as to Kuntsbeck, Wheeler must be treated as a subsequent creditor.

Pfisterer v. T. B. G. & S. Traction Co., 89 Ohio St., 172; Schubeler v. Lilly, 23 Ohio App., 481.

Lorenz and wife had the right, under the law, against such a claim, to secure a pre-existing debt by mortgage, and the execution of such mortgage does not constitute actual fraud.

The Court of Common Pleas was right in holdmg that the mortgage had priority over the judgment, nothwithstanding the intent of Lorenz and wife to create a preference by the execution thereof, and the judgment will be affirmed.

(Williams and Lloyd, JJ., concur.)


author: HUGHES, J.

text:
    WEAMER et v. SLEMMER.
    Ohio Appeals, 3rd Dist., Mercer Co.
    No. 413.
    Decided June 22, 1928.
    First Publication of This Opinion
    Syllabus by Editorial Staff.
    1159. TAXES & ASSESSMENTS — 27. Actions.
    Where tax payer has full and complete administrative remedy, furnished under Chapter 11 beginning with Section 5579 GC., he cannot, after failing to pursue such remedy, avail himself of provisions of 12075 GC., by seeking to enjoin collection of taxes resulting from increased valuations.
    Action for injunction.
    Petition dismissed.
    B. A. Myers, and W. E. Touvelle, Celina, for Weamer.
    John W. Loree, Celina, for Slemmer.
   FULL TEXT.

HUGHES, J.

This is an action brought by the plaintiff for himself and on behalf of all other taxpayers in the Village of Coldwater, similarly situated, against the county treasurer and the county auditor, to enjoin the auditor from making up a tax list and duplicate and certifying the same to the county treasurer for the collection of taxes for the year 1926 from the plaintiff and the others joined with him, and to enjoin the treasurer from collecting spch tax so certified, under and by virtue of a reappraisement that is. claimed to be illegal.

It is claimed that the county auditor failed to lay before the county board of revision, the return of his assessments of the real property in Coldwater, until July 23rd instead of on or before the first Monday in July as required by Section 5605, General Code, and that he failed to give the notice required by Section 5606, after the board of revision had completed its work of equalization; and that he failed to deliver and certify a copy of the tax list to the Tax Commission of Ohio on the first Monday of September, under Section 2583, General Code, but delivered the same on the first day of October.

There are other claims of omissions and tardiness on the part of the auditor in preparing his tax duplicate and giving notices after the Tax Commission had increased the total valuation of the property in Coldwater by twenty percent. - ¡

When the case made by plaintiff is boiled down, it is clearly shown that he is complaining for himself and on behalf of the other taxpayers, because the real estate of Coldwater has been placed upon the tax duplicate at more than its real value in money.

It is urged upon us that there is a misjoinder cf parties plaintiff, but this question we deem unnecessary to discuss for the reason that we have arrived at the conclusion that the plaintiff and the others that he has joined with him, had a full and complete administrative remedy furnished under Chapter 11, beginning with Section 5579, General Code.

Whether or not the plaintiff could join with him the other taxpayers so similarly situated, in procuring the administrative relief afforded him under this chapter, need not here be decided. It is sufficient to say that for the wrongs complained of, his remedy is made complete by this chapter. And as was held in the ease of Hannah v. Winder, 112, OS. 158:

“Such taxpayer must pursue the administrative remedy so provided. Failing to do so, he cannot avail himself of the provisions of Section 12075, General Code, by seeking to enjoin the collection of taxes resulting from the increased valuations.”

Petition dismissed.


text:
    HUBER v. MERTZ.
    Ohio Appeals, 3rd Dist., Hardin Co.
    No. 203.
    Decided June 7, 1928.
    First Publication of This Opinion
    Syllabus by Editorial Staff.
    887. PARTIES — 791. Motions & Orders.
    On motion by plaintiff to make interested person party to case where such puerson is before court at time motion is made, and authorizes plaintiff’s attorney to represent him in action, such motion will be sustained.
    85. APPEAL,
    Where evidence shows that there has been breach of covenants in contract as complained of by plaintiff, plaintiff still has right to appeal from adverse judgment, notwithstanding, he has made conveyance of his interest in subject matter.
    1037. RESTRAINT OF TRADE.
    Assignee of good will has right to enforce valid and lawful covenant in restraint of trade running to successors of covenantee.
    Appeal from Common Pleas.
    Decree for plaintiff.
    Michael B. Underwood, Ada, for Huber.
    Jugo F. Chestosky, Steubenville, for Mertz.
   FULL TEXT.

Before Judges Crow, Hughes and Justice.

HUGHES, J.

On the 26th day of August, 1920, defendant sold to plaintiff, his furniture, rugs and fixtures business in the Village of Ada, Ohio, as a going concern, warranting the title to the property and covenanting that it was clear of liens and incumbrances and further agreeing not to enter the furniture and rug business in or within a radius of ten miles of Ada within ten years from the date of the contract. Plaintiff took possession of the store and conducted it as a going concern, and by this suit complains of a breach of the covenant on the part of the defendant not to enter the business of furniture and rugs.

The case was tried and appealed, by the defendant from a judgment against him.

During the trial it developed from the evidence, that plaintiff had sold to his brother, this same business, with an agreement with him that in the event this law suit failed and the defendant was not enjoined from a further breach of his covenant with the plaintiff, a readjustment of the consideration paid by the brother to the plaintiff would be made.

A motion was made by the defendant to dismiss the action because of this showing.

There was also a motion made by the plaintiff to make his brother a party to- this, action.

After due consideration, we overrule the motion of the defendant to dismiss the action, and sustain the motion of the plaintiff to- make his brother a party, he being before the court at the time the motion was made, authorizing plaintiff’s attorney to represent him in the action. See General Code, Section 11261.

We find from the evidence that there has been a breach of the covenant in the contract as complained of by the plaintiff, and the sole question that now remains is whether or not this action can proceed after plaintiff has made a conveyance of his interest in the store. III the case of Wolf v. Cottington, reported in the 5 Circuit Decisions, 671, it is held that notwithstanding the conveyance of the real estate involved in the suit, by the defendant, nevertheless he had still a right to appeal from an adverse judgment. And we think this principle. applies here and we hold that the plaintiff in this action still has a right to prosecute the action, on appeal. In fact, the appeal in this case was made and the case was pending in this court before plaintiff had sold his interest, However, upon the same principle announced in the Wolf case above cited, the plaintiff would have a right to litigate this action here. In addition to that, however, his brother, the assignee of his interest, is now joining with him in this litigation.

In the case of Morgan v. Perhamus, 36 OS. 517, our Supreme Court has said that an as-signee of the good will, has a right to enforce a valid and lawful covenant in restraint of trade running to the successors of the cove-nantee.

We find no case quite in point, decided by our courts, but agree with the principle announced in the case of Haugen v. Sundseth, 118 N.W. 666; Upon this principle, the plaintiff is clearly entitled to the relief prayed for.

For the reasons given, the judgment and finding is in favor of the plaintiff and against the defendant Mertz, at his costs. Injunction as prayed for, is allowed.


text:
    SCOTT v. ARCHER et.
    Ohio Appeals, 3rd Dist., Van Wert Co.
    No. 109.
    Decided May 24, 1928.
    First Publication of This Opinion
    Syllabus by Editorial Staff.
    677. JUDGMENTS' — 557. Fraud.
    Final judgment will not, in equity, be set aside unless there is clear showing of fraud or undue advantage on part of prevailing party, and this, fraud or undue advantage must consist or extrinsic acts outside of and collateral to matter actually tried by the first court and not related to the matter concerning which the judgment or decree was rendered.
    Judgment for defendant.
    Conn, Hoke & Wright and S. E. Walters, Van Wert, for Scott.
    Stickle & Cessna, Roy W. Roof and Herman D. Lease, Kenton, for Archer, et.
   FULL TEXT.

(Before Judges Hughes, and Justice. Crow, J., not participating.)

HUGHES, J.

The judgment involved in this case was entered in the Court of Common Pleas of Hardin County and execution issued to the sheriff of Van Wert County, who was proceeding to sell the real estate owned by the plaintiff herein, to satisfy the judgment, when this action was brought to vacate the original judgment upon the ground that it had been procured by fraud.

. When this case came on for trial, the question of the jurisdiction of the persons of the defendants was raised by a motion and by a general demurrer the validity of the cause of action pleaded, was also presented. But these questions were passed at the time and the cause heard upon its merits, and we are therefore passing these questions at this time, to dispose of the matter upon the merits.

If there is a cause of action stated in the petition, it is founded upon the claim that the judgment attacked, was procured by fraud.

It is well settled in the case of Michael v. The American National Bank, 84 OS. page 370, that a final judgment will not, in equity, be set aside unless there is a clear showing of fraud or undue advantage on the part of .the prevailing party, and this fraud or undue advantage must consist of extrinsic acts outside of and collateral to the matter actually tried by the first court and not related to the matter concerning which the judgment or decree was rendered.

The evidence adduced in the trial before us consisted both of oral testimony and a transcript of the evidence taken in the Court of Common Pleas in the trial below.

We find no evidence of extrinsic acts outside of and collateral to the matter actually tried in the first case in Hardin County; nor do we find any claim of such evidence on the part of the plaintiff here. All of the evidence adduced in the trial is relevant to the matter actually tried in the Court of Common Pleas or matters and issues that should and could have been presented in that case. We may observe that much of the evidence that is adduced here, is in regard to the consideration or lack of consideration given for the notes involved in the judgment. In the Hardin County case, that defense was plead but afterwards voluntarily withdrawn by the defendant there, plaintiff here, and hence there was no evidence offered pertaining to that issue in the Hardin County case.

There being no evidence tending to prove any extrinsic acts outside of and collateral to the matter actually tried in the case before the Common Pleas Court of Hardin County, which are not related to matters concerning which the judgment or decree was rendered, the plaintiff herein must fail, and judgment entered in favor of the defendants.


author: JUSTICE, J.

text:
    NICHOLS v. STATE.
    Ohio Appeals, 3rd Dist., Hardin Co.
    No. 192.
    Decided May 24, 1928.
    First Publication of This Opinion
    Syllabus by Editorial Staff.
    1231. VENUE — 333. Criminal Law.
    The following questions and answers “Q. In what county did this shooting happen? A. Hardin County. Q. And what state ? A. Ohio,” held sufficient to prove venue.
    Error to Common Pleas.
    Judgment affirmed.
    Foster E. King, Kenton, for Nichols.
    L. B. Brown, Kenton, for State.
   FULL TEXT.

Before Judges Crow, Hughes and Justice.

JUSTICE, J.

Lester Nichols was indicted under Section 12420, General Code. •

The indictment contains two counts, one charging the shooting of Mike Hickman by Nichols with a pistol, with intent to kill him; and the other, charging the shooting of Mike Hickman by Nichols with a pistol with intent to wound him.

To this indictment, Nichols entered a plea of not guilty. The issue thus made, was tried to a jury, which returned a verdict finding Nichols not guilty of shooting with intent to kill, but guilty of shooting with intent to wound. A motion for a new trial was overruled and Nichols was sentenced to the penitentiary for a period of one year and to pay the costs of prosecution. Error is prosecuted to this court by Nichols, who seeks a reversal of the judgment of conviction upon two grounds:

1. The failure of the State of Ohio to prove venue.

2. The verdict and judgment are against the manifest weight of the evidence.

As to venue: We quote from, page eleven of the bill of exceptions. “Q. In what county did this shooting happen? A. Hardin county. Q. And what state? A. Ohio.”

The State of Ohio therefore did offer evidence tending to prove venue as laid in the indictment. The first claimed error, therefore, is not tenable.

Coming now to the second claimed error: Is the verdict against the manifest weight of the evidence? The record discloses that there is a conflict in the oral testimony upon some of the questions at issue. In such a state of the record the case of Breese v. King, 12, OS. 146-156 and kindred cases, are controlling.

Of course, a verdict is not sustained by suf-fieent evidence if, after weighing it, there exists a reasonable doubt as to the guilt of the accused. 3 O. C. C. 630-638. But, in the instant case, we entertain no such doubt. In fact, the verdict, in our opinion, is sustained by abundant evidence. The second claimed error, therefore, is not well taken.

Holding these views, it follows that the judgment of the Court of Common Pleas should be affirmed.


text:
    STUBER et v. MACKENZIE et.
    Ohio Appeals, 3rd Dist., Allen Co.
    No. 489.
    Decided May 4, 1928.
    First Publication of This Opinion
    Syllabus by Editorial Staff.
    726. LIQUIDATED DAMAGES — 297. Contracts.
    Where liquidated damages are provided for in a contract, as compensation for breach upon part of one party, • they, are the measure of damages, and no other recovery may be had by the complaining party.
    Error to Common Pleas.
    Judgment reversed.
    B. F. Welty, Lima, for Stuber et.
    Mackenzie & Weadock, Lima, for Mackenzie et.
   FULL TEXT.

Before Judges Crow, Hughes and Justice.

HUGHES, J.

On the 20th day of January, 1925, the defendants purchased from the plaintiffs by written contract of sale, real estate situated in the City of Lima, Ohio. The contract provided for a down payment, and thereafter, monthly payments until the full contract price, with interest, was paid.

The down payment and some other payments were made by the defendants, but eventually default was made in the monthly payments for several months after they became due, and the plaintiffs, by virtue of one of the terms of the contract, exercised their option to declare all the balance of the monthly payments due and payable and brought suit to recover the balance of the purchase price, with interest.

The defendants, under and by virtue of another clause in the contract, tendered back the possession of the real estate and sought to avoid any further payments under the contract.

A recovery was had by the plaintiffs, and error is here prosecuted.

There are two clauses in the contract for our consideration. The first, under which the option of the plaintiffs was exercised, reads as follows:

“It is expressly agreed by and between the parties to this agreement that if any one of said installments or the interest accrued thereon, shall not be paid within one. month after falling due, then all of said installments remaining unpaid shall at once become due and payable at the election of the first party.”

The second clause, which immediately follows the above quoted clause, and under which the defendants seek to avoid any further payments under the contract, after a tender back of the property, reads as follows:

“In such event said second party agrees to yield up to said first-party quiet and peaceful possession of said real estate, and the payments and improvements on said real estate shall be taken and considered as a fair rental for the use and occupation of said real estate and as liquidated and stipulated damages for the breach of this contract on- the part of the second party and shall not be accounted for by said first party.”

There is no other clause in the contract that provides for a recovery of the purchase money in the event of a default in the payment as above indicated, after the first party elects to declare them all due and payable.

By the contract under which both parties to this suit are claiming and asserting their rights, plaintiffs were given an option to declare due and payable, all overdue installments if the default in payment has continued for a period of one month. This election was made on such default, by the plaintiffs. Their rights were then determined by the contract, which provided that in such event second party shall yield up the quiet and peaceful possession of the real estate which was tendered back by the defendants. In this event the terms of the contract provided that all payments and improvements on the property, and the property itself, shall be retained by the plaintiffs and it shall be' considered as liquidated and stipulated damages for the breach of the contract on the part of the defendants. Neither party to this action even suggests that this provision is to be considered as a penalty.

Where liquidated damages are provided for in a contract as compensation for a breach upon the part of one party, they are the measure of damages, and no other recovery may be had by the complaining party to the contract. Hence, plaintiffs, having elected under this clause of the contract to declare all unpaid installments due and payable, the defendants were therefore entitled to return the property and be exonerated from any further liability thereunder.

The judgment of the court below is therefore reversed and final judgment entered in favor of the defendants.


author: PER CURIAM:

text:
    LOGAN v. CLOSE.
    Ohio Appeals, 9th Dist., Summit Co.
    No. 1489.
    Decided June 22, 1928.
    First Publication of This Opinion
    Syllabus by Editorial Staff.
    798. MUNICIPAL COURT — 681. Jurisdiction.
    Municipal Court of Akron, has jurisdiction in action to recover damages for assault and battery. -
    Error to Common Pleas.
    Judgment affirmed.
    Daniel F. McGowan, for Logan.
    Sheck, Stevens & Hargreaves, Akron, for Close.
   FULL TEXT.

PER CURIAM:

This action originated in the Municipal Court of Akron, where Raymond Close recovered a judgment against Howard E. Logan for damages for assault and battery committed by Howard E. Logan upon Raymond Close.

A petition in error was filed in the Common Pleas Court and that court affirmed said judgment; and the case is now before this court upon a petition in error filed by Howard E. Logan, in which he claims that said judgment of the Municipal Court should be reversed because that court was without jurisdiction.of an action to recover damages for an assault and battery.

We have considered the statute creating said Municipal Court, and the other statutes referred to in the briefs, which it is claimed have a bearing upon the question of the court’s jurisdiction, and we have reached the conclusion that under the laws of the State of Ohio, the Municipal Court of Akron has jurisdiction in an action to recover damages for assault and battery.

It is also claimed that said Municipal Court erred in its rulings on the admission and rejection of evidence.

We have examined the bill of exceptions with particular reference to the parts thereof that are referred to in the brief of plaintiff in error, and we find that the record does not disclose any prejudicial error in reference thereto.

Finding no prejudicial error in the record, the -judgment of the Common Pleas Court affirming the judgment of the Municipal Court, is affirmed, and the cause is remanded to the Municipal Court for execution.

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


text:
    DESURE et v. MITCHELL et.
    Ohio Appeals, 9th Dist., Summit Co.
    No. 1426.
    Decided June 28, 1928.
    First Publication of This Opinion
    Syllabus by Editorial Staff.
    708. LEASES — 1105. Statute of Frauds.
    Oral agreement, by which lessor agreed to accept surrender of premises and release lessee from further payment of rent, held valid.and enforeible.

      Error to Common Pleas.
    Judgment affirmed.
    Harris & Holub, Akron, for Desure et.
    Sheck, Stevens & Hargreaves, Akron, for Mitchell et.
   FULL TEXT.

PER CURIAM:

This was an action brought by the lessor to recover from the lessee the rent due under the terms of a written lease, and the trial resulted in a verdict and judgment in favor of the lessee.

The lessee ceased to occupy the premises during the term of the lease, and his defense to the action was that he surrendered possession of the premises in pursuance of an oral agreement, by which the lessor agreed to accept surrender of the premises and release the lessee from further payment of rent.

The evidence fully established the making of such agreement, but it is claimed that such agreement is not enforceable because not in writing.

We find that the evidence of said agreement .was competent, and that if the lessor accepted the surrender of said premises in pursuance of said agreement, such agreement is enforceable although not in writing.

There was a conflict in the testimony as to whether or not the lessor accepted such surrender, and we are not unanimously of the opinion that the finding of the jury that there was such acceptance, is manifestly against the weight of the evidence.

During the last year that the lessee occupied said premises, he paid each month a rental less than that stipulated in the lease, and that was done in pursuance of an agreement made by the lessor and the lessee.

The lessor claims that the agreement was that he would accept such reduced rental until the holidays, when the lessee should pay the same, so that the total amount of rental for the year would be that stipulated in the lease. The lessee denied that such was the agreement, and claimd that the lessor agreed to accept such rental in lieu of the rental stipulated in the lease.

As to this question, we find the jury was justified in finding that the agreement was as claimed by the lessee.

We have examined the other errors complained of, and not finding any prejudicial error in the record of the proceedings of the trial court, the judgment is affirmed.

(Washburn, PJ., Funk, J., and'Pardee., J., concur.)


text:
    WEAVER, Recr. v. SNYDER, Admr.
    Ohio Appeals, 2nd Dist., Montgomery Co.
    No. 819.
    Decided March 19, 1928.
    Syllabus by Editorial Staff.
    297. CONTRACTS — 997. Real Estate — 419. Dower.
    Contract for sale of real estate, which provided that husband was “to release all dower rights in said premises on execution and delivery of said deed,” construed to mean that husband was to receive dower as of date of execution of contract.
    Error to Common Pleas.
    Judgment - affirmed.
    Frank W. Krehbiel and Egan & Delscamp, Dayton, for Weaver. ■>
    Walter V. Snyder, Dayton, for Snyder et.
   FULL TEXT.

Plaintiffs in the court below made a certain contract on the 1st day of April, 1924, and a certain other contract on the 24th of July, 1925, for a conditional contract of sale of certain real estate. Upon the execution of said contracts, respectively, the plaintiff's in the court below took possession of the real estate and have held possession ever since. The amount provided for having been paid, plaintiffs aijF pealed to court for an order of conveyance. In the meantime, Mr. C. E. Ross, husband of the plaintiff, absconded leaving debts, and later on Ellen E. Ross died. The question is as to the amount to be allowed the Receiver of C. E. Ross. The court below having decided in favor of the contention of the Administrator of Ellen E. Ross, the plaintiff herein prosecutes error.

The point of difference between the two parties is as to when the interest of C. E. Ross is to be computed.

If the interest of C. E. Ross is to be computed as of the time the contract was made, then the court below is right. If, on the other hand, his interest is to be computed as of the time the conveyance was ordered, then the judgment below must be reversed. Under the contract of April 1, 1924, the following provision is found in the contract:

“And the said Charles E. Ross, husband of the party of the first part, hereby agrees to release all dower rights in said premises on execution and delivery of said deed.”

In the other contract the provision is as follows :

“And said Charles E. Ross, husband of the party of the first part, hereby agrees, upon payment of the full consideration by party of the second part and execution of the deed by party of the first part as herein provided, to join in the execution of said deed for the purpose of releasing all his right and expectancy of dower in said premises.”

These two contracts are similar, but it seems to this court as reasonably clear that the intention of the parties was that the husband was to receive dower as of the date of the execution of the contract. While certain words in the provisions above quoted might indicate to the contrary, we think the true rule of construction of the entire instrument is as above stated.

The property was then sold to the Swartsels under payments which were to bo made in the future. The deed was withheld for convenience of the Swartsels in making payment, but the title when the deed was afterwards made would relate back to the time when the written contracts were signed. For these reasons we. are of opinion that the interest of the husband, C. E. Ross, was to be computed as of the date when the contracts were executed. This being the judgment of the Court of Common Pleas, the judgment of said court is hereby affirmed.

(Ferneding, Kunlde and Allread, JJ., concur.)


author: THOMAS, J.

text:
    IRONTON (City) v. CLARK.
    Ohio Appeals, 4th Dist., Lawrence Co.
    Decided July 12, 1928.
    First Publication of This Opinion
    Syllabus by Editorial Staif.
    801. MUNICIPAL LAW — 1104. Statutes.
    Enactment of Municipal Code, held not to repeal city ordinance.
    Error to Common Pleas.
    Judgment affirmed.
   FULL TEXT.

THOMAS, J.

¶ Error is prosecuted to this court from a judg-ent of the Court of Common Pleas obtained l'y the defendant in error against the plaintiff in error for salary claimed to be due for services rendered in the capacity of city engineer of said city. It appears and it is admitted that the defendant in error was appointed to the position and rendered the services, but it is claimed that he was only an employe and that at the time no certificate had been filed showing that the money was to the credit of the fund from which he was to be paid as required by the “Burns Law.” It is admitted that the office of City Engineer had been created by ordinance of the city council and which had not been repealed by the council at the time of appointment.

It is claimed on behalf of the city that the o .dinance was repealed by implication when the new Municipal Code was enacted. We do not agree with counsel on this proposition. We are of the' opinion that the ordinance was in full force and effect when the defendant in error was appointed, that he was an officer and that the provisions of tjie “Bums Law” do not apply to his appointment.

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

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


text:
    LAKEWOOD CENTER CO. v. SWIMMER.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8547.
    Decided June 18, 1928.
    Syllabus by Editorial Staff.
    703. LANDLORD & TENANT — 639 Injunction — 685. Justice of the Peace.
    Proceedings before Justice of the Peace on landlord’s complaint may be enjoined on ground that defenses, are equitable.
    Error to Common Pleas.
    Judgment affirmed.
    H. R. Hill, Cleveland, for Lakewood Center Co.
    Reed & Hazelwood, Cleveland, for Swimmer.
   FULL TEXT.

VICKERY, J.

This case came into this court on a petition in error to the Common Pleas Court of Cuya-hoga County, the purpose being to reverse a judgment granting an injunction against the prosecution of a forcible entry and detainer case before the Justice Court in what was then Roekport Township in the City of Lakewood, Ohio.

It seems that Swimmer had leased the premises described in the petition from the plaintiff in error for a period of five years at a rental of One Hundred and T.en Dollars a month payable in advance, and that during the. pendency of this lease the plaintiff had neglected in one particular instance to pay the rent promptly, but gave a check which was not cashed for want of funds, of which, we are informed, Swimmer had no knowledge, but thought that the rent had been paid. On the 3rd of the next month a notice was served upon him to vacate the premises and a landlord’s complaint was filed before Justice of the Peace Rexford C. Hyre of Lakewood, and while such proceedings were pending, an action was brought in the Common Pleas Court to enjoin the proceedings on the ground that the defenses that plaintiff had were equitable and could not be used in a court of the Justice of Peace who had no equity jurisdiction and went on to make other allegations which set up fairly the status of this case. A temporary restraining order was granted and a demurrer was filed to the petition which was overruled, and plaintiff in error not desiring to proceed further,, prosecuted error to this court.

The record shows, or at least it is admitted in open court, that during all this time the plaintiff, Swimmer, had been in possession occupying this store and had paid the rent which had been accepted and he is now occupying as a tenant, and that the rent in question had long since been paid. It is urged, however, that as the complaint did not have to set up on what grounds they sought to oust the tenant, that the defendant, Swimmer, had no knowledge as to what they proposed to do or what reason they intended to advance as to why the tenant should be ousted from his leasehold, and, therefore, that this petition for injunction, to use the language of the learned counsel simply set up a man of straw to proceed to knock him down.

However, this may be, the petition sets up a cause of action and the court granted an injunction upon it and we do not see that he committed any error in doing so.

The judgment will, therefore, be affirmed.

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


text:
    SHEETS & CANFIELD CO. v. SHEARMAN CONCRETE PIPE CO.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 9053.
    Decided May 28, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    465. ERROR PROCEEDINGS — 328. Court of Appeals — 681. Jurisdiction.
    In absence of transcript or original papers or files in original case, Court of Appeals has no jurisdiction to grant relief.
    Error to Common Pleas.
    Petition dismissed.
    Orgill, Maschke & Wickham, Cleveland, for Sheets & Canfield Co.
    Grossman & Grossman, Cleveland, for Concrete Pipe Co.
   FULL TEXT.

VICKERY, J.

This action comes into this court on a petition in error to the Municipal Court of the City of Cleveland.

In the court below, the plaintiff, who is defendant in error here, brought his action to recover on a promissory note in the sum of $1279.79 and service of summons was obtained upon defendant. The defendant filed a counterclaim to the effect that this note was given as evidence of indebtedness which grew out of a sale of some sewer pipe. The sewer pipe, I believe, were to be and were used in a drain in Clear Water, Florida, and the statement of the counterclaim went' on to assert that the sewer pipe were made of such poor material that they disintegrated and the sewer had to be taken up and replaced at a cost and expense of $1377.99 and that this grew out of the transaction for which this note was given and came properly within the law of counterclaim.

The execution and delivery of the note were not denied and, therefore, the court, notwithstanding the counterclaim, entered up a judgment in favor of the plaintiff on the promissory note. On what theory, the writer of this opinion is unable to ascertain, but it is to reverse that judgment that error is prosecuted here.

We think that the complaint is well founded and that the court committed error in granting a judgment irrespective of a counterclaim upon this promissory note, but on examination of the record, we find that there is no transcript or original papers of the files in the original case and that it is now too late to supply the defect. Under the rulings of the court, and particularly of this court, we must hold that we have no jurisdiction over this case because of the lack of transcript and, therefore, the petition in error will be dismissed for want of jurisdiction.

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


author: PER CURIAM.

text:
    SMITH v. CLEVELAND (City).
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8999.
    Decided May 21, 1828.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    693. KNOWLEDGE — 333. Criminal Law-118. Automobiles.
    Under ordinance making it punishable offense for driver of motor vehicle, after accident, to leave scene without offering aid to abjured person, accused cannot be held guilty unless he knew that his motor vehicle had injured somebody.
    Error to Municipal Court.
    Judgment reversed.
    T. W. Fleming and H. T. Cassaway, Cleveland, for Smith. '
    S. O. Hirtius, Clveland, for Cleveland, (City).
   FULL TEXT.

PER CURIAM.

Plaintiff in error was convicted for the violation of an ordinance of the City of Cleveland which makes it a punishable offense for the driver of a motor vehicle after an accident occurs, to leave the scene of the accident without offering to give aid to the injured person. It must, of course, be conceded that a person cannot be held guilty of a crime under this ordinance unless he knew that his motor vehicle injured somebody.

The evidence submitted in substantiation of the affidavit charging the offense, totally failed to disclose such knowledge.

It is claimed by somebody that a bo^ was injured. The boy did not appear in court to testify.

_ The accused, plaintiff in error, states that he did not know that he injured anybody. The surrounding circumstances as disclosed by the record, lends credence to his statement.

We hold therefore, that the evidence is insufficient in law to justify conviction.

The judgment of the Municipal Court is therefore ordered reversed and the plaintiff in error is ordered discharged.

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


author: SULLIVAN, PJ.

text:
    TRIVISONNO v. ROBERTS et.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8988.
    Decided May 14, 1928.
    Syllabus by Editorial Staff.
    465. ERROR PROCEEDINGS — 144. Bills of Exceptions.
    Bills of Exceptions must be signed by trial court within proper time, and it must be certified that bill contains all the evidence.
    Error to Municipal Court.
    Petition dismissed.'
    Demson, Phillips & Davis, Cleveland, for Trivisonno.
    S. M. Lo Prestí, Cleveland, for Roberts et.
   FULL TEXT.

SULLIVAN, PJ.

_ This cause is here on error from the Municipal Court of the City of Cleveland, and upon a motion to dismiss the petition in error on the ground that there is no Bill of Exceptions, is first considered because the errors assigned are determinable only from the evidence in the court below, and we find, from an examination of the Bill, that numerous exceptions were filed thereto before the trial court, and that he examined the same and after his examination, pronounced in writing that in his judgment the exceptions were well taken.

There is only one conclusion that we can reach from this act of the trial court and that is that all the evidence in the case is not in the record and that status, in addition to the fact that the trial court does not certify as the authorities require, that the Bill of Exceptions contains all the evidence, forces us to but one conclusion and that is that the motion should be sustained and the petition in error dismissed.

Bills of Exceptions must be signed by the trial court within the proper time, and it must ■be certified that the Bill contains all the evidence.

In the present case, however, instead of the affirmative finding which is required by the court, and which was to appear in his certificate, there is disclosed a negative finding, to-■wit, that the Bill of Exceptions does not contain all the evidence, for there is no other significance than this to be placed upon what is written by the trial court, that the exceptions to the Bill of Exceptions are well taken.

Thus holding, the judgment of the lower court is hereby affirmed.

(Vickery and Levine, JJ., concur.)


text:
    MAHAN v. BREEN et.
    Ohio Appeals, 4th Dist., Ross Co.
    Decided July 12, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    85. APPEAL — 542. Foreclosure — 887. Parties.
    Where action is not for judgment against makers of note, but simply for a finding of the amount due, and, on such finding, a foreclosure of mortgage, such action is one in equity, and is appealable. Makers of note are necessary and proper parties to such action.
    Appeal from Common Pleas.
    Decree for plaintiff.
    Luther B. Yaple and Garrett S. Claypool, Chillicothe, Mahan.
    Walter W. Boulger, Chillicothe, for Breen et.
   FULL TEXT.

THOMAS, J.

This case is before the court on appeal from the Court of Common Pleas. The action is in foreclosure of a mortgage given by Mayme Breen to secure a promissory note given by the other defendants, John M. and Agnes Breen. The execution of the note and mortgage is admitted. The note was subsequently assigned by the payee to the plaintiff, James C. Mahan. From the pleadings it therefore appears that the burden rests on the defendants to make a legal defense.

It is claimed on behalf of the defendants that the case is not appealable. Many authorities have been cited in support of this' contention. From an examination of all the authorities submitted by counsel on both sides it appears that the law on this question in Ohio is not clearly and definitely determined. The constitution of the state provides for appeal in equity cases. One of the questions to be determined in the case is whether it is one in equity or at law. The plaintiff is not asking for judgment against the makers of the note, but simply a finding of the amount due on the note and that on such finding a foreclosure of the mortgage. Our conclusion is that the petition is one in equity. The principal relief is a foreclosure and the finding prayed for is incidental thereto.

A motion to dismiss the defendants, John and Agnes Breen, has been interposed on the ground' that they are not proper and necessary parties to the action. The argument in support of this contention supports the conclusion on the first proposition. However, we are of the opinion that they are proper and necessary parties. The foreclosure is based on a default of payment of the note and a finding against the makers must be made. They must bo brought into court by the petition.

Such findings on the second proposition preclude the defendants from testifying, under the provisions of the statute. However, if their evidence were competent it is not sufficient to establish a defense. The testimony of the defendant, James Breen, shows a valid consideration for the execution of the note and mortgage, that he was indebted to the Hamilton Coal and Coke Company in the amount of the note and mortgage; that he had subsequent dealings with the company and became further indebted to it. At one time he transferred to the payee a promissory note in the sum of sixteen hundred dollars given by C. E. Brown, the proceeds of which when collected were to be applied on .the note sued on. This note proved to he uncollectible and was returned to Breen. A claim against the B. and O. Railroad Company was to be collected by the parties and the proceeds thus applied. Some junk was to be disposed of in this manner but nothing seems to have been realized on it. Finally the makers of the note undertook to purchase it from the holder. On page 23 of the record the defendant, Breen, testified that he was making arrangements to purchase the note. He says:

“At the time we got everything arranged we found Mr. Mahan had the note.
“I hadn’t said anything to him. I said too much to Mr. Mahan. Mr. Mahan went up and got it.”.

Thus it clearly appears that at the time when the plaintiff purchased the note the defendant, James Breen, recognized its validity and that it had not been paid.

Th'e finding of the court is for the plaintiff. Judgment accordingly.

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


text:
    JUSTICE v. KENTUCKY LIFE INS. CO.
    Ohio Appeals, 4th Dist., Lawrence Co.
    Decided June 28, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    16. ACCIDENT INSURANCE.
    Where policy provides that if, within 90 days after accident, there is loss, by actual separation, of one foot, insured should be entitled to $1000, insured who suffers complete fracture of bones of leg, resulting in amputation more than 90 days after accident, cannot recover.
    Error to Common Pleas.
    Judgment affirmed.
    A. R. Johnson, Ironton, for Justice.
    Corn & Jenkins, Ironton, and Robt. T. Caldwell, for Ky. Life Ins.
   FULL TEXT.

MIDDLETON, PJ.

The parties to this proceeding stand in the same relation to each other as they stood in the court below and will be referred to herein as the plaintiff and the defendant company. The plaintiff instituted this action on a contract of accident insurance in the Court of Common Picas, seeking to recover from the defendant company the sum of one thousand dollars for the loss of.his left foot. A general demurrer to the petition was sustained by the trial court and judgment was rendered thereon, and this proceeding is prosecuted to reverse that judgment.

The particular provisions of the policy in question under which the plaintiff seeks to recover provided in substance that if within ninety days after the accident there is a loss by actual separation of one foot the insured should be entitled to the sum of one thousand dollars! The petition discloses that the plaintiff was injured on the 26th day of December, 1926, and that on the 12th day of April, 1927, the left foot of the plaintiff as a result of such injury was amputated. It therefore appears that there was not an actual separation of the foot from the body within ninety days from the date of the injury. It is contended by the plaintiff, however, that the petition shows that on the date of the injury both bones of his left leg

“were broken, crushed and actually separated at' a point about eight inches above the ankle, and that thereafter a part of said bones were taken out and the remainder were wired together for the purpose of determining whether they would knit and grow together, and that after it became apparent that they would not knit or connect that the foot was amputated at or near the point where the bones were broken or crushed.”

It is further contended that the petition shows that the foot after the accident was connected to the left leg by the flesh only, and-that the foot was permitted to remain so connected solely by reason of the attempt or experiment being made by surgeons to test whether it was possible for the bones to reunite.

The single question is presented here whether the foregoing facts bring the plaintiff within the indemnity to which reference has been made. It is manifest, we think, that the most that may be claimed from the foregoing facts is that at the time of the accident the plaintiff sustained a complete fracture of the bones of his left leg at a point about eight inches above the ankle. Is a complete fracture of the bones under such circumstances an actual separation of the foot from the body? We think not. A complete fracture of the bones which unite the foot with the leg is not and from the very nature of things can not be an actual separation of the foot from the body. Whatever may have been the reason for delaying an amputation of this foot such reason can not change the express provisions of the policy. The policy does not insure against an actual separation for an indefinite period of time. Such separation under the express terms of the policy must occur within the time named in the policy. Buford v. Insurance Company, 3 Fed. Rep. 263, 2nd series. To hold otherwise under the facts in this case would be to not only disregard the provisions of the policy but to say in effect that when there is a complete fracture of bones under the circumstances named in this case there is an actual separation of the member of the body injured. This would extend the insurance to injuries neither covered nor contemplated by the provisions named.

The judgment is affirmed.

(Mauek and Thomas, JJ., concur.)


text:
    BELLARD, Admr. v. BD. CO. COMM.
    Ohio Appeals, 6th Dist., Erie Co.
    No. 271.
    Decided July 2, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    1053. ROADS & HIGHWAYS.
    1. No liability on part of county commissioners, under 2108 GC., for negligence in failing to keep in repair road which has become state road within meaning of 7464 a, b, and c GC., and 7465 GC.
    2. Where state highway department has made survey for purpose of improving road, necessary steps by county commissioners and state highway department have been followed, up to and including advertisement for bids for improvement, and, in surveying road, it has been cross-sectioned and stakes set by state, but no actual construction work has been done by state highway department, such road is still a county road, and commissioners are liable for negligence in failing to keep it in repair.
    Error to Common Pleas.
    Judgment reversed.
    Allen G. Aigler, Bellevue, for Bellard, Admr.
    C. E. Moyer and J. F. Hertlein, Sandusky, for Comm.
   FULL TEXT.

WILLIAMS, J.

Ernest Bellard, as administrator of decedent’s estate, brought an action against the Board of County Commissioners for wrongful death of the decedent, Clair Walker. Upon trial of the case, after plaintiff had adduced all of his evidence and the defendant had introduced a part of its evidence, the trial judge directed a verdict for the defendant and entered judgment thereon. Plaintiff in error, who was plaintiff below, brings this proceeding in error to reverse that judgment. It is conceded by counsel that the question as to whether or not the court below properly directed a verdict for the defendant turns upon a construction of the following sections' of the General Code:

“Section 7464 (a). State roads shall include such part of the inter-county highways and main market roads as have been or may hereafter be constructed by the state, or which have been or may hereafter be taken over by the state, as provided in this act, and such roads shall be maintained by the State Highway Department.
(b). County roads shall include all roads which have been or may be improved by the county by placing brick, stone, gravel or other road building material thereon, or heretofore built by the state and not a part of the inter-county or main market system of roads, together with such roads as have been or may be constructed by the township trustees to conform to the standards for county roads as fixed by the county commissioners, and all such roads shall be maintained by the county commissioners.
(c). Township roads shall, include all public highways of the state other than state or county roads as hereinbefore defined, and the trustees of each township shall maintain all such roads within their respective townships; and provided further, that the county commissioners shall .have full power and authority to assist the township trustees in maintaining all such roads, but nothing herein shall prevent the township trustees from improving any road within their respective townships, except as otherwise provided in this act.
Section 7465. How main market and inter-county roads constructed, that same may become state roads. - - In all cases where a county or township has constructed or improved any main market or inter-county road, the state highway commissioner, upon request, shall within sixty days indicate what changes, or improvements, will be required in said road in order to bring the same up to the approved standard of construction of such roads, or in any case where such road is about to be constructed, reconstructed, or improved, the state highway commissioner shall upon application, indicate within sixty days what changes will be required in the plans and specifications therefor, to bring said road up to the standard required by the state for the construction of inter-county highways and main market roads. Whenever the changes so specified] by the state highway commissioner have been made, or when such roads have been constructed according to the plans and specifications so approved by the state highway commissioner, such roads shall at once become state roads.

If, at the date of the accident, the part of the road where the accident happened was a state road, the verdict was properly directed, and if it was a county road at that time, the court below erred in directing the verdict.

The undisputed evidence shows the decedent on the 9th of March, 1926, was riding in the back seat of an automobile with three other persons, in the night time, on Section B-l of inter-county highway No. 521. The highway at this point was rough and filled with holes and as the automobile, going in a northerly direction, suddenly came upon this portion of the highway, the driver, due to the holes and slippery condition of the highway, lost control of his automobile and it turned over, killing the decedent, who was riding therein as a guest. Prior to the time of the accident the state highway department had made a survey of Section B-l for the purpose of improving the same, and the necessary steps required to be taken by the Board of County Commissioners and the state highway department had been followed, up to and including an advertisement for bids for the improvement of the section. In surveying the section of the road in question it had been cross-sectioned and stakes set by the state. No actual construction work was done by the state highway department on this section until after April 1, 1926.

'Under GC., Section 2408, the Board of County Commissioners is made liable in an official capacity for damages received by reason of its negligence in not keeping in proper repair a state or county road, established by such board in its county. Since the enactment of that section, however, the sections quoted at length above imposed the duty to care for the state road upon the state, and there could thereby be no liability on the part of the Board of County Commissioners under Section 2408, GC., for negligence in failing to keep in repair a road which has become a state road within the meaning of the quoted sections of the General Code. Weiher v. Phillips, 103 Ohio St., 249; Younts v. Avon Lake, 19 Ohio App., 182.

We think the language of the quoted provisions is clear and unequivocal and that the steps which had been taken as shown by the present record did not make the section of the road in question a state road. We think that the state of the record is such as would warrant the trial court in instructing the jury that the section of the road in question was a county road as a matter of law.

An examination of the record shows that there was evidence tending to show that the defendant was guilty of actionable negligence and that the evidence adduced on behalf of the plaintiff does not give rise to a presumption of contributory negligence.

For the reasons given the judgment will be reversed and the cause remanded for a new trial.

(Richards and Lloyd, JJ., concur.)


text:
    CLARK etc. v. REINWALD.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8627.
    Decided May 21, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    118. AUTOMOBILES — 829. Negligence.
    Driver of automobile not bound to blow horn or exercise extraordinary care when approaching street car standing in middle of block.
    Error to Common Pleas.
    Judgment affirmed.
    Fackler & Woods, Cleveland, for Clark.
    Niman & Buss, Cleveland, fori Reinwald.
   FULL TEXT.

VICKERY, J.

This cause comes into this court on a petition in error to the Common Pleas Court of Cuya-hoga County.

In the court below Charles Clark, a minor, brought his suit by his father, his next friend, to recover damages by reason of an injury occurring to him, as is claimed, through the negligence of the defendant. At the trial of the action, at the conclusion of the plaintiff’s testimony, a verdict was directed by the Judge in favor of thedefendant, a motion having been made for that purpose. A motion for a new trial was overruled, a bill of exceptions taken and error prosecuted to this court and the sole error that is urged in this court is that the court was wrong in directing a verdict for the defendant at the close of the plaintiff’s testimony.

We have examined this record and heard the arguments of counsel and do not think that the court was wrong. In accordance with law he could have done nothing else, as there was not a scintilla of evidence to show that there was negligence upon the part of the defendant which tended to prove negligence which caused the injury. Of course the doctrine of contributory negligence was not in the case because the injured boy was only five years old, but the record is very plain that on Central Avenue, just east of 83rd Street, two street cars were standing, 83rd Street I believe being the termini of the cars of the railroad on that line. As already stated, the record shows that there were two street cars. The length of the cars does not appear, but they were probably of the length of the ordinary type of car. These cars on the west bound track faced west. The first car was about ten feet from the cross walk on 83rd Street and back of that was another street car with a space of about two feet between the two. The little boy that was injured, together with two companions, was playing on the north side of the street and the two older boys started across the street and got clear across to the sidewalk and they crossed the street behind the most eastward of the two standing street cars. As the defendant driving his automobile on the south side of the street going east at not an unreasonable speed, ten or twelve miles an hour, surely not exceeding fifteen miles an hour, got to the east end of the second car, the little boy came out behind this car on a run and ran up against the fender of his automobile and was injured.

Now it must be remembered that these two street cars standing as they were, shows that the east end of the most easterly car stood somewhere in the middle of the block and that the driver of this automobile driving along in the ordinary way had no reason to expect that anybody would emerge behind that street car. Without any warning, without any reason on the part of the driver to suspect that something would happen, this little boy ran across the street and ran into the fender of his car.

It is complained that the defendant did not blow his horn.. If this had been on a crosswalk, there might have been some claim for thisl contention, but being in the middle of the block there was no reason to anticipate that anybody would run from the rear of the car the'way this boy did, as is shown by his testimony and the testimony of other witnesses. We cannot' see that there was a particle or a scintilla of evidence which tended to prove that the driver of this automobile was guilty of negligence. That being so, there was nothing to submit to the jury and the court was right in directing a verdict. Finding no error in the record, the judgment is affirmed.

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


text:
    EISENZIMMER v. CONN. FIRE INS. CO.
    Ohio Appeals, 9th Dist., Summit Co.
    Decided Dec. 11, 1924.
    May & May, Akron, for Eisenzimmer.
    Mooney, Bibbee & Edmonds, Columbus, and Mather, Nesbitt & Wilkie,. Akron, for Fire Ins. Co.
    533. FIRE INSURANCE — 480. Evidence.
   1. In an action on a fire insurance policy, in which the company denies that proof of loss was made’ within the stipulated period, it is prejudicial error for the trial court to reject testimony 'proffered by plaintiff in support of his allegation that he relied on statements made to him by the agent and adjuster of said company to the effect that there would be nothing further required by way of proof of loss or otherwise.

647. INSURANCE.

2. Payment of the policy having been refused on the ground that plaintiff was not the sole owner of the property, as shown by the deed therefore in which plaintiff and his wife appear as the grantees, it was prejudicial error for the trial court to exclude testimony offered by plaintiff to prove that he is such sole owner.

615. HUSBAND & WIFE.

3. The procuring of insurance by a wife in the name of her husband, is in the nature of a disclaimer that she possesses any interest in the ■ property, and an, admission that the property insured belongs to her husband.

For reference to full opinion, see Omnibus Index, last page, this issue.


text:
    JOYCE v. STATE.
    Ohio Supreme Court.
    No. 20977.
    Decided June 20, 1928.
    911. PERJURY — 480. Evidence.
   In prosecution for perjury, admission of evidence as to conversation with deceased third person, defendant not being present during conversation and conspiracy not being proved, is prejudicial error.

For reference to full opinion, see Omnibus Index, last page, this issue.


text:
    NORFOLK & WEST. RD. CO. v. GALE et.
    Ohio Supreme Court.
    No. 20897.
    Decided June 20, 1928.
    445. EMINENT DOMAIN —189a. Building Restrictions — 991. Railroads.
   Building restrictions inapplicable to state, its agencies or corporations vested with power of eminent domain. Lot owners cannot recover damages from railroad or holding company acquiring lots.

For reference to full opinion, see Omnibus Index, last page, this issue.


text:
    STATE ex Monger v. FAIRFIELD CO. COMM.
    Ohio Supreme Court.
    No. 20855.
    Decided June 13, 1928.
    103. ASSESSMENTS — 379. Delegation of Power.
   Legislature cannot delegate, to county commissioners, power to levy assesments against state. District, less than state, cannot be assessed for improvement benefiting state property.

For reference to full opinion, see Omnibus Index, last page, this issue.


text:
    INTERNATIONAL UN. OF STEAM OP. ENG. v. OWENS.
    Ohio Supreme Court.
    No. 20843.
    Decided June 20, 1928.
    700. LABOR UNIONSr — 639. Injunction.
   Member not entitled to mandatory injunction requiring issuance of transfer card. Injunction lies to compel officers to grant hearing-upon application for such card.

For reference to full opinion, see Omnibus Index, last page, this issue.


author: LLOYD, J.

text:
    CASE v. GOLNAR et.
    Ohio Appeals, 6th Dist., Lucas Co.
    No. 2050.
    Decided July 2, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staif.
    953a. PRIORITY — of Liens — 475. Estoppel— 997. Real Estate.
    One who, having acquired title to premises by warranty deed from judgment debtor, conveys property to another and later takes assignment of mortgage on same property, not estopped to assert priority of mortgage over existing subsequent judgment lien.
    Error to Common Pleas.
    Judgment affirmed.
    Zabel & Moss, Toledo, for Case.
    Garrison & Phillips, Toledo, for Golnar et.
   FULL TEXT.

LLOYD, J.

On July 10, 1922, The Doro Realty Company, an Ohio corporation, by a duly executed warranty deed, conveyed the title in fee to certain real estate to one F. W. Bashore, who in turn, on July 11, 1922, by duly executed warranty deed, conveyed the same to Earl Sehmed-lin, one of the defendants in error herein. In each of these deeds it was covenanted that the title so conveyed is clear, free and unencumbered and that the grantor will warrant and defend the same against all claims whatsoever. Upon the execution and delivery to him of the foregoing deed therefor, and on the same day, — July 11, 1922, — Earl Schmedlin and Edna, his wife, executed and delivered to Bashore a mortgage on the premises in question securing a note for $4500.00. On November 2, 1922, the plaintiff in error, William A. Case, in an action then pending in the Court of Common Pleas of Lucas County, secured a judgment against the defendant in error, Earl Schmedlin and Charles Schmedlin for $686.00. Thereafter executions were issued on this judgment and returned unsatisfied. On April 16, 1923, Earl Schmedlin and his wife conveyed the real estate above referred to by warranty deed to Dorothy Golnar, one of the defendants in error, and on May 29, 1925, she and her husband conveyed the same by warranty deed to The Doro Realty Company. In each of these deeds also, it was covenanted that the title so conveyed is clear, free and unencumbered and that the grantors will warrant and defend the same against all claims. All of the deeds here-' inbefore mentioned were recorded within a few days after the execution and delivery thereof. On July 1st, 1925, the mortgage deed executed and delivered by Earl and Edna Schmedlin to Bashore was assigned by the latter to the defendant in error, Dorothy Golnar. This assignment was recorded on July 8th.

Dorothy Golnar, as plaintiff, commenced an action in the Court of Common Pleas against Earl Schmedlin, The Doro Realty Company and William A. Case to foreclose the foregoing mortgage. Schmedlin and the realty company did not plead to the petition. William A. Case filed an answer thereto and a cross-petition. In his cross-petition he sets up his unpaid judgment against Earl and Charles Schemdlin, pleads the facts hereinbefore narrated and claims that the lien of his judgment is a first and prior lien upon the premises in question. The Court of Common Pleas found that the lien of the mortgage assigned to Dorothy Golnar was first in priority and that the judgment lien of Case was subject and subordinate thereto, and ordered that the real estate in question be sold as upon execution. The plaintiff in error, William A. Case, seeks a reversal of this judgment and decree, claiming that his judgment lien takes precedence over that of the mortgage in question for the reason that having acquired the fee simple title to the premises in question by warranty deed of the judgment debtor and having reconveyed the same by warranty deed to The Doro Realty Company before the assignment to her of the mortgage, Dorothy Golnar is estopped to deny the operative effect of these deeds according to their expressed intent and purpose.

Our opinion is that no estoppel arises in favor of the plaintiff in error. He was a stranger to the deeds conveying the real estate to Dorothy Golnar and by her to The Doro Realty Company and was in no way injuriously affected thereby. His judgment continued to he a second lien upon the property and the Court of Common Pleas so found in its decree. If Dorothy Golnar had not conveyed the premises to The Doro Realty Company and still had the title thereto conveyed to her by Earl Schmedlin and his wife on April 16th, 1923, the after-acquired mortgage would not be merged therein so as to give precedence to the judgment lien of plaintiff in error, and of course the conveyance of the premises by her to the realty company would have no sfach effect. The mortgage was prior in time and right to the lien of Case and it was therefore manifestly to the interest of the plaintiff that it should not be extinguished as against his judgment lien. Since it was to the interest of Mrs. Golnar that the mortgage lien should continue to subsist, and there was no evidence to the contrary, it will be presumed that such was her intention.

8 R. C. L., 1062;

10 R. C. L., 685;

Bell v. Tenny, 29 Ohio St., 240;

Webb v. Maloy, 32 Wis., 319.

39 L. R. A., N. S., note, page 837;

99 Am. St. Rep., note, pages 133, 168.

We see no inequity in so holding, and therefore affirm the judgment and decree of the Court of Common Pleas.

(Richards and Williams, JJ., concur.)