author: LEMERT, J.

text:
    LOZIER et v. SEARS et.
    Ohio Appeals, 5th Dist., Ashland Co.
    No. 167.
    Decided Dec. 15, 1927.
    Syllabus by Editorial Staff.
    755. . MECHANICS’ LIENS—
    1. Owner entitled to decree canceling liens of all claimants who have failed to file sworn statements and other statements and certificates provided for in 8312 GC.
    2. Same requirement made as to both contractors and sub-contractors.
    3. Material man not required, as condition precedent to securing lien, to serve notice on owner as, provided in 8312 GC.
    704. LAND CONTRACTS — Contractee cannot recover money expended for improvements except by showing extent to which value of property has been incrased.
    Error to Common Pleas.
    Reversed in part and affirmed in part.
    M. V. Semple, Ashland, for Lozier et.
    T. J. McCray, Mansfield, for Sears et.
    J. F. Henderson, Ashland, for Daniel Ernst, etc.
    Clyde C. Sheriek, for Ohio Public Service Co.
    J. L. Mason, Ashland, for C. W. Thomas.
    STATEMENT OF FACTS.
    Prior to March 8, 1926, j. A. Lozier and Mabel Lozier were the joint owners in fee simple of a certain twelve room dwelling house located in the city of Ashland, Ohio. The property was occupied by the Loziers as a home and there was also located thereon some three or four, two and three room suites, which were leased to various parties for residential purposes.
    On March 8, 1926, defendant in error, John Sears, entered into a land contract with the Loziers, agreeing to purchase this property for $9,500, $1,000 to- be paid as a down payment, $500 on the first day of April, 1926, and the balance of $8,000 to be paid in semiannual installments. This land contract is offered in evidence and is a part of the record in this case. It bears date of March 8, 1926, and evidences the fact that $1,000 was paid at the time of the purchase, and that the further sum of $500 was to be paid in cash on April 1, 1926. It also contains the usual provisions with reference to default and provides that vendees should assume and pay any and all further general taxes or special assessments then or thereafter levied and which would become payable after the date therof. •
    It is uncontradicted that the vendees did pay the further sum of $500 on the ls.t day of April, 1926, but that the said vendees failed to pay the general taxes, also the special assessment-for the last half of the year 1925 and the general and special assessment for the first half of the year 1926, and that vendors paid both of said installments of tax as aforesaid and have never been reimbursed.
    About a week after the vendees had taken possession of the residence, they commenced to make extensive repairs thereon. Possibly three or four weeks after the 1st of April, 1926, they proceeded to enter into contracts with various contractors in the City of Ash-land incident to the wrecking of an old barn and building a two-story restaurant building upon the south-westerly corner of the lot.
    It is admitted, upon the part of the vendors, that they had knowledge of such work of construction upon the new building but that they had reasonable ground to believe, the same as all the various contractors, that Sears was in a position to pay therefor. It appears that said new building was completed and ready for occupancy along the latter part of August or the first of September, 1926.
    Cross-examination of all the respective lien claimants brought forth the answer that none of them understood that they were in any way working or furnishing materials for the Loziers, and that, in fact, all of them believed that the premises were owned by the vendees and that they also presumed that they were working for the vendees until the time came to attempt to perfect the liens in question, and that, therefore, upon advice of counsel, an attempt was made to perfect these liens, based upon contracts, as averred, with John Sears as agent for the said plaintiffs in error. All lien holders further testify that all instructions which they received were issued direct from the vendees and that the said plaintiffs in error never gave any instructions nor, in fact, in any way discussed with any of the lien claimants any matters relative to the work or materials in question.
    The record discloses that all of the within named lien claimants were principal contractors, with one exception, namely the defendant in error Herman J. Schmitz, who was simply a material man; that all of said lien claimants filed affidavits for mechanics’ liens with the Recorder of Ashland County with itemized statements of their various labor and materials attached thereto, and also served a copy of such affidavit, but without an itemized statement attached thereto, upon either the plaintiff in error J. A. Lozier or plaintiff in error Mabel Lozier; none of said lien claimants, with the exception, of The Ohio Public Service Co. having- served a copy of such affidavit upon both of the said plaintiffs in error. Also the evidence is uncontradicted that none of said lien ealimants at any time served or caused to be served upon either or both of the plaintiffs in error the preliminary notice in form as is provided in Section 8312 of the General Code of Ohio.
    A careful examination of the record in this case shows that none of the lien claimants have, in their respective answers, averred any doctrine of subrogation or estoppel, nor have the said lien claimants attempted, in their testimony, to prove any agency relation as between the said defendant in error John Sears and either or both of said plaintiffs in error.
    The findings, order, judgment and decree of the Court of Common Pleas were to the effect that the mechanics’ liens of the respective named defendants in error were properly perfected in accordance with the mechanics’ lien laws of the State of Ohio; that the premises are as described in detail in the Amended Petition of said plaintiffs in error and should be sold as upon execution, and that from the proceeds of such sale should first be paid the accrued taxes as also the special assessments; second, to the plaintiffs in error the amount of moneys paid by the said plaintiffs in error which represented both the general taxes and also the special improvement assessments for the last half of the year 1925 as also the first half of the year 1926; third, the Court costs incident to the within proceedings; fourth, the various and respective asserted mechanics’ liens of said defendants in error; fifth, to the said plaintiffs in error the balance of said purchase money as due upon the. land contract, with interest; and sixth, to the said defendants in error John Sears and Carrie N. Sears the residue, if any there might be. The court further found that John Sears and Carrie Sears had forfeited their rights under the land contract; that as a result the land contract had become null and void and the plaintiffs in error were entitled to have their title to such premises quieted as against any and all rights, claims and demands as asserted by John Sears and Carrie Sears.
   OPINION OP COURT.

The following is taken, verbatim, from the opinion.

LEMERT, J.

Section 8312 of the General Code provides that the original contractor shall, whenever any payment of money shall become due from the owner, part owner or lessee, or whenever he desires to draw any money from the owner, part owner or lessee, under such contract or upon the written demand of any mortgagee, make out and give to the owner, part owner, lessee or mortagee, or his agent, a statement under oath, showing the name of every laborer in his employ who has not been paid in full, and also showing the name of every sub-contractor in his employ, and of every person furnishing machinery, material or fuel, and giving the amount, if any, which is due or to b come due to them or any of them, for work done or machinery, material or fuel furnished to him, which statement shall be accompanied by a certificate signed by every person furnishing machinery, material or fuel, to him, which statement under oath and certificate may be in substantially the following form.

Section 8312 further provides that until the statements provided for in this section are made and furnished in the manner and form herein provided the contractor shall have no right of action or lien against the owner, part owner or lessee, on account of such contract.

In addition to filing a proper affidavit for a lien as provided in General Code 8314 and serving notice as provided in General Code 8315 such contractor must, when money becomes due him from the owner, give to the owner the sworn statement .and other statements and certificates provided for in General Code Section 8312. If he fails to do so and until he does so, the contractor shall have no right of lien against the owner on account of such contract. Such statements must be filed with the owner before the time expires in which the claimant may perfect a lien. This same requirement is made as to both contractors and sub-contractors.

In Vol. 115 Ohio State, page 555 the court holds that “it is true a material man does not need to comply with the provisions of Section 8312 of the General Code, nevertheless that Section applies to a sub-contractor,” and uses the following language in such determination: “the provisions of 8312 GC. requiring notice to be served upon the owner of a structure being erected under contract apply to the contractor and sub-contractors but not to the material men.”.

As to the various claims as are asserted in the answer and cross-petition of the defendants in error John Sears and Carrie N. Sears, it is our view that all of such claims are based upon a theory that there was an increase in the market value of the nremises in question by virtue of the acts and deeds of such defendants in error, that as a result thereof they would be entitled to a judgment as against the said plaintiffs in error, but from a careful examination of the record in this case, we find there is no testimony in the record to the effect that the market value of the premises in question was any greater, and in fact there is some question if it is as great as it was at the time of the entering into the land contract on March 8, 1926, and if this is the fact, it is our understanding of the law of the State of Ohio that the defendants in enror John Sears and Carrie N. Sears have no right of action or demand as against the said plaintiffs in error, and that being true that they could therefore expect no recovery upon their answer and cross petition in this proceeding.

Without quoting further in this finding, we are of the opinion that the various lien claimants in this case, with the exception of Herman J. Schmitz, have not complied with the law as hereinbefore laid down in perfecting their several liens and that, upon the record in this case, the defendants in error John Sears and Carrie N. Sears have not made such showing that would entitle them to recover upon their answer and cross-petition. We find, as to the defendant in error, Herman J. Schmitz, that a material man is not required, as a condition precedent to securing a lien, to serve notice on the owner as provided in 8312 GC.

Holding the views as hereinbefore expressed, the judgment of the Common Pleas Court is reversed as to John Sears and Carrie N. Sears, defendants in error, and judgment entered in favor of plaintiffs in error against them, and each of them. Judgment of Common Pleas Court reversed as to defendants in error Heter & Kirkpatrick, a partnership, Garfield Sears, C. W. Rollins and the Ohio Public Service Company, a corporation and judgment entered in favor of plaintiffs in error against defend-’ ants in error therein, and each of them; judgment of Common Pleas Court affirmed as to lien of defendant in error Herman J. Schmitz.

(Lemert, Shields and Houck, JJ., concur.)


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    GORDON v. STATE.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8038.
    Decided Dec. 5, 1927.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    1004. RECEIVING STOLEN GOODS— Evidence, to support conviction, must show that goods came' into possession or custody of accused, or that he assumed control thereof.
    Error to Common Pleas.
    Judgment reversed.
    Dennis J. Lyons, Cleveland, for Gordon.
    E. C. Stanton and Maurice J. Meyer, Cleveland, for State.
   FULL TEXT.

PER CURIAM.

Plaintiff in error was convicted in the Common Pleas Court of- the crime of receiving stolen property. The evidence discloses that on November 22, 1926, one Israel Margolin, drove his Nash sedan automobile from his home to the County Court House in this County, where he parked it and from which place it was stolen between the hours of nine A. M. and eleven thirty A. M. This automobile was found in an alley at 4819 Lorain Avenue on December 2, 1926. The place where the car was found was adjacent to a residence' owned by Morgan Kane. As a result, Mike Whitman, James Emerson, John Smith, Morgan Kane, Roy Schneider and George Gordon were arrested and later indicted for -the crime of automobile stealing. The indictment also contained a count for operating an automobile without the consent of the owner and for receiving stolen property.

When the case was tried before the Common Pleas Court, the court withdrew from the jury all the other counts in the indictment, in so far as plaintiff in error was concerned, but submitted the case to the jury on the count in the indictment charging the crime of receiving stolen property.

The jury returned a verdict finding the plaintiff in error guilty upon said count in the indictment.

It is the contention of the State that a Nash automobile was stolen by John and Mike Kash-man; that it was done with the knowledge and consent of the plaintiff in error Gordon; that the arrangements for the selling of the car were made at the plaintiff in error’s roadhouse and in his presence and with his complete knowledge, and that he received or was to receive a share of the profits to be derived from the sale of the automobile.

A careful examination of .the record discloses that the Nash car was at no time turned over tov plaintiff in error. John Kashman, one of the thieves, and who testified against plaintiff in error, was asked:

Q. Who had the Studebaker and Nash at that time, if you know?
A. Me and my brother.
Q. Will you state to the Court and to the jury how much actual money you received from them?
A. We received $175 from Whitman and $150 from Schneider.
Q. Now what was Gordon’s share in the deal?
A. Gordon always got the dough and he gave us the split.
Q. How long did you stay at the roadhouse that day?
A. I was there on the 22nd. I came there with the Studebaker and my brother came there with the Nash. That is before we met the boys.
Q. What was the first thing you did when you got there, Johnny?
A. Turned over the cars to Whitman and Schneider.
Q. At the time you made the deal with Gordon about the Nash, did you or did you not have the Nash at that time?
A. No, sir.

In order that the defendant be held guilty of the crime of receiving stolen property, there must be some credible evidence showing that the stolen automobile came into the possession or custody of the plaintiff in error, or that he assumed control of it. It is quite clear, from the record, that no such thing occurred. There is no evidence of a credible character showing Gordon received any part of the proceeds from the sale of the stolen automobile. If the State’s theory is correct that the Kashman brothers stole the automobile by pre-arrangement with Gordon, then Gordon would be clearly guilty as an accessory to the crime of stealing an automobile, because the act of the thieves would be properly charged to him as if he did it in person, and. had the jury found him guilty of the crime of automobile stealing, it is doubtful whether the judgment of the Common Pleas Court could be disturbed upon the record. We are concerned only in the conviction upon the charge of receiving stolen property and nothing else. Whatever arrangements, if any, Gordon had with the thieves prior to the stealing of the automobile by them and thereby making him an accomplice to the act of stealing, would not sustain a conviction of Gordon on the charge of receiving stolen property, in view of the record that the stolen automobile at no time came into his possession or custody, or that he assumed control of it.

Upon the review of the record, we hold that the judgment of the Common Pleas Court is manifestly against the weight of the evidence.

The judgment of the Common Pleas Court is, therefore, ordered reversed and -the case remanded.

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


author: HAMILTON, PJ.

text:
    AMERICAN LAUNDRY MACH. CO. v. DANEMAN et.
    Ohio Appeals, 1st Dist., Hamilton Co.
    No. 3059.
    Decided July 5, 1927.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    106. ASSIGNMENTS — 1. Sect. 6346-12 GC. limits assignment of wages to 50% of wages earned and to be earned.
    2. Assignment of full amount allowed held binding upon employer although not accepted by him.
    Error to Common Pleas.
    Judgment affirmed.
    Joseph S. Rohrer, Cincinnati, for Laundry Mach. Co.
    H. H. Sundermann, Cincinnati, for Daneman et.
   FULL TEXT.

HAMILTON, PJ.

One Edward Murphy was an employee of The American Laundry Machinery Company, plaintiff in error here. While so employed, he made an assignment of fifty per cent of his wages due from The American Laundry Machinery Company and wages which may hereinafter for the period of thirty-six weeks become due, to the Spencer Jewelry Company. The assignment of fifty per cent of the wages due or to become due was for the period of thirty-six weeks or, in the alternative until the indebtedness to the Spencer Jewelry Company in the sum of $137.87, was paid in full. This assignment was executed July 19, 1924. Murphy made three small payments to the Spencer Jewelry Compaña and then ceased to pay. Thereupon, on December 1, 1924, the Spencer Jewelry Company filed with The American Laundry Machinery Company the assignment of the wages, executed by Murphy to it, together with an attached statement of the amount due; that the Machinery Company refused to honor the assignment. Whereupon, the Jewelry Company brought suit in the Municipal Court against The American Laundry Machinery Company to recover the wages assigned by Murphy to it.

The trial in the Municipal Court resulted in a judgment in favor of the Jewelry Company and against The American Laundry Machinery Company. The American Laundry Machinery Company prosecuted error to the Court of Common Pleas, which court affirmed the judgment of the Municipal Court. Error is prosecuted here, seeking- a reversal of those judgments.

The defense was that the assignment was merely as a security, to secure the payment of monthly installments of indebtedness to the Jewelry. Company, and the further defense that the moneys earned, covered by the purported assignment, had all been paid to the assignor.

Stripped of all technicalities and verbiage, the question here amounts to this: Can an action at law be maintained against an employer for an assignment of fifty per cent of the wages of an employee, which assignment is not accepted by the employer?

Much has been said in the brief of the plaintiff in error and the brief of the amicus curiae of the cases decided under the common law bearing on the question of wage assignments. It is conceded to be and. is the law that under the common law rule, an assignment of the whole of an employee’s wages is1 valid without the acceptance of the employer.

It is further the law that under the common law rule an assignment of a part of an employee’s wages is valid only on acceptance by the employer.

The assignment in question was of fifty per cent of the wages, and it is argued that, this being an assignment of but a part of the wages, that, under the rule of law, acceptance on the part of the employer was necessary to make it binding on. the employer.

The question was settled and would probably not be here except for the passage of Section 6346-12 General Code of Ohio. The legislature saw fit, under the police power, to limit the assignment of wages to" fifty per cent of the wages earned and to be earned. The reasons are apparent and were for the protection of the employee’s f 'mily. The reasons ft>r the holding of the Courts that oiily in case the whole of the wages were assigned could an action be maintained, without acceptance by the employer, was to avoid splitting up causes of action and the annoyance of multiplicity of suits. The statute provides ■that an assignment of more than fifty p'er cent of the personal earnings of the assignor shall be void. So that we have no difficulty with the rule in any sum in excess of fifty per cent of the earnings. The assignment in question was of the full fiftv per cent, and within the law, no more, no less.

The protection of the employer against multiplicity of suits, which, as above stated, was the only reason for the holding of the courts under the common law, is taken care of. The reason for the rule is just as cogent as the rule itself.

On the question suggested in the brief that the assignment was a mere lien, cognizable in equity only, it is sufficient to say that the instrument has none of the ear marks of any such lien. It is an assignment, or it is nothing.

Our conclusion is that the assignment is a valid assignment, and that the judgment of the Municipal Court, and of the Court of Common Pleas, affirming that judgment, were correct.

(Cushing, J., concurs.)


author: RICHARDS, J.

text:
    DICKEN et v. STRASBURGER.
    Ohio Appeals, 6th Dist., Wood Co.
    No. 407.
    Decided Dec. 5, 1927.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    485. EXECUTORS AND ADMINSTRA-TORS — 516. Fees and Costs — Attorneys, for special administrator appointed under provisions of 10619 GC., not entitled to fee for services rendered in connection with litigation involving contest of will.
    480. EVIDENCE — Filing' of statement by attorney for special administrator appointed under provisions of 10619 GC. no bar to consideration of evidence tending to show valuable services rendered by such attorney in addition to services charged for in such statement.
    Error to Common Pleas.
    Judgment reversed.
    Edward H. Fries, Bowling Green, for Dicken et.
    ■ E. R. Harrington, Bowling Green, for Stras-burger.
   FULL TEXT.

RICHARDS, J.

Jacob Strasburger, a resident of this county, died leaving an instrument claimed to be his last will and testament. Litigation arose as to the validity of the instrument as a will, and that litigation was carried to the Supreme Court of the state. During the pendency of the litigation Charles F. Dicken was appointed special administrator of the estate under the provisions of Section 10619, G. C. The .provisions of that section and of Section 10621, G. C., make it the duty of a special administrator to collect and preserve the effects of the deceased for the executor or administrator who may be thereafter appointed.

The special administrator employed Edward M. Fries, an attorney at law, to represent him. A part of the duties which fell to the administrator consisted in the conducting of a business which had been operated by the decedent. The litigation relating to the will ended by a determination that the instrument was not valid as a will. Thereupon the special administrator filed his account in the Probate Court disclosing receipts of more than $20,000.00 and various expenditures, among which was an item of $403.90 paid to his attorney for services and expenses.' This payment was based upon a written statement of legal services made by the attorney, which included items for services rendered in the litigation relating to the will, and other-items for services apparently rendered for the special administrator in aiding him to collect and preserve the assets of the deceased. No specific charges are made for the seperate items, but the amount charged is contained in one item of $403.90 for the entire services.

Exceptions were filed in the Probate Court to the administrator’s account, it being contended that he had no right to pay the attorney for any services relating to the litigation arising over the alleged will. The case was tried in the Court of Common Pleas de novo on appeal by the special administrator from the judgment rendered in the Probate Court. On trial in the Court of Common Pleas that court adjudged that the administrator was not entitled to credit for any amounts paid for serivces in the litigation over the alleged will, but allowed a credit of $100.00 for the other services rendered by the attorney, and this proceeding in error is brought to secure a reversal of that judgment.

On the trial of.the case the attorney who represented the special administrator testified to the rendition of various services for the benefit of the estate' in and about conserving the assets of the estate in addition to the statement of legal services which he had filed with the special administrator. After the evidence was all introduced, the court by its order excluded from consideration all of the evidence offered on behalf of the administrator which showed the rendition of services not set out in the bill filed in the Probate Court, and to this ruling exceptions were taken.

This court is of the opinion that in excluding from consideration all such evidence the trial court erred to -the prejudice of the administrator. The exclusion could only have been on the theory that by rendering a statement of services to the administrator the attorney was estopped from making any additional claim, or that he had conclusively waived the right to compensation for any services not set forth in the statement filed and that the disbursement by the administrator could not be justified by proving additional valuable services which were omitted from the bill, regardless of the cause' of such omission. That, of course, could not be the rule of law. Undoubtedly when the payment was sought to be justified by proving additional services, the parties would be confronted, and properly so, with the statement for services theretofore rendered, and that statement would be an admission against interest competent in evidence, but it could not prevent the court from considering the evidence as to the rendition and value of any other proper services, if there were such. The court should have weighed and considered all of the evidence relating to services rendered by the attorney for the benefit of the estate in aiding the special administrator to conserve the assets of the estate.

While the statement of legal services, filed with the administrator is attached to his account, it does not appear to have been offered in evidence and until so offered it would not properly be before the court. We do not understand that any written, itemized statement was required to have been filed by the attorney or by the special administration.

Of course the estate was not bound by any contract which had been made by the special administrator with the attorney. Even in the case of a general administrator or executor, such contract is not binding on the estate. Trumpler, Admr. et al. v. Royer, et al., 18 Ohio App., 151.

The trial court, however, was right in disallowing the claim for services in so far as the charges were for services in litigation growing out of the alleged will. The special administrator was not concerned in that litigation and was not even a party thereto.

For the error in excluding evidence relating to the additional services, the judgment will be reversed and the cause remanded for a new trial.

(Williams and Lloyd, JJ., concur.)


author: MAUCK, J.

text:
    FIDELITY & DEPOSIT CO. v. CLAYPOOL et.
    Ohio Appeals, 4th Dist., Ross Co.
    Decided Dec. 8, 1927.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    1017. REMEDY — 473. Estates — Where estate consists solely of money claimed to have been stolen from bank and Fidelity Company, under- claim of subrogation, elects to recover money judgment rather than attempt to pursue stolen funds, such company cannot, by exception to account of administrator, recover entire estate.
    Error to Common Pleas.
    Judgment affirmed.
    George B. Bitzer and Earl B. Cameron, Chilli-cothe, for Fidelity Co.
    Garrett S. Claypool and John P. Phillips, Jr., Chillicothe, for Claypool.
   FULL TEXT.

MAUCK, J.

Garrett S. Claypool and John P. Phillips, Jr., as administrators of the estate of C. V. Stewart filed their first and final account of distribution in the Probate Court showing the -receipt by them of $2,004.00 and such disbursements for costs, expenses, funeral expenses, etc., as to reduce the net estate to $1,258.47. To this account the Fidelity and Deposit Company of Maryland filed exceptions, representing itself as a creditor of the estate, its exceptions going to every item of the account showing an expenditure or charge against the estate, and claiming that -the whole $2,004.00 should be paid it free of all charges. After a hearing in the Probate Court the ease was appealed to the Common Pleas where the exceptions were overruled. Error is prosecuted to this court from that judgment of the Common Pleas.

The bill of exceptions consists solely of doco-mentary evidence, from which it can be gathered that the decedent, Stewart, had stolen certain money from a Columbus bank and that the exceptor had issued a protective policy to that bank and had made good the amount stolen. Stewart was either killed or killed himself shortly after the robbery of the bank. $2,004.00 was found! on his person and possession of it was taken by the Chief of Police of Chillicothe. Thereafter, at the instance of the insured bank, an application was made to the Probate Court of Ross County, which court by favor of Section 10625 G. C. appointed Messrs. Claypool and Phillips administrators. Thereafter the exceptor presented to the administrators for allowance as a debt against the estate a claim for the amount which it had paid to the bank by reason of its policy, claiming to be subrogated to the bank’s rights in the premises. This claim was disallowed, whereupon the exceptor brought an action at law against the administrators alleging that the money which the chief of police had taken from the body of the decedent and turned over subsequently to the administrators was the identical money stolen from the bank or a part of that which was stolen. A money judgment was sought against the administrators. Upon issue joined the plaintiff in that case obtained a verdict from the jury in the sum of $2,004.00 and judgment was entered upon that verdict in the following language:

“It is therefore considered by the court that the said plaintiff, Fidelity and Deposit Company of Maryland, recover from the said defendants, Garrett S. Claypool and John P. Phillips, Jr., as administrators of the estate of V. C. Stewart, deceased, the said sum of two thousand and four dollars ($2,004.00) as heretofore by the verdict of the jury found due it, with interest from the 8th day of June, 1923, together with its costs herein expended.”

Part of the argument of the plaintiff in error seems to g’o to the claimed illegality of the possession of this money by these administrators. But as the administrators were appointed upon the application of the bank to whose claim the fidelity company was subro-gated, and as the fidelity company presented to those administrators a claim predicated upon the bank’s rights to the money and thereafter recovered a money judgment for the money claimed to have been appropriated by the administrators’ decedent, and as in this present proceeding -the fidelity company in its exceptions alleged itself to be a creditor of the decedent and now claims as such, no serious consideration can be given to the collateral attack made upon the administration itself.

It is claimed further that these administrators have the identical money that was stolen from the bank and that that fact was fixed by the judgment recovered by the fidelity company against the administrators. That position is unsound. What the fidelity company recovered was not a right to specific money but a money judgment in compensation for money that had been stolen from the insured bank. Whether the bank, or the fidelity company when subrogated to its rights, could have replevined the money claimed to have been stolen or whether after that money had changed its character by having been deposited in a bank a trust could have been asserted in it in a proceeding in equity can not now be determined. With these two possible remedies available to the bank and the fidelity company they choose to recover a money judgment rather than to attempt to pursue the stolen funds. Having elected to accept a personal judgment they are bound by it, and that personal judgment had no dignity superior to any other valid claim against the estate. Albright v. Meredith, 58 O. S. 194. There is, consequently, no merit in the claims now made by the plaintiff in error.

The Probate Court, and the Court of Common Pleas by appeal, had authority under Section 10714 G. C. to distribute the estate in question, and there is nothing in the bill of exceptions to indicate any error in the order of distribution made thereunder.

(Middleton, PJ., concurs.)


text:
    KENT v. ROWLEY et.
    Ohio Appeals, 4th Dist., Scioto Co.
    Decided Nov. 30, 1927.
    First Publication of ibis Opinion.
    Syllabus by Editorial Staff.
    297. CONTRACTS — 884. Parol Evidence— Parol condition subsequent can never be shown to defeat written contract.
    Appeal from Common Pleas.
    Decree for plaintiff.
    Wm. J. Meyer, Portsmouth, for Kent.
    Bannon & Bannon, Portsmouth, for Rowley ¡ et.
   FULL TEXT.

MAUCK, J.

The parties hereto entered into a contract in writing as follows:

“Portsmouth, O., 5/14/26.
This is to certify that we, Ernest Row-ley and Kate Rowley, agree to exchange their real estate located on Gallia St. Sciotoville & known 5946 with W. S. Kent for ninety nine & %' acres located in Licking Co., Ohio, and known as the G. W. Boyer farm. We are to assume $5,000.00 on said farm and W. S. Kent is to assume a loan of $3,000.00 on the property at 5946 Gallia St. and to pay us $2,000.00 in cash as the consideration for said property. The transfer to be made as soon as loan can be arranged.
Ernest Rowley
Kate Rowley
W. S. Kent.”

On June 10, 1926, the Rowleys made a deed for part of the lands 'mentioned, received the $2,000 which was to be paid them less a small amount and accepted a deed for the Licking County farm. They entered on the farm, took the chattel property and sold it, and harvested and disposed of the growing crops. This action is brought by Kent to compel the Rowleys to complete the contract by conveying the rest of the Sciotoville property. The Rowleys resist specific performance solely on‘ the ground that Kent promised that he would obtain for them a loan from a Federal Loan bank for $5,000 on the Licking County farm for thirty-two years at five and one-half or six per cent interest. They ask that Kent be required to arrange a Federal Bank loan or that the deed made by them for a part of their Sciotoville property be cancelled.

We have been more impressed than the defendants seem to have been with the poor bargain made by them but we find no opportunity to relieve them from their own voluntary engagements. The Licking County farm has been sold to pay the $5,000 mortgage thereon. Foreclosure proceedings were pending when the contract was made. It is, of course, futile to talk of compelling a party to secure a loan from a Federal Land Bank and would be futile if the property was still in the name and possession of Bowley. It is equally useless to pray for a cancellation of the deed made by the Bowleys to a part of the Seiotoville property for that conveyance was made to one Lawson who is not a party to this action. No other remedy has been suggested whereby the parties might be restored to their former status if it were found that the Bowleys had been inequitably dealt with.

" The contract of exchange is an illiterate instrument but it expresses a contract. One of the mysteries of human nature is that people who know that they do not know enough to shoe a hores or pull a tooth feel themselves perfectly competent to judge of the effects of a contract that may deprive them of all their property. The Bowleys now claim that Kent verbally agreed to secure for them a Federal Farm Bank loan to take up the $5,000 mortgage. Possibly he did so. That, however, is not the contract. In that instrument the Bow-leys agreed to assume that mortgage. The proposed oral testimony concerning the so-called federal loan would contradict that term of the contract. The concluding provision of the contract, “the transfer to be made as soon ás loan can be made,” can not relate to a loan on the farm for the moitgage on that was assumed by Bowley. It must have meant a loan to be secured on the Seiotoville property by Kent to raise money to pay tha $2,000 coming to Bowley. •

Sometimes parol testimony is effectively employed to show extrinsically a condition precedent to the operation of the written instrument and that the written instrument fails because of the failure of the condition precedent. A parol condition subsequent can never be shown, however, to defeat the written contract. Page on Contracts, Section 2179. The evidence of the Bowleys in this case tended to show such subsequent condition. The farm mortgage was assumed by the Bowleys. It could only practically be assumed by deed. If Kent agreed to get the desired loan at all he could only have intended to get it after the transaction was completed and not as a condition precedent to the transfer.

A like decree to that entered in the Common Pleas will be entered here.

Middleton, J., concurs. Sayre, PJ., not sitting.)


text:
    SHEETS et v. FOSTORIA UN. STOCK YARDS CO.
    Ohio Appeals, 6th Dist., Wood Co.
    No. 410.
    Decided Dec. 12, 1927.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    677. JUDGMENTS AND DECREES — 557. Fraud and Deceit — 147. Bills, Notes and Checks.
    1. Where, within four days after judgment by confession on cognovit note, motion to set aside, supported by affidavit setting up facts which would constitute valid defense, is filed, such motion should be sustained. Common Pleas has full control over its orders and judgments during term, only limitation being that there shall be no abuse of discretion.
    Error to Common Pleas.
    Judgment reversed.
    Benjamin F. James, Bowling Green, for Sheets et.
    J. E. Kelly, Bowling Green, for Fostoria Stock Yards Co.
   FULL TEXT.

RICHARDS, J.

On July 9, 1927, the Common Pleas Court rendered a judgment by confession for $557.00 in favor of The Fostoria Union Stock Yards Company against Charles L. Sheets, Charles Sheets and Lash Sheets on a joint and several cognovit note. Four days thereafter, and at the same term of court, the defendant Lash Sheets filed a motion to set aside the judgment and for leave to file an answer and cross-petition which he proffered. The grounds set forth in the motion are that the promissory note sued upon was obtained by fraud and duress, that nothing was due thereon and that there was no consideration for the note. The motion was supported by an affidavit of Lash Sheets in which he states that the note was made without any consideration and was made solely through threats, intimidation and duress exercised by the plaintiff upon the makers and that in order to secure the signatures of the makers the plaintiff claimed that Charles L. Sheets had obtained property by false pretenses and fraudulent misrepresentations which affiant says is untrue and that unless the note was signed and other moneys paid in the sum of $1,000, said Charles L. Sheets would be immediately sent to the penitentiary, but that if the note was signed, further proceedings would be abandoned. The affiant states that said proceedings were abandoned and that neither at the time of the making of the note or at any other time had there been obtained any property by false pretenses or otherwise, and that the signing of the note was caused through said threats, intimidation and duress.

It appears to this court that the matters stated in the affidavit, if established by evidence, would constitute a defense to the note and that the judgment rendered during the same term of court and four days before the motion was filed should have been set aside. The Common Pleas Court has full control over its orders and judgments during the term at which they are rendered and full power to set judgments aside during the term, the only limitation being that in so doing there shall be no abuse of discretion. Smith v. Smith, et al., 24 Ohio App., 407.

The application to set aside the judgment was made by Lash Sheets only. The order refusing to set aside the judgment as to him is reversed and the cause remanded for further proceedings.

(Williams and Lloyd, JJ., concur.)


author: VICKERY, J.

text:
    JOHNSON v. TIPLING.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8624.
    Decided Dec. 5, 1927.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    677. JUDGMENTS AND DECREES — Where suit is not founded upon written contract to pay money nor on book account, judgment v.annot properly be rendered without introduction of evidence.
    941. PRACTICE AND PROCEDURE — 798. Municipal Court — 1. Where rule of Municipal Court provides that there must be specific denials, and general denial is filed, court may strike answer off but may not misconstrue it into admission, may refuse to permit answer to be filed but, in that event, must enter up default and have case sent to room for assessment of damages.
    2. Where amount involved brings case within class of cases which were originally Justice of the Peace cases, filing of answer not necessary,, and defense may be introduced without any answer or statement of defense being filed.
    Error to Municipal Court.
    Judgment reversed.
    R. J. Moriarty, Cleveland, for Johnson.
    Sanford B. Meyerson, Cleveland, for Tipling.
   FULL TEXT.

VICKERY, J.

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

In the court below the plaintiff in error was sued with others for what amounted to a breach of contract, or for rent that was claimed to be due, amounting to One Hundred and Thirty-one Dollars and some odd cents. Summons was issued and served, and a statement of defense was filed, which in effect amounted to a general denial. The case was set down for trial, and on the day of the trial the plaintiff appeared by his counsel and the defendant likewise, whereupon the court treated the answer of the defendant, although it was a gen-erial denial, as a donfession and refused to let him put in any evidence or put anything in the lawsuit, although he was present, ready and able to proceed with the ease, and without any evidence being introduced by the plaintiff to sustain his claim, the court entered a judgment for the full amount of the plaintiff’s claim. It is to reverse that judgment that error is prosecuted here.

It is not necessary to make any comments upon this method of proceeding in law suits. Suffice it to say that this suit was not founded upon a written contract to pay money, nor upon a book account, and consequently a judgment cannot properly be rendered without the introduction of evidence.

We are not criticising the rule of the Municipal Court which provides that there must be specific denials, but we do criticise the method of procedure when a general denial is filed. The only thing that a court should do under such circumstances would be to strike the answer off, but it cannot misconstrue it into an admission, and then it .could refuse, if it saw fit, to permit them to file an answer and could treat the case as being one in default, but in that event the only thing it could do, would be to enter up a default and then have the case sent to a room for the assessment of damages. It was clearly erroneous to enter this judgment, for it was entered 'by default, even though it was claimed to be a judg■ment on the pleadings.

Just on what theory a judgment could be entered on the petition in favor of the plaintiff and say there was a judgment - on the pleadings, is a little hard to understand. As a matter of fact the amount involved in this lawsuit brought it within that, ela§s of cases which were originally Justice of the Peace cases. In that kind of a case it was not necessary to file an answer at all, but the defense could be introduced without any answer or statement of defense being filed, and so when the defendant’s attorney was there, ready to cross examine and put in the defense, the court clearly committed error in refusing to admit that defense.

Therefore, this case must be reversed and be remanded to the Municipal Court for further proceedings in accordance with law.

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


author: KING, J.

text:
    HUNTIGNTON, Guard. v. GLOBE INDEMNITY CO.
    Franklin Common Pleas Court.
    No. 102141.
    Decided Oct. 14, 1927.
    First Publication of this Opinion.
    Syllabus by the Court.
    1139. SURETY BONDS — 593. Guardian and Ward—
    1. Probate Court has power to demand conditions in bond beyond requirements of Statute when it. deems same necessary for safety of ward’s estate.
    2. Condition in bond cannot be limited by terms of statute under which it is given.
    3. Where, in proceedings to sell real estate, guardian gives additional general bond, amount recoverable, not fixed by sum realized from sale.

      4. A reinvestment of proceeds of sale of real estate under order of Court does not relieve surety if fund is not finally accounted for and paid over to proper person. (Sec. 10933 GC.)
    Heard of Demurrer.
    Demurrer sustained.
    Frank M. Raymund and Hugh Huntington, Columbus, for Huntington.
    Vorys, Sater, Seymour & Pease, Columbus, for Globe Indemnity Co.
    STATEMENT OF FACTS.
    Josephine Howard was appointed guardian of the estate of Charles E. Kinkade, a minor. She gave a general guardian’s bond with the defendant, the Globe Indemnity Co., as surety in the sum of $3,000. Later she filed a petition in the Probate Court for selling real estate owned by the ward. At that time, an additional bond was filed in the Probate Court in the sum of $4,200 with herself as principal and the Globe Indemnity Co. as surety. This additional bond was in compliance with an order of-the court, as recited in the bond. This bond was conditioned: “That if the said Josephine Howard shall faithfully discharge all of her duties as such guardian, as required by law, then this obligation to be void; otherwise to remain in full force.”
    The real estate was sold, the sale was confirmed and the deed executed and delivered.
    It is alleged that, following said sale, large sums of money were received by Josephine Howard from the sale of real estate, and otherwise, while acting as guardian; that she embezzled and converted to her own use the sum of $5,722.23 and has failed and refused propei ly to account for and turn over said ' sum to her successor. That upon exceptions to her account filed by her surety the' court held the sum of $5,722.23 and interest was due the ward from the guardian*; that said guardian has failed to comply with conditions of the bond, and failed faithfully to discharge her duties as guardian, that therefore the conditions of the bond have become absolute. This action is bi ought to enforce the obligation of the surety.
   OPINION OF COURT.

The following is taken, verbatim, from the opinion.

KING, J.

The defendant, in its first defense to second cause of action, in substance, alleges and claims that the bond executed on the 29th of May, 1922, being the additional bond required by court, was given under authority of 10950 GC. the provisions of which regulate the proceedings for sale of real estate by guardians; that the terms and conditions set forth in the said statute, to-wit: “Conditioned fob the faithful discharge of his duties and the payment of and accounting for all monies arising from such sale” are conditions which the Court shall read into the bond given on the 29th, that, therefore, the liability of the Surety Co. on said bond is limited to a faithful discharge of her duties, and accounting only for the proceeds, with reference to the sale <3f real estate, that the guardian reinvested the proceeds 'in other real estate and thereby fulfilled her duties. In second defense, the Surety claims that, in any event, it is liable only for the proceeds of the sale, to-wit, $2,100.

The condition of the bond usually giveil in the sale of real estate, pursuant to 10950 GC., it as follows: to-wit:

“Now therefore, if the said-shall faithfully discharge his duties, as guardian as aforesaid, and shall' faithfully, and according to law, pay oyer and account for all the monies arising from such sale, then this obligation to be void, otherwise to remain in full force.”

But the terms and conditions of the bond actually given are quite different. The conditions of the bond executed by order of-court, on the 29th of May, are as follows: to-wit:

“Now, if said Josephine H. Howard shall faithfully discharge all of her duties, as such guardian, as is required by law, this obligation to be void, otherwise to íemain in full force.”

In this, connection the law prescribing the duties of Guardians, provides:

“At the expiration o‘f his trust fully to account, ior and pay over, to the proper person, all the estate of the minor in his hands.” GC. 10933.

There is nothing upon the face of the bond, in the recitals or elsewhere, to indicate that said bond was to be limited in its application to the real estate transaction. The terms and conditions thereof are terms and conditions of general guardian bonds.

Counsel for defendant contend that, notwithstanding the effect of the terms and conditions stipulated and agreed upon, the meaning is to be interpreted by the provisions of 10950 GC. that it to say, although the bond given is, in effect, a general guardian’s bond by virtue of 10960 GC. the liability thereon is limited to accounting faithfully for the proceeds of the sale of real estate. In this we do not concur. The conditions of the bond, if • construed as written, afford, in the instant case, ample protection to the minor’s estate. That is the very purpose of the bond. When the court, in furtherance of that object, requires such a bond, the provisions of the statute should not be interpreted to defeat that purpose.

It is true that the conditions imposed by the bond are broader than the statute. However, they were agreed to by the Surety Co., and a consideration paid. To permit the defendant to avoid the obligation of such conditions by such an interpretation of 10960 GC. as is urged would violate the terms and conditions and the very purpose of the bond as well .as the object sought by the legislature in such enactment, namely, the preservation of the ward’s . estate.

Let the demurrer to the first and second defenses of the second amended answer be sustained.

*Note: See Kinkade’s Trusteeship, 23 Oh. Ap. 274; 5 Abs. 339.


author: ROBERTS, J.

text:
    SHERWIN-WILLIAMS CO. v. GLENN PAINT & WALL PAPER CO. et.
    Ohio Appeals, 7th Dist., Columbiana Co.
    No. 378.
    Decided Nov. 17, 1927.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    853. NOVATION—
    1. Indebtedness may be assumed by new party without release of old party.
    2. Novation is agreement to release previous debtor and look only to subsequent debtor.
    3.Contract of novation need not be by express agreement, but may be implied from facts and circumstances attending transaction and conduct of parties thereafter.
    Error to Common Pleas.
    Judgment. affirmed.
    W. S.' Stevenson, East Liverpool, for Sher-win-Williams Co.
    Hill & Davidson, East Liverpool, for Paint & Wall Paper Co.
    STATEMENT OF FACTS.
    Previous to June, 1923, W. L. Glenn was a merchant in the city of East Liverpool engaged in the sale of paint, and was indebted to the Sherwin-Williams Company in about $7,600.00, part of which was evidenced by a promissory note for $5,446.72. At that time, Gl.enn entered into a partnership with A. E. Karagianis and J. C. Cunningham,- for the further prosecution of the paint business, and also the sale of wall paper.
    The Sherwin-Williams Co. received, from this partnership, a note for the amount of the note previously given by Glenn individually, which subsequent note was signed by all three partners. Business was conducted by this partnership until December, 1923, when the partners incorporated their business under the name of The Liverpool Paint & Wall Paper-Co. ' The corporation commenced business on January 1, 1924. A short time thereafter, two members of the partnership made a trip to Cleveland and called at the office of the Sher-win-Williams Co., met the Credit Manager of that Company, submitted a statement of the business of the corporation, related its formation, the fact that it was carrying on the former business of the partnership, the details of the business of this corporation, its prospects and probability for its success. These matters were gone into to a considerable extent, and advice as to the management of the business was given by Mr. Campbell, the Credit Manager and a Mr. Kent who was a sort. of general salesman for The Sherwin-Williams Co.
    The result of this conference was that Mr. Campbell expressed pleasure in the creation of the corporation and a desire on the part of the Sheiwin-Williams Co. to continue to sell goods to this corporation. Expressions of belief were indulged in that a desirable thing was being done in incorporating the business, and the name of the partnership was erased or withdrawn from the Sherwin-Williams Company’s books and the name of the corporation substituted.
    Subsequently the Sherwin-Williams Co. sent statements of account, containing the note of-the partnership as previously given as an item of indebtedness of the corporation, and asked for remittance from the corporation. Admittedly no demand was' thereafter made upon the partnership or the individual signers of the note for payment of this note; nor was their attention, in such manner, ever called to it.
    An action was begun against the corporation, including this note, which was after-wards withdrawn or discontinued by reason of the insolvency, perhaps, of the corporation.
   OPINION OF COURT.

The following is taken verbatim, from the opinion.

ROBERTS, J.

Under this situation, it is claimed by the defendants in error that there was, in law, a novation by which, by reason of the mutual conduct of the transacting parties, The Sher-win-Williams Company released its previously existing debtor, the partnership, and the corporation became the debtor; that this was, in effect, mutually agreed to by all. of the three parties.

The proposition is recognized in law that there may be an assumption of an indebtedness by a new party without a release of the old party. This does not state a novation, but there may be an agreement to release the previous debtor and look anly to the subsequent debtor. This is the real dispute in this case. Was there a novation and a release of the partnership ?

It is held, in the case of Insurance Company v. Hoyer, 66 OS. 344, that the conrtact of novation need not be by any express agreement but may be implied from the facts and circumstances attending the transaction and the conduct of the parties thereafter.

Taking into consideration all of the testimony in the case, with such deductions as may properly be made therefrom, we are inclined to think that there was considerable reason for the determination of the Common Pleas, in favor of the defendant in error, that there was a novation and the partnership was released.

This court, of course, approaches this piop-osition on the weight of the evidence in a manner somewhat different frdm the way necessarily considered by the Common Pleas Court, that is to say, that court determines the weight of the evidence. This court may only say that determination was wrong, can only reverse when it can be said that it is against the manifest or decided weight of the evidence, and that it is a conclusion which this court is unable to reach, and does find that there was no prejudicial error in this case and the judgment of the Court of Common Pleas is affirmed.


author: BY THE COURT.

text:
    MILLER, Admr. v. MARCH.
    Ohio Appeals, 5th Dist., Holmes Co.
    No. 96.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    362a. DECEDENTS’ ESTATES — 297. Contracts.
    *1. Agreement “that in the event plaintiff should survive her - that he should have and receive, as full compensation in caring for the fa: m, whatever personal estate she might have at the, time of her death” held not to constitute contract enforcible at law.
    2.- Suit, after death, to enforce such agree- ■ ment, not maintainable.
    480. EVIDENCE — Testimony that decedent, in her life, was heard to say that she was wilh'ng that defendant in error should have and that she intended that he should have her personal estate at her death, constitutes declaration of future intention, and is not sufficient to establish agreement to this effect.
    Error to Common Pleasl
    Judgment reversed..
    J. and G. E. Huston, and Garver and Badger, Millersburg, for Miller.
    C. J. Fisher and Turner, Ake and Abt, Canton for March.
    STATEMENT OF FACTS.
    Suit was entered in the Common Pleas by defendant in error, Charles March, plaintiff, against Wm. H. Miller, administrator of the estate of Margaret Miller, deceased, to recover of the latter, as such administrator, $2,611.25, the value of the personal estate of said Margaret Miller, deceased, under and by virtue of an alleged verbal agreement between them during the lifetime of said Margaret Miller, and for monies paid by March for nfedical services rendered to and nursing expenses incurred for said Margaret Miller. .
    The petition alleged “it was agreed between them that in the event plaintiff should survive her that he should have and receive, in full compensation for his services in caring for the farm, whatever personal estate she might have at the time of her death, that the agreement was in full force and effect at the time of her death and her personal property accumulated through her efforts and the efforts of the plaintiff, was of value approximately $2,400.”
    Defendant denied these allegations generally and specifically, and upon issue joined, the Common Pleas found in favor of the plaintiff •for $1,947.20.
    A petition in error was filed to reverse the judgment on numerous grounds, among which was that the trial court erred in overruling the motion of plaintiff in error for a directed verdict at the close of the testimony offered on behalf of the defendant in error.
   OPINION OF COURT.

The following is taken, verbatim, from the opinion.

BY THE COURT.

Assuming that the language purpoiting to have been used was in fact used, does it constitute _ a contract enforcible at law? We do not think so, and we further think that if it were a contract enforcible at law, or even in equity, that a suit, after death, such as is set up in said petition, would not be maintainable.

Secondly assuming that the suit is maintainable,- does the record evidence here show that a contract such as is set up in the petition was entered into? Witnesses, on behalf of defendant in error testified that said decedent, in her lifetime, was heard to say that she was willing that defendant in error should have and that she intended that he should have her personal estate after her death. This de'elar'ation seems to have been made by decedent in response to some little quizzing into her private affa’rs by such witnesses, but the response was simply the declaiation of a future intention. At no time does any Witness testify that she said she had entered into an agreement to do this. As we read the record, there is an entire absence of testimony tending to sustain the allegation that :any such agreement as is pleaded was made, or .entered ■'nto between said .parties, and we are ther.e-foie of the opinion that said nlotion to direct a verdict for plaintiff in eiror should have h'rn sustained, and for a failure to do .so, we tRink the court-committed .the error for which/ the ■ judgment in said casé should bé'’fevérséd" and it is 'so1 ordered. •


text:
    NORFOLK & WESTERN RY. CO. v. RADER.
    Ohio Appeals, 4th Dist., Pike Co.
    Decided Nov. 15, 1927.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    1945. RIGHT OF WAY — Land owner does not have way of necessity merely because his needs require one over contiguous property. Way of necessity only follows from fgct that conveyances have been made by one claiming such way from which an inference that an easement was retained, necessarily arises.
    580a. GRADE CROSSINGS — 991. Rail-, roads — Section 8858 GC. gives to person coming within provision, right to private crossing across railroad track. Person claiming privileges of that section must show that he owns fifteen acres, or more land, in one body through which railroad passes.
    Error to Common Pleas.
    Judgment reversed.
    Bannon- & Bannon; Portsmouth, and Levi B. Moore, Waverly, for Ry. Co.
    Adkins & Adkins and T. A. Reniek, Circle-ville, for Rader.
   FULL TEXT.

MAUCK, J.

S. G. Rader filed a petition in the Common Pleas Court alleging his ownership of certain lands therein described and asserting that the lands are contiguous to the right óf way of the Norfolk and Western Railway Company. He then says that, he has no means of ingress or’egress to a public highway to or from said lands except across the right of way of the defendant railway company. He pleads that after due notice the railway company has refused to construct a grade crossing across its right of way so as to provide plaintiff with a way to and from the public highway. The prayer of the petition is that the couit order the railway company to construct a grade crossing over its right of way. Issue was joined upon an answer and an amendment thereto and the reply of the plaintiff. These further pleadings are, however, not of importance. Trial was had, resulting in a decree requiring the railway company to construct a grade crossing for the plaintiff over its right of way from‘the lands described in the petition to “the public highway. -To this decree error is prosecuted to this court.

In support of the decree it is urged that the decree might have been entered either because the plaintiff had a way of necessity over the railroad tracks or pursuant to the statute providing for piivate grade crossings. No facts are pleaded from which a'way of necessity necessarily arises by implication. A land owner does not have a way of necessity merely because his needs require one over contiguous property. A way of necessity only follows from the fact that conveyances have been made by the one claiming such way from which an inference that an easement was retained necessarily arises. There are no such facts plea'ded in this case and the petition would not support a decree predicated upon that theory. Neither is the petition sufficient to make a case under the statute. Section 8858 G. C. gives to a person coming within the provisions of that section the right to a private crossing, across a railroad track. *A person claiming the privileges of that section must show that he owns fifteen or more acres of land in one body through which a railroad passes. The petition in this case does not plead sufficient facts to bring the case within the section referred to although from the description of the property we infer that the plaintiff might be able to plead and show not that his lands are contiguous to the defendant’s right of way but that his lands are divided by the railroad, he being the probable owner of the fee to all the land lying west of the right of way to the bank of the Scioto River. However, if the plaintiff by his petition was able to state a case under Section 8858 it would not be such a case as would warrant the decree entered herein. If he established any right under Section 8858 it would only be such right as is conferred by the succeeding section, and that is not a right to ''■•tr-'' the railway company to build a cross-g. but a right, dpon the pa"t of Cm o-.-no.t-, a'fcsr the prescribed time and reasonable no1 «; t’ce, lo .himself construct such .a private e ow- - inj and recover, the reasonable expense there- 1 of-net ¡exceeding-fifty’ dollars from the rail---' way company; ■ ■' - ; ’ ■ '

Th'' petition w^s ,nof sufficient .to suppoit decree and , not. sufficient to support any decree.

The judgment is accordingly reversed ‘ and f'e. petition- of; .the plaintiffldisn}-issed....>.'!.e..

(Sayfe,-PJ.,'and-Middleton,-J:¡, c'oñciif.)"


text:
    BEAR v. BEAR.
    Ohio Appeals, 6th Dist., Lucas Co.
    Nos. 1969-70.
    Decided Jan. 23, 1928.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    191. BURDEN OF PROOF — 147. Bills, Notes and Checks — Burden to prove failure of consideration rests on defendant. Necessary to show extent of such failure in order to sustain burden.
    Error to Common Pleas.
    Judgment affirmed.
    Alonzo- G. Duer, Toledo, for plaintiff in error.
    Denman, Miller & Wall, Toledo, for defendant in error.
   FULL TEXT.

RICHARDS, J.

These two cases involve the same matters and can be conveniently disposed of in one opinion.

The actions, which were based on promissory notes, were originally brought by Grace M. Bear in the Municipal Court of the City of Toledo and each resulted in a judgment in her favor. Error was prosecuted to -the Common Pleas Court where the judgments were affirmed and these proceedings in error are brought to reverse the judgments of the lower courts.

Only one defense made by the defendant below deserves separate discussion. That defense avers in substance that if the notes' sued upon ever had any consideration, that it has wholly failed for the reason that, contrary to the agreement of the parties, at the time the notes were given, the plaintiff has wrongfully taken the minor child of the parties outside of the State of Ohio and refused to permit the defendant to have the child over-Saturday and Sunday of each week, as provided in the agreement.

The bill of exceptions is very meager, consisting of-' only two pages, but certifies. that it contains all of the evidence. It shows that the parties, who had been husband and wife, agreed as a consideration for the notes that the defendant in the trial court might take their child, who had apparently been confided to the custody of the mother, away from home one day a week and in consideration of that promise the notes were given and it is by reason of the claimed breach of this .agreement that it is claimed the consideration has failed. The only evidence in the bill of exceptions on that subject is the following question and answer:

“Q. You claim the consideration has failed because she did not fulfil her agreement? ■ i ¡
“A.. Yes; she left Toledo1 and would-not permit me to take the child and have it' as we agreed and. that is what th" note was gitfen for. Otherwise it would not have been given.” ' ■ , ,

The evidence leaves no basis fo--- conten-1-inr'that the p omissory notes did not have a. sufficient consideration when executed,'but'reliance js ..placed on a failure or partial failure-of that’ .consjdehatioii- subsequent ijjo . j Ufa .¿xgcu-., tion of the notes'. The- evidence does not disclose an entire failure of consideration, but at most a partial failure. Such a defense assumes that the notes were based on a sufficient consideration and wéie at one time en-forcible but that a defense has subsequently arisen. That is an affirmative defense., and the burden of proof to sustain it rested upon the defendant in the trial court. If sustained it would entitle the defendant to an abatement of the plaintiff’s demand to the extent that he had suffered loss by reason of the partial failure of consideration. Holzworth, et al. v. Koch, et al., 26 Ohio St., 33. Although in Ginn, Admr. v. Dolan, 81 Ohio St., 121, the issue was want of consideration, the court on page 129 of the opinion clearly states that the burden to prove failure of consideration rests on the defendant.

One of the notes in suit was executed in 1921 and the other one in 1922. The actions were not brought until June, 1927. The record does not disclose when the plaintiff below left Toledo and would not permit the defendant to take the child as agreed, nor does it make any showing of damages by reason of such breach of the contract. The record is entirely consistent with the claim that the plaintiff may not have left Toledo or the State of Ohio until shortly before the actions were brought, and for aught the record shows, she may have complied with the requirement to permit the defendant to have the child for one day a week during all the years ensuing fiom the execution of the notes until a few months before the trial. The maker of the note failed to sustain the burden of proof resting on him by showing the extent of the failure of consideration.

(Williams and Lloyd, JJ., concur.)


author: SULLIVAN, PJ.

text:
    FORKAPA REALTY CO. v. BRANDT CO.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    Decided Nov. 1, 1927.
    Syllabus by Editorial Staff.
    . 1265. WEIGHT OF EVIDENCE — Only as a matter of law can reviewing court, in Ohio, reverse judgment on weight of evidence. Cannot be done because members of court, on submission of facts, might hold different view.
    480. EVIDENCE — Question having been raised by plaintiff and, by sufference, court, having opened door at instance of plaintiff, will not close it until substance of evidence is before him.
    Error to Municipal Court.
    Judgment affirmed.
    S. Y. Allen. Cleveland, for Realty Co. •
    üiL: M. Zucksi, Cleveland, for Brandt Co.
    STATEMENT OF FACTS.
    In the Municipal Court in the City of Cleveland the Brandt Company secured a judgment against the Forkapa Realty Co. on an account for goods sold and déliveied.
   OPINION OF COURT.

The following is taken, verbatim, from the opinion. : ■' •

SULLIVAN, PJ.

It appeárs from' the reeo'd that the essential question to be decided is whether the Judgment is clearly and manifesly against the weight of the testimony. In this respect the Court of Appeals is bound by certain rules and they aié embodied in the form of authorities, some of which we cite as follows: Breese v. State, 12 OS.. 146; Remington v. Harrington, 8 Ohio 507; Higgins v. Roche, 22 C. C. 112, 12 C. D. 220.

Thus it appears that it is only as a matter of law that a reviewing court can reverse the judgment of the court below on the weight of the evidence. It cannot be done because the members of the court, on the submission of the facts, might hold a different view than the court or jury below. The question is whether there is credible evidence in the record to support the judgment. The mere fact that the evidence is conflicting is immaterial, unless the conflict is such that, after a consideration of the entire record, it is appaient therefrom that the judgment shocks the senses or that a gross error has been committed by the tribunal below.

• Adhering to these rules and authorities the judgment must necessarily be affirmed.

As to the third assignment, to-wit, that there was error in the admission of a paper marked for identification and known as Ex-. Mbit D and referring to a trusteeship, we hold that there was no prejudicial erj.or for the reason that the court, as indicated by the record, allowed the introduction of this exhibit because the question had been raised by plain-' tiff in error and, by sufference, the court, having opened the door at the instance of plaintiff in error, did not close it until the substance of the evidence was before him. Holding thus, the judgment of the lower court is affirmed.

(Vickery and Levine, JJ., concur.)


author: SULLIVAN, -PJ:

text:
    PIESEKAR v. ESCHUK.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    Decided Nov. 14, 1927.
    Syllabus by Editorial Staff.
    398. DISMISSAL — Where, at close of plaintiff’s evidence, motion to dismiss without prejudice has been granted, defendant, who has proceeded on cross-claim until defeat is probable, entitled to dismissal without prejudice.
    Error to Municipal Court.
    Judgment reversed.
    Charles Lefkovitz, Cleveland, for Piesekar.
    M. M. Lueak, Cleveland, for Eschuk.
    STATEMENT OF FACTS.
    Plaintiff below, William Eschuk', sued for damages to his automobile and alleged, as negligence,4 that defendant Albert Piesekar carelessly and ror-kK-isly operated his au’.omobiK TotKs plrad'ng, there was filed a statomrn’ of defense denying negligence', and, by wa ? of cross petition, a claim for-damages againV; plaintiff- on the, ground that'he was going at a high and excessive rate of. spéed*and P-"at. by reason thereof, defendant’s automobile damaged.
   OPINION OF COURT.

The following is takfen, verbatim, from the opinion.

SULLIVAN, -PJ:

r+. annears. bv.. the i record: that when: the plaintiff rested his cpge, a motion was .made for judgment for the defendant, which was ovei ruled by the court. Other witnesses were then called for plaintiff, and subsequently the court permitted plaintiff to dismiss his case without prejudice, and exception was taken thereto by defendant, and, thereupon, defendant proceded with his cross-statement of claim, and it appears, by the record, that before actual judgment was pronounced on the cross-statement of claim, the defendant made a motion to dismiss the same and was overruled by the court, after discussing -the question of contributory negligence and intimating what the judgment might be, but before pro-1 nouncing judgment, as before noted.

Thus the question is whether the court committed error in not giving the defendant the right to dismiss his' cross-statement of claim before judgment', especially when, after a similar request by plaintiff’s attorney, at the con-. elusion of his case, the court allowed the dismissal of the statement of claim. It is our unanimous opinion that there was error prejudicial to the defendant below. Wiswell v. Congregational Church of Cincinnati, 14 OS. 31; Brinkerhoff, Trustee v. Smith, 57 OS. 610; Schram v. Cincinnati, 14 N. P. (N.S.) 109.

. In accordance with these authorities we hold that the court below committed error, and the judgment below is hereby reversed and the cause remanded for further proceedings according to law.

(Vickery and Levine, JJ., concur.)


author: LLOYD, J.

text:
    ZYDEL et v. CLARKSON.
    Ohio Appeals, 6th Dist., Lucas Co.
    No. 1953.
    Decided Jan. 23, 1928.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    297. CONTRACTS — 884. Parol Evidence— Where there is latent ambiguity in written agreement, parol evidence may be received to show to which of persons or things description relates.
    Error to Common Pleas.
    Judgment reversed.
    Johnson, Johnson & Farber, Toledo, for Zydel et.
    Geo. E. Dixon, Toledo, for Clarkson.
   FULL TEXT.

LLOYD, J.

In the trial court plaintiffs in error were defendants and the defendant in error was plaintiff.

Plaintiff commenced an action against the defendants on an alleged written contract for the purchase of a refrigerator, claiming, that the defendant refused to perform the contract so made and that thereby he had sustained damages in the sum of $230.00. The jury returned a verdict for the plaintiff in the sum of $75.00, upon which judgment was entered.

One or both of the defendants conducted a grocery and meat market in Toledo and, desiring to purchase a refrigerator, Mrs. Zydel, on April 13, 1926, executed in the name of her husband, a contract with plaintiff for “one No. 86 Dry Kold Refrigerator” of a -certain specified width, depth and height, for which $690.00 was to be paid in the manner and at the. times therein specified, she "at the time giving to Clarkson her personal check for $10.00 as a down payment thereon. The contract as made-also provided that: “This order states the entire agreement for' the purchase of said goods and is not modified by any verbal agreement.”

The plaintiff, Clarkson, testified that No. 86 Dry Kold Refrigerators were lined with mineral wool or with cork and that the only distinguishing feature between the 'mineral wool and cork-lined No. 86 was the price. The cork-lined refrigerator cost more than one lined with mineral wool. Mrs. Zydel testified that the refrigerator ordered was to have been cork lined and that when she and her husband learned that the plaintiff was proposing to furnish.one lined with mineral wool, payment was stopped on the $10.00 check given to Clarkson and the order cancelled.

Oral evidence was offered by plaintiff and by'defendants as to whether the refrigerator so purchased was to have been lined with cork or mineral wool. This evidence was received by the court, but in his charge to the jury the trial judge instructed the jury in substance that the written contract must be considered as complete in itself and if the jury found that it had been executed and broken, the plaintiff would be entitled to recover, and refused to instruct the jury as to the claims of defendants and the effect thereof, if found to be true, that the refrigerator was to be lined with cork instead of with mineral wool as claimed by. plaintiff. These are the only errors of which the plaintiffs in error complain.

To the rule that parol testimony can not be received to contradict, vary, add to or subtract from the terms of a written agreement, there are some well-recognized exceptions. One of these exceptions is that duress or fraud in the inception of the contract may be proved. Another is that where there is a latent ambiguity, that is “the ambiguity doe? not appear on the face of the instrument but lies hidden in the person or subject whereof it speaks,” parol evidence may be received to show to which' of the persons or things the description relates. Jones on Evidence (3d Ed.) Sec. 472.

In the description “No. 86 Dry Kold Refrigerator,” it does not appear that there is any ambiguity, but the evidence offered and received at the trial was to the effect that this description covered both cork and mineral wool lined refrigerators, and this court is of the opinion that the trial judge erred in failing and refusing to properly instruct the jury as to the law applicable to the situation thus developed.

In passing, it may be suggested that the record is not altogether clear as to whether the defendants were partners in the conduct of the grocery and meat market or whether Mrs. Zydel, in signing the contract, was acting as agent of Mr. Zydel, with’ knowledge of the plaintiff. She signed his- name to the order but gave her personal check for the down payment of’$10.00. If there was a partnership, the contract might be the contract of both; if she was acting as agent merely, or acting solely in her own behalf, the liability, if any, on the contract, would be of still a different nature.

The judgment of the trial court is reversed and the cause remanded for a new trial.

(Richards and Williams, JJ., concur.)


author: MARSHALL, CJ.

text:
    BREUR v. P. U. C.
    Ohio Supreme Court.
    No. 29673.
    Decided Feb. 1, 1928.
    Error to P. U. C.
    Order affirmed.
    260. COMMON CARRIERS—
    1. Whether a person charged as one, .is such a carrier, is a question of fact.
    2. Transporter of merchandise in motor vehicles, held to be such a carrier, and subject to regulation, though he exacts an advance contract with the customer to the contrary.
   MARSHALL, CJ.

1. It is a question of law for the court to determine what constitutes a common carrier; but it is a question of fact whether one charged as a common carrier is within that definition and is carrying on his business in that capacity.

2. One who transports merchandise in motor vehicles over the highways of this state fpr hire and holds himself out to the public as being willing to serve the public indifferently to the limit of his capacity is a common carrier and subject to regulation as such though in each instance he makes a written contract before transporting the merchandise and refuses to carry for persons who are not responsible or who will not sign a written contract.

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


author: HOUCK, J.

text:
    OHIO SAVINGS & TR. CO. v. SCHNEIDER et.
    Ohio Appeals, 5th Dist., Tuscarawas Co.
    Wilkin, Pernsell & Fisher, New Philadelphia, for Savings & Tr. Co.
    Louis Welty, New Philadelphia; Bennett, Westfall & Bennet, Columbus, and Wm. Simpson, Canton, foi Schneider.
    • 755. MECHANIC’S LIEN — 953a. Priority —1104. Statutes.
   HOUCK, J.

1. Laborers and materialmen, performing work and furnishing material in construction of sewer systems for city, seeking favor under mechanic’s lien law, who do not file copy of liens with county recoider, as provided in Section 8326 GC. lose right of priority "over as-signee from contractor of amount due under contract with city.

2. Rental of road roller used in construction of road for county is not subject of mechanics’ lien under Sect. 8824 GC. authorizing liens for furnishing of machinery.

3. Courts cannot read into statute that which does not appear therein; it being presumed that lawmakers placed in statute, all that was intended.

4. Courts are under duty in interpretation and construction of statutes to give effect to intent of Legislature.

5. If words and sentences used in statute are fiee from ambgiuity, and express clear purpose and intent of Legislature there is no ■occasion to resort to other means of interpretation.

(Shields and'Lemert, JJ., concur.)

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


text:
    LUPICO v. STATE.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    Decided March 7, 1927.
    661. INTOXICATING LIQUOR —1256. Weight of Evidence.
    B. P. Rabb, Cleveland, for Lupico.
    S. C. Glenn, Cleveland, for State.
   SULLIVAN, PJ.

1. Whether defendant, prosecuted for possessing still, had control of propeity, is to be determined from .all testimony and circumstances of each particular case.

2. In prosecution for possessing still, defendant must have some dominion over property arising by reason of possession, or some extrinsic circumstances that gives him light to possession which includes control.

3. Where large still was operated in barn on premises of defendants, and odor arising from manufacture was so obnoxious that innocence of existence would be unreasonable, magistrate was justified in finding that defendant occupying first floor of barn had possession and control of still.

4. Court of Appeals is bound by the decisions of Supreme Court on question of reversing judgment on weight of evidence.

5. Judgment in criminal case cannot be reversed, unless it is clearly and manifestly against weight of evidence, as matter of law, and not as matter of opinion.

6. Judgment in criminal case cannot be disturbed, where there is credible evidence supporting it, though reviewing couit has different opinion than trial court.

(Levine. J., concurs. Vickery, J., not participating. )

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


text:
    LANGENHEIM v. INDUST. COMM.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    456. EMPLOYER AND EMPLOYE — 1283. Workmen’s Compensation.
    Patterson, O’Brien & Holland,' Cleveland, for Langenheim.
    E. C. Turner. A tty. Gen., Columbus, and John A. Elden, Cleveland, for Indust. Comm.
   SULLIVAN, PJ.

1. Dea+h of employe-fiom being shot.1 by burglar while on wav from work .and still on walk buil+ bv emnloyer for convenience of employes held not to arise within course of, nor within t’m scope of, employment; there being no causal connection.

2. Workman’s Compensation Law (Sections 1465-37 to 1465-108 GC.) must be given a liberal construction.

3. For -"ecoverv under the Workmen’s Compensation I,aw (Sections 1465-87 to' 1465-108 GC.) it is necessary that the record show the act causing the injury or fatality was related either directly or indirectly to the employment.

4.Where employe on way home was killed by a burglar, held that public policy forbade holding that injury arose in the scope of employment merely because' employe was using sidewalk built by the employer for his employes’ convenience.

(Vickery and Levine, JJ., concur.)

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


author: WILLIAMS, J.

text:
    WHITAKER-GLESSNER CO. v. STRICK et.
    Ohio Appeals, 6th Dist., Lucas Co.
    1010. REFEREES — 148. Bills of Exceptions — 313. Corporations — 587. Guáranty— 1063. Sale.
    Ritter & Brumback, Toledo, for Whitaker Co.
    Boggs & Doty and F. M. Sala, Toledo, for Stride et.
   WILLIAMS, J.

1. Order by court of Common Pleas, referring contest over guaranty with consent of parties, and ordering written report from referee of testimony with findings and conclusions, held to make him “statutory, referee” under Sect. 11475 et seq., GC.

2. It is not necessary to sign and file a bill of exceptions to a referee’s findings and report, in order to present alleged errors in the Court of Appeals, where the referee has been appointed to determine the issues and report to the Common Pleas Court the testimony with his findings of fact and conclusions of law and his report and the final judgment thereon in the Court of'Common Pleas show he has complied with the order appointing him.

3. New company, incorporated to take over assets of old company and, as consideration, to assume the debts of the old company, held its “succesesor,” within meaning of sales contract with the old company, *‘its successors and assigns,” and liable to pay for cans delivered, received, and retained'by it.

4. New company, incorporated to take oyer all the assets of old company in consideration of payment of the old company’s indebtedness, held the old company’s successor” within the meaning of a g-uaranty contract, guaranteeing payment for cans sold to the old company, “its successors and'assigns.” _ ’

_ 5. Guarantors held liable ’ under contract guaranteeing payment for the sale of cans, notwithstanding that the sales contract was for a three year term which was a longer time than the term of office of the buying company’s manager, who entered into the contract without the approval of the board of directors.

8. Company receiving cans delivered and retaining them under such circumstances as would amount to an acceptance held liable for their price, whether or not they were size ordered.

7.Under Section 11478 GC., providing trial before referee is to be conducted as if by the court, and Section 11479, providing for review of ¡ eferee’s decision and ’ 'that their report sRall stand as the decision of the court, where the recor'd of proceedings before the referee was free from prejudicial erroi, it was error to set aside the referee’s findings and enter a contrary judgment.

(Richards and Lloyd. JJ., concur.)

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

A CORRECTION PALLS SAV. & LOAN ASSN. v. BRUMIT et. Ohio Appeals, 9th Dist., Summit Co. No. 1441. Decided Jan. 5, 1928. Editor’s Note: We have recently received from the Court of Appeals, ninth district, a correction for the above case, which appeared in the Ohio Law Abstract of January 21, 1928, Vol. 6, page 39. The following paragraph should be substituted for paragraph 4, commencing at line 39 in column 2 on page 39. The contract which the law implied from the mere purchase and delivery of materials previous to June 29, 1926, was fully satisfied by the payment made under the circumstances here indicated, and the contract which the law implied from the subsequent purchase and delivery of materials was a separate and distinct contract and constituted a new account, and there being no" general contract for the construction or the furnishing of materials for said building, the lien of the Lumber Co. dates from the date of the first delivery of materials furnished by it after June 29, 1926, to wit, July 2, 1926, and said lien is inferior to the lien of said mortgage of The Palls Savings & Loan Assn.

      A CORRECTION PALLS SAV. & LOAN ASSN. v. BRUMIT et. Ohio Appeals, 9th Dist., Summit Co. No. 1441. Decided Jan. 5, 1928. Editor’s Note: We have recently received from the Court of Appeals, ninth district, a correction for the above case, which appeared in the Ohio Law Abstract of January 21, 1928, Vol. 6, page 39. The following paragraph should be substituted for paragraph 4, commencing at line 39 in column 2 on page 39. The contract which the law implied from the mere purchase and delivery of materials previous to June 29, 1926, was fully satisfied by the payment made under the circumstances here indicated, and the contract which the law implied from the subsequent purchase and delivery of materials was a separate and distinct contract and constituted a new account, and there being no" general contract for the construction or the furnishing of materials for said building, the lien of the Lumber Co. dates from the date of the first delivery of materials furnished by it after June 29, 1926, to wit, July 2, 1926, and said lien is inferior to the lien of said mortgage of The Palls Savings & Loan Assn.


text:
    CASARO v. HUMPHREY et.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8014.
    Decided Dec. 5, 1927.
    Syllabus of Editorial Staff.
    727. LIS PENDENS — 719. Liens — 677. Judgments and Decrees.
    Under 1156-GC., prior to amendment effective August 1, 1927, judgment, in action coming over from prior1 term of Court, attaches to lands of debtor from first day of term in which rendered.
    Appeal from Common Pleas.
    Decree for Plaintiff.
    Alfred L. Steuer, Cleveland, for Casaro.
    Wilkin, Cross & Daoust and Garfield, Cross, MacGregor, Daoust and Baldwin-, Cleveland, for Humphrey et.
    STATEMENT OF FACTS
    This cause is here on appel from the Court of Common Please of Cuyahoga County, and • it involves the question as to wnether a judgment obtained at a term of the court, based upon an action commenced at a previous term, is a lien on the lands of the judgment debtor from the first day of the term, although actually rendered upon a day of the term subsequent theieto.
    The cause was tried upon an agreed statement; of facts which are, substantially, as follows:
    On April 1, 1926, Guy Casaro filed -an action in the Cuyahoga Common Pleas against Sarah Humphrey. In his petition, he prayed for a personal judgment in the amount of $1,800.00 with interest, and for foreclosure of a chattel mortgage. The action was tried during the September term of court in the year 1925, and a personal judgment was rendered against said Humphrey for $1,245.50 and costs. The chattel mortgage was ordered foreclosed and the chattels were sold; the judgment and order of sale were entered upon the Journal of the Court on December 28, 1925, and the first day of the September term of Court was September 8, 1925.
    On September 8, 1925, said Humphrey was the owner of a parcel of land described jn the petition, and the title to said real estate remained continuously in Sarah Humphrey from September 8, 1925, until conveyed by warranty deed, subject to a mortgage to the The Mutual Building & Investment Company, to Erma Hirsch and Julia C. Ballint, this conveyance being dated November 30, 1925, and recorded on December 18, 1925, and that at the time of the conveyance to- them, said Hirsch and Ballint had no actual or constructive knowledge of the pending suit against said Humphrey or that the same had been from a prior term of court.
    Hirsch and Ballint conveyed the property to Eugene and Rosa Borsits, by deed dated December 18, 1925, and recorded February 16, 1926, and at the time of this conveyance the defendants Eugene and Rosa Borsits had no actual knowledge of the pending suit, or the judgment obtained therein. This action was brought by the judgment creditor Casaro on January 22, 1926, to maishal liens on the real property.
   OPINION OF COURT

The following is taken, verbatim, from the opinion.

SULLIVAN, PJ.

To determine the issues it is necessary to interpret Section 11656 GC. as it stood prior to the amendment as it appears in 112 O. L. page 199.

The meaning and significance of the words, phi ases and clauses admits of no doubt. The conclusions deducible are irresistible ’ and inevitable. The lands situated within the County where the judgment is entered shall be bound for the satisfaction of the judgment from the first day of the term at which the judgment is rendered. Thus, giving to each word its plain, unmistakable sense and significance, it appears to us conclusively that the lien upon the land dates from the first day of the term, in cases like the one at bar where the action was commenced at a prior term and judgment rendered at a succeeding term.

In three different places in this statute, as unamended, we notice the legislative care and intent as to this subject. Notice the three following quotations, as bearing upon this element of time, impregnated in the statute:

First: “From the first day of the term at which it is rendered.”

Second: “Shall bind such lands only from the day on which the judgments are rendered.”

Third: “Shall be bound from the time they are seized in execution.”

When we come to the -section as amended, we again see the legislative caution as to. time, in the following- language: “Shall be bound for its satisfaction from the day on which such judgment is rendered.” The legislature, in this amendment, seems to have recognized the practical uniformity of the decisions of the Ohio courts, and elsewhere, on this. subject, when it amended the section by changing the language

It is conceded that the amendment does not g-overn the case at bar, but the amendment was necessary in order to give that construction to the original section upon which the defendants insist as being the proper interpretation.

The uniformity of holding in the higher •courst made necessary the amendment embodied in 112 O. L. 199 before there could be eliminated from the original statute the plain •and inevitable meaning of the language “shall be bound for its satisfaction from the first day of the term at which it is rendered.”

That the defendants were innocent purchasers does not, in our judgment, change the effect and power of the statute.

Able counsel for defendant, to sustain his claim that the judgment and lien do not date back to the first day of the term, cite the de^ cisión of our Supreme Court rendered in Cleveland Railway Co. v. Williams, 115 OS. 584, but we think that this authority is in favor of our analysis and reasoning in the case at bar.

Holding these views a decree may be entered for the plaintiff.

(Vickery and Levine JJ., concur.)


author: POLLOCK, J.

text:
    ROSE v. STATE
    Ohio Appeals, 7th Dist., Mahoning Co.
    Nos. 1271 and 1272.
    Decided Nov. 4, 1927.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    661. INTOXICATING LIQUOR.
    Evidence of prosecuting: witness that he purchased liquor from accused and purchased other liquor» in adjoining room over which accused had control» from employee of accused» sufficient to support conviction of both possession and sale. Drake v. State» OA. 5 Abs. 649» followed and approved.
    On motion for rehearing.
    Motion refused.
    H. H. Hull and D. P. Rendinell, Youngstown, for Rose.
    R. L. Thomas, Youngstown, for State.
   FULL TEXT

POLLOCK, J.

These two actions were submitted to this court at the present term, and judgment entered affirming' the judgment of the court below. This motion has been filed asking for a rehearing. In one of these actions Prank Rose was charged and convicted of possessing intoxicating liquors, in the other of selling. The two cases, without any objection being entered, were submitted upon the same evidence to the trial court. It is urged in this motion, as a ground for rehearing, that a party cannot be convicted of both selling and possessing intoxicating liqupr, upon the same act and the same liquor. Our attention has been called to the case of Drake v. State, found in Vol. 5, No. 39, of Law Abstract, decided by the Court of Appeals of Franklin County, in which the principle claimed is announced, and also in the case of Munsey v. United States, 29 Fed. Rep., 780. We agree with the contention in this motion thus far, but like both of these other cases there may be facts and circumstances which warrant the conviction of both offenses, although the facts are adduced at the same time, in the case of Drake v. State, supra, the second proposition of the syllabus reads:

“Possession of other liquor, although in small amount, sufficient to justify conviction on possession charge.”

In this case it appears that one Kiger, who was in the employ of the Prosecutor’s office, went in company with a woman to the place where this liquor was sold and there he testifies to buying a drink of intoxicating liquor for himself and the woman who went with him, and to drinking it. He further asked for a- bottle of liquor, was informed by Rose that he didn’t sell by the bottle, but that the man in the next room would probably furnish it to him. He went to the door and spoke and the man came and he told him what he wanted. He purchased from that party, whose name he afterwards learned was Barrett, a bottle of liquor. When he left the room he was met by two police officers. They went back into the room and there Rose was placed under arrest. The- man who sold the bottle said he was in the employ of Rose and had only been in his employ a few hours. They were both placed under arrest and as Rose was leaving the place he took the money out of the money drawer, put it in his pocket, turned out the lights and locked the room, indicating that he was in charge or possession of that room. The party who sold the bottle of liquor got it either in that room or the room which he was in, which was a room connected and used with the one in which Rose was in. He said that he was only employed by Rose.

From these facts we think there was evidence tending to show that Rose was in possession of more liquor than the drink that he sold to Kiger and the woman; in other words, we think from all the circumstances that appeared in the trial of the case that he was in possession of liquor in this room, and he was guilty on a charge of possession and also for selling a part of it to Kiger. Motion is refused and exceptions noted.