text:
    GOLDMAN v. PETER FOX SONS CO. et.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8917.
    Decided May 14, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    TRIAL
    (590 E3al) A certificate by an employe of the U. S. Bureau of Agricultural Economics, not being a public record, is not competent evidence of a grade of potatoes purchased.
    Error to Municipal Court.
    Judgment affirmed.
    Jerome B. Goldman, and E. P. Eirich, Cleveland, for Goldman.
    Sol Edgert, Cleveland, for Peter Fox Sons Co., et.
    STATEMENT OF FACTS. .
    . The action was brought to recover Nine Hundred and Sixty-Three Dollars for loss sustained by reason of plaintiff in error’s refusing to receive three carloads of potatoes that had been purchased by plaintiff in error from the defendants. On the trial of the action a judgment was rendered for the plaintiffs for the full amount of their claim. It seems there was no question but that the plaintiff in error purchased this lot of potatoes from the defendant in error and that defendant in error had refused to receive the same. Defendant in error set up a counterclaim for damages amounting to $2231.31, but the court found against his counterclaim and found for the plaintiffs as already stated in the full amount of their claim.
    It seems that the plaintiff in error who was defendant below, after the plaintiffs had rested their case sought to introduce evidence that the potatoes did not conform to the grade specified in the contract and for that purpose sought to introduce certain certificates made by one Green who is employed in the United States Bureau of Agricultural Economics. These were certificates made ex parte at the instance of Goldman, and Green was not called upon to testify.
   VICKERY, J.

Of course if these potatoes did not conform to the grade under the contract and the defendant could prove that, the burden of proof being upon him, he might have a good defense, but that must be proven by competent testimony. These certificates are not public records. There was no requirement that Mr. Green in all cases was compelled to examine vegetables or fruit that was shipped in from other states and to give a certificate thereof, or to record the same and to make it a public record. True, he was authorized by the United States statute to make a certificate to the person asking the same if he was requested to do so. It seems in this case that the certificates were requested and furnished. Now they seek to have these introduced as public records under the United States statute. The United States statute Section 414 of United States code, annotated, Title 7, Agriculture, Chapter 17, provides that certificates issued by authorized agents of the agricultural department shall be prima facie evidence in all courts of the United States. First, we do not think that these certificates come within the meaning of public records, and second, they were not sought to be introduced in a United States court. You cannot extend a statute by implication, and we have United States courts and we have State courts, and if they are sought to be introduced in evidence, the statute must have mentioned the State courts as well as the United States courts. Consequently the statute does not authorize the introduction of these certificates, even if it covered certificates. This testimony was the purest kind of hearsay and they were made at the instance of defendant below, without the right to cross examine and test the truthfulness and it would be unjust and not in accordance with the rules of evidence that they should be introduced. The court properly ruled these certificates out and did not see fit to grant a new trial.

Now, of course, they might have procured the deposition of Green as well as_ other testimony, but it seems that these certificates were to prove that these potatoes did not conform to the grade specified in the contract, the only testimony that the plaintiff undertook to introduce, and we think the court _ properly ruled the certificates out. That being so, we see nothing to do but to affirm this judgment.

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


source: Caselaw Access Project

author: FUNK, J.-

license: Public Domain

text:
    HUTCHINSON v. RENNER
    Ohio Appeals, 9th Dist., Medina Co.
    J. B. Palmquist, Medina, for Hutchinson.
    Raymond B. Bennett and John A. Weber, Medina, for Renner.
   FUNK, J.-

GUARANTY--Pleadings (440 A) ■

(280 W) A failure to allege the giving of notice, as required by Section 8429 GC., in an answer setting up a breach of warranty as a counterclaim against the purchase price, renders the answer demurrable and insufficient.

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

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


author: VICKERY, J.

text:
    HIRSCHL, d. b. a. DIAMOND FURNACE CO. v. RICHARDS et.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    Lieg’hley, Halle, Haber & Berick and Philip Novitch, Cleveland, for Hirschl.
    Davis, Young & Vrooman, Cleveland, for Richards, et.
   VICKERY, J.

PERSONAL PROPERTY

(420 S) In action on note for purchase price of furnace installed in defendant’s home, in which defendant made no offer to return furnace, rescind contract, or put plaintiff in statu quo, recovery by defendant of amount already paid for furnace for breach of warranty and retention of furnace in home was erroneous.

GUARANTY

(280 W) Where there was breach of warranty as to what furnace installed in purchaser’s home would do, that could be compensated in damages, purchaser, sued for purchase price of furnace, should have proven damages, and would have been entitled to re-coupment to that extent, and no more.

CONTRACTS

(150 R3) In action on note for purchase price of furnace, in which defendant pleaded breach of warranty as to what furnace would do, but made no effort to rescind contract or to return furnace, court erred in charging doctrine of rescission.

TRIAL

(590 Cc2) In action on note for purchase price of furnace, in which defendant pleaded breach of warranty as to what furnace would do, but made no effort to rescind purchase, court erred in charging Sales Act or any sections thereof.

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

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


author: MIDDLETON, P.J.

text:
    STALTER & ESSEX COAL CO. v. PEOPLES, et.
    Ohio Appeals, 4th Dist., Meigs Co.
    D. Curtis Reed, Pomeroy, and H. C. Allread, Columbus, for Coal' Co.
    Hollis C. Johnston, Gallipolis, and Peoples & Peoples, Pomeroy, for Peoples.
   MIDDLETON, P.J.

DEBTOR and CREDITOR — Real Estate (510 L4c)

(210 A) Where amount of minimum royalties due under coal-mining lease, providing that minimum of 36,000 tons of coal shall be mined annually at royalty of 10 cents per ton, was not disputed, and question as to amount thereof was not raised in meeting to adjust disputed claims between lessor’s and lessee’s representatives, lessor’s acceptance of lessee’s check specifying items for which payment was made, and reciting, “This voucher is tendered in full settlement of all claims and demands to date,” held not conclusive as accord and satisfaction against lessors as matter of law, but it was for jury to determine question under the evidence. CONTRACTS

(150 Da) Payment of unliquidated demand in full of all claims held not to discharge liquidated demand for much larger sum.

(Mauek, J. concurs.)

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


author: HAMILTON, P.J.

text:
    SECOND NAT. BK. OF HAMILTON v. OHIO CONT. PUR. CO. et.
    Ohio Appeals, 1st Dist., Butler Co.
    Williams, Sohngen, Fitton & Beeler, Hamilton, for Bank.
    White, Cannon & Spieth, Cleveland, and Shotts & Millikin, Hamilton, for Purchase Co.
   HAMILTON, P.J.

PERSONAL PROPERTY

(420 C2) Conditional buyer’s transfer to creditor of warehouse receipt for washing machines prior to delivery of the machines conveyed no better title than buyer had, and did not give tranfexee lien, making him lien creditor under Sect. 8568 GC., as to whom unfiled conditional sales contract would be void.

(420 C2) Sect. 8568 GC., making unfiled conditional sales contracts void as to subsequent purchasers and mortgagees in good faith and for value and creditors does not protect prior creditors, prior creditors including those who become such prior to the date of the delivery of the property.

DEBTOR and CREDITOR

(210 C2) Bank making loan to. buyer secured by pledge of warehouse receipt held a prior creditor not entitled to protection under Sect. 8568 GC., making unfiled conditional sales contract void as to subsequent purchasers and mortgagees in good faith and for value and creditors, where bank became creditor prior to time of delivery of goods to buyer.

(210 R) In conditional seller’s replevin action to recover possession of machines from bank holding warehouse receipt as security for loan to buyer, evidence of buyer’s previous transactions with bank involving same routine of financing purchases by pledge of warehouse receipt, held admissible as bearing on question of bank’s good faith and want of notice as a subsequent purchaser within meaning of Sect. 8568 GC., making unfiled conditional sales contracts void as to such purchasers.

(420 C2) Bank making loan to buyer of machines before delivery of machines on his pledge of warehouse receipts as collateral security held not entitled to protection as subsequent purchaser in good faith and for value under Sect. 8568 GC., as regards unfiled conditional sales contract, and bank secured no better title than the conditional sales vendee, especially where it was shown that bank had previously financed similar transactions.

COMMERCIAL PAPER

(120 W2) . Conditional buyer’s pledge as collateral security of warehouse receipt for washing machines purchased, where given before time of delivery of the machines, gave pledgee no better title to the purchase than- the pledgor had.

(Mills and Cushing, JJ., concur.)

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


author: CUSHING, J.

text:
    COLUMBIA LIFE INS. CO. v. HESS, Aud.
    Ohio Appeals, 1st Dist., Hamilton Co.
    Waite, Schindel & Bayless, Cincinnati, for Columbia Life Ins. Co.
    Jones, Shook, Morrissey & Terry, Cincinnati, for Fed. Un. Life Ins. Co.
    Maxwell & Ramsey, and Dinsmore & Sawyer, Cincinnati, for Un. Cent. Life.
    Clyde P. Johnson, Cincinnati, for West. & So. Life Ins. Co.
    Bettinger, Schmitt & Kreis, Cincinnati, for Ohio Nat. Life Ins.
    Charles S. Bell, Pros. Atty., and Chester S. Durr, Cincinnati, for Hess.
   CUSHING, J.

INSURANCE — Taxes (560 C)

(310 L2) Court of Appeals had jurisdiction, on appeal from court of common pleas, to hear and determine actions by life insurance companies to enjoin county auditor from changing tax returns by placing on tax duplicate full amount of mortgages, notes, book accounts, stocks, shares in building and loan companies, and other legal claims or demands or credits, without deducting therefrom debts of such company by reason of outstanding policies and notes.

ACTIONS

(10 Pc) County Auditor, being vested under Sections 5399 and 5406 GC.., with jurisdiction to correct returns of taxation, was a proper party defendant in action by insurance companies to enjoin changing tax returns, his act being separate and distinct from that of levying and assessing authorities or that of collecting official under Sect. 12076 and 12077.

(10 I2b) Equity will enjoin an illegal act on part of an individual holding a state or county office.

OFFICE and OFFICERS

(400 M) A suit against an individual for the purpose of preventing him, as a public officer, from performing an act contrary to the statute, is not an action against the state or county, but is against individual, and he will be enjoined unless statute in question is unconstitutional.

TAXES

(560 R) Life insurance companies seeking to enjoin county auditor from changing tax returns wherein constitutionality of Sections 5327 and 9357 GC., was involved held not to have had an adequate remedy at law by application to board of revision created under Sections 5609 to 5611-3 from whose decision an appeal may be taken to tax commission and error prosecuted to court of common pleas, since under Sect. 1, Art. IV, Constitution, judicial power of state is in the courts therein named and authorized and auditor’s report was neither a valuation nor an assessment which board of revision is authorized to review.

(560 R) Sections 5327 and 9357 GC., authorizing life insurance companies to treat reserve as debt of company in making tax returns, held not in violation of Section 2, Art. XII, Constitution, requiring taxation of all moneys, credits, investments in bonds, stock, joint-stock companies, or otherwise, under uniform rule, in view of Section 628 and 9362 GC., and Sect. 615 et set. (104 Ohio Laws, 842), relative to supervision and control by life insurance companies and imposing requirement for reserve.

(Buchwalter, J., concurs.)

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


author: HAMILTON, J.

text:
    F. D. LAWRENCE ELECT. CO. v. ENTERPRISE LUMB. CO.
    Ohio Appeals, 1st Dist., Hamilton Co.
    Peck, Shaffer & Williams and Robt. N. Gor-man, Cincinnati, for Electric Co.
    Charles C. Benedict, Cincinnati, for Lumber Co.
   HAMILTON, J.

AUTOMOBILES.

(50Ai) In action for damages growing out of collision between trucks at street intersection, instruction that plaintiff in crossing intersection was required to keep to the right of the center line connecting midpoints of two terminals of street on opposite sides theld properly refused, where ordinance required that vehicle turning into another street on the left should pass to the right of and beyond the center of the street intersection before turning.

(50 Rdl) Traffic ordinance should be construed in a manner harmonizing it with other traffic ordinances of city, considering purpose intended to be accomplished.

(50 A2b) Submission to jury, of question of location of intersection, in action for damages involving ordinance which required vehicles turning to left to pass beyond center of intersection, held not prejudicial.

(50 Ac) Ordinance providing that no vehicle shall cross any street at speed exceeding 7% miles in business section of municipality and 10 miles in other portions held void, as conflicting with Sections 12608 and; 12603, GC., (108 Ohio Laws, 471), fixing speed of motor vehicles and prohibiting modification by municipal regulations.

(50 Nj) In action for damages resulting' from collision of trucks at intersection, instruction permitting jury to find that violation of ordinance fixing speed limit at street intersections constituted negligence held error prejudicial to plaintiff, where ordinance was inoperative because violating Sections 12608 and 12603 GC., (108' Ohio Laws, 471), and where jury may have found plaintiff guilty of contributory negligence.

(Cushing and Buchwalter, JJ., concur.)

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


author: LEMERT, J.

text:
    McMANUS v. FUERST-FRIEDMAN CO.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8555.
    Decided June 11, 1928.
    Syllabus by Editorial Staff.
    ACTIONS — Debtor & Creditor (210 R2)
    (10 B) Release, freely and voluntarily given is, in absence of fraud, full and complete defense to action to recover money claimed to have been embezzled.
    Error to Common Pleas.
    Judgment reversed.
    M. W. Vickery, Cleveland, for McManus.
    Geiger & Williams, Cleveland, for Fuerst-Friedman Co.
    STATEMENT OF FACTS.
    The action was instituted in the Court of Common Pleas by The Fuerst-Friedman Company, defendant in error, plaintiff below, hereinafter referred to as the plaintiff, against Margaret McManus, plaintiff in error, defendant below, hereinafter referred to as the defendant, to recover from the defendant approximately $8000.00 claimed to have been wrongfully converted or embezzled by the defendant while she was an employe of the plaintiff as a bookkeeper. The answer filed by the defendant denies the converting or embezzling of the money, and sets up as a second defense a release executed by the pliantiff company to the defendant dated January 16, 1925, after the defendant had left the employ of the plaintiff, and after the events complained of in plaintiff’s petition. To this answer a reply in the nature of a general denial was filed by the plaintiff, and upon these pleadings the case was tried.
    The evidence discloses that the defendant was in the employ of the plaintiff from some time in October, 1923, until January, 1925, and after the defendant left the employ of plaintiff company, a new bookkeeper examined the books which apparently had been kept by the defendant, and that in. the accounts entered there were checks that did not correspond with the accounts banked, kept by the bank bookkeeper, with reference to the deposits and withdrawals of the plaintiff company in the bank. That the total amount of these discrepancies according to the figures compiled by the bookkeeper of the plaintiff company, was in the sum of $8005.85. That on on about January 13, 1925, plaintiff in error was charged with a discrepancy in her accounts and the sum of $2464.35 was agreed upon as the amount that should be paid by the defendant to the plaintiff in settlement of their claim against her, and it was agreed that the payments should be made as follows: $1000.00 in cash, and the balance by giving two notes, one for $764.35 and the other one for $700.00, and thereupon the release known as “Defendant’s Exhibit 1” was executed by Mr. Gross and Mr. Friedman, President and Secretary of the plaintiff Company.
    The release referred to was introduced in evidence by the defendant. The fact that plaintiff in error had embezzled any such sum of money'was denied by the defendant. Upon this evidence, the verdict was rendered for plaintiff in the sum of $8005.35. A motion for a new trial was filed and thereafter overruled by the court.
    The petition in error in this case sets up several grounds of alleged error, but the only error complained of and urged in the argument of this case is on the cfuestion of the force and effect of the release, or in other words, “Does the release discharge the plaintiff in error from any legal liability, or is it a bar to this action?” The release mentioned in this case, the record shows, was duly executed and delivered by The Fuerst-Friedman Co. to Margaret McManus, which release states as follows:
    “* * does hereby release, satisfy and discharge from any and all claim which it has or ought to have or may have against said Margaret McManus in any manner growing out of said mistakes or errors and that all matters in dispute and controversy in regard to the said accounts, mistakes, errors, etc., be hereby forever satisfied and discharged.”
    This language following a premise in said release, reads as follows:
    “Whereas M. A. McManus has been employed by the Fuerst-Friedman Co. as a bookkeeper for substantially two years last past and certain errors and mistakes have occurred in the keeping of the books of said company by Miss McManus, etc.”'
    At the close of the plaintiff’s testimony a motion was made by the plaintiff in error to direct a verdict,' and at the close of defendant’s testimony, a like motion was made to direct a verdict for defendant in the court below.
   LEMERT, J.

In view of this release can the defendant in error maintain an action against the plaintiff in error, Margaret McManus? -

We find from the record in this case that the release in question was freely and voluntarily given by the defendant in error and that the record is silent as to the same having been procured by any fraud of any kind or description and that said release is a full and complete defense.

Citing 78 OS. 200; 4 Ohio Ap. 390; 7 Ohio Ap. Rep. 53; 11 Ohio Ap. 122; 12 Ohio Ap. 46; 114 OS. 76.

We therefore find and hold that the motion in the court below to direct a verdict for plaintiff in error* was well taken and the same should have been sustained, and the refusal of the court below to sustain said motion was prejudicial to the rights of plaintiff in error.

Therefore it follows that the judgment of the lower court is hereby reversed and final judgment entered herein for plaintiff in error.

(Houck, J. and Lloyd, J., concur.)


author: RICHARDS, J.

text:
    ACORN SUPPLY CO v. FINGERHUT, et.
    Ohio Appeals, 6th Dist., Lucas Co.
    No. 2052.
    Decided June 25, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    REAL ESTATE
    (510 Mg2) Evidence held insufficient to show that lien was filed within the sixty day limit fixed by statute to perfect such a lien.
    (510 MC) That material was supplied for and used in construction of a house is sufficient even though it were not supplied at the lot where the building was constructed.
    (510 Md) Failure of the copy of an affidavit furnished the owners of a building on which a mechanic’s lien is attempted to be filed, to show the signature of lien claimant or notary public before whom executed, is not a defect invalidating the lien.
    Appeal from Common Pleas.
    Decree for Defendants.
    Geer & Lane and Frank Algrissee, Toledo, for Acorn Supply Co.
    Holbrook & Banker, Smith, Beckwith & Ohlinger, and E. C. Froehlich, Toledo, for Fin-gerhut, et.
    STATEMENT OF FACTS.
    The plaintiff apnealed from a decree of the common pleas court finding that it had no me-tracted with the plaintiff to furnish the mate-chanics’ lien against the property of the defendants Louis E. Fingerhut and wife.
    Arthur Nighswander had a contract to erect for them a dwelling house on their property in the city of Toledo, and Nighswander contracted with the plaintiff to furnish materials. Under this contract, building material was supplied and went into the construction of the dwelling house, the plaintiff claiming a balance of $1,025.19.
   RICHARDS, J.

The plaintiff claims that it furnished the last material on October 31, 1925 and the lien was filed 'on December 29, 1925, which would be within the sixty day limit fixed by statute.

Numerous objections are made to the validity of the lien claimed by the plaintiff. In the first place it is insisted that although the material for which the lien is claimed was used in the construction of the dwelling, the plaintiff is not entitled to a lien because it did not deliver the material at the place where the building was being erected. That claim is based on language contained in General Code Section 8314, requiring that the affidavit should be filed within sixty days from the date on which the last materials “shall be furnished at the building.” We are not in accord with this claim made by the owners. The same section contains the form for an affidavit for lien in which the claimant only swears that he furnished the material for constructing the building. The section cited is not the one which gives the right to a lien. That right is given by General Code Section 8310, and is given to a person who performs labor or furnishes material, etc., for repairing or constructing a building or other structure under a contract with the owner or his agent. The evidence discloses that all the material for which claim is made was used in the construction of the building, and it is unimportant who delivered it on the premises.

It is further insisted that the lien is invalid because the copy of the affidavit furnished to the owners does not show the signature of the lien claimant nor of the notary public before whom it was executed. This is not such a defect as invalidates the lien. Lake Erie Lumber & Supply Co. vs. Marshall, et al., 11 Ohio App. 416.

The serious objection to the validity of the lien claimed by the plaintiff is the contention that the last item was furnished more than sixty days prior to the filing of the affidavit for lien. Plaintiff’s ledger shows three items furnished on October 31, 1925, aggregating $1.94, and the next preceding item was. on October 22nd. Plaintiff’s bookkeeper testified that all the knowledge he had with regard to the time when the items aggregating $1.94 were furnished is what he obtained from the invoice tickets. The invoice ticket in question bears date of October 31st, 1925, but is based on an order dated October 2nd, 1925, bub it does not appear when it was written, nor by whom. Nighswander testified in chief that he personally obtained this material of the plaintiff on October 31, 1925, but on cross examination states that he has no knowledge of the date except as he gets it from the bill, although he says it was on a Saturday, and October 31st was Saturday. When asked, on cross-examination, what date he obtained' the material, he testified he had no recollection of the date, and added:

“I can not just recall. I can not swear to that to tell the truth. I can not do it. I ain’t going to tell no lie.”

And he stated that he received this material on the day he ordered it, and' that date was October 2nd. Fingerhut. and his wife both testify that they moved into the dwelling on October 15th, 1925, and that the last work which Nighswander did was on October 22nd, when he put on a mantel shelf. In view of all the evidence in the case we are convinced.that the last material furnished by the plaintiff was supplied more than sixty days prior to the time the affidavit for lien was filed, and for this reason the plaintiff is not entitled, to a lien.

(Williams and Lloyd, JJ., concur.)


author: SULLIVAN, P.J.

text:
    GALLO v. STATE
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 9049.
    Decided June 18, 1928.
    Syllabus by Editorial Staff.
    CRIMINAL LAW
    (190 E4) Evidence found sufficient to sustain a conviction of murder in the second degree.
    (190 A8) Aider or abetter properly convicted as a principal offender.
    Error to Common Pleas.
    Judgment affirmed.
    Raymond J. Logan, Cleveland, for Gallo. .
    . E. C. Stanton, John J. Sexton and M. A. Pic-ciano, Cleveland, for State.

      STATEMENT OF FACTS.
    On January 7, 1928, one Bruno Gedwillo, a watchman, was shot and killed near the shanty occupied by him in the performance of his duties, near the intersection of Ontario Street and Race Court, in the City of Cleveland. Thereafter an indictment was returned charging the plaintiff in error, Gallo, and one Mike Glowatch, with the crime of murder in the second degree and in the trial of plaintiff in error, the dying statement of Gedwillo was to the effect that while Glowatch did the shooting the decedent was struck on the head by Gallo with the gun which had been confessedly pressed against the body of decedent by Gallo, before his co-defendant fired the fatal shots, and therefore, at the time of the homicide the gun was alternately in the possession and use of both parties.
    There also appeared in the dying statement a declaration by the decedent that he had serious trouble with Gallo in a fight with him, but it also appears in the evidence that Gallo denied this statement.
   SULLIVAN, P.J.

Able counsel for plaintiff in error has argued strenuously and eloquently that the verdict should be set aside on the ground that it is clearly and manifestly against the weight of the evidence, and while it is true that the evidence is conflicting on many points, the main facts appear to us unanimously to remain undisturbed. In other words, when the crime was committed, Gallo was present. His mere presence, however, without any part in the commission of the crime, and in the absence of any evidence of conspiracy, would not sustain a verdict of “guilty” against him. A review of the evidence, however, makes it clear and conclusive to that degree of certainty required by the criminal law, that the plaintiff in error was an active participant in connection with the co-defendant, Mike Glowatch.

It is argued that the court committed prejudicial error in overruling a motion to take from the consideration of the jury the charge of second degree and manslaughter as to Charles Gallo. We cannot agree with able counsel in this contention, for the reason that there is evidence in the record tending to show to the extent of the requirement of the criminal law, that a verdict based upon the indictment finds credence in the record, and we cite as a significant portion of the evidence, a part of the statement made by plaintiff in error, Gallo, himself:

“Bruno, I don’t know his last name, was coming from towards the market and was crossing Race Court, going to where that construction place is, where he works. I told Mike to stop the machine, that I wanted to have some fun with Bruno * * * Mike stopped the machine and the gun was in the machine, lying on the back cushion, and I grabbed the gun and I went up to Bruno, and said, “Hello Bruno” and I put the gun in his belly. * * * I had the gun and put it on this fellow, and Mike searched him. I know he didn’t take nothing though, he just searched him down his pants for a gun. He says I hit him with the gun but I don’t remember hitting him with it. The gun exploded then and Mike took the gun away from me and Mike shot the fellow. When Mike grabbed the gun be said, ‘Let me kill that cock-sucker.’
He said ‘There is nobody around here now’.”

Whether Gallo was a principal or an aider or abetter under the evidence, is immaterial under Section 12380 of the Code and under the excerpt from the evidence last noted, an aider and abetter is a principal offender under Section 12380 of the General Code, which provides:

“Whoever aids, abets or procures another to commit an offense may be prosecuted and punished as if he were tbe principal offender.”

Holding these views, it is the unanimous opinion of the Court that the judgment of the lower court be and the same is hereby affirmed.

(Vickery and Levine, JJ., concur.)


author: MAUCK, J.

text:
    McKEE v. LIMING
    Ohio Appeals, 4th Dist., Brown Co.
    Decided May 28, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    TRIAL
    (590 S) Service of process in a personal transitory action may be made on the defendant, although a non-resident of the state, in any county where he may be found, notwithstanding the action arose in another county. Exceptions in 11268-11271 GC., not applicable. AUTOMOBILES
    (50 Ac) Pedestrian may presume when he sees automobile approaching, that the latter will proceed in a lawful and prudent manner.
    (50 Ac) Pedestrian not bound to anticipate negligence on part of the driver of approaching automobile.
    Error to Common Pleas.
    Judgment affirmed.
    Young & Barnes, Georgetown, for McKee.
    Bagby & Bagby, Georgetown, for Liming.
    STATEMENT OF FACTS.
    William M. Liming recovered a judgment in the Common Pleas in an action in which he claimed damages for certain injuries sustained by him by reason of his having been struck by an automobile operated by McKee.
    The first and, perhaps, the most important Question arising in this case concerns the sufficiency of the service on the defendant. The latter was a resident of the state of Indiana. The injury forming the basis of the action occurred in Brown County, Ohio. Personal service was had on the defendant in Adams County, Ohio, by a summons issued from the Court of Common Pleas of Brown County. It has been sought to justify this service on the authority of Section 6308 GC. That section provides in its first sentence that action predicated on the negligence of the owner or operator of a motor vehicle may be brought in the county where the injury occurred. By its second sentence it authorizes the issuance of process to the sheriff of another county in which the defendant resides. It is now urged that inasmuch as the defendant was not a resident of Adams County at the time of service the case does not come within the provisions of the section referred to, which only covers the exceptional eases mentioned.
   MAUCK, J.

We do not consider it necessarjr to give to Section 6308 GC., an interpretation broader than its literal terms in order to sustain the service had in the instant case. That section relates to the venue of actions. Klein v. Lust, 110 OS. 197.

The chapter of the code beginning with Section 11268 GC., fixes generally the counties in which actions may be brought. This being a personal transitory action it could, of course, be brought in any county where service could be had on the defendant whether the defendant was a resident or non-resident. If a given defendant is a resident Section 11277 GC. enlarges the opportunity to sue him by authorizing the action to be brought not only in any county where he might be served but also in the county where he resided. If he is a nonresident of the state Section 11276 GC. enlarges the opportunity to sue him by authorizing an action to be brought not only'in the county where he may be served but in the county where the cause of action arose in all cases save those covered by Sections 11268, 11269, 11270 and 11271. It will at once be seen that Section 6308 GC. had the purpose and effect only of changing the law providing the place where actions could be brought so far as residents are concerned. It made it possible to bring an action for negligence against a resident automobile operator in the county where the cause of action arose. It did not undertake to change the law of the venue of actions against non-residents because the law was already broad enough to enable them to be sued in any county where the cause of action arose whether for negligence in operating an automobile or for any other personal action with the exceptions already referred to. Inasmuch as the cause of, action here sued upon arose in Brown County and inasmuch as this is not an action covered by Sections 11268, 11269, 11270 or 11271, and inasmuch as the defendant was a non-resident of the state of Ohio, this action was properly brought in Brown County, and this is wholly independent of Section 6308 GC. The service derives its validity from Section 11282 GC. in the chapter following that relating to venue. That section provides that when an action is rightly brought in one county summons may issue to another county. This section is not confined to instances where one defendant is resident of the county of venue and other defendants of other counties. It is the only section authorizing service in foreclosure and other local, actions and requires no restricted construction. It authorizes service out of the county in all cases where the action is rightfully brought within the county.

We accordingly find that the service was good'.

It is perfectly clear that if the defendant were traveling at an excessive rate of speed the plaintiff would not have been injured if the defendant had been traveling at a less rate for the plaintiff had almost crossed the road before he was struck. The plaintiff had a right to assume when he saw the defendant’s approach that the latter was proceeding in a lawful and prudent manner. He was not obliged to anticipate any negligence on the part of the defendant. While the jury might under the facts adduced have concluded that the plaintiff was guilty of contributory negligence it was not bound to do so. WJe consider this feature of the case to be determined by the recent opinion of the Supreme Court in Trentman v. Cox, 118 OS. 247.

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


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    BUCKNER v. LEVINE.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8685.
    Decided June 11, 1928.
    Middleton, P.J. and Mauck, J., of the 4th Dist., sitting.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    TRIAL
    (590 Nc) A verdict was returned and a judgment entered thereon. Subsequently, at the same term, a motion for new trial was filed, but no action was taken thereon until the next term, when the motion was overruled. Thereupon, and at the latter term, a motion for rehearing of the motion was filed and granted. At the next succeeding term the application was heard and the judgment set aside and a new trial granted. Held, that the entry vacating the judgment on rehearing was no more than a disposition of the original motion for a new trial; that the legal effect of granting the rehearing was in effect to vacate the order overruling the motion for a new trial and also the judgment which followed the former order overruling said motion.
    Error to Common Pleas.
    Judgment affirmed.
    C. F. McConnell, Cleveland, for Buckner.
    N. E. Cook, Cleveland, for Levine.
    STATEMENT OF FACTS.
    This is an action for damages brought by the plaintiff in error against the defendants in error, which was tried to a jury in the Court of Common Pleas, resulting in a verdict against the defendants for a substantial amount of money, and which verdict was returned on March 21st, 1927.
    The record shows that, on March 23rd, 1927, a motion for a new trial was filed by the defendant. On April 30th, 1927, this motion for a new trial was overruled and the court thereupon entered judgment in favor of the plaintiff in error for the amount returned by the jury in their verdict.
    It should be observed at this time that the motion for a new trial was filed, but not disposed of during the January Term of the Court and that said motion was overruled and judgment entered at the April Term of said court. It further appears from the record that, on May 27th, 1927, and during said April Term of court, an application for rehearing of the motion for a new trial was filed. On June 2nd, 1927, the following entry was made on said application:
    “The application for the re-hearing of the motion for a new trial in the above entitled action came on to be heard and upon good cause being shown to the Court, the application for a re-hearing is hereby granted.”
    This order and entry were made during the April Term of Court and being the same term at which, as above observed, judgment was rendered and the motion for a new trial overruled. On August 9th, 1927, the following entry was made in this case:
    “This cause came on to be heard on the motion of the defendants for a re-hearing of the motion for a new trial', and the Court being fully advised in the premises, finds that said motion for a new trial should be granted and that the judgment heretofore rendered in the above entitled cause should be set aside and the defendants granted a new trial. It is therefore, ordered, adjudged and decreed that the entry of the judgment heretofore made in the above cause is hereby set aside and held for naught and the hearing of the motion for a new trial is hereby granted to the said defendants, to all of which plaintiff excepts.”
    The case is here on the exceptions noted to the entry last made and it is claimed that as the judgment was not vacated or the motion for a new trial overruled during the April Term of Court, that the court was without jurisdiction to make the entry of August the 9th and that the order and judgment in that entry is contrary to law and should be reversed.
   MIDDLETON, P.J.

In the case of Huber Manufacturing Company vs. Sweeney, 57 OS. 169, the court had before it the consideration of an application for re-hearing of a motion for a new trial and cites authorities to the effect that the Court of Common Pleas has control of its own orders and judgments during the term at which they were rendered. '

In the instant case the application for a re-hearing of the motion for a new trial was filed during the term at which said motion fora new trial was overruled and as appears from the entry made under date of June the 2nd, that application was granted during the same term of court. It is manifest, we think, that the court had power under these facts to grant such re-hearing and that the effect of the entry then made allowing such re-hearing was to vacate ipso facto its former order overruling said motion for a new trial, and that the order granting such re-hearing left the case then depending on said motion for a new trial and the judgment theretofore rendered was thereby vacated. It appears from the record that the case then went into the succeeding term of court with the motion for a new trial still pending and not disposed of.

On August the 9th, it appears from the entry complained of that the motion for a new trial was sustained. The recital in that entry that the cause came on for a re-hearing on said motion, is merely a repetition of what appears in the' entry of June the 2nd. The entry of August the 9th was in fact, and so recites, a disposition of the origial motion for a new trial and not a disposition of an application for a re-hearing thereon.

As we view the facts in this ease, the court had full authority on August the 9th to hear and determine the motion for a new trial and when that motion was granted, the case then stood for trial. As before observed, the legal effect of the order made on June the 2nd granting a re-hearing, was to vacate the former order overruling said motion and also the judgment which had followed the overruling of said motion, and this is so, notwithstanding the entry does not express such .results.

(Mauck, J., concurs.)


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    LAWRENCE v. CLEVE. ELECT. ILLUM. CO.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8562.
    Decided June 4, 1928.
    Syllabus by Editorial Staff.
    PUBLIC UTILITIES — Negligence (370 T)
    (470 E) An electric light company is not liable' for the death of a boy who fell from one of its power towers which was located in an isolated place, and properly constructed, since such boy, in climbing the tower was a trespasser to whom the company owed no active duty.
    TRIAL
    (590 Df) In a case where the plaintiff’s evidence establishes no liability, it is proper to direct a verdict for the defendant at the close of plaintiff’s evidence.
    Error to Common Pleas.
    Judgment affirmed.
    Schaefer & Lawrence, Cleveland, for Lawrence.
    Squire, Sanders & Dempsey, Cleveland, for Ilium. Co.
    STATEMENT OP FACTS.
    In the court below, Margaret R. Lawrence, as Administratrix of the Estate of William Kave, deceased, brought this suit to recover damages for the benefit of the next of kin, fór the death of her decedent. At the trial of the action, after the plaintiff had produced all her testimony and rested, a motion was made to direct a verdict in favor of the defendant on the ground that the evidence introduced did not show a liability against the defendant company. After due consideration, this motion was sustained by the court and the jury was directed to return a verdict for the defendant, and error is prosecuted to this court, this being the sole ground of error.
   VICKERY, J.

Prom the record, briefs and arguments of counsel, we learn that The Cleveland Electric Illuminating Company had procured a franchise from what was then the Village of Rock-port, for the purpose of erecting poles and other apparatus upon which to string wires for the transmission of electricity through the streets and alleys of the Village of Rockport, and that in pursuance with this ordinance granting them. such franchise,' The Cleveland Electric Illuminating Company procured the consent of the Village of Rockport, through its duly constituted officer, to string the wires and other equipment through the streets and alleys of the Village, providing they get the consent of the property owners interested therein. We further learn that such consent of the property owners was obtained by the Illuminating Company, and that in pursuance with their plan of conducting electrical current through the streets of the Village of Rockport, at the intersection of Brook Park Road and West 150th Street, the Illuminating Company erected a tower 65 feet high and over the top of this tower were high tension electric wires for the purpose of conducting electricity. This tower was constructed of steel beams and consisted of four uprights riveted together up to the height of 65 feet; there was one upright on each corner of the tower and these uprights were bound together by bars of steel starting a few feet from the ground and running in a zigzag course to the top of the tower, there being ten of these diagonal bars on each side of the tower, so that the whole constituted a zigzag course from the bottom to the top and these pieces were five, or six, or perhaps more feet apart and the four posts were bound together in this manner.

On the day in question the decedent, a boy about ten years old, came oyer to this neighborhood for the purpose of seeing his sister who worked on a garden farm adjacent thereto —for it must be remembered that this tower was erected in a sparsely settled district which at that time was practically country — and for some reason or other the boy apparently attempted to climb and did climb to the top of this tower, when he came in contact with a high tension wire and was thrown’ to the ground and killed instantly. The action, as already stated, is brought to recover damages for his death.

The claim made by the defendant below, the defendant in error here, undoubtedly was that the evidence in this case showed no liability on the part of the defendant. We cannot help but come to the same conclusion. Here was a tower erected in what would seem to be a safe way to prevent anyone from attempting to climb, and what more the Company could have done to protect those who might be affected by the transmission of electric current over the streets, it would be hard to say.

It is argued that there was no warning. Well, if the structure of this tower was not of a character that would warn anybody of the danger in attempting to climb such' a tower, we cannot see how a sign put up there would have given him more warning. As a matter of fact it probably would not have deterred an adventurous boy from climbing this tower. It must have been a difficult thing at best, and it is hard to understand how he could have accomplished his purpose at all.

It is well to bear this in mind because we are cited to the case of Klingensmith, Admrs. vs. The Scioto Valley Traction Company, 18 O. App. 290.

An analysis of that case with the instant case will soon show how unlike they are.

There is a case, however, decided by our own court, namely, Schmotzer vs. The Cleveland Electric Illuminating Company, No. 523, rendered June 1st, 1914, and found in Volume 5, page 300, Unreported Opinions Court of Appeals, which is in point.

Besides these two cases there are many other cases and an analysis of the authorities we think will show that the court below was right in directing a verdict because there could be no responsibility.

It is not necessary to go into the other questions as to whether this boy was a trespasser or not. He as a matter of fact was a trespasser and while a trespasser may have some right, we cannot say that there was any negligence upon the part of the defendant company that would warrant a recovery whether he was a trespasser or not.

We, therefore, think that the verdict and judgment must be affirmed.

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


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    BENSCHOTER v. N. Y. CENT. RD. CO.
    Ohio Appeals, 6th Dist., Lucas Co.
    No. 2032.
    Decided May 28, 1928.
    First Publication of This Opinion
    Syllabus by Editorial Staff.
    TRIAL
    (590 Dc) A directed verdict in favor of the defendant, cannot properly be based on a claim that no evidence was introduced tending to show negligence on the part of the defendant, it appearing that there was evidence introduced to the effect that the defendant railroad violated the statute in failing to ring its bell or sound its whistle.
    (50 Ac) Although the view at a railroad crossing is obstructed, nevertheless a truck driver is guilty of negligence where he approaches the crossing at the speed of 2 or 3 miles a.n hour and could have seen an approaching train 400 or 500 feet away had he looked, it appearing that he could have stopped almost instantly.
    EMPLOYER & EMPLOYE
    (250 M) Servant, let by his master to another, does not become the servant of the other because the other directs what work is to be done or in what way it is to be done.
    Error to Common Pleas.
    Judgment affirmed.
    Ritter & Brumback and George E. Taylor, Toledo, for Benschoter.
    Doyle & Lewis and Robt. Newbegin, Toledo, for Rd. Co.
    STATEMENT OF FACTS.
    On May 4th, 1923, Louis Benschoter was the owner of a Republic 3 Y2 ton motor truck which was loaded with five tons of crushed stone and being driven north on the public highway extending through the town of Holland in this county. The tracks of the defendant company extend east and west through the station of Holland, intersecting the highway at a considerable elevation above the surrounding country. On the afternoon of the date named the truck was being operated by Burt Bowser and when he approached the railroad crossing at Holland it became necessary in order to make the ascent to put the truck in low speed, on account of the heavy load and the grade of 6% or 7%, and as it reached the top of the incline the truck was traveling at not more than 2 or 3 miles an hour. In crossing the track the truck was struck near the center by a westbound passenger train traveling on the north track at the rate of about 60 miles an hour and entirely destroyed and the driver instantly killed.
    The plantiff, Louis Benschoter, brought an action against the railroad company to recover the value of the truck.
   RICHARDS, J.

The plaintiff relies on the claim that the view of a traveler approaching from the south was obstructed by buildings and by certain box cars claimed to be standing on a siding south of the main tracks and east of the highway, by reason of which obstruction it is claimed to have been impossible to see a train approaching the crossing until the traveler reached the main tracks. As grounds of negligence the plaintiff contends that the defendant, in violation of the statute, failed to sound a whistle or ring the hell and failed to maintain a flagman or gates or an automatic signal.

In view of the fact that the trial court directed a verdict in favor of the defendant, it is only necessary to say, so far as the claimed negligence of the defendant is concerned, that the plaintiff introduced evidence tending to show a violation of the statute in failing to ring the bell and sound the whistle. There being such testimony in the case, the directed verdict could not properly be based on a claim that no evidence was introduced tending to show negligence on the part of the defendant.

The answer to the second amended petition avers that the collision was caused solely by the negligence of the plaintiff himself through his agent, the driver, who was operating the truck, in that the driver drove the truck upon the crossing immediately in front of defendant’s train, without stopping or looking or listening or taking any precautions to avoid a collision. This averment raises the two important questions in this case: First, whether the driver of the truck was so negligent, and, second, if so negligent, whether he was, at the time, the agent or employe of the owner of the truck and engaged in his business.

Even if cars 'were on the siding east of the highway when a traveler proceeding north had reached a point 25 feet south of the westbound high-speed track, he could see east down the track a distance of 550 feet. Under the doctrine announced by the Supreme Court in D. T. & I. R. R. Co. vs. Rohrs, 114 Ohio St., 493, no other conclusion could be reached than that the driver of the truck was guilty of negligence which directly caused the collision.

The question remains, however, whether he was at the time the agent or employe of Ben-schoter, and engaged in his business. The evidence on this subject comes wholly from Ben-schoter himself and it shows that he himself never drove the truck but purchased it to be driven by his brother-in-law, Bowser, who had charge of the truck from the time it was bought and took care of it for the plaintiff. In the fall before the collision Benschoter had an agreement with Johnson, Van W¡agner & Johnson, to haul crushed stone for them on the Angola Road and in fulfilling that contract he was to provide a truck and Bowser as the driver, and was paid per ton mile for the crushed stone hauled and knew that the stone was to be hauled on the Angola Road, which necessitated crossing the tracks of the defendant company. In the spring the same arrangement was renewed between Benschoter and Johnson, Van Wagner & Johnson and with Bowser again as the operator of the truck, Benschoter testifying that he told Bowser to go there with the truck and do whatever _ Johnson wanted him to do, but that he knew it was to be the hauling of crushed stone on the Angola Road. While Bowser was operating the truek in hauling stone, he received the same compensation from Benschoter, $30.00 per week. Benschoter testified that after the truck was taken by Bowser to Johnson, Van Wagner & Johnson, he did not know who directed the handling of the truck but supposed it was done by the foreman on the job and that he himself had nothing to do with it at all. This testimony in relation to the employment and service of Bowser is not contradicted. If he was at the time of the collision an employe or agent of Benschoter, acting within the scope of his authority, then Benschoter would be liable for his negligence and the court was right in directing a verdict. On the other hand, if he was at the time the employe or agent of Johnson, Van Wagner & Johnson, and engaged in the performance of his duties for them, then Benschoter would not be liable for his negligence and the court was not justified in directing a verdict.

From the record it is perfectly clear that Benschoter was the general employer of Bow-ser and had the right to discharge him should occasion arise. While Johnson, Van Wagner & Johnson had the right to give directions about the hauling of the crushed stone, the duty of Bowser to use care in the operation of the truck for its protection was a duty which he owed to his employer, Benschoter. An instructive case, quite parallel with the one at bar, is Gechei vs. Beltz, 13 Ohio App. 180.

The following case illustrates the principle under varying facts:

McNamara vs. Leipzig, 227 N. Y., 291, in which it was held that a servant let by his master to another, dqes not become the servant of the other because the other directs what work is to be done or in what way it is to be done.

Although Bowser was loaned by his general employer to another, he was still engaged at the time of the collision in the performance of his employer’s business and such employer continued responsible for his negligent acts. For the reasons given the judgment will be affirmed.

(Williams and Lloyd, JJ., concur.)


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    BLAUM v. DET. T. & I. RD. CO.
    Ohio Appeals, 4th Dist., Pike Co.
    Decided Apr. 26, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    REAL ESTATE
    (510 A4) In proceedings to enjoin a railroad company from removing a fence along its right of way, wherein it appeared that many years ago a railroad company’s predecessors had appropriated a strip of land, and a fence had been erected- and maintained so that part of the strip so appropriated had been, for a period of forty years, used and considered as part of an abutting farm, the court will interfere to prevent the removal of the fence; nor does the call in the deed to the farm, naming the center of the right of way, have any effect, it appearing that the part used shifted from time to time.
    RAILROADS
    (500 R) A railroad,, not owning the fee in its right of way, may abandon any part thereof, by fencing in a narrower strip than that appropriated, and continuing to use the same for a period of years.
    Appeal from Common Pleas.
    Decree for plaintiff.
    G. W. Rittenour, Piketon, for Blaum.
    Luther B. Yayle and Wallace Visscher, Chillicothe, for Rd. Co.
    STATEMENT OF FACTS.
    This is an action to enjoin the railroad company from removing a certain fence which the plaintiff claims is now standing on the line between the lands of plaintiff and the right of way of the railroad company.

      The petition alleges that plaintiff is the owner of certain real estate which abuts on the right of way of the defendant company and that a fence has been maintained for more than forty years between the properties of the plaintiff and the defendant company, and that this fence has always been recognized as defining the line between the plaintiff’s farm and the right of way of the railroad company. The petition further alleges that the defendant company is about to remove said fence and to construct a new fence on the lands of the plaintiff at a distance of from one to twenty-five feet from the old fence, and that the defendant company is also undertaking to eliminate two or three gates that now form a part of said fence. The petition asks for a permanent injunction restraining the defendant company from changing the location of the fence and eliminating any gates now used by the plaintiff. For answer to this petition the railroad company alleges that it owns a right of way along the southwestern side of plaintiff’s farm extending for a distance of fifty feet from the center of its railroad track and that in the construction of the new fence it was undertaking to place the same upon the line of its right of way. The defendant further says that for some years it did not need all' of its right of way next to the land of plaintiff for railroad purposes and that it permitted the adjoining land owner to use a part of said right of way next to his land but such use was permissive and not adverse. It denies that it was undertaking to build a fence upon the land of the plaintiff, but alleges” that the fence it intended to build was on the line between its right of way and the lands of the plaintiff.
   MIDDLETON, P.J.

It appears from the evidence, which was largely in the form of an agreed statement of facts, that the plaintiff is the owner of eighty acres of land which he pureahsed in 1918 from one Mrs. Emory, and that said land and other lands of the plaintiff abut on the right of way of the defendant company. It further appears that in 1876 this right of way was duly appropriated by The Springfield, Jackson and Pomeroy Railroad Company, a predecessor in title to the defendant herein, and that by such appropriation the railroad company procured a right of way one hundred feet wide through and over the eighty acre tract aforesaid. It further appears that after this right of way was secured the railroad company, then in possession of such right of way, constructed a fence between its right of way and the lands of the plaintiff and that such fence has ever since been maintained as then constructed by the building railroad company and its successors, and that said fence has stood in its present location for approximately forty-eight years; that during said time the various owners of the land now held by the palintiff occupied said lands to the fence aforesaid; that the grantor of the plaintiff herein held such possession for approximately twenty-eight years and the plaintiff has had such possession for the past ten years. Under these facts it is the contention- of the plaintiff that his possession may be tacked to or united with the possession of his grantor in order to make a continuous and adverse possession in him for the required term of twenty-one years. Zipf v. Dalgarn, 114 OS. 291, 151 NE. 174; Powers v Malavazos, et al, 158 NE. 654. To this claim, however, the defendant company maintains that the description of the land now held by plaintiff as contained in his deed therefor specifically excludes the disputed strip for the reason that said description contains this exception:

“Save and except the right of way of the Detroit, Toledo and Ironton Railroad Company.”

The railroad company contends that by reason of this exception in the deed that such deed does not include in its boundaries the land in dispute and that possession can not tack where the deed under which the occupant claims possession does not convey the disputed land. It is apparent that counsel for the defendant company are confused in their claim in this respect for a reference to the deed as it appears of record, shows that such deed does not contain the exception claimed. The call of the line in dispute as it appears in said deed is as follows:

“Beginning at a stake in the line of Rickey’s land fifty feet from the center of the Ohio Southern Railroad (now known as the D. T. and I. Railroad) track where said line crosses the same; thence in a line parallel with said railroad track north 28% west 54 poles to a stake.”

This call begins at a point fifty feet from the center of the railroad track. There is nothing in the evidence to show that the center of the railroad track at the time these conveyances were made was or is now the center line of the right of way as it was originally appropriated. It is, we think, a safe presumption that during the last fifty years the track has varied in its position in respect to the centre line of the right of way. At any rate, it is not shown that the description contained in said deed specifically excludes the land in dispute here from the grant therein made.

As before observed, after the land was appropriated this fence was constructed by the then holding railroad company. That company thereby by its action fixed the limits of that part of the right of way it then desired to use in the operation of its road, and it thereby excluded itself from the remainder of such right of way and for forty-eight years neither that company nor any of its successors have made any claim to. or in any manner occupied or used the remainder of the right of way so excluded. It follows from this fact that the different companies which have operated the road during that time have lost their right by non-user to that part of the right of way so excluded and are conclusively presumed to have abandoned that portion of the right of way. This was the rule adopted by the Supreme Court in Platt v. Railroad Company, 43 OS. 228, and followed by this court in Railroad Company v. Village of Oak Hill, 157 NE. 817. It must be remembered that the fee to this right of way is not in the defendant and was not appropriated by the proceedings brought in 1876. The defendant company holds only an easement in the land so appropriated, which is only the right to use such lands for the operation of its railroad.

In the instant case the various companies owning the right of way in question have continuously maintained a fence which defined that part of the right of way they desired to use and did use for railroad purposes. It would be difficult to conceive of any action which would more strongly and effectively indicate what portion of the right of way they regarded as necessary to hold in the nse and operation of the railroad. • They could not define the limits of the portion they desired to use more completely than the fence shows they have done in this ease.

These facts establish conclusively, in our judgment, an abandonment of that part of the right of way which has never been occupied or used by the railroad company and has been excluded in the manner referred to from that part.of the right of way which has been used. It is manifest, therefore, from the foregoing facts that the fence described in the pleadings and in the evidence as it now stands must be held to define the dividing line between the plaintiff’s land and the defendant’s right of way. The defendant company is perpetually enjoined from changing the location of said fence.

Without considering in detail what the evidence shows in respect to the gates, we think that the maintenance of two gates, one on the tract of land containing eight acres and the other on the lands of the plaintiff lying immediately north of said tract, should be sufficient. These gates should be continued in their present location.

(Mauek, J., concurs; Thomas, J., dissents.)


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    OLMSTED v. SCHREMBS
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8529.
    Decided June 5, 1928.
    Middleton, P.J., and Mauck, J., of the 4th Dist., sitting.
    First Publication of This Opinion.
    Syllabus by Editorial Staff. •
    REAL ESTATE
    (510 B3f) A restriction in a deed in favor of the grantor, his heirs and assigns, and in favor of an adjoining owner, that the premises shall be used for residence purposes, only, does not warrant an injunction against the owner of the lot restraining him from maintaining a convent thereon, when the adjoining owners consent thereto, and it does not appear that there was any uniform plan of restrictions, that the plat from which the lot was sold was ever recorded or the allotment dedicated to the city as a subdivision.
    (510 A8) Adjoining premises are premises which touch or are connected with the premises involved as distinguished from premises lying near or adjacent to the lot.
    Appeal from Common Pleas.
    Petition dismissed.
    Stearns, Chamberlain & Royon, Cleveland, for Olmsted.
    Mooney, Hahn, Loeser & Keough, Cleveland, for Schrembs.
    STATEMENT OF FACTS.
    The plaintiff is seeking to enjoin the defendant from using certain property for purposes which the plaintiff claims are in violation of certain restrictions contained in the conveyance under which the defendant holds said property.
    It appears that prior to 1904 one Benjamin Rose owned a tract of land in the City of Cleveland bounded by Ashbury Road on the north, East 105th Street on the east, Wade Park on the south and East Boulevard on the west; that about that time he caused a plat to be made of said tract, dividing the land fronting on East Boulevard into ten lots and the land on 105th Street into seventeen lots and numbering said lots consecutively from one to twenty-seven. This plat was never placed on record nor was the allotment so made ever dedicated to the City of Cleveland as a subdivision.
   MIDDLETON, P.J.

The evidence shows that the defendant is the owner of a part of lot four and all of lot five, as we understand it, as such lots are shown on the original plat. The plaintiff is the owner of a part of sub-lot seven as shown by the original plat. It follows, therefore, that between the’ premises of the plaintiff and those of the defendant are intervening premises which are owned by another party. It will be conceded, we think, that the deeds from the original owner, Rose, to the predecessor in title of the defendant contained the following restrictions and conditions:

' “The above named grantee, * * * hereby covenants and agrees with the said grantor * * * for the use and benefit of the said grantor * * * and of every other person who shall or may become the owner * * * or have any title * * * to the premises adjoining the above described premises on either side thereof, as follows, to-wit:
1. That for and during the next ensuing 50 years from and after the date hereof the premises herein conveyed shall not be used by said grantee, his heirs or assigns, for apartment or boarding house purposes, but shall be used for private residence purposes only.

It is the claim of the plaintiff that the restriction limiting the use of the lot for private residence purposes only is being violated by the defendant and that the latter is now maintaining upon his property a convent, in which live a community of nuns who belong to what is known as the Cloister Order.

By the express language of the restrictions and conditions quoted it appears that such re-trietions are limited to the benefit of owners of the premises adjoining the premises of the defendant on either side thereof. Admittedly the plaintiff is not and never was the owner of the premises adjoining on either side of the premises of the defendant. Restrictions in conveyances of property may not be extended by conjecture or implication. When doubtful the doubt must be resolved in favor of the grantee. Hunt vs. Hold, 90 OS. 280. It is clear, we think, that the premises protected by the restriction must be “adjoining premises” and on the side of the premises in question. This means that they must be premises which touch and are in contact with the premises complained of.

The evidence shows that the owners of the premises adjoining the defendant’s property have consented to the use of such property as is now made by the defendant.

In view of these considerations we must conclude that the plaintiff has no right of action. This conclusion makes it unnecessary to consider the remaining contentions made in this case. They are not material. We might say, however, in conclusion that we are not by any means convinced that the evidence establishes that a general and uniform plan of restrictions on all the property platted was ever adopted and put into effect by Rose. On the contrary the evidence clearly establishes that in the disposition oí these lots Rose made various changes in the restrictions, particularly in the conveyances of the lots fronting on 105th Street, and we believe the evidence establishes that in the sale of one lot fronting on East Boulevard no restrictions whatever were imposed.

The petition is dismissed at the cost of the plaintiff.

(Mauek, J., concurs.)


text:
    JENKINS v. JENKINS, et.
    Ohio, Appeals, 6th Dist., Sandusky Co.
    No. 202.
    Decided May 9, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    HUSBAND & WIFE
    (290 Da) Evidence that parties lived together as husband and wife for more than thirty years, together with some testimony tending to show agreement to become husband and wife, sufficient to establish common law marriage, notwithstanding impediment to marriage not removed until three years before death of husband.
    Appeal from Common Pleas.
    W. J. Mead, Fremont and McIntosh & Gar-rahan, for plaintiff in error.
    Culbert & Culbert and G. C. Scheffler, Fremont, for defendant in error.
    STATEMENT OF FACTS.
    Alfred Jenkins, a resident of this county, died intestate on January 4, 1926, the owner in fee simple of 35 acres of land situated in this county. This action was commenced on February 2, 1927, for the purpose of procuring a partition of the real estate left by him. From the decree of the court of common pleas an appeal has been taken to this court.
    The plaintiff, Alma Jenkins, and the defendants, Fred Jenkins and Hinda Stewart, claim to be children of Alfred Jenkins, and his only heirs at law, and the defendant Alma Diehl Jenkins claims to be his widow and entitled to dower in the premises.
    It appears from the evidence in this case that Alfred Jenkins, and Lista Jenkins, who were colored persons and slaves, lived together as husband and wife in the State of Virginia during and after the Civil War._ On February 27, 1866, while they were so living together, the General Assembly of Virginia enacted a statute to legalize the marriages of colored persons cohabiting as husband and wife. Under and by virtue of the provisions of that act the decedent Alfred Jenkins and Lista Jenkins became, in law and in fact, husband and wife.
    The evidence shows that in April, 1895, the decedent abandoned his wife, Lista Jenkins, and left Virginia with the defendant, now known as Alma Diehl Jenkins, a white woman, but then known as Alma Diehl and the wife of George S. Diehl. They came to Ohio and lived and cohabited together as husband and wife for more than thirty years and up to the time of the death of Alfred Jenkins on January 4, 1926, although no children were born to them.
    In 1895, not long after they left Virginia, George S. Diehl secured a divorce from his wife, Alma Diehl. Lista Jenkins, the former wife of Alfred Jenkins, died in Virginia in the year 1923. The decedent Alfred Jenkins and Alma Diehl Jenkins were universally known and recognized and believed by their neighbors and friends for more than thirty years, to be husband and wife. There is some testimony tending to show an agreement on their part to become husband and wife, but an impediment existed preventing a lawful marriage in that Lista Jenkins was still living until the year 1923. The divorce granted George S. Diehl in 1895 of course removed the impediment theretofore existing by reason of the marriage between him and Alma Diehl, now Alma Diehl Jenkins.
    In view of the facts and circumstances shown in this ease establishing the long continued relations between the parties, showing that they resided and cohabited together as husband and wife and held themselves out to their friends and neighbors as such, and that this continued down to the time of the death of Alfred Jenkins, and after all impediments to their marriage had been removed, added to the fact that there is testimony tending to show an agreement in the present tense to become husband and wife, this court is forced to the conclusion that a common law marriage existed between them and that Alma Diehl Jenkins is the widow and entitled to dower in the premises involved in this action. This conclusion is in line with the holding of the Supreme Court in Johnson vs. Wiolford, et al., decided June 15, 1927, Ohio Law Bulletin and Reporter of July 25,1927, and with Dirion vs. Brewer, Admr., et al., 20 Ohio App. 298.
    The evidence fails to disclose clearly and convincingly that the decedent held the title in trust for Alma Diehl Jenkins, and that claim made by her is disallowed. She has paid certain claims against the estate, such as doctors’ bill, funeral expenses, etc., for which she is entitled to be reimbursed.
   The defendant, G. C. Sheffler, as administrator of Alfred Jenkins, deceased, is entitled to an order of sale of the premises, for the payment of debts of the decedent. A decree may be drawn in accordance with this opinion.

(Williams and Lloyd, JJ., concur.)


author: PER CURIAM

text:
    EUCLID 105th ST. PROPERTIES CO v. FISHER et.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8375.
    Decided Apr. 23, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff
    REAL ESTATE — Negligence (370 D2)
    _ (510 Lai) Owner of market house, who invites general public to trade, must furnish reasonable protection. Not unreasonable to require that hand truck furnished by owner for use of tenants, be provided with warning devices.
    Error to Common Pleas.
    Judgment affirmed.
    C. D. Warner, Cleveland, for Properties Co.
    Harry G. Fuerst, Cleveland, for Fisher et.
    STATEMENT OF FACTS.
    Defendant in error, who was plaintiff in the trial court, brought an action against The Euclid-105th Street Properties Company and also against A. F. Glaefke and Son, to recover damages for personal injuries claimed to have been sustained by reason of the negligence of the above named defendants. A judgment was entered in favor of defendant in error. Error was prosecuted by The Euclid-105th Street Properties Company, it having filed a petition in error to this court. A cross petition in error was filed by Glaefke and Son, one of the defendants in the trial court.'
    It appears that The Euclid-105th Street Properties Company owned a market house and leased various stalls or booths to be occupied in the market house, reserving for the common use of all and the use of the general public, the aisles, approaches and ways within said market house. Glaefke and Son leased one of the booths in the market house from The Eu-elid-105th Street Properties Company and operated a meat stand therein. For the purpose of trucking supplies from the cooler in another part of the building to the various stalls, The Euelid-105th Street Properties Company maintained hand trucks which the tenants were at liberty to use.
    On the 3rd day of November, 1925, defendant in error went with his daughter to the market to make some purchases. He was standing in front of the vegetable booth having made a purchase there, waiting for his daughter to return from another part of the market when suddenly, without any warning, according to the petition and his own evidence, he was struck by a sixty pound hand truck operated by the son of the defendant A. F. Glaefke, the wheel thereof running over the outside of his left foot and injuring same.
    It is claimed by defendant in error that there was negligence on the part of The Euclidr105th Street Properties Company in not having provided said trucks with devices to give a signal or warning to persons who are rightfully there, of the approach of .the hand truck.
   PER CURIAM

On the question of liability of The Euclid-105th Street Properties Company, it is clear to us that the general public having been invited to come to the market house to make purchases, is entitled to reasonable protection while there, and that The Euclid-105th Street Properties Company is bound to take reasonable precautions for the protection of the public; that having invited members of the public to the market house, it is not an unreasonable burden to require that hand trucks, which The Euelid-105th Street Properties Company is furnishing for the use of tenants, should be provided with devices which would give a warning or signal to whoever chances to be there.

As to Glaefke and Son, there was clearly but one issue and that an issue of fact, whether the son of A. F. Glaefke was negligent in the operation of the hand truck.

We see no reason for disturbing the verdict of the jury or the judgment of the court.

Holding as we do, the judgment of the Common Pleas Court will, therefore, be affirmed.

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


author: ROBERTS, J.

text:
    BOUGHNER v. STATE
    Ohio Appeals, 7th Dist., Monroe Co.
    Decided May 2, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff
    CHILDREN
    (100 L) In prosecution for failure to support minor child, conclusive presumption of legitimacy arises which cannot be overcome by other testimony in case to effect of absence of intercourse on part of husband or adulterous relations by wife with other men.
    CRIMINAL LAW
    (190 F8) Presumption of parentage of child being conclusive, general presumption of innocence in criminal case must be subservient thereto.
    To be the parent of the child is not, of itself, criminal or wrongful. Presumption of innocence, therefore, would apply directly and particularly to the proposition as to whether or not the child was neglected.
    Not requisite to conviction that accused neglected child during entire period mentioned in indictment. Such neglect, to be sufficient, might be of portions of such time.
    Permitting evidence of neglect during absence of child from state not prejudicial.
    Refusal to admit evidence tending to show illicit relations between mother of child and another man during period of gestation not prejudicial error.
    Error to Common Pleas.
    Judgment affirmed.
    Moore, Devaul & Moore, Woodsfield, for Boughner.
    John K. Sawyers, Jr., Woodsfield, for State.
    _ STATEMENT OF FACTS
    _ Plaintiff in error was indicted by the Grand Jury under Sec. 130D8, for neglecting and refusing to provide one Gladys Rosetta Bough-ner with necessary and proper home, care, food and clothing, she, the said Gladys Rosetta Boughner, then and there being the legitimate child of the Plaintiff in Error under 16 years of age, from the 23d day of December, 1923, which was the date of her birth, until the commencement of these proceedings, to-wit, January 5th, 1927.
    Subsequently, the cause came on for trial resulting in a verdict of guilty. A motion for a new trial was overruled, and a sentence of six months’ imprisonment in the workhouse at Canton was imposed.
    The Plaintiff in Error and his former wife, Mary L. Boughner, the mother of the child in cuestión, were married June 18th, 1922, and it is the contention of the State that this child is the result of said marriage, and the legitimate child of the Plaintiff in Error.
    Plaintiff in Error and his wife resided at Cameron in this county. The Plaintiff in Error was working at Benwood, West Virginia, and boarding in Bellaire, Ohio. He claims that he came home about the first of January, 1923, and says that on this occasion he had sexual intercourse with his wife, and that he never did thereafter have sexual relations with her.
    He says that he was again home on March 4th, 1923, staying, at least, one night, and that his wife was at home, also. He further claims that on the 16th day of March, 1923, he discovered his wife and one Jerry Hartline, Jr., in the act of sexual intercourse. That he and his wife thereupon separated and never lived together afterwards. The child was born on the 23d of December, 1923.
    It is the contention of the mother of the girl, his former wife, that the marital relations of these parties did not cease at the time claimed by the husband, but that they cohabited several times after he came home on or about the 16th of March, she .fixing the date, however, as the 18th instead of the 16th day of the month.
    There is no dispute, however, between the parties but that they were husband and wife, and that he and she stayed at the home as late as the 16th of March, 1923.
   ROBERTS, J.

It is admitted by counsel for Plaintiff in Error in effect that there is a conclusive presumption of the legitimacy of a child, unless impossibility of access of the husband be shown during the reasonable period of gestation. This is not, however, a correct statement of the rule. The _ reasonable period, as recognized by authorities, is 280 days, or substantially nine months, but the normal period of gestation varies from periods considerably shorter to considerably longer than that designated, so that the presumption should exist through such a length of time although considerably longer than the generally recognized period, as legitimacy might exist by reason of access of the husband.

Powell v. State ex. rel. Fowler, 84 OS. 165.

From the 18th day of March, when the hus- and ai^d wife had intercourse, according to her testimony, to the date of -its birth, December 23d, would be 279 days, if figured correctly, or 281 days from the 16th of March, the date when the husband admits that he occupied the home, and that his wife was also there.

Under the rule established by the authority hereinbefore quoted from, a conclusive presumption of- legitimacy arises which cannot be overcome by other testimony in the case to the effect of absence of intercourse on the part of the husband, or adulterous relations by the wife with other men.

It is claimed further in this connection, by counsel on behalf of Plaintiff in Error, that this being a criminal case, the Plaintiff in Error was presumed to be innocent until proven guilty beyond a reasonable doubt, and that this presumption was in conflict with the presumption of legitimacy, and, in fact, overcame such presumption of legitimacy. This contention is not well founded. The presumption of the parentage of the child being conclusive as held by the Supreme Court, the general presumption of innocence in a criminal case must be subservient thereto.

The Defendant below requested the Court to give to the jury four special requests, all of which were refused. Without taking time to quote them in full, they were to the effect that the jury would not be warranted in returning a verdict of guilty of the offense charged, during such period of time as the prosecuting witness, Mary L. Boughner, and her child, Gladys, made their home together in Benwood, West Virginia, and to the same effect during the period of time that they made their home in Belmont County, Ohio.

It is in evidence that shortly after the separation of the Plaintiff in Error and his wife, she went to West Virginia and there lived for some two years. Later, she lived some time in Belmont t County, and for about six months lived in ’this County, part of which time, the child was in the Children’s Honre where she worked for its support without other compensation.

The indictment charging neglect covered the period of time from the birth of the child, December 23d, 1923, to the commencement of these proceedings, January 5th, 1927.

It is not requisite to a conviction that the Plaintiff in Error neglected, as charged, this child during the whole period mentioned, but such neglect, to be sufficient, might be of portions of such time, and concededly, she lived some six months in this County.

There was no error in the refusal of these requests. Permitting evidence concerning neglect during her absence from the State was not prejudicial. The jury simply returned a verdict of guilty, which it would have a right to do had she been in the State during the whole of the period, or only part of the period, during which such neglect was charged.

The essence of the offense charged is the neglect. To be the parent of the child was not of itself criminal or wrongful. The presumption of innocence, therefore, would apply directly and particularly to the proposition as to whether or not the child was neglected.

It is further complained that the Court erred in not permitting evidence tending to show illicit relations between the mother of the child, and another man during the period of gestation. This refusal of the Court was not prejudicial because of the conclusive presumption hereinbefore commented upon, that the husband under the circumstances, was the father of the child.

After a careful examination of this case and a consideration of the matters urged by counsel in connection therewith, we find no reversible error, and the judgment of the Court of Common Pleas is affirmed.

(Farr and Pollock, JJ., concur.)


text:
    STATE ex MAHLER v. BUSE
    Ohio Appeals, 1st Dist., Hamilton Co.
    No. 3215.
    Decided Apr. 30, 1928
    Syllabus by Editorial Staff.
    ACTIONS
    (10 P2) Use of writ of prohibition limited to usurpation of jurisdiction over subjéet-matter of action. Where only reason for issuing of writ is that there is attempt to exercise jurisdiction over person, through service of summons served outside territorial limits, writ will not lie.
    In Prohibition.
    Writ denied.
    Pogue, Hoffheimer & Pogue, and Harry R. Weber, Cincinnati, for State.
    Chas. P. Taft, Pros. Atty., and Augustus Beall, Asst. Pros. Atty., for Buse.
    STATEMENT OF FACTS
    This is an original action in prohibition, in which the relator seeks to prohibit the respondent as a justice of the peace of Millcreek township, Hamilton County, Ohio, from hearing and adjudicating a certain action brought before that court by one C. A. Price against the relator.
    It is alleged that the relator, defendant in the case in which the justice of the peace seeks to exercise jurisdiction, was domiciled in the Ciy of Cincinnati; that he was served with summons in the City of Cincinnati; that Mill-creek township is wholly outside the corporate limits of the City, and that the defendant, the justice of the peace, is without jurisdiction over the relator, for the reason that service of summons was made within the corporate limits of the City of Cincinnati.
   PER CURIAM

The first question for consideration is whether or not a writ of prohibition is the proper remedy.

The use of a writ of prohibition has been frequently defined by courts and text writers. All are in accord in defining it as an extraordinary judicial writ, which may be issued out of a court of superior jurisdiction, for the purpose of preventing an inferior court or tribunal from usurping a jurisdiction with which it is not legally vested.

The question presented in every instance where the issuance of a writ of prohibition is sought, is whether it clearly appears that the tribunal, whose action it is sought to prohibit, has no jurisdiction of the cause which it is attempting to adj'udicate, or is about to exceed its jurisdiction.

The rule taken from the cases and from the text books limits the use of the writ to the usurpation of jurisdiction over the subject-matter of the action.

, There is no allegation here that the justice of the peace is attempting to usurp powers concerning the subject-matter of the action.

The only reason alleged and stressed for the issuing of the writ is that there is an attempt to exercise jurisdiction over the person, through the service of summons, served outside his territorial limits.

The relator has the remedy of motion to quash the service.

She could ignore the action, and if not before the court through proper service, the judgment would be void.

We are therefore of the opinion that, under the following Ohio decisions, State ex rel v. Brough, 94 Ohio St. 115; Kelley, Judge, v. State ex rel, 94 Ohio St. 331; State ex rel v. Allen, 96 Ohio St. 115; and State ex rel v. Justice, 114 Ohio St. 94, the relator is not entitled to the extraordinary writ' of prohibition.

The writ will be denied.

(Hamilton, P.J., Mills, and Cushing, JJ., concur. )


author: THOMAS, J.

text:
    ZIELINSKI v. SZILVASY
    Ohio Appeals, 7th Dist., Mahoning Co.
    Decided Mar. 23, 1928.
    Thomas, J., of the 4th Dist., and Williams, J., of the 6th Dist., sitting.
    First Publication of This Opinion
    Syllabus by Editorial Staff
    REAL ESTATE
    (510 B3e) Under contract to do “all of the mason work,” in construction of house, work of putting footing under building does not constitute “extra.”
    ACTIONS
    (10 P3) Where right of action is in firm or partnership, action must be brought in name of such firm or partnership, and not of individual member.
    Appeal from Common Pleas.
    Judgment affirmed.
    W. E. Stankiewicz, Youngstown for Zielin-ski.
    Friedman & Russell, Youngstown, for Szil-vasy.
    STATEMENT OF FACTS
    This case is before the court on appeal from the Court of Common Pleas. The plaintiff claims there is a balance due him of $410.00 on account of extra work performed in the construction of a brick house for the defendant. It appears from the record that the plaintiff is a member of a firm consisting of himself, his father and a brother, and that they at the time were sub-contractors under the partnership firm of Sisko, Boris & Druga in doing the brick work in the construction of said house, and that for said work they were to receive $2900.00 for the' labor and materials furnished. The contract of the firm of which the plaintiff was a member stipulated that it was to do “all of the mason work.” After the work was fully performed the plaintiff filed a mechanic’s lien against the property upon which the house was erected, in the sum of $410.00, elaim{hg that 1 this amount was due as extras in putting a footing under the building. It is claimed on . behalf of the defendant that there was no con-; tract between him and the plaintiffs whereby! he was to pay for any such so-called extras.! It is further claimed by the defendant that the plaintiff did not comply with the statute in sending the preliminary affidavit to the defendant, and so forth.
   THOMAS, J.

The court, from a careful consideration of the record, is unable to say whether or not there was an agreement between the defendant and the plaintiff whereby the defendant agred to pay the plaintiff for this work as an extra. As- has been stated, the plaintiff had agreed with the principal contractor to do “all the mason work,” and this was a part of the work to be done by the plaintiff under said contract. The fact that a proper construction of the building required this footing would not make it an extra and it was included in the general contract with the principal contractor.

The court therefore feel it unnecessary to go .into a discussion of whether or not the lien was valid by reason of the alleged failure an the part of the plaintiff to send' to the owner the preliminary affidavit. As a matter of fact, the court finds that the plaintiff has been fully compensated.for the work which he agreed to do and that there is nothing due him from the defendant.

This contract having been made between the principal contractor and the firm of which the plaintiff is a member, it seems to us that the plaintiff is not the real party in interest, and that if a suit were to be maintained that the partnership firm should have brought it instead of a member of it.

For the above reasons the judgment of the lower court is affirmed.

(Farr and Williams, JJ., concur.)


text:
    THOMAS v. BUTLER CO. COMMRS. STATE ex SEEMAN v. KINCH et.
    Ohio Appeals, 1st Dist., Butler Co.
    P. P. Boli, Andrews, Andrews & Rogers, M. O. Burns and W. C. Shepherd, Hamilton, Chester S. Durr, Cincinnati,' and Squire, Sanders & Dempsey, Cleveland, for appellants.
    Bickley & Bickley, Hamilton, and B. F. Har-witz, Middletown, for Commrs.
   HAMILTON, J.

ROADS & HIGHWAYS

(520 C2b) Under 6910, 6911 GC., only preliminary resolution declaring necessity of road improvement initiated without petition, not each step in proceedings, requires unanimous vote of county commissioners.

(520 C) Failure to give notice of passage of resolution declaring necessity of road improvements involving expenditure of about $225,000, under 6912 GC., held fatal to proceedings; exception of “cases of reconstruction or repair,” etc., not applying to contract of such magnitude.

(520 M) County commissioners’ resolution declaring necessity of proceedings for “constructing, improving, and repairing” road eliminated question of “reconstruction” within_ exception to requirement of 6912 GC., that notice of pas-sa¿e of resolution be given, even if technical meaning be given words “reconstruction” and “repair” in such exception.

(520 M) Words “reconstruction” and “repair” in 6912 GC., excepting such cases from requirement of notice of passage of resolution declaring necessity for road improvement, should be given ordinary and reasonable construction in relation to things to be accomplished.

(520 T) Right of citizens to appear before legislative body to protest and object to proposed legislation, especially when involving questions of taxation, is reserved by both national and state Constitutions, so as to entitle taxpayer to notice of county commissioners’ passage of resolution declaring necessity for road improvement in manner provided by 6912 GC.

(520 T) 6912 GC., will be construed strictly in favor of citizen taxpayers, so far as exception of cases of reconstruction or repair from requirement of notice of county commissioners’ passage of resolution declaring necessity for road improvement is concerned.

(520 C2a) County auditor’s failure to file certificate, required by 5660 GC., that money required for payment of obligation incurred or appropriation made by county commissioners is in treasury to credit or fund from which it is to be drawn or in process of collection, held fatal to proceedings for improvement of roads, under Sect. 5661, though it was to be paid for from sale of bonds.

STATUTES

(550 D) Duty of courts is to see that clearly expressed requirements of statutes are strictly followed, though it sometimes works a hardship.

ROADS & HIGHWAYS

(520 C2a) While no particular form of certificate by county auditor under 5660 GC., that money required for payment of obligation incurred or appropriation by county commissioners is in treasury or in process of collection is required, it must contain matter required by statutes, and suggestion that clerk, of board of commissioners filed certificate, and that auditor filed some writing in reference to bonds having been sold, is insufficient.

(Cushing and Buchwalter, JJ., concur.)

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