text:
    FOWLER v. SMITH.
    Ohio Appeals, 5th Dist., Morgan Co.
    Charles H. Fouts, McConnellsville,. for Fowler.
    ( M. E. Danford and J. Q. Lyne, McConnells-ville, for Smith.
    147. BILLS, NOTES AND CHECKS— 1271. Wills and Legacies. — 287. Consideration.
   HOUCK, J.

1. In determining what constitutes consideration for note, “value” is any consideration sufficient to support a simple contract.

2. Antecedent or pre-existing debt is sufficient to constitute value, in determining consideration for note.

3. Under will bequeathing to wife all husband’s property during her natural life, or as long as she remains unmarried, wife took no actionable interest in unpaid note payable to husband.

4. “Consideration” is benefit to promisor or less or detriment to promisee, in determining validity of consideration of negotiable instrument.

5. “Valuable consideration” may consist either in some right, interest, profit, or benefit accrued to one party, or some forbearance, detriment, loss or responsibility suffered or undertaken by the other.

6. Language in will must be given its plain, ordinary meaning.

7. Under will bequeathing all of husband’s property to wife for life, or as long as she remains unmarried, wife took only life estate in unpaid note payable to husband.

8. Where widow took life interest in note payable to husband, execution of new note to widow by maker of old note on surrender of old note was without consideration, and court should have directed for defendant in suit on new note.

(Shields, J., concurs. Lemert, J., dissents.)

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


source: Caselaw Access Project

author: PUNK, J.

license: Public Domain

text:
    NAGY v. CITY OF AKRON.
    Ohio Appeals, 9th Dist., Summit Co.
    No. 1296½.
    Decided Dec. 23, 1927.
    First Publication of this Opinion.
    Syllabus by the Court.
    1261. WATER AND WATER COURSES— 799. Municipalities — A municipality may not collect surface water into a main storm water sewer and empty it into a water course which does not enter, pass through or border on the corporate limits of such municipality, even though such water course naturally drains the area within such municipality from which the surface water is collected, without liability for damage to land along such water course, caused by the overflow of water from such water course by reason of the increased amount and accelerated flow of the water from such sewer.
    Error to Common Pleas.
    Judgment reversed.
    Lahrmer & Handle, Akron, for Nagy.
    Wm. H. Knowlton, Dir. of Law and F. E. Renkert, Asst. Dir. of Law, Akron, for City of Akron.'
    STATEMENT OF FACTS.'
    Plaintiff in error commenced his action, in the Common Pleas, against the City of Akron, to recover damages on two causes of action; first, for alleged damages resulting from the emptying of a sanitary sewer into a county ditch running through the north side of' his land; and second, for damages to his crops for three successive' years, caused by water overflowing his land, alleged to be the result of the city emptying a storm sewer into a county ditch which passed through the central part of,his land.
    After the jury had been impaneled, statements of counsel made, and the first witness called and testified in part, a question arose concerning the admission of evidence which involved the construction of what the petition alleged concerning the area drained and the quantity of water coming into said ditch through said storm sewer. At this time counsel for plaintiff stated in open court that it was not claimed that the city had enlarged the drainage area that emptied into said county ditch through said storm water sewer, but did claim that the sewer brought more water than would have come under natural circumstances; that it came much faster and quicker than it naturally would have come and thereby overflowed the county ditch and destroyed plaintiff’s crops, which the water did not do prior to the construction of saic sewer.

      Thereupon counsel for the city demurred to the alleged second cause of action in the petition, on the ground that it did not state a cause of action, and asked the court to refuse to hear any further evidence on the second cause of action, it being the contention of counsel for the city that as long as the drainage area was not increased, the fact that the flow of water was increased and the. volume increased due to improvement, it is not liable for the damage caused to Mr. Nagy.
    The court sustained this demurrer. Plaintiff not wishing to plead further, judgment was rendered in favor of the city on the demurrer to the second cause of action.
   OPINION OP COURT.

The following is taken, verbatim, from, the opinion.

PUNK, J.

The case is here on petition in error claiming that the court erred in sustaining the demurrer to the second cause of action.

The question presented is whether or not a municipality may collect its surface, water into a trunk line sewer and empty it into a nat-uial water course on the lower lands of another outside its corporate limits, which water course naturally drains the higher land of the municipality but does not extend into, through or border on it, without regard to the capacity of the water course, as lon<r as the draining area is not increased; it being conceded, so far as this record is concerned, that the nearest point of the Roush lateral to the corporate limits of said city is about 1,000 feet.

The rule is well established in Ohio that the owner of land cannot, by artificial means, divert the natural flow of the surface water off his land, nor can he, by any embankment or otherwise, diveit the natural flow of the surface water off the higher land in a manner different from its natural flow onto his land, without liability therefor. Butler v. Peck, 16 OS. 334; Tootle v. Clifton, 22 OS. 247.

Where a water course or well-defined channel or natural depression exists on the land of the upper proprieter, he may collect the surface water on his land into sewers or drains and discharge it, without liability, into such water course or natural channel or depression on his own land; but if theie is no such water course or natural channel or depression on his land, he cannot so collect the surface water or divert its natural flow onto the land of the lower owner. 27 R. C. L. pg. 1151, sec. 79 et seq.

The case of Mason v. Commissioners, 80 OS. 151, is cited by counsel on both sides in support of their respective positions. It will be observed that this syllabus limits the right to drain surface water to “in the reasonable use of his land, * * * into its natural outlet, a water course, upon his own land.”

It being clear that an individual cannot, by artificial means, divert surface water, either from coming on or going off his land, from the natural flow thereof, is the rule any different as to a municipality, as between it and ■the owner of land located outside such municipality ?

We are therefore unanimously of the opinion that the court eired in sustaining the demurrer to the second cause of action.

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


author: SULLIVAN, PJ.

text:
    JAMES H. HERRON CO. v. JONES.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 7698.
    Decided Nov. 14, 1927.
    Syllabus by Editorial Staff.
    708. LEASES — 297. Contracts — Where contract to execute lease contains no express provision against sub-letting, owner must execute lease without such provision.
    753. MEASURE OF DAMAGES — Is difference between amount of rent that was to have been paid and actual value of lease.
    916. PETITION — Alleging that lease was reasonably worth $3,000 and that, by defendant’s refusal to execute lease,, plaintiff has been damaged to that extent, when proof is offered conforming such allegation, not effected by subject matter of prayer of petition, general rule being that prayer is not part of allegations.
    Error to Common Pleas.
    Judgment affirmed.
    Paul S. Crampton and Garry C. Gahn, Cleveland, for Herron Co.
    Boyd, Cannon, Brooks & Wickham, Cleveland, for Jones.
    STATEMENT OF FACTS.
    The plaintiff below was Win. F. Jones, and the defendant was The James H. Herron Co.
    It is alleged that the plaintiff and defendant entered into a written conti act, under the terms of which the defendant was to lease to the plaintiff the first floor and a quarter of th basement of a certain bunding located in the City of Cleveland. The consideration agreed upon was $4,000 per year, payable in certain installments.
    The petition further alleges that in June, 1923, and on various occasions, he demanded a lease under the terms of the contract, and alleges that the defendant refused to execute one. That on June 30, 1923 the plaintiff prepared a lease embodying the terms of the aforesaid written contract which plaintiff desired and offered to execute, but to which defendant refused to attach the signature of the corporation. In the meantime, subsequent to the entering into the contract for the lease, the plaintiff executed a written conti act with one A. D. Goodman to assign the lease or sublet the premises to Goodman for a consideration of $3,000 over and above the rentals and certain other expenses as mentioned in the contract for the lease, and the further allegation is made that the assignment or subletting was to be strictly in accordance with the terms of the lease to be executed.
    Subsequently, according to the allegations cf the petition, the defendant having learned of said contract for a lease with said Goodman, refused to execute a lease according to the terms of the contract heretofore mentioned, unless the plaintiff would agree to pay the corporation a portion of said sum to be paid by Goodman in excess of the rental and other expenses provided in the terms of the lease. Thereupon, plaintiff refused and on June 30, 1923, it is alleged that the defendant entered into a contract of lease with the said Goodman, wherein the premises desired were leased to Goodman direct. It is claimed that by said act the plaintiff was deprived of his profit of $3,000 on said lease.

      The Herron Co. filed an amended answer and cross-petition, and the first defense denied each and every allegation of the petition, and the second defense is that there could be no sub-leasing or assignment without the consent of The James H. Herron Co.
   OPINION OP COURT.

The following is taken, verbatim, from the opinion.

SULLIVAN, PJ.

It is charged that the judgment should he reversed because a certain lease was assigned and sub-let contrary to a provision to that effect, and that certain evidence of an incompetent nature was offered, under objection, as bearing upon the measure of damages for breach of contract, and further, that the court erred in overruling the motion for a new trial.

The written contract of May, 1923, in our judgment, according to the record, substantially embodied the terms upon which the lease was to be based and, in substance, comprised all the essential terms necessary for such a contract, and this bears upon one of the salient features of the case as to whether there were any terms yet to be understood, agreed upon and fulfilled, because whether such a situation existed, depended upon the plaintiff’s right to have a lease based upon the terms of the contract and in pursuance thereof. There was no inhibition in the terms of said contract against sub-letting or assigning the lease under the terms of the contract above noted, and while a penciled memoranda appears tending to that effect, it is our judgment, from the record, that it is not founded upon such authority as would be required to have a meeting of the minds,. and consequently is of no material avail in the record, on account of its vagueness and uncertainty. We think that the proof failed to show that theie was any understanding in the original contract that such terms were agreed upon or were to become part and parcel of the contract upon which the lease might be founded. Hence, we think there is no prejudicial error in this record, and the reason is that the terms of the contract had been substantially completed and without an express inhibition against subletting or assigning, claims based upon such propositions would be without foundation in law.

In Braunstein v. McCory Stores Corporation, 23 American Law Reports, 133, the syllabus reads:

“A lessee may assign his lease in the absence of express provision in the lease to the contrary.”

Evidence was offered to show the measure of damages by reason of the failure of Jones, the plaintiff below, to make a lease to Goodman on account of the fact that The James H. Herron Co. had leased to him direct, after the agreement for a lease made between Jones and Goodman, and the difference between the rent to be received and the annual value of the term, are proper considerations for a measure of damages, and the following authorities bear us out: Taylor v. Bradley, 39 N. Y. 129; 35 Corpus Juris, 1209; Neal v. Jefferson, 212 Mass. 517; Snodgrass v. Reynolds, 79 Ala. 452; Smith v. Hughey, 66 Ore. 134; Sloan v. Hart, 150 N. Car. 269.

It is argued that the prayer of the petition asked for the sum of $3,000 that therefore this disregarded the measure of damages, but the fact that the evidence was offered as to the measure of damages makes the subject matter of the prayer immaterial, not only as to the case at bar, but under the general rule that a prayer is no part of the allegations of the petition.

(Vickery and Levine, JJ., concur.)


author: BY THE COURT.

text:
    BENNETT v. BENNETT.
    Ohio Appeals, 2nd Dist., Franklin Co.
    No. 1386.
    Decided Dec. 29, 1926.
    First Publication of this Opinion.
    413. DIVORCE AND ALIMONY — 293. Contempt— 681. Jurisdiction — When amount agreed upon, by plaintiff and defendant, is embodied- in order of court, it becomes order for payment of alimony and is proper subject for enforcement of contempt proceedings.
    Error to Common Pleas.
    Judgment affirmed.
    Horace S. Kerr, Columbus, for plaintiff in error.
    David H. Evans, Columbus, for defendant in error.
   FULL TEXT.

BY THE COURT.

This is a divorce and alimony case. It appears that prior to the filing of the divorce petition a written agreement had been entered into between the parties as to the alimony and providing for an additional allowance to the wife for the support of their minor daughter. After the filing of the petition in divorce this agreement was embodied in a journal entry in which the allowance to the wife for the support of the minor child was made an order of court. Subsequently there was a decree for divorce which did not cover the subject of alimony. In this situation the former decree in respect to alimony would still be in force. Seveial applications for contempt were filed at different times against the plaintiff in error to enforce payment of the amount allowed to the wife for the support of the minor child. Some of these applications resulted in a modification of the order in respect to the payment of the amount to the plaintiff for the support of the said child. Finally, however, on June 4, 1925, the court below overruled the motion of the defendant below for a further modification of the order in respect to said payments and found the defendant guilty of contempt. From that order error is prosecuted to this court. There is no bill of exceptions taken on the final hearing. The only question which the court can therefore consider is as to the jurisdiction of the court under the record in the case to adjudge the defendant below guilty of contempt.

When the amount agreed upon by the plaintiff and defendant was embodied in an order of the court we are of opinion that it became an order for the payment of alimony and would be a proper subject for enforcement in a contempt proceedings. We are therefore of opinion that the court below had jurisdiction and that there is no error appearing upon the record which, would justify this court m disturbing the judgment and decree of June- 4, l925- , .. TT

, .. TT (Allread, Fernadmg and Kunkle, JJ., concurring.)


author: WASHBURN, PJ. .

text:
    FALLS SAV. & LOAN ASSN. v. BRUMIT et.
    Ohio Appeals, 9th Dist., Summit Co.
    No. 1441.
    Decided Jan. 5, 1928.
    First Publication of this Opinion.
    Syllabus by the Court.
    755. MECHANIC’S LIENS — 1247. Waivers — 787. Mortgages — 953a. Priority—
    1. The right to a mechanic’s lien, or the right to have a mechanic’s lien operative from a particular date, may be impliedly waived.
    2. A merchant, without an entire contract therefor, furnished materials from time to time for the construction of a building; while the building was under construction, the owner executed a mortgage thereon and instructed the mortgagee to pay all liens and claims then due against said property, which was done, and said merchant, knowing said facts, accepted payment for the materials so furnished by him; thereafter, from time to time as ordered, said merchant furnished additional materials which were used in the construction of said building, some of which were paid for out of said fund, and in perfecting a mechanic’s lien on said building, said merchant set forth in his account said materials for which he had been paid and claimed a lien as of the date of his first delivery of materials upon the job; held: that as against said mortgagee, said merchant impliedly waived his right to a mechanic’s lien effective from the date of the first furnishing of materials, which were paid for as stated.
    Appeal from Common Pleas.
    Decree for plaintiff.
    Rockwell & Grant, Akron, for Falls Savings & Loan Assn.
    Motz & Morris, Cuyahoga Falls, for Brumit et.
   FULL TEXT.

WASHBURN, PJ. .

In this case we find that, without an entire contract therefor, The Falls Lumber Co., between April 16, 1925, and June 29, 1926, furnished materials to J. H. Brumit for use by him in the construction of his house; that previous to June 29, 1926, there was a mortgage on Brumit’s property and also a mechanic’s lien, and that just previous to said date Brumit gave a mortgage to The Falls Savings & Loan Assn, for an amount sufficient to pay said first mortgage and said mechanic’s lien and the claim of said Lumber Co., and probably finish said house; that from the proceeds of said mortgage of’The Falls Savings & Loan Assn, said other mortgage and said lien and the amount then due said Lumber Co. was paid.

That thereafter Brumit bought other materials from said Lumber Co. for use in finishing his house, some of which materials were paid for by The Falls Savings & Loan Assn. from the proceeds of its mortgage by direction of Brumit and were treated by said Lumber Co. as cash transactions, and others of said materials so furnished after June 29, 1926, were charged against Brumit.

Said Lumber Co. furnished no materials after Nov. 20, 1926, until June 16, 1927, a period of about seven months, when, for the purpose of perfecting a mechanic’s lien on Biumit’s property, said Lumber Co. solicited Brumit to and he did purchase a small amount of materials, which the Lumber Co. delivered at Brumit’s house on June 18, 1927, and on the same day and before noon, said Lumber Co. filed an affidavit for a mechanic’s lien on an account which not only included the materials purchased by Brumit on credit after June 29, 1926, but also the materials purchased before that date and which had been paid for by The' Falls Savings & Loan Assn., as hereinbefore stated.

The Lumber Co. is now claiming that its lien dates from April 16, 1925, and is superior to the mortgage of The Falls Savings & Loan Assn.

We find from the evidence in this case that it was the intention of all of the parties to this action that the account of the Lumber Co. against Brumit previous to June 29, 1926, should be and that it in fact was extinguished by the payment of the same on that day by The Falls Savings & Loan Assn., from the proceeds of its mortgage, and that the Lumber Co. impliedly waived its right to a lien for the items of the account previous to June 29, 1926; and there being no entire contract, said account could not thereafter form the basis of a mechanic’s lien.

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 the lien of said Lumber Co. therefore dates from the date of the first delivery of materials after June 29, 1926, to wit, July 2, 1926, and said lien is inferior to the lien of said mortgage of The Falls Savings & Loan Assn.

While it is true that a period of seven months elapsed between the last and the next preceding item of said account and that but for the last item no lien could have been per-, fected, we find that Brumit knew of the purpose of said last transaction and acquiesced in it and is bound thereby, and as we have already found, for the reasons hereinbefore stated, that it does not affect the rights of the Loan Co., it is not necessary to determine the question of the validity of the lien as against the Loan Co.

We do not find that the mortgage of The Falls Savings & Loan Assn, is invalid because it was acknowledged before a notary who was a stockholder, but not an officer, of the company, and was witnessed by a person who was the secretary of the company.

Reed v. Loan Co., 68 OS. 280.

A decree may be drawn in accordance with this decision.

(Funk, J., and Pardee, J., concur in judgment.) •


author: SULLIVAN, J.

text:
    HROVAT v. KRALL.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    Decided Oct. 31, 1927.
    Syllabus by Editorial Staff.
    257. COMMISSION — For Sale of Real Estate — 182. Brokers — Broker not entitled to commission unless seller and buyer, whom he procured, enter into contract which is valid and enforcible.
    Error to Municipal Court.
    Judgment affirmed.
    S.J. Deutsch and Leopold Kushlan, Cleveland, for Hrovat.
    Harry F. Glide, Cleveland, for Krall.
    STATEMENT OF FACTS.
    There were two causes of action based upon what is claimed to be a valid and endoreible contract in wiiting, under the provisions of which it was stipulated that each party was to pay the agent a commission of $200 and if either party backed out of the deal, such party was to pay both commissions., The terms of the contract related to an exchange of equities in certain real estate located in the City of Cleveland.
    Under the terms of the contract, by an analysis thereof, there was a difference in equities amounting to $700, but there was no provision whatsoever as to how this sum of money was to be paid, or the manner in which it was to be paid, whether it was to be in cash by one payment or in numerous payments, or whether it was to be paid in installments evidenced by promissory notes or other proofs of indebtedness. On these matters the contract is absolutely silent, thus showing that upon a material and vital element in the contract there was no meeting of the minds.
   OPINION OF COURT.

The following is taken, verbatim, from the opinion.

SULLIVAN, J.

It is claimed that Carey, Admr. v. Conn, 107 OS. 113, governs. There is nothing in this holding which does violence to the general proposition of law that the broker or agent must bring the parties dealing together, and in order to bring them together in the transaction, their minds must meet on all material points involved in the transaction.

On page 11 the court, in Pfanz v. Humburg, 82 OS. I quote frqm Wilson v. Mason, 158 Ill., 304, 311 as follows:

“The true rule is that a broker is entitled to his commission if the purchaser presented by him and the vendor, his employer, enter into a valid, binding and enforcible contract * * * An agreement by a real estate broker to procure a purchaser not only implies that the purchaser shall be one able to comply, but that the seller and the purchaser must be bound to each other in a valid contract.”

It is our unanimous judgment that the court committed no error in sustaining the motion for judgment on the ground that the contract, which is the basis of the action, was unen-forcible by reason of its invalidity.

(Levine and Vickery, JJ., concur.)


text:
    ZIZELMAN v. UNION TRUST CO.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    J. H. Sampliner, Cleveland, for Zizelman.
    Tolies, Hogsett & Ginn, Cleveland, for Un. Tr. Co.
    1223. VACATION — 256. Comity — 969a.. Public Funds.
   SULLIVAN, PJ.

1. Where petition to vacare order allowing claim by Board of County Commissioners for deposit of public funds against loan company in hands of receiver, and to disallow claim, was brought by depositor of loan company some two years after judgment allowing claim in receivership proceeding in which depositor was represented as creditor, such judgment un-reversed, unmodified, and unappealed from on same issues between same parties, held bar to proceedings,, in absence of allegations of fraud, mistake, or irregularity in the original judgment.

2. Statutes relating to vacation of judgments for mistake, fraud, or irregmlarity in original judgment are not basis for proceedings to disallow claim brought two years after re-ceiveiship proceedings in which claim was allowed, and in which plaintiff was represented as creditor and could have objected to claim or have reviewed judgment allowing it.

3. Foreign corporations or individuals, in absence of disabling statute, may sue in courts of this country on principles of comity.

4. Sections 2722, 2723 GC. providing that no award of county funds shall be binding on county, nor shall county’s money be deposited until certain securities are hypotehcated or' bond given, held inapplicable in determining validity of claim by Board of County Commissioners for deposit made with loan company,, since commissioners did not cease to be creditors of loan company whether deposit was legal or illegal.

5. Where Board of County Commissioners had valid claim against loan company in hands of receiver for deposit of public funds, it had right to assign claim for valuable- consideration, and court could in receivership proceeding protect rights of county, since Board of County Commissioners was creditor of loan company.

6. Where Board of County Commissioners deposited public funds with loan company, trust was created in favor of county entitled to preference in funds held by receiver of loan company, whether deposit was legal or illegal.

7. In order to find prefeience in favor of county for public funds deposited with loan company in hands of receiver, it would only be necessary to trace funds.

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

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


author: YOUNG, J.

text:
    BURKHARDT v. HANCOCK.
    Ohio Appeals, 6th Dist., Lucas Co.
    G. H. Lewis and W. H. MeLellan, Toledo, for Buikhardt.
    Miller, Brady, Yager & Leidy, Toledo, for Hancock.
    225. CHARGE OF COURT.
   YOUNG, J.

Failure to charge that plaintiff would not he barred by negligence of wife driving automobile colliding with defendant’s automobile unless she was his agent, not excepted to or requested to be charged before submission of •case to jury, held not reversible error.

(Richards and Williams, JJ., concur.)

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


text:
    HOPPLE v. CLEVELAND DISCOUNT CO.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    Thompson, Hiñe & Flory, Cleveland, for Hopple.
    Squire, Sanders & Dempsey, Cleveland, for Discount Co.
    652. INTERIM CERTIFICATES — 831. Negotiable Instruments.
   SULLIVAN, J.

1. Where interim certificates of Discount 'Company were indorsed by owner and delivered to another, who sold them to innocent purchaser for value, innocent purchase acquired title, regardless of bad faith of original •transferee in procuring certificates.

2. Where owner of interim certificates issued by Discount Company intended to pass •title to them, by indorsement and delivery, .form of transfer was immaterial.

3. Indorsement and delivery of Discount 'Company’s interim certificates by owner to ■transferee acting in bad faith held not void.

4. Acknowledgment of receipt of seeur- • ities represented by interim certificates of Dis- . count Company at time when Discount Com- ■ pany retained possession of securities, made in conformity with regular methods pursued 'by holders of securities and brokers, held not • to affect title of innocent purchaser for value of interim certificates from transferee of ' holder.

5. Title to interim certificates representing securities held subject to transfer by in-, • dorsement and delivery, whether treated as in- • tangible ehoses in action, or as personal prop- ■ erty.

6. Where an instrument is in nature of a chose in action, bona fide purchaser takes it free from collateral equities, notwithstanding fact that he may he subject to defenses by obligor to which original owner was subject.

7. Interim certificates, obligating Discount Company to deliver securities represented thereby to another, or her order, indicate that they were negotiable instruments, since words “or ■ order” give holder right to transfer same to third persons, who may enforce them against'first owner of paper.

8. ' -Indorsements in, blank by payee of interim certificates and- delivery thereof to another for valuable considerations, was sufficient' to' transfer title to certificates, which could not be rescinded after transferee sold certificates,to innocent purchaser for value.

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

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


author: HOUCK, PJ.

text:
    KNOX COUNTY FARM BUREAU v. WAGNER.
    Charles L. Bermont, Mt. Vernon, for Farm Bureau.
    L. C. Stillwell, Mt. Vernon, for Wagner.
    225. CHARGE OF COURT.
   HOUCK, PJ.

1. In action to recover membership dues to Farm Bureau Federation, charge requnipg certain findings to prevent recovery by plaintiff, but failing to define issues to be determined by jury, or explain questions of fact in dispute, was not proper or legal charge, and was prejudicial error.

2. Charge to jury should state facts raised by pleadings clearly and definitely so as not to be misconstrued by jury.

(Shields and Patterson, JJ., concur.)

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


author: MAUCK, J.

text:
    KOELBLE, Admr. v. RUNYAN et.
    Ohio Appeals, 4th Dist., Brown Co.
    Bagby & Bagby, Georgetown, for Koelble.
    Rufus L. & Arthur S. Fite, Georgetown, and Hugh M. Davidson, for Runyan et.
    516. FEES AND COSTS — 473. Estates— 460. Equity — 681. Jurisdiction.
   MAUCK, J.

1. Where a claim against an estate which is rejected upon a requisition being filed, under Section 10724 et seq., GC., is finally defeated, costs are taxed to the claimant.

2. Where claims against estate is contested by heir filing requisition for rejection with Probate Court, under Section 10724 et seq., GC., and claim is finally sustained, costs are taxed against the requisitor, under 10726 GC.

3. Where claim against an estate which is contested by an heir filing a requisition for rejection in the Probate Court is sustained only in part the costs are awarded against the administrator and the claimant is entitled to his costs.

4. Sections 10724 and 10726 GC,, providing that where a requisition for rejection of a claim against an estate if filed with the Probate Court and plaintiff recovers judgment that costs shall be awarded against persons filing requisition, held applicable only wheie claim is allowed in full, or at least to such extent as to show that resistance thereto was captious or unwise.

5. Courts of law have no power to tax attorney’s fees unless the power is conferred by express statutory authority.

6. A court of equity has the power and duty to allow counsel fees to a party who brings into court a fund which is to he enjoyed in part by others.

7. Equitable issues can be submitted to a jury.

8. The essential character of equitable litigation is not changed by the fact that the case is tried to a jury.

9. In view of 10492 GC., and Art. IV, Sec. 8, Constitution, the Common Pleas Court cannot make an order controlling the distribution of the funds of an estate which are in the custody of the Probate Court.

10. Under Art. IV, Sect. 8, Constitution and 10492 : GC., the claim for attorney’s fees expended by an heir in contesting with partial success a claim against the estate by filing requisition for rejection in the Probate Court should be presented to the Probate Court for allowance and cannot be allowed by the Common Pleas Court.

11. Allowance of attorney’s fees by Common Pleas Court to heir who contested claim against estate with partial success after filing requisition for rejection in Probate Court held void, such allowance being within the exclusive jurisdiction of the Probate Court, in view of Art. IV, Sect. 8, Constitution and 10492 GC.

12. Where an heir filed a requisition for rejection of claim against an estate and contested the claim with partial success, held, that she was entitled to an allowance from the Probate Court for attorney’s fees.

(Middleton, J., concurs. Sayre, PJ., not participating.)

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


text:
    CONKLE v. CITY OF BELLEVUE.
    Ohio Supreme Court.
    No. 19725.
    Decided Dec. 21, 1927.
    Error to Sandusky Appeals.
    Judgment reversed.
    103. ASSESSMENTS — Sec. 12075 GC. provides a concurrent remedy under facts and circumstances of this controversy. (See Conkle v. Bellevue, OA. 4 Abs. 299.)
    Mr. Allen G. Aigler,1 Bellevue, for plaintiff in error., :
    Mr. Kenneth P. Fox, Bellevue, for defendant in error.
   It is ordered and adjudged by this Court that the judgment of the Court of Appeals of Sandusky county be and the same hereby is reversed. In the opinion of a majority of this Court, Section 12075 of the General Code provides a concurrent rem'edy under the facts and circumstances of this controversy. It is therefore ordered that said cause be remanded to the Court of Appeals of Sandusky county for further proceedings according to law.

(Marshall, CJ., Allen, Kinkade and Robinson, JJ., concur.)


author: BY THE COURT!

text:
    DUGAN v. STATE.
    Ohio Supreme Court.
    No. 20537.
    Decided Dec. 21, 1927.
    Error to Green Appeals.
    Judgment affirmed.
    Syllabus by Editorial Staff.
    681. JURISDICTION — 751a. Mayors — Decision in Turney case does not apply to mayor, compensated by annual salary, who receives no part of assessed cost.
    Frank L. Johnson, Xenia, for plaintiff in error.
    J. A. Finney, Xenia, city solicitor, for defendant in error.
   BY THE COURT!

M. J. Dugan was arrested upon a charge of unlawful possession of intoxicating liquors and arraigned and tried before the mayor of the city of Xenia, the county seat of Greene county, Ohio. Before any evidence was introduced the defendant orally objected to the introduction of any evidence for the reason that the mayor was without jurisdiction to hear and determine the issues in the case. No specific grounds of want of jurisdiction were urged. The objection being overruled the case proceeded to trial and the defendant was found guilty and a fine was -assessed. Error was thereupon prosecuted to the Court of Appeals, where the judgment was affirmed, and upon error being further prosecuted to the Court of Appeals the judgment in the Common Pleas and the mayor’s court were affirmed. The case was heard in the Court of Appeals on April 16, 1927, and thereupon for the first time it was urged that the mayor was disqualified on the grounds of the decision in the case of Turney v. State, ... U. S....

The mayor of Xenia is a salaried officer and does not participate in the costs collected in misdeameanor cases. All such costs are paid in the funds of the city of Xenia. It does not appear in this record that the court of the mayor of the city of Xenia has any of the features referred to in the opinion of the United States Supreme Court in the Turney case, whereby the cause of justice was commercialized, and it further appears that the offense for which Dugan was tried was committed within the limits of the city of Xenia. The amount of fines collected annually on convictions before the mayor of Xenia in liquor cases does not appear. It is insisted that even though the mayor was a salaried officer this case comes within the second of the conditions referred to by the Supreme Court in the Turney Case, viz., that the mayor had in mind the financial needs of the city. Upon this point the Court of Appeals in affirming the conviction said:

“This reference, however, was in our judgment incidental and did not of itself amount to a disqualification of the mayor, but was a circumstance which accentuated the personal interest of the mayor under the scheme provided by the so-called Crabbe act. To hold because fines are paid into the city treasury would break down the legitimate functions of the non-commercialized courts of the state. To so construe the decision of Judge Taft would affect the jurisdiction not only of mayors operating upon a fixed salary, but municipal court judges, and might even extend to the Common Pleas and Probate judges where the fines are paid into the county treasury. _ We are clear that this interpretation is not justified by the decision of the Supreme Court of the United States in the Turney Case.”

To those pertinent comments we may add that if we should adopt the arguments of counsel for accused persons in the cases recently submitted, it would result that a Common Pleas judge would be disqualified to sit in judgment upon a very large number of cases in the county of his residence, and in which he pays taxes, where taxes, assessments, licenses and franchises are involved, and where general property rights common to all property owners, including the judge, are involved. In all such cases it would be necessary to obtain a judge from another judicial district. In any such case prejudice would be conclusively presumed and the prejudiced party could submit to a trial without objection or question, and if the decision be favorable he could claim the benefit of res adjudicata, and, if unfavoiable, could then plead it as null and void, declaring the court to be without jurisdiction of the subject-matter, and enjoin its enforcement in a collateral attack without even resorting to the inconvenience and expense of an error proceeding-. We agree with the Court of Appeals that this feature of the case was incidental only, and was intended to apply to those courts which were shown to be commercialized, and should not be made to apply to a mayor compensated by a fixed annual salary, and receiving no part of the assessed costs, who is conducting a court in the trial of misdemeanors committed within the confines of his own city or village.

For the reasons stated the judgment of the Court of Appeals in this ease will be affirmed.

(Marshall, CJ., Day, Allen, Robinson and Matthias, JJ., concur. Jones, J., concurs in the judgment.)


text:
    STATE ex DAVIS v. INDUST. COM.
    Ohio Supreme Court.
    No. 20699.
    Decided Dec. 21, 1927.
    In Mandamus.
    Writ allowed.
    Syllabus by Editorial Staff.
    1283. WORKMEN’S COMPENSATION-631. Industrial Commission — Where injured employe of employer of more than five persons, who is not a self insurer nor subscriber to the State Insurance Fund receives allowance from Industrial Commission,, ' such allowance must be paid out of reserve fund regardless of whether or not amount can be collected from employer.
    Messrs. Smoyer & Smoyer, Akron, and Mr. Stanley S. Stewart, Columbus, for relator.
    Mr. Edward C. Turner, attorney general, and Mr. R. R. Zurmehly, for defendant.
   BY THE COURT.

This is an action in mandamus instituted in this court. ■ The petition of the relator contains the following facts: On May 27, 1924, the relator was an employe of an- employer employing five or more workmen. The employer was not a subscriber to the state insurance fund nor a self-insurer under the Workmen’s Compensation laws of the state. On the date aforesaid the relator received personal injuries while engaged in the scope of his employment. _ He made application to the Industrial Commission for compensation and on the 21st day of November,'1924, the commission found that he had sustained the injuries complained of, and that the employer, employing five or more workmen at the time of the injury, was neither a self-insurer nor a subscriber to the state insurance fund. It found that the relator had suffered a temporary total disability for seven weeks, for which an allowance was made in the sum of $116.69, and a further allowance made in the sum of $1,667 for the loss of an eye, resulting from his injury.

Thereafter the attorney general on 'behalf of the relator began an action in the Summit County Court of Common Pleas against the employer to recover the compensation ■ so awarded, together with a penalty on the amount awarded. This action resulted in a judgment against the employer in the sum of $2,675.53 on behalf of the relator. From that judgment no error or appeal has been' prosecuted. The employer at the date of the judgment was, and ever since has been insolvent and unable to respond to execution. '

The petition further alleges that in compliance with the Workmen’s Compensafion law, particularly Section 1465-74, General Code, the Attorney General certified to the commission his _ inability to collect the judgment; in whole or in part, and that, notwithstanding the foregoing facts, the commission has (ailed and refused to pay to the relator the amount of his. judgment, or any part thereof, a duty which is claimed by the relator to have been imposed upon the commission, by virtue of Section 1465-54 and Sections 1465-74 and 1465-75, General Code. It is alleged by the relator that the commission has in the surplus fund under its control more than sufficient to pay the judgment. The relator asls for a writ of mandamus commanding the ccmmission to pay the relator the amount of said judgment and for all other and proper relief.

The commission filed an answer containing two defenses. In the first defense all of the facts contained in the petition are substantially admitted. The second defense pleads, in substance, that since May 17, 1927, because of the amount of work on hand, it'has been unable to conduct the proceedings required of it under Section 1465-75, General Code, and that its regular, daily work consists of such a vast number of hearings as to preclude giving attention to the relator’s claim.' The answer further alleges that the commission “will as soon as possible take' the proceedings required by said section in connection therewith.” The respondent asks that the alteriative writ of mandamus heretofore issued b> quashed and "'that the relator’s petition be dismissed.

The constitutional questions arising in this case were heretofore determined by this court in State, ex rel. Williams v. Industiial Commission, 116 Ohio St., 45, and it is futile to rediscuss them at this time. It may, however, he briefly noted that our Workmen’s Compensation Law constitutes one composite scheme, having in contemplation the payment of compensation to all employes of employers employing five or more workmen, whether such employer has or has not complied with the Workmen’s Compensation Law of the state.

Section 1465-54, General Code, provides for the' creation and maintenance of a surplus fund. Section 1465-74, Geneial Code, provides in substance that an “employe whose employer has failed to- comply with the provisions of Section 1465-69” may file his application with the commission for compensation, and that the commission may make an award to the claimant for such amount as he would be entitled to receive if his employer had complied with the law. The section thereupon requires the Attorney General to institute a civil action against the employer for the collection of the award, and, if the Attorney General certifies that such awaid cannot be collected in whole, the section requires that “the award shall be paid from the surplus created by Section 1465-54,” etc. Sections 1465-74 and 1465-75, General Code, were contemporaneously passed by the General Assembly on March 25j 1925, and incorporated in the same act (111 Ohio Laws 222). The scheme of compensation thereby adopted and embraced in the two sections relates to the payment of compensation out of the surplus fund in cases wheie the employer has not complied with the compensation laws in respect to the payment of premiums. The act of March, 1925, comprising Sections 1465-74 and 1465-75, General Code, embodies in its scheme of conroensation both payment of premiums and compensation for injuries suffered “after January 1, 1923.” In subsection 75 reference is twice made to subsection 74 of the same act, and construing them both in pari materia they show a legislative put pose to protect, after January i, 1923, the employe of an employer employing five or more workmen, where the employer has not complied with the Workmen’s Compensation Law; and whether the Attorney General certifies that a premium cannot be collected from an insolvent employer under subsection 75, or certifies that an award cannot be collected uncter subsection 74, it is evident that the manifest intention of the General Assembly was tc provide that in either case, after January 1,1923, an employe who had suffered injuries should be compensated out of the surplus in the state insurance fund. Any other construction would tend to produce a legislative parados.

One defense of the.respondent in this case is that “it has been unable at any time since the 17th day of May, 1927, to conduct any of the proeeedmgs required of it by Section 1465-75, General Code.” Those proceedings seem to relate chiefly to the collection of premiums from employers, and their main purpose is to recoup the state insurance fund by a recovery of premiums in a suit brought by the Attorney General. Ihe employe himself is not interested in tht result of that suit. His claim for compensation rests upon the statute whute requires payment out of the surplus fund in case of the employer’s insolvency.

As it is admitted by the pleadings that the judgment secured on behalf of the relator was rendered at the September term, 1925, and since about two years have elapsed without payment to the relator of the compensation secured by that judgment, it is our opinion that a writ should issue in favor of the relator for the payment of the judgment out of the surplus fund. The writ is allowed.

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


text:
    SALISBURY TRANSP. CO. v. P. U. C.
    Ohio Supreme Court.
    No. 20735.
    Decided Dec. 28, 1927.
    Error to Public Utilities Commission.
    Order affirmed.
    Syllabus by Editorial Staff.
    973. PUBLIC UTILITIES COMMISSION— Court will not disturb findings of, where record shows order, in denying application, was not unreasonable nor unlawful.
    Messrs. Brown & Reed and Messrs. Postle-waite & Bricker, Columbus, for plaintiff in error.
    Mr. E. C. Turner, attorney general, and Mr. A. M. Calland, Columbus, for the Public Utilities Commission.
    Mr. Curtis M. Shetler for The Stark Electric Railroad Co., protestant.
    Mr. D. H. Armstrong for Mr. Albert B. Schneider and Mr. Joseph F. Eberhaid, protestants.
   BY THE COURT.

This case originated before the Public Utilities Commission, on the application of plaintiff in error, the Salisbury Transportation Company, for an amendment of its two certificates, one authorizing an operation between Canton and Alliance, and the other between Canton and Louisville, an intermediate point, so as to authorize it to establish new time schedules between said termini. The effect of such application, if allowed, would be to permit, by bus connection under the schedules applied for, continuous service between Canton and Alliance, where theretofore a modified local service had obtained. Protests against the granting of the application were duly filed.

The commission, as disclosed by its order, was of opinion that the granting of the present application would emasculate its former order covering the same territory, made about three months previously, and therefore denied the present application of the plaintiff in error, whereupon error was prosecuted to this court.

The questions presented to the Public Utilities Commission, and now upon error to this court, lie in the domain of fact, and no legal questions are herein presented that have not been heretofore determined by this court. Upon this record this court cannot find that conditions have materially changed since the commission made its previous order, nor that the commission’s order in denying the application of the Salisbury Transportation Company for the establishment of the new time schedules was unreasonable or unlawful; neither can we find that the public necessity and convenience in the territory sought to be served require the establishment of the new time schedule applied for, under present conditions, and in view of the existing service prevailing between Canton and Alliance and between Canton and Louisville.

The older of the commission will be affirmed.

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


text:
    COLUMBUS, DEL. & MAR. ELECT. CO. v. P. U. C. BEBOUT v. P. U. C. BUCKEYE STAGES INC. v. P. U. C.
    Ohio Supreme Court.
    Nos. 20738-39-40.
    Decided Dec. 21, 1927.
    Error to P. U. C.
    Order affirmed.
    Ralph H. Sanborn, Cleveland, and Geo. T. Poor, Cincinnati, for Buckeye Stages, Inc. and Bebout; Wm. P. Moloney, Marion, for C. D. & M. Elect. Ry. Co.
    E. C. Turner, Atty. Geni, and A. M. Cal-land, Columbus, for P. U. C.
    Syllabus by Editorial Staff.
    973. PUBLIC UTILITIES COMMISSION —Court will not disturb findings of, on questions of fact, unless same are manifestly against weight of evidence.
    STATEMENT OP PACTS.
    W. P. Reynolds is the owner and holder of a certificate of public convenience and necessity, authorizing motor transportation from the city of Mansfield in Richland county to the city of Delaware in Delaware county, passing through the city of Mt. Gilead in Morrow county. Said Reynolds filed an application with the Publie Utilities Commission of Ohio for an extension of his operation, so that he would be entitled to operate, in addition to his present operation, a motor transportation line from a point about a mile and a half or two miles south of Mt. Gilead, over various highways, into the city of Columbus.
    Pursuant to the statute, notices were sent by the Commission to various companies, four of which filed protests against granting of the extension applied for.
    On hearing, the Commission granted the application of said Reynolds for the extension of his route.
    Motions for rehearing were filed by three of the four protesting companies, the fourth apparently being satisfied with the findings of the Commission in the line of certain restriction. Upon a denial of these applications for rehearing, error was prosecuted by the three protesting companies.
   OPINION OP COURT.

The following is taken, verbatim, from the opinion.

BY THE COURT.

The third and paramount ground of reversal claimed is that this extension was establishing a new transportation operation between Mansfield, Mt. Gilead and Columbus, without any showing made that public convenience and necessity demanded or required such operation. This ground is, therefore, based upon a determination of a question of fact and goes to the weight of the evidence.

The Commission would be justified in .granting this extension if the preponderance of the evidence showed that the public affected by such proposed extension did not have adequate common carrier transportation service and that the granting of such extension would serve the convenience and necessity of the general public and eliminate the inadequacy and inconvenience of such lack of service, the needs of the public being the primary consideration.

The Public Utilities Commission apparently found that the publie to be served by the proposed extension has not adequate common carrier transportation service; that there was a public convenience to be served and a necessity for such services.

Such being its conclusion and there being evidence sufficient to sustain the same, we cannot substitute our judgment for that of the Commission. Entertaining these viees, it is our conclusion that findings and order of the Commission are neither unreasonable nor unlawful and the same are therefore affirmed.

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


author: ROBINSON, J.

text:
    INDUST. COM. v. KAMRATH.
    Ohio Supreme Court.
    No. 2067.
    Decided Jan. 11, 1928.
    Error to Montgomery Appeals.
    Judgment reversed.
    1283. WORKMEN’S COMPENSATION—
    1. Rights of ininred employes and dependents of killed employes, to participate in state insurance fund, limited to those conferred by statute.
    2. Statutes in force at time cause of action accrues are measure of such participation.
    3. Cause of action of injured employe accrues at time of injury and of depend~nts of killed employe at time of death of employe.
   ROBINSON, J.

1. The rights of injured employes and the dependents of killed employes to participate in the states insurance fund are such, and such only, as are conferred by statutory law.

2. The provisions of the General Code relating to compensation of injured employes or the dependents of killed employes in force at the time the cause of action accrues are the measure of the right of such employes and dependents to participate in the state insurance fund.

3. The cause of action of an injured employe accrues at the time he receives an injury in the course of his employment.

4. The cause of action of a dependent of a killed employe accrues at the time the employe dies from an injury received in the course of his employment.

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


author: KINKADE, J.

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

      COLUMBUS & ZANES. TRANSP. CO. v. P. U. C.
    Ohio Supreme Court.
    No. 20728.
    Decided Jan. 18, 1928.
    793. MOTOR VEHICLES. — Misrepresentation, by persons desiring to operate a bus line, as to incorporation and capital stock, in statements as to their proceedings to obtain a certificate of public convenience, justify the Public Utilities Commission in refusing such commission or in recalling and cancelling it if one has been issued.
    Error to the P. U. C.
    Order affirmed.
   KINKADE, J.

When an association of individuals desires to operate a designated bus line as a common carrier of passengers, and to do this under a corporate name which they have adopted and stated in articles of incorporation which they have filed with the secretary of state, and have filed an application with the Public Utilities Commission for the issue of a certificate of public convenience and necessity for such operation in which application it is stated that they were on the date therein named a body corporate, a motor transportation company acting in good faith as such, when in fact they had on said date issued no capital stock, had no stockholders, no board of directors nor any legally elected officers, such misrepresentations of fact will justify the Commission in refusing such certificate, or if one has been issued, relying on the truth of such application, the Commission, on proof of such falsity, has full power to recall and cancel such certificate.


author: MIDDLETON, PJ.

text:
    SEYMOUR et v. STATE.
    Ohio Appeals, 4th Dist., Pickaway Co.
    Decided Dec. 7, 1927.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    193. BURGLARY — 705. Larceny — 1265. Weight of evidence — Facts, that building was burglariously entered, goods stolen therefrom and the possession by accused, soon thereafter, of goods stolen, are competent evidence to go to jury, and, in connection with other circumstances, indicative of guilt, may afford strong presumption of fact of guilt of accused and warrant jury in finding him guilty of both burglary and larceny. Methard v. State, 19 'OS. 363 approved and followed.
    Error to Common Pleas.
    Judgment affirmed.
    Irwin F. Snyder, Cireleville, for Seymour.
    E. A. Brown, Cireleville, and F. N. R. Red-fern, Adelphi, for State.
   FULL TEXT.

MIDDLETON, PJ.

The plaintiffs in error were charged under an indictment in the Court of Common Pleas with the crime of burglary and larceny and on trial to a jury in that court were found guilty of said charge. The indictment aforesaid charged in substance that said plaintiffs in error in the night season of the seventh day of March, 1927, did unlawfully break and en-iter a certain poultry house and did unlawfully steal and carry away from said house thirty-nine chickens of the value of $44.16.

The only contention made in this proceeding is that the verdict of the jury so as aforesaid returned was and is not supported by sufficient evidence. The record of the trial is one of unusual length and we regard it as unnecessary ■to discuss in detail the incriminating circumstances testified to by the witnesses called by the state in the trial. It is sufficient to say that it was the privilege and right of the jury to weigh the evidence and to act upon the same as they saw proper. If the jury believed all of the testimony of the witnesses presented by the state the evidence so adduced fully warranted the conclusion .that the plaintiffs in ■error were guilty of the larceny of the chickens described in the -indictment. The evidence in respect to the charge of burglary, however, is very limited and consists largely of the proof that the chicken house in question was forcibly broken open and that this breaking would only be necessary in the night season for the reason that during the day the chicken house was kept open. It appears that there were two openings in this chicken house, one ■being a window and the other a door described by one witness as being about five and a half by three feet. This door the evidence shows was locked each night and- opened the next morning. It was further shown in the evidence that the property in question was located near a public highway and that it was within plain • sight of - people residing in that locality, the nearest resident thereto living about one-quarter of a mile from the scene of the alleged crime. The evidence further shows that the building was probably entered through the window, from which had been torn a wire netting and the glass in the window broken. It is also in evidence that the tracks of a motor vehicle were discovered, indicating that said vehicle had been backed from the public road in question up against a fence near the chicken house, and human tracks were to be seen leading from the chicken house to the machine described. Under this state of the evidence this court is not justified in saying that from the facts mentioned the jury were clearly wrong' in determining that a burglary was committed when the chickens were stolen. It is said in the case of Methard v. State, 19 OS. 363, 368:

“The facts that a building was burglar-iously entered, goods stolen therefrom, and the possession by the accused soon thereafter of the goods stolen, are competent evidence to go to the jury and, in connection with other circumstances, indicative of guilt, such as giving a false account or refusing to give any account of the manner in which or the means by which he came into possession of the stolen goods, they may afford a strong presumption of fact of the guilt of the accused and warrant the jury in finding him guilty of both the burglary and larceny.”

The plaintiffs in error undertook to account for their possession of- certain chickens which were sold by them to a dealer on the eighth day of March, 1927, and claimed that the chickens so sold were the property of the mother of one of them, and were supported in this contention by the testimony of several witnesses. It appears, however, that such testimony in some very material matters was not as convincing as it- might be and was not corroborated by other witnesses as it might fairly be expected it would be. For instance, the rental contract between the mother of the plaintiff in error mentioned and one William McGinnis, who was the owner of the property on which the mother resided at the time she is alleged to have sold these chickens, provided as she stated that she was to have all incubator chickens which she might purchase. The purpose of this testimony is evident. It was given to account for the fact that she was able to dispose of so many chickens without the knowledge of her landlord. On the witness stand, however, McGinnis denied that there was any understanding of that sort and insisted that she was to raise chickens on the halves and he was to furnish the feed.

Without going further into the details of all’ the evidence in this case it is sufficient to say that under the well settled rule that the verdict must be clearly wrong before a reviewing court may interfere on the ground that it is-against the manifest weight of the evidence,, we are impelled to affirm the judgment.

(Mauck, J., concurs.)


author: WILLIAMS, J.

text:
    UNION SAVINGS BANK v. DEPT. of COMMERCE.
    Ohio Appeals, 6th Dist., Williams Co.
    No. 165.
    Decided Dec. 12, 1927.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    126. BANKS AND BANKING — 216. Certificates — of Deposit — Where bank receives; certificate of deposit issued by it, marks it paid and pays it by issuing draft on another bank, and, before draft is paid, is taken over by, State banking department for liquidation,, holder of draft has preferred claim against assets of closed bank.
    Appeal from Common Pleas.
    Decree for nlaintiff.
    D. A. Webster, Bryan, for Un. Sav. Bank.
    E. C. Turner, Atty. Geni., L. P. Laylin and J. A. Godown, Columbus, and H. H. DeMuth,, Bryan, for Dept, of Commerce.
   PULL TEXT.

WILLIAMS, J.

This cause comes into this court on appeal from the Court of Common Pleas. The agreed statement of facts and the evidence discloses the following:

Peter Contit and his wife, Sadie Contit, deposited with the plaintiff, The Union Savings Bank of Bryan, Ohio, certificates of deposit, issued by the State Exchange Bank of Stryker, Ohio, aggregating $1,180.44, and there was issued therefor to Contit and his wife certificates of deposit on The Union Savings Bank for $1,145.00. The Union Savings Bank forwarded the said certificates issued by the State-Exchange Bank to The Ohio Savings Bank & Trust Company at Toledo, which in turn forwarded them to the Federal Reserve Bank at. Cleveland, which in turn forwarded them to the State Exchange Bank at Stryker, “with notice to collect and remit as provided by the rules and laws governing the banking business.” Upon receipt of the certificates the State Exchange Bank, by rubber stamp, marked the certificates paid and drew a draft, upon The Farmers’ National Bank of Bryan, Ohio, in payment thereof and forwarded it to the Federal Reserve Bank at Cleveland, which in due course of business mailed the draft to the Farmers’ National Bank at Bryan. On the same day that the latter bank received' the draft it also received notice from the Superintendent of Banks not to honor the draft for the reason that the State Exchange Bank of" Stryker had been taken over by the State Banking Department for liquidation. The Farmers’ National Bank refused payment of the draft and it was protested and returned to the Federal Reserve Bank. There were-sufficient funds in the possession of The Farmers’ National Bank to pay the draft at the time it was received and at the time the notice was given as aforesaid by the Superintendent of Banks.

The plaintiff in this case seeks to have its claim for the amount of the certificates of the State Exchange Bank adjudged and decreed to be a preferred claim against the assets of that bank.

Most of the eases cited by counsel dwell upon the question whether or not a hank which receives from a forwarder for collection drafts drawn on claims against a third person and •collects money thereon from such third person to he remitted to the forwarder, is agent •or debtor of the forwarder. These cases are not strictly applicable to the case at bar for we have presented to us the question whether •or not there is a trust in the proceeds of a collection made by a collecting bank by marking “paid” certificates of deposit issued by it, charging the debtor’s account therewith and forwarding draft on another hank for -the amount of the proceeds. In other words, in the instant case the hank received certificates •of deposit issued by it and paid them by issuing a draft on another bank. The question presented is, did the relation of debtor and creditor or that of principal and agent arise between the owner of the certificates and the bank issuing the draft. If the relation of principal and agent arose, there was a trust relation as to the proceeds.

It is true that a majority of the early cases take the view that the relation of debtor and •creditor arises after the collection has actually been made by charging the debtor’s account and issuing a draft for the amount of the collection. The recent cases, however, have generally held that after that is done a trust relation exists.

Federal Reserve Bank of Richmond v. Peters, 139 Va., 45; 123 S. E., 379;

Bank of Popular Bluffs v. Millspaugh, etc., 315 Mo., 412; 281 S. W., 733; 47 A. L. R., 754.

In the annotations to Bank of Poplar Bluffs v. Millspaugh, supra, and those found in 24 A. L. R., 1152 and 42 A. L. R., 754, the authorities are collected and the annotator and compiler points out correctly, as we believe, the trend of modern authorities upon this question.

Our investigation leads us to believe that reason and weight of authority sustains the rule that there is a trust relation, although a majority of the early cases held to the contrary. The question was an open one in Ohio at the time the transaction in question occurred. Since that time, however, the General Assembly of Ohio has provided that under such circumstances the assets of a closed bank shall be impressed with a trust for the payment of the draft. G. C. Section 713.

As the question was an open one in Ohio, we have taken the position that this court ought to adopt the rule which is most salutary and best supported by considerations of equity and justice. The defendant has cited G. C. Sections 8232 and 8294, under which a bill of exchange does not operate as an assignment of a fund until accepted, nor a check until it is accepted or certified. We think these sections are not of controlling importance in the instant case.

For the reasons indicated it will be ordered and adjudged that the claim of the plaintiff shall be a preferred claim upon the funds of the bank in litigation in the hands of the superintendent of banks.

(Richards and Lloyd, JJ., concur.)


author: VICKERY, J.

text:
    STATE ex Falotico v. COMMISSIONERS OF CUYAHOGA CO. et.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 6775.
    Decided Oct. 25, 1926.
    First Publication of this Opinion.
    701. LACHES — Where action in mandamus; by civil service employe, to compel reinstatement and collect back wages, is not commenced úntil five years after alleged wrongful discharge, writ will be refused.
    In Mandamus.
    Writ denied.
    James Metzenbaum, Cleveland, for State ex.
    Donald Kennedy, Cleveland, for Commissioners.
   FULL TEXT.

VICKERY, J.

This is an original action in mandamus asking the Court of Appeals to compel the County Commissioners to restore the complainant to his position as janitor of the Court House and order the County Auditor to draw a warrant for his pay.

He alleges in his petition that he was under Civil Service and had been employed by the County Commissioners as janitor of the Court House and we gather from this petition that for some reason or other he was discharged on the 15th day of February, 1921, and he seeks by inuendo to claim that he had been as a matter of fact in the employ of the County ever since that time.

It' will be noted that he filed his petition in mandamus in August, 1925, more than four or five years after his so-called “letting out of his job.”

The prosecutor representing the defendants filed an answer in which se sets up the laches of this complainant in that he made no effort to be reinstated; that he filed no petition in mandamus or otherwise during all these years; and that now he seeks not only to be reinstated into his office, but seeks to have this court issue a writ of mandamus' compelling the Auditor to draw a warrant on the County Treasurer for between four and five years’ pay at $110 a month, when he made no effort to he reinstated during any of the time prior to the filing of this suit, when nearly five years had elapsed from the so-called wrong done, if there was any done, and the seeking of his remedy.

We think under the circumstances the court would not be justified in issuing a writ of mandamus. If he had any right he slept on it too long to ask the court now to grant the extreme writ of mandamus and ask the County Auditor to pay him for five years’ work.

The writ will, therefore, be refused.

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


author: LLOYD, J.

text:
    ZEIS v. KAECHELE.
    Ohio Appeals, 6th Dist., Lucas Co.
    No. 1907.
    Decided Dec. 27, 1927.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    225. CHARGE OF COURT — Where evidence is in conflict, question is not one of law, but one of fact and must be submitted to jury under proper instructions.
    829. NEGLIGENCE — 301. Contributory Negligence — Where 6245-1 GC. applies, and jury finds for plaintiff, duty of jury, under appropriate instructions, to determine whether contributory negligence of plaintiff is slight, and negligence of defendant gross in comparison, and if so to diminish damages in proportion to negligence attributable to plaintiff as compared with combined negligence of plaintiff and defendant.
    Error to Common Pleas.
    Judgment reversed.
    Herman C. Krueger and Chas. W. Davis, Toledo, for Zeis.
    Warren L. Smith and W. H. McLellan, Jr., Toledo, for Kaechele.
   FULL TEXT.

LLOYD, J.

Plaintiff in error was defendant and defendant in error was plaintiff in the Court of Common Pleas.

Plaintiff was an employe of defendant and claimed to have been injured on March 16, 1925, by the falling of an alleged defectively constructed scaffold upon which he was standing, pursuant, as he claims, to directions of Benjamin F. Zeis, a carpenter, who had been employed by defendant to construct an addition to the building located on Miami Street and occupied by defendant as a lunchroom and gas filling station.

Plaintiff claimed that he too was employed by defendant to work thereon under the orders and directions of Benjamin F. Zeis. Defendant claimed that at the time of the occurrence, plaintiff was not subject to the orders of Zeis and was not employed to assist him or to do any work in connection with the addition to this building in process of construction.

In his charge to the jury the trial judge said:

“I think the court is entitled to say to you from the evidence in this case, it being undisputed, that Benjamin Zeis, the father of the defendant, in this instance was the superior of this plaintiff, that is to say, he was not a fellow servant occupied in the same class as the plaintiff: he was one from whom the plaintiff might take orders. He was the direct representative of the defendant in the case, George Zeis, in the doing of this work, upon this building, and as such under the evidence was in control of that work.”

He also said to the jury that:

“If the jury shall find from the evidence in the case that this plaintiff' was instructed by his employer not to go upon this scaffold or to go upon this building or do any work upon it, and the employe wil-fully violated these instructions and went upon the building without being requested so do to by either the defendant or the defendant’s representative, Benjamin Zeis, and that reasonable effort, if he did go upon it, was made by Benjamin Zeis as the representative of George Zeis, to keep him from going upon the scaffold and doing work there, I say, if that situation prevailed and the jury finds so from the evidence, then the action of the plaintiff in so going upon this scaffold would be negligence and if that negligence of his was the proximate cause of his injury, then he could not recover.”

We are of the opinion that in so charging the jury the trial court erred to the prejudice of the defendant, for the reason that one of the disputed questions was as to whether or not Benjamin F. Zeis was a superior of plaintiff in the sense that he had authority to give directions or orders . to the ' plaintiff or to' dictate the nature and scope of his employment. The defendant claimed that the employment of plaintiff had no relation to the work of his father, Benjamin F. Zeis, and that his father’s employment in no way concerned the plaintiff; that plaintiff was employed only to work in and about the lunchroom of defendant, to assist the clerk therein, to clean the windows, sort the bottles and do the sweeping, “what a janitor would do,” and had been expressly and repeatedly advised as to what he was to do, and had been told that he was not to do anything in connection with the work on the building, but was at all times to stay entirely away from it. If these claimed facts were true, then the nature of the employment of Benjamin F. Zeis differed from that of plaintiff, and neither of them had anything to do with or any control over the work of the other. The evidence on this subject being in conflict, the question was not one of law but one of fact and should have been submitted to the jury under proper instructions of the court.

Section 6245-1 provides:

“That in all such actions hereafter brought, the fact that the employe may have been guilty of contributory negligence shall not bar a recovery where his contributory negligence is slight and the negligence of the employer is gross in comparison. But the damages shall be diminished, by the jury in proportion to the amount of negligence attributable to such employe.”

In other words, where this statute is applicable and the jury finds for the plaintiff, it is the duty of the jury, under appropriate instructions of the court, to determine whether the contributory negligence of the plaintiff was slight and the negligence of the defendant gross in comparison, and if the jury so finds, to diminish the damages in proportion to the negligence attributable to the plaintiff as compared with the combined negligence of plaintiff and defendant. On this subject the trial judge charged the jury:

“The negligence would have to be proportioned, so that what the plaintiff would be entitled to recover if he himself had not been guilty of negligence, would be diminished by the proportionate amount of his negligence, that is to say, the proportion or the ratio that his negligence bore to the negligence of the defendant.”

And further, in this regard, the court stated to the jury:

“It would be the duty of the jury under those circumstances to determine the relationship between the negligence of the plaintiff and that of the defendant and proportion them and reduce the damages •that the plaintiff would have sustained if he had not been guilty of any contributory negligence by the ratio which his contributory negligence bears to the negligence of the employer.”

This statement of the law is obviously erroneous. N. Y. C. & St. L. Ry. Co. vs. Aigler, Admr., 10 Ohio App., 195, 201.

An examination of the record discloses no other errors prejudicial to elaintiff in error, but for the reasons given, the judgment will be reversed and the cause remanded for a new trial.

(Richards and Williams, JJ., concur.)


text:
    WILD v. APPLE et.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 7169.
    Decided Nov. 22, 1926.
    First Publication of this Opinion.
    126. BANKS AND BANKING — 57. Aid of Execution — Banks, which are notified to hold money in aid of execution, and afterwards pay it out, are liable.
    Error to Municipal Court.
    Judgment reversed.
    W. H. Chapman, Cleveland, for Wild.
    S. Y. Allen and M. Stern, Clevelnad, for Apple et.
   VICKERY, J.

John Wild had a valid and subsisting judgment against Louis Apple. Certain money in the possession of the State Banking & Trust Co. and also in the Cleveland Trust Co. was described in Wild’s petition. A summons was issued making Louis Apple, Bert Apple, and the two Banks, parties.

The lower court found that the money in the State Bank although in the name of Bert M. Apple, was the money of Louis S. Apple, and the same finding was made as to money in the Cleveland Trust Co. The Court also held that, inasmuch as the Banks had paid the money in the respective funds to Bert. M. Apple, there was nothing that they owed.

The lower court held that there was no injunction obtained against the payment of this money and no receiver appointed and therefore, the hanks having paid this money, it was good payment. We cannot agree with the court in this. Summons served on the Banks notified them that they had been sued, with Louis & Bert Apple, and that a receiver was asked for, in the petition, to take charge of the property, claimed to be that of Louis Apple, and have it applied upon the judgment of plaintiff.

The court found that the money in question belonged to Louis Apple; and, the banks having paid this money, paid it wrongfully and at their peril. It was their duty to keep this money sequestered to await judgment of the court.

The doctrine of lis pendens tied up this property for all intents and purposes, so far as the banks are concerned, and the court was in error in finding against plaintiff upon this proposition. The case will be remanded to Municipal Court to carry into execution the judgment as outlined here.

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


author: SAYRE, PJ.

text:
    NEW BOSTON (Vil.) v. MONK.
    Ohio Appeals, 4th Dist., Scioto Co.
    Decided Nov. 15, 1927.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    874. ORDINANCES —1104. Statutes— Where portion of ordinance is void because it conflicts with statute of state, other portions are valid and enforcible unless so inseparably connected, to subject matter and so related to void portion as to give rise to preseumption that part would not have been enacted without whole.
    Error to Common Pleas.
    Judgment reversed.
    H. D. McLaughlin,- Portsmouth, for New Boston (Vil.)
    Blair & Ball, Portsmouth, for Monk.
   FULL TEXT.

SAYRE, PJ.

Defendant (defendant in error) was convicted by the mayor of New Boston for a violation of the ordinance against operating a motor vehicle at a greater speed than is reasonable in the business and closely built up portions of the municipality. On proceeding in error to the Court of Common Pleas the conviction was set aside. Error is prosecuted by the village to this court to reverse the Common Pleas.

The ordinance is in the following words:

“Whoever operates a motor vehicle, or motorcycle, on the public roads or highways of the Village of New Boston at a speed greater than is reasonable, having regard for width, traffic, use and general and usual rules of such road or highway, or so as to endanger the property, life or limb of any person, shall be fined not more than $25.00 and for a second offense shall be fined not less than $25 nor more than $100.
“A rate of speed greater than 15 mi. an hour in the business and closely built up portions of the Village or more than 20 miles an hour in other portions thereof, shall be presumptive evidence of a rate of speed greater than is reasonable or proper.”

The statute provides that a rate of speed greater than fifteen miles an hour in the business and closely built up portions of a municipal corporation or than twenty-five miles an hour in other portions thereof shall be presumptive evidence of a rate of speed greater than is reasonable or proper. So that part of the ordinance which makes twenty miles an hour presumptive evidence of a rate of speed greater than is reasonable and proper, being in conflict with the statute of the state, is void. But does this render the whole ordinance void? The rule on this subject is announced in the case of Railroad v. Commissioners, 31 OS. 398, 343:

“Whether or not the infirmity that avoids a part affects the entire act depends upon the connection and dependance on each other of its various provisions. Where they are so inseparably connected in subject matter and so related to each other as to give rise to a presumption that a part would not have been enacted without the whole the entire act is void. But where no such connection or dependance exists that part of the statute not itself in conflict with any constitutonal provision is as valid as if independently enacted.”

There is in the last paragraph of the ordinance no inseparable connection of subjet matter. One part deals with speed in the closely built up portions and the other with speed in the ordinary portions of the municipality. They axe distinct matters. It would be unfair to say that a member or members of council might refuse to vote for the fifteen mile provision without the twenty mile provision for it is to be conclusively presumed that no member of council would insist upon a void provision in the ordinance. The affidavit filed in the case stated an offense under the ordinance and the action of the Common Pleas in regard thereto whs error.

On the question of the weight of the evidence the Common Pleas Court in our judgment erred. The traffic officer timed defendant, when both were perhaps out of the built up portions of the village. But he testified that the speed of defendant was about the same through the village and through the built up portions thereof, and that speed was thirty to thirty-two miles per hour, and that such speed owing to the narrowness of the street was unreasonable. It was prima facie unreasonable and whether defendant’s evidence was sufficient to exculpate defendant was for the mayor. The decision of the mayor finding the defendant guilty is not manifestly against the weight of the evidence. .

The judgment of the Common Pleas will be reversed.

Defendant was fined fifty dollars. In the state of the record he could not be. fined more than twenty-five dollars as there is no averment that this was a second offense.

The judgment of the mayor will be affirmed except as to the sentence, and the cause will be remanded to the mayor’s court for resen-tence according to the ordinance.

(Middleton and Mauck, JJ., concur.)

This opinion was prepared by Judge Sayre prior to his death but was not passed upon by the court until after his demise.


author: PARDEE, J.

text:
    KOEBORLE v. GREEN.
    Ohio Appeals, 9th Dist., Summit Co.
    No. 1269.
    Decided Dec. 21, 1927.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    620. IMPEACHMENT — 337. Cross Examination — Witness may be impeached, on cross examination, by asking him if he has not been convicted of offense under state law, whether same is misdemeanor or felony.
    1266. WEIGHT OF EVIDENCE — Conflict in evidence makes issues thereof clearly ones for decision by jury.
    Error to Common Pleas.
    Judgment affirmed.
    Benner, Harter, Walker & Watters, Alerón, for Koeborle.
    Rockwell & Grant, Akron, for Green.
   PULL TEXT.

PARDEE, J.

In this court the parties are in the reverse order of that in the Court of Common Pleas, but will be referred to in this opinion as they were in that court.

Bessie Green started an action at law in the Court of Common Pleas against John B. Koebexle to recover damages for personal injuries which she sustained when an automobile in which she was a passenger, came into collision with one driven by the defendant, on the 23rd day of November, 1924, at the intersection of Dodge avenue and W. Exchange street, in Akron. Upon the issues being submitted to a jury, a verdict was returned for the plaintiff, and a judgment was entered thereon in her favor, and the case is here on error to reverse that judgment.

The defendant alleges that the following errors occurred in the trial, to wit: first, that the trial court erred in allowing counsel for the plaintiff, in the ci'oss-examination of the defendant, to question the defendant concerning an alleged conviction under the Crabbe act; second, that the court erred in not fully and properly stating and explaining the issues to the jury; third, that the verdict is contrary to law and is not supported by sufficient evidence; fourth, that the damages awarded were clearly excessive and were given under the influence of passion and prejudice; and fifth, that the court erred in permitting certain questions, asked by plaintiff’s counsel, to be answered, and in refusing to permit certain questions to be answered by the defendant.

We will consider the various alleged errors in the order as hereinbefore stated.

First. It has long been the settled rule that the credibility of a witness may be attacked in one of several ways — one of which is to ask him, on cross-examination, if he has not been convicted of a crime; and it has been held that his credibility cannot be attacked by showing that he has been convicted of an offense under a city ordinance.

When the defendant was upon the stand, testifying- in his own behalf, he was asked several times by the attorney for the plaintiff if he had ever been convicted of an offense under the state or Federal laws, and had given evasive answers to the questions propounded to him in relation thereto — all without objection or exception — until finally he was asked if he had not been convicted of violating the Crabbe act of the state of Ohio — to which question an objection was sustained and the defendant did not answer the ouestion. In the questions which were propounded, the attorney did not limit himself 'to offenses of a felonious character, and the defendant claims that this line of questions was improper, unless the questions were confined to felonies and were so framed to exclude misdemeanors.

As we understand the law to be, a witness may be impeached, on cross-examination, by asking him if he has not been convicted of an offense under the state law, whether the same is a misdemeanor or a felony. (31 OS. 100; 106 OS. 481.) We therefore find no error in this regard.

The next complaint made by the plaintiff in error is that the issues were not fully stated .and explained to the jury by the trial judge in his charge.

While there is some justification for a criticism, we find, from a reading of the whole charge, that the jury were sufficiently instructed upon the issues made in the case, and that there were no errors in the charge prejudicial to the plaintiff in error.

The third and fourth grounds of complaint made by the plaintiff in error are that the verdict is contrary to law and is not supported by sufficient evidence, and that the damages were clearly excessive and were given under the influence of passion and prejudice.

We have fully read and considered all the evidence offered upon the trial in this case, and we find there is a sharp conflict in the evidence upon certain important phases of the case. The conflict makes the issues thereon clearly ones for decision by the jury, and we .are unable to say that the decision as made is contrary to law and is not supported by sufficient evidence; and we are unable also to say that the damages awarded were excessive and we find no evidence that the verdict was brought about through the influence of passion and prejudice.

The last complaint made in the brief of plaintiff in error has regard to the admission and rejection of evidence.

We have carefully considered these alleged errors, and are unable to find any error in the rulings on evidence prejudicial to the plaintiff in error.

Not finding any errors prejudicial to the plaintiff in error and which prevented him from having the fair and impartial trial guaranteed to him by the constitution and laws of this state, the judgment is affirmed.

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


text:
    PENN et v. PATTERSON.
    Ohio Appeals, 4th Dist., Highland Co.
    Decided Dec. 10, 1927.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    1271. WILLS AND LEGACIES — Where will refers to certain memorondum making it a part thereof,, and mentions date which memorandum bears, memorandum bearing different date will not be admitted to probate.
    Error to Common Pleas.
    Judgment affirmed.
    D. Q. Morrow and Cyrus Newby, Hillsboro, and Nichols Speidel & Nichols, Batavia, for Penn et.
    John P. Phillips, Chillicothe, for Patterson.
   FULL TEXT.

MAUCK, J.

Lena P. Spargur Patterson died testate in February, 1918. Her will dated August 27, 1917, and two codicils thereto dated November '3, 1917, and January 29, 1918, were admitted to probate. Application was made to the Probate Court to admit to probate as part of the will a certain memorandum signed by the testatrix, written by her and dated the same as the will, August 27, 1917. This was denied by the Probate Court and on appeal to the Common Pleas that court also denied probate to the memorandum. It is now sought to reverse the judgment of the Common Pleas.

The memorandum begins with the recital:

“It is my desire that in addition to my will my jewelry, silver, etc., be divided in the following manner. All furniture and rugs not mentioned can be sold.”

Then follows several pages of items, the first of which reads:

“Sue D. Reed: Diamond horse shoe pin. Sue D. Reed, cluster diamond ring— was my mother’s.”

This memorandum if admitted to probate as part of the will would constitute a bequest of ’ many and valuable articles of personal property which otherwise would under the residuary clause of the will pass to the surviving husband of the testatrix, Edmund B. Patterson. The right to probate is asserted under the second item of the will which reads as follows:

“2. I give my jewelry, household furniture and other articles of chattel property described or referred to in a certain paper writing dated August 21, 1915, and signed by me, to the persons named and in the way specified therein, and hereby make said paper writing a part of this will; and I authorize my executors hereinafter named, to distribute the same accordingly.”

This memorandum was found after the death of the testatrix in a safety deposit box to which the testatrix alone had access, in the envelope containing the will. The envelope had been indorsed by the scriviner at the time of the execution of the will with the words:

“Last Will and and Testament of Lena P. Spargur Patterson.”

There is little difficulty in drawing the inference that Mrs. Patterson thought that she was enclosing with the will the memorandum referred to in the second item of the will. The inference, however, goes no further.

The policy of this state in regard to the testamentary disposition of property is fixed by statute. The attestation of two subscribing witnesses is mandatory. The memorandum in question must be a part of the testatrix’s will and have the support of the attestation of that instrument or it fails. That the will itself may make some other document a part of its terms and by adoption draw such other document into the subscription and attestation that gives validity to the instrument may be assumed but is not decided. Conceding that Ohio is in line with those states that permit an extrinsic document to be read into and made part of a will, the rule here, as in those jurisdictions where such right has been clearly recognized, must be that in the adoption of such extrinsic document nothing must be left to chance. A review of the cases cited would be without profit in view of the record herein. Jarman says two things are required:

“First, that the will should refer to some document as then in existence; secondly, proof that the document propounded for probate was, in fact, written before the will was made, and was identical with that referred to in the will.”

Of like import in different language reads 28 R. C. L. 112, Page on Wills, Sec. 248, and other texts.

The will in question by the item quoted refers to a document then in being and conforms, therefore, to one of the requirements. There was according to this item a memorandum in existence when her will was signed and said memorandum was dated August 21, 1915. If the memorandum whose probate was sought had borne the date named in the will the record in this case would warrant the conclusion that such memorandum was identified by that clear and satisfactory evidence required for such identification. The fact, however, that the proffered memorandum bears a different date negatives the claimed identity and would in the absence of any testimony at all render impossible the probate of the memorandum. The record, however, goes much further. Not only does this memorandum bear on its face a date in the testatrix’s writing at entire variance with the date fixed by the will but the testimony affirmatively shows that there was another memorandum bearing the date of August 21, 1915. This fatal variance between the memorandum and original will was not cured or affected by anything in the codicils. The identification was as completely lacking after as before the codicils. _ Those offering the memorandum wholly failed to make their case.

Middleton, PJ., concurs.)


author: WASHBURN, PJ.

text:
    JOYCE v. STATE.
    Ohio Appeals, 9th Dist., Summit Co.
    No. 170.
    Decided Dec. 20, 1927.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    Judges of 9th District sitting by designation in place of Judges of Second District.
    629. INDICTMENT — 1162. Testimony— Where, in an indictment for perjury,, there is an allegation that the testimony was material to the cause in which the testimony was given, it is not necessary to set out the facts which show how the testimony was material.
    Error to Common Pleas.
    Judgment affirmed.
    Henry A. Williams, Columbus, and Gregg & Patton, Washington C. H., for Joyce.
    W. S. Paxson, Pros. Atty. and R. H. Maddox, Asst. Pros., Washington C. H., for State.
   PULL TEXT.

WASHBURN, PJ.

The record in this case discloses that Fred C. Joyce was indicted for the crime of perjury committed in a case in which Homer Hutson was being tried for forgery in the county of Payette.

Joyce was convicted and prosecutes proceedings in error.

It is claimed that the court erred in not quashing the indictment, because it contained no averment of facts showing that the testimony of Joyce was material to the cause in which said testimony was given.

The indictment contains the allegation that the testimony given by Joyce was material, but does not set forth facts showing how the same was material. On this point we hold that in an indictment for perjury, where there is an allegation that the testimony was material to the cause in which the testimony was given, it is not necessary to set out in the indictment such facts as will show how the testimony was material. (G. C. Sec. 11581; McCaffrey v. State, 105 OS. 508, at p. 509.)

Some complaint is also made in reference to the charge of the court; but without setting forth the details in reference thereto, we deem it sufficient to say that, as applied to the facts shown by the record in this case, we find no prejudicial error in the charge of the court.

It is also claimed that the court erred in the admission and rejection of certain evidence.

We have carefully examined the record, and find no error in that respect of any moment, whatever, except that the court permitted one Schumaker, who conspired with Joyce to commit perjury in said case, to testify as to certain statements made by one Badger, who was. also one of the conspirators, which statements were concerning Joyce’s connection with such conspiracy and were not made in the presence of Joyce, and related to,acts of Joyce before Schumaker joined in the conspiracy.

The state claimed, and offered evidence-tending to prove, that on the day before the beginning of the trial of Homer Hutson, his lawyer, D. C. Badger, made arrangements with Joyce and Schumaker to go with Badger in an automobile from Columbus to Washington Court House and he in attendance upon said' trial; that on the way there, Badger instructed Joyce and Schumaker what he wanted them to testify to in the case, and’ that they agreed to. do so, although what they were to testify to was known by all three of them to be absolutely false in every particular; that Joyce and Schumker were sworn as witnesses and testified as they agreed to do; that because of Schumaker’s later confession of said transactions, Badger committed suicide.

Schumaker was permitted to testify that when Badger asked him to go to Washington Court House and give false testimony in the Hutson case, Badger stated that Joyce had already agreed to do so and was to be paid $50' therefor.

This we held to be error. Where a conspiracy is prima facie proven, acts and declarations of one of the conspirators, made in carrying out the conspiracy, are competent evidence against other conspirators; but when this evidence was admitted, there was no evidence (outside of those declarations) that a conspiracy existed at the time said declarations were made; there was evidence that Schumaker-was himself entering into or contemplating entering into a conspiracy and that later he and Joyce did fully enter into it and carry it out, but outside of the declaration in question there was no evidence that Joyce was then connected with it, and such declarations were not competent to prove the conspiracy or connect Joyce therewith.

However, the evidence of Joyce’s later connection with and participation in said conspiracy is so overwhelming and compelling as to make it our duty to hold that said error-was not prejudicial and does not warrant a reversal of the judgment in this case.

Regardless of what Badger told Schumaker-Joyce was going to do, the evidence establishes-, to our full satisfaction that Joyce did in fact-ride with Badger and Schumaker in the automobile to Washington Court House, and did' agree to give evidence which he knew to be untrue, and that he carried out that agreement to the letter. A consideration of the whole record leaves us in no doubt whatever of the guilt of Joyce.

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