text:
    ZINGALE v. INTEGRITY MORTG. CO.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8338.
    Decided Feb. 27, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    1027. RES ADJUDICATA — 677. Judgments and Decrees — 27. Actions. — 542. Foreclosure.
    Judgment, in iforeclosure proceeding, cannot be collaterally attacked. Fact that lien-holder was not served would be ground for setting judgment aside, but this could not be done by ignoring that judgment and filing separate suit.
    Appeal from Common Pleas.
    Decree for defendant.
    L. R. Lanza, Cleveland, for Zingale.
    T. J. Coleman, Cleveland, for Mortg. Co.
   FULL TEXT.

VICKERY, J.

This action comes into this court on appeal from the Common Pleas Court of Cuyahoga County.

In the court below the plaintiff brought an action to recover something like Two Hundred Dollars and to foreclose a lien he claims to have on the property owned by the defendant. The court below held in favor of the plaintiff’s claim and the defendant appealed. How the court, in face of the record in this case could make any such finding, it is difficult to understand. It seems that in another suit a mortgage company who held a first mortgage upon this property brought an action to foreclose its mortgage and made the plaintiff a defendant, and other lienholders parties to those proceedings. The defendant in this action, together with the Lake Shore Saw Mill Company, and some other defendants filed answers setting up their claims. The record and the journal entry show that the plaintiff in this action was made a party to that suit, and it sets up that he is in default of answer and set up no claim. The journal entry then goes on to marshal liens and orders the sale of this property. The property was sold _ at sheriff sale, and the defendant in this action became the purchaser of that property, it having the fourth lien in order of priority. That sale was confirmed and the defendant in this action became the owner of the property. Subsequently this suit was brought without any attempt to modify or change the entry in the former suit.

It is claimed in this action that the plaintiff in this action was not served with summons in the other action. The record df the court showed to the contrary. Now it is said in argument here that service of summons was upon the wrong party. However that might be, we do not know. But we do know you cannot attack collaterally that judgment and, so long as that judgment stands unreversed or unmodified, the plaintiff in this action is barred and is bound by that judgment. Of course, if he was not made a party or was not served, that would be a 'ground for setting aside, perhaps, by proper proceedings that judgment so that he could have his day in court, but he cannot do it by ignoring that judgment and filing a separate suit.

For all intents and purposes there is res adjudicata and it has been decided against him.

The judgment in this case was, therefore, wrong and the judgment of the court should be decree for defendant, order see journal, and the decree should contain a dismissal of the petition without prejudice so that the plaintiff in this suit may, if he has not lost his day, go back into the Common Heas Court by a direct suit to set aside the judgment in that former action, but he cannot do it in the manner that is attempted here.

Decree for defendant, order see journal.

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


source: Caselaw Access Project

author: VICKERY, J.

license: Public Domain

text:
    INDUSTRIAL COM. v. RAMSEY.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8734.
    Decided Mar. 19, 1928.
    Syllabus by Editorial Staff.
    883. PARENT AND CHILD — 413. Divorce and Alimony — 1283. Workmen’s Compensation.
    Notwithstanding decree of divorce, awarding care, maintenance, education and control of minor child to mother, father is still liable for support and maintenance of child, and child is dependent within meaning of Workmen’s Compensation Act.
    Error to Common Pleas.
    Judgment affirmed.
    E. C. Turner, Atty., Gen., Columbus, and John A. Elden, Cleveland, for Industrial Com.
    A. W. Heinrich, Cleveland, for Ramsey.
   FULL TEXT.

VICKERY, J.

This cause comes into this court on a petition in error to the Common Pleas Court of Cuyahoga County, the purpose being to reverse a judgment in favor of the minor child of one who had been entitled to compensation by the Industrial Commission of Ohio.

In the trial below a verdict for nine hundred and some odd dollars had been rendered in favor of the defendant child and it is to reverse the judgment upon that verdict that error is prosecuted here.

The only contention that seems to be seriously made in this court is that the child was not a dependent upon the decedent, because it seems that the child’s mother had been granted a divorce from the decedent, the injured person, who was absent from the State, and service was obtained upon him by publication, and sending of summons with a copy of petition to his address in another state. - The wife, the mother of the child, was given a divorce and awarded the care, maintenance, education and control of said minor child, which was seven or eight years of age.

The question then is, under such circumstances, does the child still remain subject to the support, control and maintenance of the father, notwithstanding a decree of divorce was granted the mother of the child?

We are cited to the case of Rowland v. State of Ohio, 32 O.C.A., 75, as being a case in point. We have examined that case, and in fact have rendered three or four decisions in our own court bearing upon this same question within the last six months, and from all our own opinions and from the one cited, we gather that the father is still liable for the support of the child. In the case cited, there was an express release of the father from any responsibility whatever. Whether that can be done or not, is very questionable, if the child becomes a charge upon the State, but in the instant case that is not the situation. We think that, notwithstanding the decree of divorce which is before us, the father was still liable for the support and maintenance of this child and we think, therefore, that the child was a dependent within the meaning of the statute, upon the father, and that being the only question, it being; conceded apparently that the amount that was rendered would be right if the child were entitled to receive anything, we can see no error in this case and the judgment is affirmed.

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


author: MAUCK, J.

text:
    SAMSEY v. KAUFMAN.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8750.
    Decided Mar. 12, 1928.
    Middleton, PJ., and Mauek, J., of the 4th Dist., and Cushing, J., of the 1st Dist., sitting.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    797. MUNICIPAL CORPORATIONS — 874. Ordinances — 1023. Repeal.
    Council has power to repeal any ordinance passed by it unless inhibited by some statute of charter provision.
    Error to Common Pleas.
    Petition Dismissed.
    G. 0. Farquharson, Cleveland, for Samsey.
    Wm. ,L. David, Cleveland, for Kaufman.
   FULL TEXT.

MAUCK, J.

The plaintiff brought her action to enjoin the defendant as Director of Finance and Clerk of Council of the City of Lakewood from certifying to the Council a certain petition filed with the Clerk to secure a referendum on an ordinance theretofore passed by the Village. A hearing was had and the petition dismissed by the trial court. To that judgment error is prosecuted in this Court. It is here indisputably shown that the ordinance against which the referendum was filed has been repealed since the bringing of this action. There can consequently be no referendum thereon, and none of course is any longer proposed or threatened. The question before us is a moot one.

It is argued by the plaintiff in error, however, that the City Council had no power to repeal the ordinance except such power as was conferred upon it by the referendum petition which it is the purpose of this proceeding to challenge. This is unsound. Tb;e Council has power to repeal any ordinance passed by it unless inhibited by some Statute or by some Charter provision. No such inhibition appears in the Charter nor has any been pointed out in the Statute. If there were such a provision, however, it could not avail the plaintiff in error here. She does not plead any property right under the ordinance in question. She does not sue as a property owner. She sues as a taxpayer only. Her whole claim for relief is predicated on the charge that an unlawful expenditure of municipal funds is about to be made on an unauthorized election. It being admitted that no such election will be had or can be had, the plaintiff as a taxpayer has no further rights in the premises. If the repeal of the ordinance were conceivably irregular or unauthorized the plaintiff’s property rights under such ordinance could be asserted in another action. This case died with the referendum.

Motion to dismiss the petition in error is sustained.

Middleton, PJ., and Cushing, J., concur.


text:
    MALLOY v. SVOBODA.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 7995.
    Decided Mar. 5, 1928.
    Syllabus by Editorial Staff.
    751. MASTER AND SERVANT — 54. Agency.
    Where friend, who is riding with truck driver, performs act which is within scope of driver’s duty, such act is the act of the driver.
    Error to Common Pleas.
    Judgment reversed.
    Bernsteen- & Bernsteen, Cleveland, for Mal-loy.
    Payer, Minshall, Karch & Kerr, Cleveland, for Svoboda.
    STATEMENT OF FACTS.
    This case comes into this court on a petition in error to the Common Pleas Court of Cuya-hoga County, the purpose being to reverse a judgment that was rendered against plaintiff in error, who was plaintiff below, in the Common Pleas Court of this County.
    It seems that the plaintiff in error was a boy and at the time complained of was standing on the sidewalk at West 50th Street and Clark Avenue, but for just what purpose he was there does not appear, and it makes no difference. He was rightfully on the street.
    The record shows that the defendant in error was the owner of The American Bohemian Daily and that it delivered its paper in bundles to various places in the City of Cleveland, and for that purpose employed a person who drove a truck belonging to the defendant in error containing the newspapers done up in large bundles to be distributed at different points in the City to be there received by the distributing agents for the purpose of distribution among the subscribers to this Bohemian Daily.
    The evidence shows that, on this particular day, the truck belonging to the defendant in error was driven by its servant for the purpose of distribution, and that it was the custom to drive up to the curb and throw the papers upon the sidewalk.
    It further appears from the record that a couple of boys, who apparently were friends of the driver who was a youth, were in the truck with him, and as they approached West 50th Street on Clark Avenue where a bundle of the papers was to be delivered (the papers were evidently marked for this particular location), the driver, without stopping, drove up close to the curb, and it is said that one of these boys, either with the driver’s instructions, or of his own volition, pushed this bundle of papers off, and-it knocked this boy down, broke his leg and injured him so that he is permanently disabled, by reason of which this action was brought.
    When this case was presented to the court and the plaintiff had introduced his evidence, there did not seem to be any evidence to show that the driver of this truck, the employee of the defendant in error, was authorized to have boys ride with him, and that inasmuch as one of these boys apparently shoved this bundle of papers on to the sidewalk, although this is disputed, that the doctrine of respondent superior would not apply, and on motion a verdict was directed for the defendant in error against the plaintiff in error, and it is to re'verse that judgment that error is prosecuted here.
   VICKERY, J.

I cannot agree with learned counsel that it was necessary to prove that this employee of the defendant in error had authority to employ some one else. In the first place, as I get this case, there was no employment of anybody else. This driver had a duty to perform, and that was to deliver these papers at this corner, and the truck was used for that purpose, and if this bundle had been put in the window of the automobile so as to make ready to do that, it must have been with the connivance and under the instructions of the driver. If he had taken a stick and pushed the bundle out, or kicked it out on the sidewalk, there would be no question but what there would be a liability. Now the mere fact that he used instead of a stick to throw it off, the aid of a boy who was riding with him, would not change it from being the act of the driver — for it must be remembered that it was the driver’s duty to deposit this bundle of papers at this particular place, so I say, that whatever act was done by one of these boys, if the act were done by one of them, was as a matter of fact the driver’s act, and that was simply the means or the medium through which the purpose was accomplished and the driver was acting within the scope of his employment and acting for the defendant in error when these papers were deposited there, and I think there is a question to go to the jury, whether or not there is not a liability, and the court erred in directing a verdict for the plaintiff.

Now we are not left to conjecture in this respect. There is a recent case, so on all fours with this case that there can be no misunderstanding of the trend of the court and that is the case of Semper v. American Press, 273 S. W. Reporter, page 186.

There could not be a ease more on all fours with the instant case than that case, but irrespective of that case, by an analogy of reasoning, it cannot be possible that an employer that wants to have papers delivered upon a street corner, if its agent, in order to get the thing done more quickly, gets a friend to go with him, and he being at the wheel and driving past the spot, orders the friend to throw these things off, which results in an injury to a person rightfully upon the sidewalk, can escape responsibility on the ground that the one who threw off the bundles of papers was a mere volunteer. It is the act all the time of the employee of the defendant company, in pursuance of his duties, and in no sense is it necessary to show that there was power to employ other persons, — in fact, there has been no employment of other persons. He did the work himself and the other person was only the means through which he did it — it was the instrument which he used, and consequently there was evidence at least to go to- the jury in this case.

The judgment of the court below was wrong because there was surely evidence to go to the jury, and I think it should be reversed and remanded to the trial court for a new trial.

(Levine_, J., concurs. Sullivan, P. J., not participating.)


author: HUGHES, J.

text:
    STROUSE v. SCHENK et.
    Ohio Appeals, 3rd Dist., Paulding Co.
    No. 50.
    Decided Apr. 19, 1928
    Before Judges Crow, Hughes & Justice.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    1255. WARRANTY — Breach of — 1663. Sales —297. Contracts.
    1. Purchaser has* option, in case of breach of warranty, of terminating contract and returning or tendering back all goods, at place where he had received them from seller, or he may retain goods and sue for damages for breach of warranty.
    2. If purchaser retains goods, even though necessity of situation may require him to retain them in his service until he can replace them, his only remedy is damages for breach of warranty.
    Error to Common Pleas.
    Judgment reversed.
    S. S. Beard, Paulding and Ora Wade, Fos-toria, for Strouse.
    John S. Snook, Paulding, and D. C. Corbett, Payne, for Schenck et.
   FULL TEXT.

HUGHES, J.

The action brought by the plaintiff in this case was in the short form, on an account, with a copy of the account attached to the petition marked Exhibit A, which shows that there was sold to the defendants, a number of gas meters, quantities of four inch, two inch and inch and a quarter pipe; and also small accessories for pipe lines, such as T’s, L’s, and so forth, with a credit of one thousand dollars in the form of a cheek, showing a balance due of $8,359.86.

The answer admits the sale of these articles set forth in Exhibit A, except as to a portion of the four inch pipe which they claim was set forth in the exhibit as something over five thousand feet too much.

They aver that when these commodities were purchased, the plaintiff was informed regarding the purpose for which they were to be used, to wit, in a high pressure gas line running from gas wells to the Village of Payne, for the purpose of furnishing and measuring gas to the residents of said village, and that thereupon the plaintiff represented and waranted these meters in good shape and fit for said service.

The defendants further say that these statements and representations were false and known By the plaintiff to be so, and were made to induce defendants to purchase the goods.

It is then averred that a certain number of the meters were returned and accepted by the plaintiff, and that the balance the defendants offered to return and now again offer to return.

Substantially the same averments are set forth in the answer regarding the purchase of the two inch pipe, but further stating that the pipe, upon examination, could not be properly inspected but was put in the pipe lines and in use, and it was then that the defendants ascertained that it was not sound and of good quality.

The answer then sets forth an agreement entered into on the 2nd day of January, 1926, regarding the two inch pipe, which in substance shows that the parties agreed that they would get together and recheck the two inch pipe for serviceability, and that all that was not suitable for the use of the defendants would • be returned for credit, the balance to be paid for by the defendants. Defendants say that they have requested the plaintiff to come and re-check this two inch pipe, but he has refused and neglected to comply with the agreement.

After setting forth the defects in the pipe showing its unfitness for the service, follows similar averments regarding the purchase of the four inch pipe. Defendants then say that after laying the four inch pipe in the lines and then discovering its unfitness, that they are' about to take it up and cease using it, and replace it with another pipe, and offer to return the same to plaintiff. Then, follow some aver-ments regarding extra freight and expenses for labor, which is claimed by defendants as a set-off.

The reply denied these averments, and the case was tried to the court, a jury having been waived.

It will be observed that by the pleadings, it is, briefly stated, an action on account, with an answer admitting the purchase of substantially all the goods claimed to have been sold, but defending upon the ground of a breach of warranty. The case was tried upon the evidence, which we have gone through carefully, in a bill of exceptions of many pages.

Under the laws of our state, the defendant has the optibn in a case of a breach of warranty, of terminating the contract and returning or tendering back all goods, at the place where he had received them from the seller, or he may retain the goods and sue for his damages for the breach of a warranty.

A careful review of the evidence in connection with the pleadings shows clearly that there was no election upon the part of the defendants to terminate the contract and return the goods, as is required under the law.

The contract of January 2nd, set forth in the pleadings, shows clearly that the defendants did not elect to terminate the contract in whole, but were satisfied to retain all goods that met the specifications of the waranties and representations and i-eturn to the plaintiff those goods which did not come up to such representations.

In regard to the four inch pipe, it is clear that at the time of the trial the defendants still had in their possession a portion, if not all, of the four inch pipe. There had been no tender back of the four inch pipe, but it was retained and used by the defendants under the necessities of their situation, until they could replace it with a five inch pipe, which was later done.

There is no evidence in the record to support a finding in favor of the defendants for any amount of damages by reason of the breach of the warranties. The finding in favor of the defendants by the court, was based upon the theory that there had been shown a right to terminate and rescind the contracts, and he was given credit for the return of the goods purchased but was charged with the goods retained and kept by him. There is no evidence in the record to support this finding.

The law as is given to us by our courts, and as is set forth in 24 R. C. L. under the sub-title of Sales — Breach of 'Warranty, beginning with Section 568, and following, requires the return of the goods or a tender back of the goods purchased in the event of a breach of warranty, within a reasonable time, and rescission of the contract is not available to the purchaser if the goods, even though the necessity of his situation may require him to retain them in his service until he can replace them in the market by others. If he retains them under such circumstances, his only remedy then left, is damages for the breach of the warranty.

It is therefore manifest that the judgment in this ease is not supported by the evidence and it must be reversed and the cause remanded for a new trial.


text:
    BRADLEY v. BARCH.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 7998.
    Decided Feb. 27, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    257. COMMISSIONS — for Sale of Real Estate . —708. Leases — 1105. Statutes of Frauds.
    Sale of lease for term of years, in real estate, is sale of interest in land, and before broker can recover commission he must have contract in writing, or memorandum thereof, in writing.
    Error to Municipal Court.
    Judgment affirmed.
    J. B. Dworken, Cleveland, for Bradley.
    Mooney, Hahn, Loeser & Keough, Cleveland, for Barch.
   FULL TEXT.

VICKERY, J.

This cause comes into this court on a petition in error to the Muneipal Court of the City of Cleveland and was heard by this court in the April term of court and has not been disposed of until the present time for reasons that will appear hereafter.

It seems that the plaintiff in error, who was plaintiff below, brought an action to recover $1,450 which he claimed as commission for the selling of a leasehold and the equipment of a moving picture house, and that the petition set up that this contract entered into was an oral contract. Why a demurrer was not filed to this statement of claims does not appear, but subsequently other pleadings, which are not at all germane to the issue at hand were filed, and apparently later other counsel were engaged, and when it came on for trial, either an objection was made to the introduction of further testimony because the statement of claim did not state a cause of action, or after all the evidence was introduced by the plaintiff, a motion was made to enter up judgment for the defendant, on the theory that inasmuch as the contract was not in writing, it came within the recent amendment of the statute of frauds which provides that the commission for the sale of any interest in land could not be recovered unless there was an agreement or a memorandum thereof signed by the party to be charged, or his duly authorized agent.

The court granted the motion and entered up a judgment in favor of the_ defendants, and error was prosecuted to this court and, as already stated, the case was heard in the April Term of Court last year, and at that time this court came to the conclusion that this contract was a sale of an interest in land and that before the broker could recover a commission, he must have a memorandum in writing and the writer of this opinion, who was assigned to write the opinion in that ease, gathered together the authorities-and was preparing to write an opinion at that time in accordance with what we discovered to be the law; that is, that a leasehold for a term of years was an interest in land and that a sale of it would be a sale in land and was within the statute, but before the opinion could be prepared the writer of this opinion was notified that the Court of Appeals of the Ninth District, in a case exactly similar, had held that such a leasehold was not an interest in land, within the meaning of the statute, but that the question had been certified to the Supreme Court and was then pending in the Supreme Court, and asked that the opinion of this court be held up until the Supreme Court could pass upon the question.

This court acquiseced and held the opinion in abeyance and now we learn that on June 8th, 1927, in the case of Brenner v. Spiegle, the Supreme Court reversed; the Court of Appeals of Wayne County and held that a sale of a lease for a term of years in real estate was a sale of an interest in land and was within the purview of the statute, and before a broker could recover a. commission, he must have a contract in writing or some memorandum thereof in writing. This case was reported in the Bulletin for August 15th, 1927, and it decides the exact question that we had before us and decided it the same way that we had come to the conclusion to decide it, and but for the suggestion of counsel, the opinion would have been written long ago.

We, therefore, have nothing further to say or to gather any more authorities, but will affirm the judgment of the court below upon the authority of Brenner v. Spiegle, 116 OS. 631, 157 NE. 491, as originally published in the Bulletin for August 15th, 1927, which has disposed of all the questions that are involved in this case.

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


author: THOMAS, J.

text:
    GEISS et v. ARMBRUSTER.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8182.
    Decided Mar. 12, 1928.
    (Middleton, PJ., Mauck and Thomas, JJ.. of the 4th Dist., sitting.)
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    1271. WILLS & LEGACIES — 1265. Weight of Evidence — 480. Evidence — 1235. Verdicts.
    Verdict for plaintiff in action to contest will on grounds of undue influence and incapacity, held contrary to weight of evidence. Injection into trial of issue which has nothing to do with case, held ground for reversal.
    Error to Common Pleas.
    Judgment reversed.
    Prank T. Cullitan, Cleveland, for Geiss et.
    Hart, Curry, Sklenicka & Murray, Cleveland, for Armbruster.
   PULL TEXT.

THOMAS, J.

Error proceedings are before this court from the Court of Common Pleas. The defendant in error instituted an action against the plaintiffs in error to contest the validity of the will of their mother, Agatha Geiss, on the grounds of undue influence and incapacity. At the conclusion of the evidence on behalf of the plaintiff below a motion was made by the defendants for a directed verdict and. the same was overruled. The caiise then proceeded and was submitted to the jury, resulting in a verdict for the plaintiff. A motion for a new trial was filed and overruled by the court.

The usual assignments are set forth in the petition in error but we find but' two that challenge the attention of this court. First, did the trial court err in overruling the motion of the defendants for a directed verdict, and should the motion for a new trial have been sustained? On the first proposition, did the evidence of the contestants outweigh the presumption afforded by the will and order of probate ? Ordinarily this is a question for the jury. It was shown by the evidence that previously a guardian had been appointed of the estate of the testatrix. This evidence together with testimony offered by the plaintiff made an issue for the determination of the. jury, and we are unable to find error in the ruling of the court on the motion.

A more serious question arises on the disposition of the motion for a new trial. Is the verdict of the jury against the manifest weight of the evidence ? With the exception of the plaintiff and her husband but one witness testified for the plaintiff, and none of the witnesses had seen the testatrix for more than three years prior to the execution of the will. In behalf of the proponents of the will seven witnesses testified and all of them had been intimately acquainted with the testatrix for a long time and up to the time of her death. They all testified that the decedent conversed intelligently and most of them that she was unusually bright for a woman of her years.

There is no evidence of undue influence except an inference from the terms of the will itself. Such inference in the light of the circumstances surrounding the testatrix at the time of the execution of the will amounts to nothing more than suspicion. For reasons best known to the plaintiff she had not visited her mother since the appointment of the guardian of her estate. The behavior of the daughter at the hearing in the Probate Court demonstrated that she cared more for the money belonging to the mother than for the mother herself. The old lady, although nearing eighty years of age, no doubt keenly felt the effect of such reprehensible conduct. Simply because the daughter was not appointed guardian she turned the vials of her wrath upon the aged mother and never afterwards apologized or performed one single act of kindness toward the one whose bounty she now seeks. She even deprived the mother of the solace of a visit in the last hours of her life. Under all the circumstances the terms of the will were the natural harvest from the seed sown by the daughter herself. To have rewarded her would have been expecting too much of the testatrix. She was human.

The evidence in support of testamentary capacity is overwhelming and from the record the court is compelled to say that the plaintiff, on whom the burden of proof rested, totally failed to show either undue influence or incapacity.

An issue was injected into the trial which perhaps had much to do with the verdict of the jury, and which had nothing to do with the case, and which should not have been permitted. It was sought to show that the defendant, Michael Geiss as guardian, had been somewhat irregular in the administration of the estate, and the jury was trying him instead of determining the issues in the case. That fact did not tend to show incapacity of the testatrix or undue influence. What the said defendant did was under the direction of the testatrix. The guardian had given bond and none of the beneficiaries could have been thereby prejudiced in their property rights.

The judgment of the Court of Common Pleas is reversed for the above reasons and the case remanded for a new trial.

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


author: LEMERT, J. .

text:
    HARDESTY v. HARRISON et.
    Ohio Appeals, 5th Dist., Holmes Co.
    Decided Mar. 5, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    367. DEEDS.
    Secret, unexpressed intention will not be permitted to vary deed or change its meaning where language used leaves- no doubt. Object of construction is to ascertain intent of parties and such intent governs unless language employed renders it impossible to give it effect. 884. PAROL EVIDENCE — 297. Contracts
    Deeds are written contracts between parties thereto. Rule that parol evidence not admissible to vary terms of -written contract, is same in equity as in law. Statements, made at time of conveyance of mineral rights, cannot be alleged against innocent purchaser for value.
    868. OIL & GAS — 763. Minerals.
    Petroleum oil is mineral and is part of realty like coal, iron and copper. Grant, without qualifying or limiting words, of minerals underlying real estate, includes oil and gas.
    997. REAL ESTATE — 163. Bona Fide Purchasers.
    1. In absence of actual knowledge or facts sufficient to put him or her on inquiry, purchaser may assume that title is completely disclosed on record, and need not go outside record to inquire for latent equities.
    2. Mistake in written instrument will not be corrected against bona fide purchaser, whether such mistake occurs in deed, mortgage or other instrument.
    3. Where one of two innocent purchasers must suffer by fraud of third person, he who first trusted such third person and placed in his hands means which enabled him to commit wrong, must bear the loss.
    Appeal from Common Pleas.
    Garver & Badger, Millersburg, for Hardesty.
    Cary, Estill & Khun, Millersburg, for Harrison, et.

      STATEMENT.OF FACTS.
    Plaintiff for cause of action herein says that on the 12th day of December, 1916, the defendant, Margaret Harrison, leased to the Medina Gas and Fuel Company, for oil and gas purposes, the North-east corner of Section 26, Township 14, Range 13, in Holmes County, Ohio, as recorded in Volume 16, page 186, Lease Records of Holmes County, Ohio.
    Said lease provided that in case no well was completed before February 28, 1917, lessees should pay Twenty Dollars rental for each three months thereafter such completion was delayed, in advance.
    The lease in question has now been assigned to the defendant The Ohio Public Service Company.
    In 1919, Margaret Harrison conveyed to Warren B. Ferris all the coal, clay and mineral rights on the North-east Quarter Section, of Section No. 26, Township 14, Range 13, Prairie Township, Holmes County, Ohio. Said coal, clay and minerals were conveyed to plaintiff by deed dated March 24, 1923, and recorded in Volume 91, page 556, of the Deed Records of Holmes County, Ohio, and plaintiff has been the owner thereof ever since. Said lessee has paid rentals on said lease to and including the payment due in May, 1923, thereby paying rentals to and including August 28, 1923, and is ready to pay all the rentals accrued since said date to whomever the Court finds entitled to the rentals.
    Plaintiff says that she is the owner in fee simple of the coal, clay and minerals, including the oil and gas in said Quarter Section, and is entitled to all the rentals due on said oil and gas lease after March 24, 1923.
    Plaintiff says that the defendant Margaret Harrison claims an interest therein adverse to the plaintiff’s rights in said coal, clay and minerals, including the oil and gas by her, construing said deed made by her to said Warren B. Ferris contrary to the true construction of said deed.
    Plaintiff prays that said claim of defendant Margaret Harrison be adjudged null and void and the plaintiff’s title to said coal, clay and minerals, including the oil and gas, be quieted against the same: that defendant The Ohio Public Service Company be ordered to pay all rentals on said oil and gas lease accrued since May, 1924,'and all further rentals on said oil and gas lease to the plaintiff or as she may direct and for such other relief as is proper.
    To this petition an interpleader was filed by The Ohio Public Service Company, offering to pay said rentals to whomsoever the Court may direct and asking to be discharged from any further liability.
    The defendant, Margaret Harrison, files an Answer in substance as follows: For her answer she denies that plaintiff has any right, title or interest in the gas or oil on answering defendant's said premises in the petition described; denies that the plaintiff is entitled to any rentals or any interest whatsoever in said oil and gas rights, which are owned by the defendant. Further answering, defendant alleges that at the time of her contracting with Warren B. Ferris and the execution of the said agreement with him upon which plaintiff bases her claim, that neither party to the said agreement intended or contemplated the oil or gas rights should be conveyed to the said grantee under the terms of the said agreement: that only such minerals as coal, clay, limestone and sandstone, or such as are of a nonmigratory character were intended and contemplated under the terms of the said agreement. Wherefore, defendant Margaret Harrison prays that said claim of plaintiff be adjudged null and void and that .answering defendant’s title to said oil and gas rights be quieted against the said claim of plaintiff, and for such other relief as is proper.
   LEMERT, J. .

So the principal question to be determined in this case is, who is entitled to the oil and gas rentals under this lease, the plaintiff or defendant ?

The main object in construing a deed is to ascertain the intention of the parties and especially that of the grantor, and it is well settled that deeds must be construed so as to effectuate, if possible, the intention of the parties, or of the grantor, unless inconsistent with settled rules or of some principle of law or in violation thereof or in violation of some rule of property, or there are expressions in the deed which positively forbid it or render it impossible. Secret, unexpressed intention will not be permitted to vary the deed or change its meaning where the language used leaves no doubt. The very object of construction is to ascertain the intent of the parties and when this intent is discovered it governs unless the language employed renders it impossible to give it effect.

The only other matter in the record before us is some testimony on behalf of the defendant, in which defendant claims that at the time of the so contracting with Warren B. Ferris and the execution of said agreement with him upon which plaintiff bases her claim, that neither party to this agreement intended or contemplated that oil or gas rights should be conveyed to the said grantee under the terms of said agreement: that only such minerals as coal, clay, limetsone, sandstone or such as are of a nonmigratory character were intended and contemplated under the terms of said agreement.

We find and believe that the foregoing defense is not a legitimate and lawful defense in this action. The general rule is that parole evidence is not admissible to vary the terms of a written, contract, and these various deeds were the written contract between the parties thereto; and we find and believe that this rule is the same in equity as in law.

30 Ohio State, 418.

46 Ohio State, 30.

10 C.D., 74.

9 C.D., 807.

Or, in other words, whatever was said at the time Margaret Harrison conveyed the minerals to Warren B. Ferris can not be alleged as against plaintiff, who purchased same from a receiver appointed by the Court, and who was a bona fide purchaser, for value.

34 Cyc., 956.

39 Cyc., 1687.

We believe it is a well settled law that petroleum oil is a mineral and is a part of the realty, like coal, iron and copper. A grant without qualifying or limiting words of the minerals underlying certain real estate will include oil and gas.

17 A. L. R„ 148.

In the above case, all the minerals in, on or under the land embraced by this conveyance includes petroleum and natural gas. The Courts say that the language of the deed shows that the parties contemplated nothing less general than all substances legally cognizable as minerals. Since oil and gas are minerals and there is nothing in the language of the deed in question which shows that the parties contemplated something less general than all substances legally cognizable as minerals, we conclude that the title to the oil and gas necessarily passes by the conveyance.

The purchaser of the property in question in this case had the right to rely on the record deed and such record deed is constructive notice only of what appears on its face. In absence of actual knowledge of the title in fact or of facts sufficient to put him or her on inquiry a purchaser may assume that the title is completely disclosed on the records and is entitled to rely thereon and he or she is not bound to go outside the record to inquire for latent equities.

A bona fide, innocent purchaser, for value, and without notice, is the peculiar favorite of a court of equity, and we believe the authorities are united on the proposition that a mistake in a written instrument will not be corrected against such a party, whether such mistake occurs in a deed, mortgage or any other instrument. A stronger statement of the rule involved is where the parties seeking relief committeed the mistake, when one of the two parties must suffer the loss, the loss must fall upon him who is in default. Again, another well established rule of law is, that where one of two innocent persons must suffer by the fraud of a third person, he who first trusted such third person and placed in his hands the means which enabled him to commit the wrong must bear the loss.

41 O.S., 685.

85 O.S., 203.

Wherefore, it follows' under this case that there will be a finding in favor of the plaintiff and that she is entitled to the possession of the oil and gas rights in and underlying the real estate in the petition described. We find that the plaintiff is entitled to the relief prayed for in her petition and to have the title and possession to said oil and gas rights quieted, and find that the title and possession of said plaintiff, Florence Hardesty, to the oil and gas rights in and underlying said premises in the petition described and accrued rentals be and the same are hereby quieted as against the defendant, and that said defendant and all persons claiming under her are hereby enjoined from setting up any claim to said oil and gas rights adverse to the right, title and interest of said Florence Hardesty thereto, or any part thereof, or in any manner interfering with her use and enjoyment of the same, and the costs of this action be adjudged against the defendant. Exceptions may be noted.

Lemert, J., Shields, J., and Houck, J., concur.


author: SULLIVAN, PJ.

text:
    RIGHTER v. SEDGLEY
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8366.
    Decided Mar. 12, 1928.
    Syllabus by Editorial Staff.
    851. NOTICE & KNOWLEDGE — 147. Bills, Notes & Checks.
    1. Officers of corporation cannot be heard to say that they did not know as individuals what they were bound to know as officials.
    2. Where note, signed by corporation, was presented to such corporation for payment, and payment not made, endorser who was officer of corporation held liable, whether or not he received actual notice of presentment and nonpayment.
    Error to Common Pleas.
    Judgment affirmed.
    Boer, Arnold & Tobias, Cleveland, for Righter.
    Krueger, & Pelton, and R. L. Davis, Cleveland, for Sedgley.
    STATEMENT OF FACTS .
    This cause is here on error from the Court of Common Pleas and we refer to the parties as they stood below, which is in the inverse order.
    This is an action against an endorser upon a promissory note. The issue is whether there was testimony which justified the jury in finding that the defendant below had received notice of dishonor, or whether actual notice of dishonor was necessary. The note in question is as follows:
    “$500.00 Cleveland, O., Aug. 28, 1922.
    On demand, with ten days notice, after date, we promise to pay to the order of MARTHA J. SEDGLEY FIVE HUNDRED .DOLLARS at 1366 Hayden Ave., E. Cleveland, Ohio. Value Received. Interest 8%.
    THE HYART ELECTRIC PROD. CO.
    Endorsed by officers on reverse side.
    (Endorsements)
    Roland E. Remley: E. C. Righter:
    H. B. Wright.”
    It appears from the evidence that the endorsers were the controlling members of the Board of Directors of a corporation known as the Hyart Electric Products Company, and the defendant Rembley was President, Righter was Treasurer, Wright, Vice President and Sedgley, Secretary of the corporation.
    Sedgley was the husband of the plaintiff and was in personal charge of the business of the corporation, and acted in the capacity of General Manager as well as Secretary. It appears that he was the only officer and director who was in the corporation, giving almost his entire time to the business of the company, and probably the only officer and director who received compensation for his services. The other officers named were occasional in their duties only, and acted largely in a consulting capacity and received no compensation therefor.
    It appears that on August 28, 1922, the corporation being in need of money, the note in question was negotiated, and it appears that on or about March 1, 1923, at a time when the plaintiff wanted her money, made a request for the same in writing, addressed to the corporation, and delivered to her husband, who in turn, by credible evidence, in the record, as Secretary of the Company, notified Righter of the contents of the letter, but there was no money with which to pay it. There is a conflict upon this point, as Righter claims that it was some time afterwards that he received any knowledge of the contents of the letter. It is claimed that a second letter was written bearing upon the same subject matter.
   SULLIVAN, PJ.

“It is claimed that there was no presentment of the note for payment, and notice to the endorsers and consequently that there can be no recovery. It is plain that the letter was a written demand for payment, and it appears clear that Righter received notice of its content. The only conflict being as to when, but inasmuch as there is credible evidence that he received notice upon the date it was written that fact is material, as it furnishes a basis to support the judgment.

We think the case of York v. The Franklin Tractor Co., 22 O. L. R. 377 is decisive of this case as the facts are substantially similar. In that case the endorsers were the officers in control of the corporation, and the note in question had been deposited at the bank for collection. Notice was given to the company but not to the endorsers, and it was undisputed that there were no funds available for taking up the note.

The Court of Appeals of Franklin County held that inasmuch as the endorsers were the officers in control of the corpoi’ation that the funds in law and effect were for their own advantage and accommodation, and that as directors and officers and controlling the corporation, they were in law bound to know the conditions of the note and that it was not paid when due and that they cannot be heard to say that they did not know, as individuals what they were bound to know as officials. The same rule we think applies in the present case. Righter and the other endorsers, endorsed the note personally for the purpose of securing money for the corporation, which was in practical effect, securing the money for their own personal benefit, that being the original purpose for which Righter and the others originally became endorsers upon the note.

Thus, under the reasoning of The Franklin Tractor Co., Supra, even if the defendants did not have actual notice of the dishonoring of the note, under the law of the case they would be bound as endorsers, by reason of their official relationship, to the corporation, and their opportunities for absolute knowledge of the existence of the note, and the promise therein contained. Practically speaking, the note was for their accommodation, and technically speaking, for the corporation.

We think under the decision of the case just mentioned, that they were bound with knowledge even though there was no actual notice, but as stated before, there is credible evidence in the record that the treasurer of the corporation who was conducting the finances of the corporation had written notice of demand and dishonor.

We think the ease was submitted properly to the jury, and that there was credible evidence under the rule of law to sustain the verdict.

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

Vickery, J., and Levine J., concur.


text:
    STATE ex Sheinkman v. MAPLE HTS. BD. OF HEALTH.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 9065.
    Decided Mar. 12, 1928
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    297. CONTRACTS.
    Contract is discharged and terminated by breach. ,
    187a. BUILDING PERMITS.
    Where owner of property has entered into contract, for plumbing of new building, and municipality has issued permit to such plumber for benefit of owner, termination of contract does not in any way affect, revoke or modify permit.
    Error to Common Pleas.
    Judgment affirmed.
    P. J. Berry and A. Kollin, Cleveland, for State ex.
    Locher, Green & Woods, Cleveland, for Bd. Health.
    STATEMENT OF FACTS
    This action is brought in mandamus from the Common Pleas Court by Michael Sheinkman, to compel the building inspector of the Village of Maple Heights to issue a permit to do certain plumbing on some lots owned by Sheink-man. In the court below the writ was refused and error is prosecuted here to that judgment.
    It seems that Sheinkman owned at least two lots in question in the Village of Maple Heights and desired to build dwelling houses thereon, and he made a contract with a plumbing concern by the name of the Union Plumbing Company, which was a partnership of which Yelsky was a member, and a permit for the plumbing was issued to Yelsky for the building of this house, and he and the owner having got into some difficulty, the plumbing firm refused, I believe, to go forward with the .work, because as is stated in court,' they were not satisfied with the financial responsibility of the owner, whereupon the owner wrote a letter terminating the contract relations between them, and then the plumbing concern, I believe, refused to be discharged from the contract insisting that it remain in force, although they refused to go forward with their work. In that condition of things Sheinkman brings an action in the Common Pleas Court, as already stated, to compel the authorities to issue a permit, and they declined on the ground that they had already issued to Yelsky a permit which had never been returned or revoked, for the plumbing in this man’s house.
   VICKERY, J.

“A rather singular transaction can be discovered from this record. The permit was issued by the Village of Maple Heights for the plumbing., in accordance with the plumbing specifications for the erection of this house, and it was for the benefit of the owner of the house, and not for Mr. Yelsky, he being simply the plumber. Whatever right he had to get a permit on the premises owned by the plaintiff below and the plaintiff in error here, would be by virtue of a contract, and that was a contract whereby his firm was to do the plumbing in the houses erected upon these lots.

Now come all the difficulties arising between these parties. The owner of the property terminated this contract, let us say, wrongfully, by a breach. I think all the law books on contracts that I have ever seen, and I have seen practically everything that has been written on the law of contracts, is to the effect that a contract would be discharged by a breach thereof, and the other party to the contract cannot insist upon an actual doing of the work, except as in such contracts where specific performance is allowed where there is no adequate remedy at law. In all other cases a party can rightfully or wrongfully terminate a contract by the discharge of the other party and he is limited to his action for damages, and Mr Yelsky cannot say that this contract had not been terminated by the other party and thus be like a “dog in a manger,” neither going forward himself with his contract, nor permitting the owner to get some one else to do it.

As already stated, this permit was given for the benefit of the owner and if he gets into a quarrel with his contractor and terminates the contract either rightfully or wrongfully, it does not necessarily mean he must get a new permit. It means he must get some one else who is a licensed plumber to complete the work, but that he can do it under the original permit, there can be no doubt. This is important because, if that is so, there has been a permit issued and the plaintiff would not have the right to have another permit issued. We think in this case that the contract relation between the Union Plumbing Company and the owner was terminated by the letter written by the owner to the plumbing contractor, but that did not in any way affect, revoke, or modify the permit that was issued for the plumbing because we suppose there were plans and specifications for the plumbing under which the permit was issued, and it was issued for the benefit of the owner and not the plumber.

Now that being so the plaintiff was not entitled to the relief asked for. If the Village refused, or interfered with him in any sort of a way, he had a complete remedy by way of an injunction against anybody interfering with him, and he could let his contract to another plumber, and go forward and complete his building in accordance with his plans and specifications for the buildings.

We, therefore, think that the judgment of the court below was right and that it must be affirmed.

Sullivan, PJ., concurs in judgment.

(Levine, J., not sitting.)


author: BY THE COURT

text:
    WRIGHT v. CLARK et.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8671.
    Decided Mar. 19, 1928.
    (Ferneding, PJ., Kunkle and Allread, JJ., of the 2nd Dist., sitting.)
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    797. MUNICIPAL CORPORATIONS — 865. Office & Officers.
    Unlawful for village engineer to have any private contract with village. Not necessary, in action under 3808 GC., to recover money unlawfully paid to village engineer, to allege fraud or excessive charges.
    Error to Common Pleas.
    Judgment affirmed.
    Paul Howland and Ralph A. Snow, Cleveland, for Wright.
    Thompson, Hiñe & Flory, Jerome C. Fisher, and T. E. Lipscomb, Cleveland, for Clark et.
    STATEMENT OF FACTS
    This action was brought by a certain taxpayer in the Village of Bedford against Bayard T. Wright to recover the amount of certain bills in his favor allowed and paid by the Village Council. Upon the trial there was a judgment in the Court of Common Pleas against Bayard T. Wright for $13,770.63. The defendant prosecutes error.
   BY THE COURT

“The plaintiff relies upon Section 3808 General Code.

“It appears that Bayard T. Wright was employed by the Village of Bedford as an engineer and that in addition to his compensation as an engineer he presented bills based upon personal contracts with himself for cinders and other small contracts amounting to less than $500.00 in each item.

“The plaintiff relies upon Section 4364 General Code.

“A resolution of council provided for the employment of Wright as Engineer.

“Each duty prescribed in this resolution covers a duty within the contemplation of the Statute, Section 4344 GC., so that the question really is whether under this resolution of council, the council undertook to create the office of engineer and fixed the compensation therefor. It will be observed that the office of engineer was created by Section 4363 GC., and prior statutes refer to the position of Village Engineer as an office, and this construction placed upon the statute would be sufficient under Section 3808 GC., to make it unlawful for the engineer to have any private contracts with the Village.

“The claim is made that there is no fraud or excessive charges set forth in the petition or evidence against the plaintiff in error. We think that no such claim is necessary. The statute was enacted to prevent the allowance of such claims and to recover back the amount of money involved therein. We therefore hold that the judgment of the court below was proper.”

Ferneding, Kunkle and Allread, JJ., concur.


author: PER CURIAM.

text:
    TABORN v. STATE.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8458.
    Decided Mar. 5, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    566. FUGITIVES FROM JUSTICE — 601. Habeas Corpus.
    In habeas corpus proceedings, to secure release of party arrested as fugitive from justice, claiming such arrest to be unlawful, sole inquiry before court is whether there is pending against accused, in foreign state, a felony charge, and whether papers produced to substantiate it are in order.
    Error to Common Pleas.
    Judgment affirmed.
    Alexander H. Martin, Cleveland, for Tabom.
    E. H. Boers, Cleveland, for State.
   PER CURIAM.

Plaintiff in error was arrested as a fugitive from justice. He filed a petition in habeas corpus in the Court of Common Pleas alleging that his arrest was unlawful. After a hearing his petition was denied and he was remanded to the custody of the officers for the purpose of being extradited to the State of Michigan, and this proceeding seeks to reverse the finding and judgment of the Common Pleas Court.

It appears that plaintiff in error was married in Kalamazoo, Michigan, a number of years ago and as a result of said marriage there were born three children who are still minors. The State of Michigan seeks to extradite plaintiff in error because there is pending against him in the State of Michigan a charge of a felony under section one of Act 276 of the laws of 1917 of the State of Michigan, which is as follows:

“Where in any decree of divorce granted in this state, where personal service is had upon the father of any minor child or children, under the age of fifteen years, the court shall order such father to pay any amount.to the Clerk of the Court for the support of such minor child or children, and shall said father refuse or neglect to pay such amount at the time stated in such order and shall leave the State of Michigan, said father shall be deemed guilty of a felony * *

The affidavits upon which the arrest of Raymond T. Taborn is sought, charge that personal service was had upon him in a divorce action which his wife filed against him and that he was the father of three children then and there under the age of fifteen years, and that he left the State of Michigan after refusing and neglecting to pay the amount decreed by the court for the support of his minor children.

The question presented to us is whether the Common Pleas Court in the habeas corpus proceedings may inquire into extraneous circumstances, such as whether or not the plaintiff in error was in the State of Michigan at the time the decree was entered against him.

In the case of Biddinger v. Commissioner of Police, 245 U.S., 128, the court held:

“The determination of the question rests in reality with the Governor of the surrendering state. It is he who is charged with the responsibility of determining whether the person demanded as a fugitive shall be surrendered; whether he is in fact a fugitive from justice. The function of a writ of habeas corpus is not to permit the court to substitute its judgment on this question of fact for that of the governor.”

Likewise Ex parte Reggel, 114 U.S., 642, wherein the court held as follows:

“The prisoner should not be discharged merely because, in the judgment of the court, the evidence as to his being a fugitive from justice’ was not as full as might properly have been required or because it was so meager as perhaps, to admit of a conclusion different from that searched by him.”'

Likewise Appleyard v. Massachusetts, 203 U.S., 222, wherein the court held as follows:

“A faithful, vigorous enforcement of the constitutional and statutory provisions relating to fugitives from justice is vital to the harmony and welfare of the states, and the provisions of the Constitution should not be so narrowly interpreted as to enable offenders against the laws of a state to find a permanent asylum in the territory of another state.”

If the plaintiff in error has a defense to the felony charge pending against him in the State of Michigan, he may interpose it when he is arraigned before the Michigan Court on that charge. The sole inquiry in the case before us is whether there is pending against plaintiff m error m the, State of Michigan a felony charge, and whether the papers produced to substantiate it are in order. The authorities cited seem to indicate that view.

We find no error in the judgment of the Common Pleas Court and the same will be affirmed.

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


author: FUNK, J.

text:
    WYNN v. WYNN.
    Ohio Appeals, 9th Dist., Lorain Co.
    No. 441.
    Decided May 4, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    883. PARENT & CHILD — 769. Minors.
    Court cannot require father to support his minor son in college, after such son is past compulsory school age and has had all and more education than is required under compulsory school age law.
    Error to Common Pleas.
    Judgment reversed.
    Baird, Vandermark & Butler, Elyria, for plaintiff in error.
    F. M. Stevens and C. J. Maple, Elyria, for rlfvfAnrtamf: in prrmN
    STATEMENT OF FACTS
    In 1912 plaintiff in error, as plaintiff below, obtained a divorce in the Common Pleas Court of this county from the defendant in error, as defendant below, for her aggression, and was given the custody and care of their minor son, Clifford Wynn, although he was then only five years of age.
    In 1916, by some amicable arrangement between the parties, 'the custody and care of the boy was changed and an order of court put upon the journal giving his custody and care to the mother, in which order and decree no mention was made as to who was to maintain and support the boy.
    The boy went to school and graduated from the Oberlin high school in June, 1925, and notwithstanding the fact that his custody and care was given to the mother, the father contributed liberally to his support and maintenance, and the boy lived with the father much of the time. The father assisted him not only through high school but also through one year in college and offered to assist him to continue in college, when for reasons not necessary to discuss, the boy did not accept what the father offered and went to work on his own account, and did not go to college during the school year beginning in the fall of 1926. The father thereafter assumed other obligations and declined to further assist the‘boy to go to college.
    The mother then filed a motion about Sept. 1, 1927, to require the father “to pay a reasonable amount for the support and maintenance of his minor son, the child of the parties hereto,” which was heard and sustained on Oct. 8, 1927. Motion for new trial was duly filed and overruled, and the case is here on error, seeking to reverse that order and judgment, which reads, in part, as follows:
    “It is therefore ordered, adjudged and decreed that plaintiff pay for the support and maintenance of Clifford Wynn the following: Thirty Dollars ($30.00) per month, first payment to be made this day (September 26, 1927), and each 26th day of the month hereafter up to and including May 26, 1928. In addition thereto not in excess of Two Hundred Dollars ($200.00), for educational purposes upon presentation of bills for the same. All of the above provisions are. contingent upon said Clifford Wynn continuing his attendance at John Carroll University at Cleveland, Ohio.”
   FUNK, J.

“It is contended that the order and judgment was given for the defendant when the same should have been given for plaintiff; that it is contrary to law, and that the court erred in overruling the motion for new trial.

It appears from the record that the father owns a comfortable home, and there is evidence to the effect that this son was always welcome in that home, where a room was provided for him; and for aught that appears in this record, the father has ever been ready and willing to support his son in the home whenever he desired to be there.

The record further discloses that this minor son was 20 years old on Oct. 25, 1927, and was, at the time of the hearing below concerning his support, earning about $65 per month. There is no claim- that he was sick or disabled in any way or unable to work and earn a living the same as any other 20-year-old boy.

From a reading of the record and the opinion of the court below, which is made a part of the record, the order and judgment of the court, as it appears in the journal entry, is substantially an order to pay a definite amount to support a 20-year-old minor son in college, who is admittedly able to work and support himself — as the order and judgment is wholly upon condition that he attend a designated college; there being no order for his .support if he does not attend said college.

The sole question at issue in this case is whether or not the court, having jurisdiction of the custody and care of this minor in the divorce case, can require the father* to support this 20-year-old minor son in college after he is past the compulsory school age and has had all and more education than is required under the compulsory school age law.

We find no law requiring a parent to send a minor child to college. While it is a laudable act on the part of a parent to send his child to college, especially where such child has the desire to go and the ability to profit by it, we know of no law substituting the judgment of the court for that of the parent as to whether or not the parent shall send his child to college after such child has had more education than the compulsory school law requires and the child is past the compulsory school age. The question of the mere support of this minor is not presented by this record, as it discloses that the father had a comfortable home where this minor was welcome whenever he desired to be there.

Applying the above-mentioned laws and rules to the undisputed facts in this case — the legislature having established a compulsory school age and provided that when a child has graduated from a first grade high school that it shall not be required longer to attend school — ■ we are of the opinion that the order and judgment of the court below is contrary to law, and the same is therefore reversed and final judgment entered in favor of the plaintiff below.

An entry may be prepared according."

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


text:
    LORBACH v. MYERS.
    Ohio Appeals, 4th Dist., Pike Co.
    Decided Apr. 26, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    997. REAL ESTATE — 367. Deeds — 32. Administrators — 851. Notice & Knowledge.
    When purchaser of real estate, in tracing his title, comes to administrator’s .deed he can not rely exclusively upon its recitals, but is required to ascertain nature and extent of administrator’s powers and particularly power of administrator to make conveyance upon which reliance was placed. Purchaser is charged with constructive notice of everything material in deeds which form direct chain and also in collateral deed to which reference is therein made.
    Heard on appeal.
    Decree for plaintiff.
    C. M. Caldwell, Waverly, for Lorbach.
    Levi B. Moore, Waverly, and Earl D. Parker, Morgantown, for Myers.
    STATEMENT OF FACTS
    The plaintiff as the owner of part of lots 104 and 105 in the Village of Waverly seeks to enjoin the defendant from obstructing a private way or easement claimed by the plaintiff over land owned by the defendant. He bases his claim on an easement created by deed and also by prescription. The pertinent facts are these:
    James Emmitt, in his life, owned all the land in controversy and much other abutting property. His administrators brought an action in the Probate Court to sell all his real estate, consisting of many tracts, to pay his debts. The appraisers subdivided the tracts of which the properties now owned by the plaintiff and defendant were a part and this subdivision was approved by the court. Thereupon the court ordered sold the property now owned by the plaintiff fronting on Market Street and running back therefrom 103 feet. The property was purchased from the administrators by Phillip Lorbach, Jr., from whom it subsequently passed by inheritance to the plaintiff. The administrator’s deed mentioned the property conveyed to the tract numbers fixed by the appraisers in subdividing the estate) and then described it as parts of tracts 11 and 28 (having reference by appropriate limits. The granting clause, after referring to the description, continued:
    “together with the privilege to use the roadway named in tract No. twenty-five in said appraisers return described, said roadway being in the rear of and adjoining the premises herein described.”
    There is no dispute that the roadway thus referred to was over lands belonging to the Emmitt estate, and it is clear to us that the roadway referred to was to run parallel to Market Street over a part of lot 104 to North Street. At the time of the sale the report of the appraisers, duly confirmed, was on record m the Probate Court in the same proceeding under which Lorbach bought and this appraisement showed the creation of the easement appurtenant to tract 25. In 1897 the administrators sold to Huffman and Breece, among other tracts, a part of tract 25 and in that deed there appears this language:
    “Allowing a roadway 12 feet wide on lot 104, at rear of old store room and building now occupied by Armbruster and Lor-bach.” .
    It may be fairly assumed that the administrators thought that the land described in this Huffman and Breece deed abutted on the land sold to Lorbach and that the language quoted was intended to attaeh to the Hoffman and Breece land the easement referred to in the Lorbach deed. This suggests itself because no other explanation appears for the failure_ to appraise and sell the fee to the 12 foot strip that actually intervened between the two tracts mentioned. The only other explanation is that this language was to give to Huffman and Breece an easement in the 12 foot strip similar to that contemplated for Lorbach’s benefit. In 1899 the surviving administrator discovered that the fee to the 12 foot strip was still in the estate. He thereupon secured an order of ap-praisement and sale for that strip and sold the same to the predecessors in title of this defendant, making no reference in either the writ of appraisement, order of sale or deed to any easement thereon. These orders of appraisement and sale were issued in the same case, under the same pleadings and by virtue of the same processes that had been used to effect the sale to Lorbach.
   MAUCK, J.

“Under these circumstances it is clear that Lorbach paid for and thought that he was securing not only the fee to the property described but an easement over other abutting property giving him access to the rear of the property from the public street. This is a valuable right and deserving of protection if its protection is not prevented by the superior rights of others.

The only question that is open is whether or not the defendant, the present owner of the fee, had notice when he purchased the 12 foot strip that the same was burdened by the right of the plaintiff to pass thereover from the street to the rear of the Lorbach property.

His immediate deed gave him no such notice nor did any of the preceding conveyances back to and including the administrator’s deed. However, when in tracing his. title he came to the administrator’s deed he could not rely exclusively upon its recitals. Another rule then intervened. This required him to ascertain the nature and extent of the administrator’s powers and particularly the power of the administrator to make the conveyance upon which reliance was placed.

Thompson on Real Property, Section 2718, speaking of one holding through a judicial sale says:

“He is charged with notice of such material facts as the record of the proceedings under which he derives title discloses and he will be presumed to have examined the same before becoming a purchaser.” Elsewhere it is said:
“Furthermore, the purchaser at a judicial sale is charged with notice of all material facts relating to the condition of the property or the title to be acquired that are disclosed upon the face- of the pleading and record of the proceedings in which the sale was had.
16 Ruling Case Law, 140.”

The defendant in this case, if he had undertaken to trace the title to its source, would have found that the Emmitt estate owned lot 104 and that the 12 foot strip was a part of that lot. He would have learned that in the ap-praisement this particular strip was impressed with an easement for the benefit of other lots. He could have seen that the part of the same lot 104 conveyed to Huffman and Breece “allowed” a 12 foot roadway on that lot to the rear of the store room, and this would have been sufficient warning for him to ascertain to whom this roadway had been conveyed.

“Not only is a purchaser thus charged with a constructive notice of everything material in the deeds which form the direct chain through which his title is deduced, but if any of these conveyances should contain a recital of or reference to another deed otherwise collateral, and not a part of the direct series, he would by means of such recital or reference have notice of this collateral instrument, of all its contents, and of all the facts indicated by it which might be ascertained through an inquiry prosecuted with reasonable diligence.”
Pomeroy’s Equity, Section 628.”

Both the parties hereto have substantial rights. The plaintiff’s rights are the oldest in point of time. He paid for the easement and secured its recital in his deed. The defendant and his predecessors likewise paid for the 12 foot strip in ignorance of the easement. They could have protected themselves by an inspection of the proceedings under which they hold. As between the two the rules of equity favor the plaintiff.

Thomas, J., concurs.

Middleton, PJ., not sitting.


text:
    SMITH v. AUDITORIUM BLDG. OPERATING CO.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8557.
    Decided Feb. 27, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.

      941. PRACTICE & PROCEDURE — 465. Error Proceedings.
    Court of Appeals will not act as instructor for trial judge. Trial Court must make ruling and it must be final judgment, before error can be prosecuted.
    Error to Municipal Court.
    Petition dismissed.
    Rodway Perris, Cleveland, for Smith.
    Garfield, Cross, MacGregor, Daoust & Baldwin, Cleveland, for Auditorium Bldg. Co.
   FULL TEXT.

VICKERY, J.

This cause comes into this court on a petition in error to the Municipal Court of the City of Cleveland and it surely presents a comedy of errors.

It seems that the plaintiff in error brought an action in tort for $225.00 damages against-The Auditorium Building Operating Company. Some time thereafter, perhaps within rule, the defendant made a motion to make the petition more definite and certain, whereupon the plaintiff below made a motion to strike that motion from the files, because it was alleged in open argument that it was a sham pleading. At the same time he made another and singular motion; that is, for judgment on the pleadings. He now says that he asked for a default judgment, but his motion is in writing. It is plain and succinct, unequivocal and unambiguous, and that is a motion for a judgment upon the pleadings.

Now remember there was only one pleading and that was the petition drawn by the plaintiff who makes a motion for judgment on his own pleading. A singular proposition. Now at this time there was a motion pending to make the petition more definite and certain. Just why this motion to strike off and the motion for judgment should be filed at the same time, we do not know, but however that might be, the court did strike the motion to make definite and certain from the files and then the plaintiff pressed his motion for a judgment on the pleadings. He says he made orally a demand to have a default entered and have the case sent to a room, under the rules of the Municipal Court, for the assesment of damages, but the transcript that is before us, which must govern us, shows no such thing. As already stated, his motion was clear, unequivocal, — a motion for judgment upon the pleadings. In other words, the plaintiff filed a petition for $225 and then he makes a motion for the court to enter up judgment for that much on his petition.

The error complained of by the plaintiff in error, who was plaintiff below, is that the court refused this motion and permitted the defendant below, The Auditorium Building Operating Company, leave to plead, and subsequently it did file a statement of defense.

A close scrutiny of the transcript will show that no judgment for the plaintiff or defendant was entered in the court below. It seems that the purpose of this proceeding is to have this court instruct the Municipal Judge just how he should perform his duties. Well, I for one, decline to act as an instructor to the trial judge. When cases come up here and final judgment is entered and the court has made a ruling and exceptions have been properly taken to it and the ruling is wrong, I will be one to help instruct the judge as to what his ruling ought to have been, but he must make his ruling first and it must be a final judgment before error can be prosecuted. It seems that this procedure is so simple that it ought to be known to lawyers by this time.

We are not saying but what the court may have committed error, and if it had gone to a final judgment they may have taken exceptions and saved their error and there might have been some avail in a hearing in this court, but there is nothing to indicate but what on trial in the court below the plaintiff might have recovered a judgment and for the entire amount, and he would have no grievance of any kind or shape. Consequently we do not see what we can do, inasmuch as there is no final judgment except to dismiss the petition in error. The case is already pending in the Muncipal Court.

We are told orally that what we are asked to do is to send the case back with instructions to the trial judge as to how he shall govern himself. I have already said that we do not instruct until after there has been a final judgment and the court has made a ruling which is erroneous or otherwise.

The petition in error is, therefore, dismissed.

Levine, J., concurs.

(Sullivan, PJ., not sitting.)


author: PARDEE, J.

text:
    NOVACK, Admr., etc. v. ZALESKI.
    Ohio Appeals, 9th Dist., Lorain Co.
    No. 446.
    Decided May 4, 1928.
    First Publication of This, Opinion.
    Syllabus by Editorial Staff.
    225. CHARGE OF COURT— 301. Contributory Negligence — 1:104. Statutes.
    1. In action by administrator to recover damages for wrongful death, charge that plaintiff must show that deceased was npt guilty of any contributory negligence, held erroneous.
    2. Although decedent was charged with knowledge of certain facts and all reasonable inferences to be drawn therefrom, inaccurate to refer to such knowledge as express or implied.
    3. Error to charge section of General Code which do not have application to facts in case.
    Error to Common Pleas.
    Judgment reversed.
    Findley & Myers, Elyria, and C. F. Adams, Lorain, for Novack.
    F. M. Stevens and C. J. Maple, Elyria, for Zaleski.
    STATEMENT OF FACTS.
    The parties occupy the same positions in this court that they did in the Court of Common Pleas, in which court a general verdict was rendered for the defendant and judgment entered thereon; the action being one to recover damages for the death of John Skrzypczynska.
    Plaintiff’s decedent, a young man about twenty years of age, while walking with another person southerly in the traveled portion of West avenue in the City of Elyria, at about 6:30 o’clock in the morning of Jan. 26, 1925, was hit from the rear by a bakery automobile truck owned by the defendant and operated by his son in his father’s business, and said decedent suffered severe injuries from which he died.
    The plaintiff alleges that the trial court committed prejudicial error in giving defendant’s request No. 1 before argument, which is as follows, to wit:
    “I charge you that while the law required the defendant to exercise reasonable care in the operation of his automobile, it does not make him an insurer against an accident to a pedestrian. The plaintiff, in order to recover in this case, must show that the negligence of the defendant was the proximate cause of the death of the deceased, and that the deceased was not guilty of any contributory negligence.”
    She also complains about several matters set forth in the general charge of the court.
   PARDEE, J.

“The foregoing request No. 1 before argument is not a correct statement of the law, as it was not incumbent upon the plaintiff to prove that her decedent was not guilty of contributory negligence — this being an affirmative defense, the burden was upon the defendant to show that the decedent was so guilty.

Our attention was not directed to defendant’s request No. 3, which was given to the jury before argument, and which is as follows:

Editor’s Note: The case of Bunting v. Younglas, above referred to, will be found at 5 Abs. 291.

“I charge you that negligence is not to be determined after an injury has occurred by a consideration solely of what precaution could have been taken which would have prevented the injury, but should be determined from the knowledge, either expressed or implied, that the defendant had of the danger to be foreseen or reasonably anticipated.”

We are of the opinion, however, that this request does not correctly state the law, as the decedent was not required to be bound by any implied knowledge that he may have had of the danger to be foreseen or reasonably anticipated, but was required only to do those things which a reasonably prudent man would have done under the same or similar circumstances. Also, although the decedent was charged with the knowledge of certain facts and all reasonable inferences to be drawn from such facts, it is inaccurate to refer to such knowledge as express or implied. However, we do not see how, in any event, this request could be of any assistance in arriving at a proper decision in this case.

On page 257 of the record, the court in the general charge said:

“If contributory negligence is suggested by the plaintiff’s own evidence offered in this case, then the burden is on the plaintiff to remove and dispel the suggestion and show that said decedent was blameless to the jury.”

This likewise is not an accurate statement of the law, as the plaintiff was not required to show, under the circumstances indicated in said charge, that the decedent was blameless, as this would require the plaintiff to show that the decedent was not guilty of contributory negligence. All the plaintiff was required to do, if contributory negligence was suggested by the plaintiff’s own evidence, was to furnish sufficient evidence to remove or dispel such suggestion, and she was not required to prove that said decedent was free from contributory negligence.

The court also charged GC., Secs. 6310-34 and 6310-36 as bearing upon the contributory negligence of said decedent.

As to the first of the foregoing sections, in regard to crosswalks or cinder paths, we do not believe that this law is applicable to the facts as disclosed by this record.

Bunting v. Younglas (No. 1231, Summit County, decided Feb. 21, 1927).

The last of the foregoing sections does not have any application at all to the facts of this case, as the accident did not happen when the decedent was stepping into or upon a public road or highway. Valentine v. Pavilonis, 27 O. App. 26, at p. 30.

For error in giving special request No. 1 before argument, and for other errors in the general charge as herein stated, the judgment of the trial court is reversed and the cause remanded for further proceedings as provided by law.

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


author: WASHBURN, P. J.

text:
    DAVISON v. HERSMAN, etc.
    Ohio Appeals, 9th Dist., Summit Co.
    No. 1285.
    Decided May 9, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    1271. WILLS AND LEGACIES — 997. Real Estate.
    1. Where, by reasonable construction of all terms of will, in connection with surrounding circumstances, instrument shows intention that original form of property shall be changed, then conversion takes place, and if no contrary intention is apparent from will, conversion takes effect from time of death of testator. To work conversion, not necessary that there be an express direction to convert; it may be necessarily implied.
    2. If it was intention of testatrix to convert real estate into personalty, it follows that nothing but naked legal title descended to heir, in trust, subject to be divested at time of sale by executor, and that administrator was entitled to possession of real estate, and to rents and profits therefrom.
    Error to Common Pleas.
    Judgment affirmed.
    Rolland Jones, Akron, for Davison.
    F. A. Rees, Akron, for Hersman, etc.
   FULL TEXT.

WASHBURN, P. J.

This is an error proceeding.

The trial court was justified in finding from the admissions made by the parties in an agreed statement of facts and -in open court at the trial, and from the competent evidence offered at the trial, that a woman 70 years of age, with no earning capacity and with very little income, and owning certain real estate, a part of which was subject to a mortgage, made a will, in which she made specific bequests and authorized her executor to sell her real estate without an order of court; she did not have at the time of the making of the will personal property sufficient to pay said bequests and had no hope or expectancy that she would have personal property enough at the time of her death to pay said bequests; she did not in her will make said bequests a specific charge upon the real estate, but she made no disposition in the will of said real estate, other than to authorize her executor to sell the same.

Said testatrix had one heir, a son who was married and had a child, and while one bequest was to her son, the large bequest was made to a trustee for her son’s child.

In this action said son attempted to defeat said bequest to his child, and failing in that, to establish his right as heir to the rents from the real estate until the same is sold by the executor under the will.

The court found that said bequests were charges upon said real estate; that indeed it was testatrix’s intention to convert said real estate into personalty and pass same to said executor for the purpose of carrying out the terms of said bequests, and that upon said testatrix’s death the executor had a right to take possession of said real estate and collect the rents and profits thereof until the same was sold under the powers given the executor in the. will, and after providing for said legacies in the manner specified in the will, if there was any surplus, pay the same to said heir.

There can be no question but that there was an absolute necessity to sell said real estate in order to execute said will, and when the whole will is considered, in connection with the testatrix’s condition and all of the surrounding circumstances, it is apparent that it was her intention to unconditionally convert said real estate into money from the time of her death and not to die intestate as to said real estate.

Where, by a reasonable construction of all the terms of a will, in connection with the surrounding circumstances, the instrument shows an intention that the original form of the property shall be changed, then a conversion takes place, and if no contrary intention is apparent from the will, the conversion takes effect from the time of the death of the testator. To work a conversion it is not necessary that there be an express direction to convert: it may be necessarily implied.

3 Pomeroy’s Equity Jurisprudence, Sec. 1160.

2 Woerner’s American Law of Administration (3rd ed.), Sec. 342.

Padley v. Jones, 20 O. App. 203.

If it was the intention of the testatrix in this case to convert said real estate into personalty, it follows that nothing but the naked legal title descended to the heir, in trust, subject to be divested at the time of sale by the executor, and that the administrator was entitled to the possession of said real estate; and if entitled to the possession, he was entitled to the rents and profits therefrom as a part of the estate.

In addition to this, the record discloses that the executor, by and with the consent of the heir, at once took possession of said property and collected the rents from the same and paid two of said legacies — one of which was paid to said heir; but the facts in reference to the acts and conduct of said heir are not sufficiently developed in the record to justify a finding that he is estopped from claiming that the executor was not entitled to collect said rents and account for the same as a part of the estate, and therefore we do not base our affirmance on that ground.

Under all the circumstances, we cannot say that the trial court was wrong in reaching the conclusion that it did in this case, and therefore the judgment and decree of the trial court is affirmed — leaving the question of a full accounting to the supervision and control of the Probate Court.

(Punk, J., and Pardee, J., concur.)


text:
    RUUD MFG. CO. v. McGEAN.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8059.
    Decided Feb. 6, 1928.
    Middleton, P. J., Mauck and Thomas, JJ., the 4th Dist., sitting.
    Syllabus by Editorial Staff.
    516.-FEES AND COSTS-75~. Mechanics' Liens.
    • Only basis upon which attorney fee may be claimed, in mechanics' lien litigation, is where fund arises from sale of property.
    Appeal from (Jommon k'leas.
    Findings modified and approved.
    H. A. Blachman, Cleveland, for Rund Mfg. Co.
    Thompson, Hine & Flory, Cleveland, for McGean.
   FULL TEXT.

THOMAS, J.

The same judgment may be entered in this court as was entered in the Court of Common Pleas with the exception relating to the attorney fee, on the holding of the Supreme Court of Ohio in the case of Matzinger et v. The Harvard Lumber Company, 115 OS. 555. The attorney fee will be refused. In that case the court in the third paragraph of the syllabus says:

"The provisions of Section 8322 GC., authorize the payment of an attorney fee only out of the fund realized for lien claimants, which fund is the sum applicable to the payment of mechanics' lien claims found to be valid."

The only basis upon which an attorney fee may be claimed, is where a fund was created and brought into court, arising from the sale of the property. There was no such fund in the instant case. The lienors who may have contemplated a participation in such fund, were represented by counsel whom they paid for their services. It can not be said,. therefore, th~t counsel, in whose behalf the fee in question is claimed, did anything in their behalf and who should be required to pay an additional fee, especially when no fund existed as contemplated by the statute. Much less must it be expected that the owner of the property should be required to pay such fee in addition to the claims and lienholders and the costs of suit.

,(Miclclleton, P. J. and Mauck, M., concur.)


text:
    ZIMMER v. STATE.
    Ohio Appeals, 4th Dist., Pickaway Co.
    Decided Apr. 26, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    1231. VENUE — 883. Parent & Child — 333. Criminal Law.
    In action against father for unlawfully neglecting and refusing to provide for minor child, venue must be proven or judgment of conviction will be- reversed.
    Father cannot be guilty until such time as he knows of existence of such child.
    Error to Common Pleas.
    Judgment reversed.
    L. P. Henderson, Columbus, for Zimmer.
    E. A. Brown, Pros. Atty., Circleville, for State.
   FULL TEXT.

MAUCK, J.

Wheeler Zimmer was tried and found guilty of violating Section 13008 G. C. in that on July 29, 1927, and continuously until October 5, 1927, at Pickaway County he did unlawfully neglect and refuse to provide an illegitimate son with necessary home, food, etc. He was found guilty and now prosecutes error from the judgment of the trial court sentencing him to the state reformatory.

Complaint is made of the reception of certain testimony, notably Dr. Taylor’s testimony as to what the prosecuting witness told the doctor about the child’s parentage in the absence of the defendant. While it appears that error did intervene in the particular mentioned and perhaps elsewhere in the record no exceptions were taken thereto and there is nothing in that respect to review.

The only exception taken in the case was a general exception to the charge. The charge contained no error of which the plaintiff in error can justly complain. It was confined to a definition of the issues and did not undertake to lay down any further legal principles. The defendant asked for nothing further and can not be heard in complaint of any omissions which he did not undertake to have supplied.

The record shows that the contest before the jury was so strenuous on the question of whether the defendant was the father of the child that other issues were not only subordinated but wholly overlooked. That issue was a close one and a reversal is urged on the weight of the testimony on that issue. While in our judgment the state made as weak a case on that issue as could be tolerated we are not prepared to say that the verdict of the jury was clearly wrong on that issue.

Assuming that the defendant was adequately proved to be the child’s father it was incumbent upon the state to show that the defendant neglected or refused to support the child in Pickaway County. The state makes no claim that the defendant refused such support but does claim that he neglected to do so. The child was born July 29. The defendant was arrested upon a justice’s warrant August 11. There is no evidence that the defendant had neglected supporting the child at the time of his arrest for up to that time he was ignorant of the child’s birth. He could not have been negligent in the performance of a duty where he was ignorant of the fact creating the duty.

Under a statute making it an offense to fail to support the Supreme Court of Colorado said:

“Under acts 1911, p. 527, one can not willfully fail to support a minor child unless he knows of its existence.” Martin v. People, 155 Pac. 318.

The Supreme Court of this state has said of Section 13008 G. C.:

“The purpose of the legislation is to provide support and to punish where it is wilfully" withheld.” Seaman v. State, 106 O. S. 177, 189.

Until August 11, therefore, the defendant was not charged with the support of the child because he was ignorant of its existence. After that date he did know of its existence and was, if he was its father and able so to do, bound to support it. The indictment covers the period from July 29 to October 5 and consequently covers the period after the defendant had the required knowledge. The testimony, however, does not show that the child was a resident of Pickaway County from August 11 to October 5 or any part of that time. It tends to show that the child was born “at the Arnold school house” (Record, page 2); “at the Arnold school house this side of New Holland” (page 60) “at the home of Edward Johnson.” Mr. Johnson shows that this was in Pickaway County where he was then living. At the time of the trial the parties mentioned were living in Ross County (page 4). There is no other testimony relating to venue and not a word to indicate the residence of the child during the period when the accused was charged with knowledge of its existence. The verdict is contrary to law in the particular pointed out.

The judgment is reversed and the case remanded for new trial.

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