text:
    LOLA BLAISDELL v CLARENCE BLAISDELL
    Ohio Appeals, 6th Dist, Williams Co
    No. 172.
    Decided October 21, 1929
    Mr. C. L. Newcomer, Bryan, for Lola Blaisdell.
    Mr. H. H. DeMuth, Bryan, for Clarence Blaisdell.
   BY THE COURT

These children, at the time of the hearing had on these motions, were each more than ten years of age and by 8033 GC, had the right to choose with which parent they would live, and the court had no power to give the custody of the children to persons other than the parents unless it were proved that both parents were improper persons to have their custody, care and control. The evidence shows that the income of plaintiff was substantially the same at the time the court modified the original order as when the original finding was made and that,, although plaintiff has remarried and assumed the additional burden incident thereto, his earnings are sufficient to meet these obligations.' In any event, there being no children by the second marriage, his remarriage can not serve as an excuse to avoid his prior duty to these children.

The divorce was granted to defendant because of the aggression of the plaintiff, and the custody of the children, they being under ten years of age at the time-of the decree, was awarded to their mother, the defendant.

We have read all of the testimony presented in the bill of exceptions and find nothing therein showing that either the plaintiff or the defendant is morally or physically unfit to have the custody of the children or that .plaintiff is any the less able, except for his subsequent marriage, to pay the sums originally ordered by the court to be paid for the support of the children. The evidence also shows that the defendant is now residing, with her parents, to whom the custodv of the children was awarded by the modified order of the court.

In our opinion the judgment of the court is manifestly against the weight of the evidence and should be so modified as to require plaintiff to pay for the support of the children, until otherwise ordered, 'the sums fixed in the original order, the custody of the children, however, to remain with their grandparents until the further order of the court or until they or either of them shall choose to live with one or the other of iheir parents, the statute so privileging them to do unless it should appear that such parent is an improper person to have such custody.

If the parties hereto consent to such modification, the judgment will be affirmed as modified; otherwise it will be reversed as manifestly against the weight of the evidence.

Williams, Lloyd and Richards, JJ, concur.


source: Caselaw Access Project

author: BY THE COURT:

license: Public Domain

text:
    AMERICAN ROSE & PLANT CO v SQUILLOCOIT etc
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No. 10114.
    Decided October 28, 1929
    Messrs. Rothenberg, Russo & Andrus, Cleveland, for Rose & Plant Co.
    Messrs. Lombardo & Lo Presti, Cleveland, for Squillocoit etc.
   BY THE COURT:

The main contention in this case is that the judgment below was and is against the weight of the evidence. It is evident, we think from the record, that there is substantial grounds for the claim of the defendant in error that he ordered growing instead of dormant plants and that he did not get what he intended to purchase under his order.

The evidence also tends to show that the plaintiff in error knew that it was not shipping what the defendant in error expected to receive under his order. While there is no direct evidence to this fact, it is significant that the plaintiff in error, when the defendant in error returned the plants, wrote the latter as follows:

“Our local express office informs us that they have a shipment from you consigned to us, but .not having ordered anything from you, we have advised the express company to take this question up with you and secure instructions for disposal of this shipment.”

This letter is under date of J,an. 31, 1928, three. days after the defendant in error had wired plaintiff in error that he would not accept the shipment. We think this letter is a measure of the good faith and sincerity of plaintiff in, error in this transaction, and it is impossible for us to believe that it did not know the character of the shipment returned to it and referred to in its letter.

It is unnecessary to say that the judgment of the lower court herein is protected by the same rules that apply to the verdict of a jury, and that judgment may not be disturbed, unless it is manifestly against the weight of the evidence.

We think if this case had been submitted to us in the first instance that we would have reached the same conclusion as the lower court.

There is nothing in the record to warrant a reversal of the judgment, and it is affirmed.

Middleton, PJ, and Mauck, J, concur.


author: BY THE COURT

text:
    OBERLIN v THOMAS
    Ohio Appeals, 6th Dist, Fulton Co
    No. 102.
    Decided October 28, 1929
    Messrs. Conn & Holloway, Toledo, for Oberlin.
    Messrs. F. S. & J. M. Ham, Wauseon, for Thomas.
   BY THE COURT

Under.the evidence in this case the jury must have found that the defendant was guilty of negligence. On the question of the negligence of the plaintiff there was a very sharp conflict in the testimony. Testimony was introduced to the effect that plaintiff said, shortly after the accident. that they were both to blame. If the jury believed this testimony, as they might do, then they may also have found that the plaintiff was himself guilty of negligence. If. the jury found that both parties were guilty of negligence proximately causing the collision, then the verdict would be correct, as neither would be entitled to recover from the other and the court is not disposed to believe that it can interfere with the judgment on the weight of the evidence.

It is urged that the court committed prejudicial error in refusing to give plaintiff’s request No. 1, which is merely a definition of right of way. We find no error in refusing, to give this instruction. The instruction does not indicate which party had the right of way, and the court is unable to see that the plaintiff was prejudiced by the failure to give the instruction.

Request No. 2, which was offered, is faulty in that it does not contain the element of ordinary care.

Request No. 4 was properly refused in that it contains the statement that if the jury finds that .the defendant saw the plaintiff approaching while there is no testimony that he 'did see the plaintiff approaching.

We find no error in the judgment assessing all of the costs ayainst the plaintiff. It was an action at law in which the right to costs is controlled by statute, and the evidence does not disclose that any costs were made exclusively in seeking to maintain the cross-petition, and as the plaintiff failed the costs were properly assessed against him. •

.We have examined all of the claimed errors, but find nothing requiring a reversal of the judgment.

Williams, Lloyd and Richards, JJ, concur.


author: VICKERY, PJ.

text:
    EAST OHIO GAS CO v DANIEL
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No. 10279.
    Decided October 21, 1929
    Messrs. Tolies, Hogsett & Ginn, Cleveland, for Gas Co.
    Mr. Irwin Greene, Esq., Cleveland, for Daniel.
   VICKERY, PJ.

Here are two men in a common enterprise, with the odor of gas so prevalent that it could be smelled everywhere, searching for. the leak and striking, a match, and the usual thing resulted that happens when one is searching for a gas leak with a lighted match. We think the record shows, as a matter of law, that the plaintiff was guilty of contributory negligence in that both he and his brother were engaged in a common enterprise, and it is not necessary to invoke the doctrine of imputed negligence because, as already stated, they joined in a common enterprise, and it shows that they were guilty of contributory negligence.

Personally, the writer of this opinion thinks that there is no evidence that is competent in the record to show that the Gas Company was to blame in any way. The plumber testified that he later found a leak under the porch of the house on the premises owned by the landlord and that the Gas Company was responsible for that leak, none of which is competent evidence. Ordinarily, the equipment from the gas mains into and through the house belongs to the owner of the property and it may be put in not by the Gas Company but by some other plumber.. Of course, it may be put in by the Gas Company, but in such event it gets paid f_Qr it and the equipment on the premises still belongs to‘ the property owner; and there is nothing in this record to show, except the incompetent testimony of the plumber, who knew nothing about it, how this equipment was installed or to who mit belonged.

Of course, if the Gas Company has assumed the duty of inspection, and if through a faulty inspection this explosion occurred, it might be responsible if the other question of contributory negligence had not intervened. There is nothing in this record to show that the gas escaped from the mains owned and operated and controlled by the Gas Company. Of course, it is claimed and the. claim is probably true, that none but the Gas Company could turn the gas into the meter. Usually the meter is detached and the gas is turned off when the house is unoccupied and in order to charge a new tenant with gas, it is necessary to have the gas turned on at the meter and that, of course, is the duty of the Gas Company, and no one else has that right. But that alone would not make it responsible for the condition of the pipes over which it has no control from the main into the house up the meter. This part of this opinion voices the sentiments only of this particular member of the court, but the reversal is made upon the ground that the evidence shows that the two men were joined in a common enterprise and that they were guilty of contributory negligence in striking. the match when the room was filled and permeated with g.as as the evidence shows it was in this case.

Sullivan, J. concur in judgment.

Levine, J, dissents.


author: SULLIVAN, J.

text:
    TAYLOR v ULLMAN
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No. 10031.
    Decided October 21, 1929
    Messrs. Davis, Young. & Vrooman, Cleveland, for Taylor.
    Mr. Stephen M. Young, Cleveland,, for Ullman.
   SULLIVAN, J.

The plaintiff in error insists that he had the signal light in his favor but in any event the mother and daughter had not yet crossed the intersection and whether th“ plaintiff in error was on the east side or the west side of East 4th St., appears to be immaterial for the reason that it is unchallenged that the mother and daughter were immediately in front of him while the automobile was standing still and therefore in a position where, regardless of signals, it was obvious that danger of collision could only be averted by waiting until the mother and daughter had crossed the intersection, or at least had disappeared from in front of the automobile.

It is argu.e^ that the judgment is excessive. The only testimony in favor of the plaintiff below was from the mother as the little girl was too young to testify, and the opposing testimony was from plaintiff- in error, and as above noted, it was conflicting in its nature and we are not prepared to say, from an examination of the record, that the verdict and judgment is excessive.

In order to do so, under The Toledo Railway & Light Co., vs Paulin, 93 OS. 396, it would be necessary to find that the amount was not supported by the weight of the evident, and for that reason is excessive, and if we should so find, we have authority to remand the cause for new trial, but there is no authorization on such ground to modify the judgment, otherwise we might consider that question, and in the case of City of East Cleveland vs Wald, 17 O. Ap. 327, it is again held that where the verdict is the result of passion and prejudice that the reviewing court has power to reverse the same on the weight of the evidence and the reason for this is that the verdict and judgment is excessive because not sustained by the evidence. In that case it may reverse the judgment or it may recommend a remittitur and if the same is consented to by the party claiming the judgment, of course that settles the question, but there is no claim of passion and prejudice in the case at bar.

In Schendel vs Bradford, Admr. 106 OS. 387 it was held that the question of personal injuries sustained is an issuable fact detrminable from the evidence. If the question of excessive damages is in the question, the weight of the evidence is involved, and if the judgment and verdict is clearly and manifestly against the same it may be reversed but not on the ground of passion and prejudice but on the ground that the verdict was not sustained by sufficient evidence and on page 393 of the same opinion the court holds that the supervision of the judgment as to whether too much or too small, is within the power of the court, but it must be always borne in mind that there must appear from the record an insufficiency of evidence to support the reversal before the same can be done, unless the excessive verdict arises because of passion or prejudice which, as before stated, is not in this case. Of course passion and prejudice alone are sufficient tp either modify or affirm.

We cannot say from the record in this case that there is not cerdible evidence in all essential details to support the verdict and for that reason and because of the authorities cited the judgment of the lower court is affirmed.

Holding these views the judgment of the common pleas court is hereby affirmed.

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


author: VICKERY, P. J.

text:
    CLEVELAND RY CO v BLAUFARD
    Ohio Appeals, 8th Dist., Cuyahoga Co
    No. 10198.
    Decided November 4, 1929
    Messrs. Squire. Sanders 6s Dempsey, Cleveland, for Ry Co.
    Mr. Albert Amram, Esq., Cleveland, for Blaufard.
   VICKERY, P. J.

It is admitted by counsel for the Railway Company that there was evidence in this case to show, — that is, that there was a conflict of evidence in showing — where the street car was; that it was somewhere around seventy to one hundred and fifty feet away when these two automobiles got entangled upon the track; and the claim of the plaintiff below was that had the Railway Company exercised ordinary care after the plaintiff and his car were in a position of danger, even though the Railroad Company was in no wise responsible for putting the automobile in a place of danger, yet it raised the question of the doctrine of last clear chance; that the Railroad Company had plenty of time in which to stop its car and did not stop it; and the damage to the automobile and the driver thereof were a result of the negligence on the part of the Railroad Company.

It was claimed by the Railroad Company that there was nothing in this record to show but what the damages had been done to both the plaintiff and his automobile before the Street Car Company came in contact with the automobile; that is, the collision between the Buick and the Whippet may have caused the damage.

We think an examination of the record will show that both cars were standing upright and their fenders were simply locked together and no damage to speak of was done either to the plaintiff or to his car in the collision.

Then there is another thing: The damage to the Whippet car was upon its right side and there was no damage to the left side of the car and it is the right side of the car that came in contact, with the street railway car. This bears out the contention of the plaintiff. Of course, the only way the Railway Company would be responsible at all would be upon the doctrine of last clear chance, and it is frankly admitted by the plaintiff in error that there is evidence, in the record upon that question and that he could not conscientiously claim, that the judgment of the court was contrary to the weight of the evidence; but the whole theory of his lawsuit was planned upon the fact that there was no evidence but what the automobile and the plaintiff in it were injured by the first collision and not by the street car, but we think the. record will disprove this contention.

There does not seem to be much dispute about the amount recovered. At best it is but a small sum and, I believe, the property damage and medical care amounted to $235.00 and the balance of the $500.00 was for personal injuries. We think there was evidence in this record to bear out the judgment of the court and it is not claimed, nor could we hold, that it is so manifestly against the weight of the evidence that we would be warranted in disturbing it.

Sullivan and Levine, JJ, concur.


author: MAUCK, J.

text:
    HANKS v ADAMS CO COMRS
    Ohio Appeals, 4th Dist, Adams Co
    Decided October 28, 1929
    Messrs. G. D. Lovett and R. S. Roush, West Union, for Hanks.
    Mr. E. S. Young, Seaman, for Adams Co Commrs.
   MAUCK, J.

The plaintiff endeavored to set out other facts than a simple statement of her claim against the commissioners, which other facts were designed to fix responsibility for the particular bridge of which complaint was made as between the county and the state. After reciting that on November 5, 1923, the commissioners passed a resolution for state aid and that state aid was granted by the director of highways the petition continues by reciting the cost of the improvement of the highway running east and west thru Adams County; that the larger part of it was paid by the state and the smaller part was paid by the county. It charges, however, that the particular bridge was in fact constructed about thirty five years ago and avers “that said bridge at all times herein mentioned was under the direction and control of the defendant”. The trial court was evidently of the opinion that notwithstanding the averment just quoted, to the effect fhat the control of said bridge was at all times in the county commissioners, the county commissioners were not liable to suit in the premises for the reason that the other facts alleged tended to show that the road in question was a state highway. We can not adopt that view. It is admitted in argument t'hat the bridge was on the road known as the Atlantic and Pacific Highway. By 1189-1 GC, (110 O. L. 335) this particular road was made a main market road and it has been argued in this case that it thereby became a state road. This, however, does not follow. Section 7464 does not provide that main market roads shall of necessity be state roads. It says that

“State roads shall include such part or parts *** of main market roads as have been or may hereafter be constructed by the state or which have been or may hereafter be taken over by the state as provided in this act.”

Now while it is possible that this road may have been taken over by the state before the plaintiff’s injury there is nothing in the petition that so indicates. There is nothing, therefore, in this case to indicate that this main market road has become a state road except that the petition shows that the state has expended money in the improvement of the road. To the extent that the state constructed a new road it took over this main market road and made it a state road, but because it. constructed a part of the road somewhere between Cincinnati and Gallipolis it did not follow that it had made a State road of the whole Atlantic and Pacific highway, Only such part became a state road as was actually constructed by the state. The state did not construct the bridge of which the plaintiff complains. Whatever else the state constructed it did not construct the particular part of the road of which the plaintiff complains. The petition consequently does not disclose the unsoundness of the allegations that the defendant was in full control of that particular mrt of the road, to wit, the bridge, that the olaintiff complains of.

In this case we are, of course, dealing alone with the pleadings before us. We do not decide that all or any part of the highway in question is or is not a state road. If at the time the plaintiff was injured the road in question had been taken over by the state as a whole the bridge would have been .taken over with the rest of the road for by statute a bridge is a part of the road. We assume that in the process of an orderly government' it is always possible to find bv the records how much, if any, of a particular road has been taken over by the state by an examination of the records in the office. of the director of highways. It is certa.inly unfortunate if thru the absence of such record there can at any time be any doubt of just what authority has jurisdiction over any particular portion of the highways.

As the case stands before us the petition is good and it was error to sustain the demurrer. The judgment is reversed for that reason.

Middleton, PJ; concurs. Mauck, J, not sitting.


author: ALLREAD, J.

text:
    WEINSTEIGER v GRAY
    Ohio Appeals, 2nd Dist, Montgomery Co
    No. 904.
    Decided June 26, 1929
    Messrs. Shively and Holmes, Dayton, for Weinsteiger.
    Mr. John C. Ernst, Swanders, for Gray.
   ALLREAD, J.

Now it may conceded that so far as Mrs. Weinsteiger was concerned, she did not expect to pay the bill at the time. She was, however, taken to the hospital in a private ambulance which was paid for by Mr. Robinette. When she went to the hospital she was not taken in a charity ward but was placed in a private room, for which payment was afterwards made. Dr. Gray testifies that he entered up charges against Mrs. Weinsteiger at the time but made no effort to collect the same until later on.

The question is as to whether there was an impliéd contract between Dr. Gray and Mrs. Weinsteiger. It is clear that Mrs. Weinsteiger at the time her aunts were present at the house fully understood what was being done far .her and also when she came to the hospital she was fully conscious because she testified to a conversation between her and the Sister. She was, therefore, competent to enter into an implied contract.

It was not only necessary that Mrs. Weinsteiger herself should understand that she was to be a charity patient, but also that Dr. Gray was to know and understand that she was a charity patient in the hospital and perform the services upon the faith thereof.

We are clear from the undisputed testimony, or at least by .the great weight of the testimony, that Dr. Gray did not so understand. He knew that there was no money in sight to be paid at once upon the operation, but he made his charges on his books at the time. Under these circumstances we think that Dr. Gray had the right at any time, when Mrs. Weinsteiger received her estate, to charge her with the amount of his bill.

While .it is true that upon disputed evidence, the trial court had the right to make a finding, yet where the judgment is against the manifest weight of the evidence or against the undisputed evidence, the reviewing court has a right to consider the judgment in connection, with the evidence and reverse the same as contrary thereto.

We are of opinion that the judgment of the Common Pleas Court, holding, that the judgment of the Municipal Court was contrary to the weight of the evidence, should be sustained.

Kunkle and Hornbeck, JJ, concur.


author: MIDDLETON, PJ.

text:
    EYLAR v HALL et
    Ohio Appeals, 4th Dist, Brown Co
    Decided October 29, 1929
    Messrs. Young & Barnes, Georgetown, for Eylar.
    Messrs. Fite & Fite, Georgetown, for Hall et.
   MIDDLETON, PJ.

The petition alleges that the said defendant Wood purchased said stock with notice of the contract aforesaid, but the evidence wholly fails to sustain that averment of the petition. On the contrary, the undisputed evidence in the case establishes that the defendant Wood purchased said stopk without either notice or knowledge of the contract with the plaintiff.

This court is bound "to find from these facts that the defendant Wood was a bona fide purchaser of the stock in question, for a full and valuable consideration, without notice. Under this state of the evience it is impossible for this court to grant the plaintiff any relief. His right to this stock was a latent right, not known to the defendant Wood, and must yield to the superior rights of Wood who now holds, as shown by the evidence, the legal title to this stock.

A demurrer was filed to the petition in the lower court which was overruled by that court. It was insisted at the hearing, in this court that said demurrer should now be sustained. We conclude, however, that by reason of the allegation in the petition that the purchase was made by "Wood with full knowledge of the fights of the plaintiff the petition is good as against a demurrer.

The finding of this court is that under Urn established facts in this case the plaintiff may not invoke its equitable jurisdiction and that his petition must therefore be dismissed. This conclusion makes it unnecessary to consider any other questions raised in the ca_se.

Mauek, J, concurs. Blosser, J, not sitting.


author: VICKERY. PJ.

text:
    LAKEWOOD (City) v KRAMER
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No. 10147.
    Decided October 28, 1929
    Mr. R. G. Curren, Esq., Cleveland, for City.
    Messrs. Mooney, Hahn, Loeser & Keough, Cleveland, for Kramer.
   VICKERY. PJ.

' We have examined this record, heard the arguments of counsel and do not see how under the evidence in this case Kramer could be convicted of putting in 'this plumbing even if it was in violation of the law. Apparently he had nothing to do with it. He did not get the permit nor did he install the plumbing. There was a general contractor and there were different trade contractors. I believe Kramer did let the contracts to the various trades. In any event, the plumbing contractor had his contract, he got the.permit and he installed the plumbing and whether it was in violation of the building code in Lakewood, it is not very material in this case to determine, for it must be remembered that this is a criminal action and one man cannot be convicted for what another man does unless it is on the basis of a conspiracy. There is no such charge in the affidavit filed in this action.

We think the Common Pleas Court was right in reversing the Municipal Court and the judgment of the Common Pleas Court will be affirmed.

Sullivan, i and Levine, J, concur.


author: HORNBECK, J.

text:
    LOWE v STATE
    Ohio Appeals, 2nd Dist, Montgomery Co
    No. 876.
    Decided May 22, 1929
    Messrs. F. W. and F. G. Krehbiel, Dayton. for Lowe.
    Messrs. J. B. Harshman and Lon V. Volz, Dayton, for State.
   HORNBECK, J.

On the first ground of error, the record in the trial court does not disclose the absence of defendant when sentence was pronounced, and a presumption of regularity attends all the .proceedings as appearing in the record. Thus, it would be presumed that defendant was in court. The record as disclosed by the Entry overruling the motion for new trial and sentencing defendant, shows that the defendant was represented, gave notice of filing his petition in error, and no specific exception was made or saved touching the absence of defendant at the time sentence was pronounced. Therefore, the alleged error is not assigned for consideration.

The attempt to bring into the record for the first time in the Common Pleas Court, by affidavit, proof of absence of defendant when sentence was pronounced, is too late and the court could not consider the matter therein contained, being restricted to the bill of exceptons as signed and certified by the trial judge. If the bill did not contain the full and true statement of all the proceedings and testimony taken below, then the proper step was by motion for a diminution or correction of the record addressed to the trial court.

As to the second proposition, quotations from the transcript of testimony and proceedings at the close of the trial, as appearing in the bill of exceptions at page 22, will be helpful in determining the question before us..

Page 22 of the Bill of Exceptions :-

“Q. You had no notion of using that gun at all?
A. No, sir.
Q. You were just going to put it away, is that right?
A. I know I got more sense than pointing at the Police Force.
Q. Answer my question.
A. Yes.
Q. That is all.
At this point the defense rests its case.
By the counsel for the defense:
We have no witnesses.
By the Court; Anything, else?
By the counsel for the defense:
No, nothing else.
By the Court: Find the defendant
‘Guilty’.
By the counsel for the defense:
For the purpose of the record, may-I just renew my Motion, so the record will be straight?
By the counsel for the prosecution:
He has let that time go by. He certainly has.
By the Court: You wanted to be technical in this case. You have let the time for that motion pass.”

Then follow several pages of discussion concerning the right of defense to renew his motion to dismiss the case on the grounds of failure to prove venue and want of jurisdiction of the court. It will be noted that first, the attorney for the defendant stated that the defense rested its case, followed by the further statement: “We have no witnesses”. Then the court inquired if there was anything else, and to this inquiry, reply was made by counsel for the defense: “No, nothing else.” This last statement, by its terms, could not refer to the use of further witnesses, but included everything except the calling of more witnesses because counsel’s former reference related to that subject only. Nothing was suggested at the time concerning the desire of counsel to argue the case to the court, nor in the pages following the .judgment of guilty by .the court. There is no suggestion of any desire or purpose to be heard in argument, all the exceptions and objections being taken to another phase of the procedure.

The rule controlling the action of reviewing. courts is stated in McHugh vs. State, 42 OS., 154, wherein it is stated:-

“In a proceeding to reverse a judgment in either a civil or criminal case, the Court regards the record as free from error until the contrary clearly appears.”
Riley vs. Rice, 40 OS. 441.
Koch vs. Hotel Company, 13 O. C. C. (N. S.) 163.

Applying this test to the record under consideration^ it does not appear that error has intervened to the prejudice of defendant below.

The judgment of the Common Pleas Court will be affirmed and the cause will be remanded to the trial court for execution of sentence.

Kunkle and Allread, JJ, concur.


text:
    WORTHINGTON PUMP & MACHINERY CO v PIQUA (City)
    Ohio Appeals, 2nd Dist, Miami Co
    No. 244.
    Decided May 17, 1929
    Mr. A. W. DeWeese, Piqua, for Pump & Mach Co.
    Messrs. Bernard S. Keyt, Piqua, and Raymond S. Caulfield, for City.
   ALLREAD, J.

This much we assume has been proven; that the Worthington Company secured an assignment from the Shartle Company of the amount of the contract of the former to the extent of the plaintiff in error’s claim and had secured the agreement of certain officers of the City for the payment thereof. While the evidence shows that the Service Director had notice of the said assignment of the Shartle Company, it is equally clear that the Public Service Director did not sign an approval Of the assignment nor did he commit the City by any writing or agreement on his part for the payment thereof. This is the status so far as the Public Service Director is concerned. The only possible liability of the Public Service Director would be upon the theory of an implied contract.

Section 4328 GC. provides for an express contract by a municipal corporation for supplies and public works, and that such contract shall be let in the manner therein provided for.

The contract was let to the Shartle Company. No change in the contract could be made except by an express contract. Section 4334 GC. provides for contracts, and that

“No liability shall be created against the City as to any matters under the supervision of such director except by his express authority.”

In Article 24 of the contract under consideration it is provided that:-

“Said contractor agrees that he will not assign or sub-let the work or any part thereof, without the previous written consent of the said Director of Public Service, and will not assign, by power of attorney or otherwise, any of the moneys payable under this contract unless by and with the like consent of said Director of Public Serany of the moneys payable under this contract, nor to any moneys due and to become due hereunder, shall be asserted in any manner against the first party, or any person or persons acting under it, by reason of any so-called assignment of this contract, or any part thereof, unless such assignment shall have been authorized by the written consent of the said Director of Public Service.”

A mechanic’s lien was taken by the Scioto Valley Supply Company and was paid by a voucher dated January 14, 1927. This mechanic’s lien would have been payable in any event as it was a lien which Shartle was obligated to pay and which by reason of the mechanic’s lien superceded all contracts. The amount of this claim was $2214.97.

There were certain items which had been allowed and paid t.o the Shartle Company which would have been sufficient to have satisfied the claim now made by the Worthington Company.

The question is, therefore, whether the City of Piqua was bound by the assignment of claim by the Shartle Company to the Worthington Company in the absence of an express agreement to pay the said, assignment to the Worthington Company by the Director of Public Service, and whether the mere knowledge of said assignment upon the part of the Director of Public Service in connection with the other facts surrounding the said transaction was sufficient to create a liability upon the part of the Director of Public Service. While we think that the circumstances surrounding this assignment would be sufficient evidence, of an implied contract on the part of such Director of Public Service and would be sufficient if the case were between individuals, yet in the case of the Director of Public Service, we think there is no sufficient evidence to bind him and that the judgment in the court below was properly rendered in favor of the City.

Kunkle and Hombeck, JJ, concur.


text:
    MUTUAL HOME & SAV ASSN v STEWART et
    Ohio Appeals, 2nd Dist, Montgomery Co
    No. 887.
    Decided May 17, 1929
    Messrs. Burkhart, Heald & Pickrel, Dayton, for Sav Ass.n.
    Messrs. James & Coolidge, Dayton, for Stewart et.
   ALLREAD, J.

It is true that the trial court in the judgment from which the appeal was taken does not decide any of these questions except that it decides that the United States Fidelity and Guaranty Company was not entitled to have the deed reformed. The Court of Common Pleas held that the deed in question was actually a mortgage and was subject to all the incidents of a mortgage. The court therefore held that the deed of the U. S. Fidelity and Guaranty Company, as placed on record, furnished no consideration for the covenant upon which McKnight rests his claim, and the covenant was therefore not available as an obligation. We therefore hold that the case was a chancery case and subject to appeal.

Considering the merits of the case, it appears that McKnight in setting up his mortgage, claims the benefit of the following condition in the deed executed by the Stewarts to the U. S. Fidelity and Guaranty Company. This covenant is as follows:-

“Excepting*** a second mortgage for $1140.00, payable to Edward E. McKnight; also all taxes and assessments due and payable after the date of this instrument, all of which said grantee assumes and agrees to pay as part consideration herein.”

The first question presented is whether the deed in which this covenant appears is an absolute deed or whether it is merely a mortgage. Concurrently with the execution of the deed, there was also executed a declaration of trust which among other things provides:-

“And, whereas, this conveyance is made in trust and as a pledge for the payment of a certain promissory note of $1,000.00 given by the said John H. Stewart to the- said United States Fidelity and Guaranty Company, dated March 26, 1926, and payable at the rate of $25.00 per month, -with interest thereon at 6%.”

This written declaration is supplemented by the testimony of witnesses, and we think there is no doubt but that the absolute deed to the Fidelity and Guaranty Company was in fact a, mortgage.

Under the English common law and which has been followed by early decisions in this State, the declaration that “Once a mortgage, always a mortgage.” is well established law. We know of no case in this State which in any way disputes that maxim of the law and we think the majority of the decisions in this country uphold it. This deed, being a mortgage, was therefore merely security for the payment of Stewart’s indebtedness to his company. The property having been sold in this case and the proceeds of the sale not being sufficient to realize anything upon the McKnight’ mortgage or upon the mortgage of the U. S. Fidélity and Guaranty Company, it would seem reasonable that there was no consideration in the transaction to the Fidelity and Guaranty Company as a consideration for the deed, or mortgage as it was declared, and the deed and all its provisions would, of course, depend upon the consideration..

We are therefore, of opinion that the defendant, the United States Fidelity and Guaranty Company, is entitled to be discharged from the answer and cross-petition of McKnight.

Decree accordingly.

Kunkle and Hornbeck, JJ, concur.


text:
    GRAND CENTRAL DRUG CO et v F. J. O’NEILL MEDICINE CO
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No. 10193.
    Decided October 28, 1929
    Mr. L. E. Appleton, Esq., Cleveland, for Central Drug Co.
    Mr. S. C. Quigley, Esq., Cleveland, for O’Neill Medicine Co.
   VICKERY, PJ.

An examination of this contract will show that there was a contract of purchase which w,ás complete in itself for which the acceptance was given and there was no condition attached to that contract, but at the same time, and perhaps as an inducing cause for the contract, .another and subsidiary contract was entered into, to-wit, the advertising contract.

Now the theory of the pleader of the answer in the court below apparently was that because this collateral contract was not complied with this would prevent a recovery by the plaintiff below for anything. That does not follow. Under the Sales law the receipt of these goods and the retention of them made a complete contract, and the acceptance having been given it was due and payable and the answer admits that the purchase was made.

We do not want to be understood as saying that the defendant below, the plaintiff in error here, would have had no redress, because if that part of the contract which related to the advertisement or the subsidiary contract was the inducing cause which occasioned the purchase of these goods, and that contract was not complied with, had the pleader set it up as it might have been set up, a counterclaim could have been predicated upon it which might have wiped out the entire claim of the plaintiff yea, and perhaps more than the plaintiff’s claim. But the pleader did not see fit to predicate his defense upon that kind of a lawsuit. He says that there was nothing due because the plaintiff company did not advertise, but a reading of the contract will show that this is not a proper interpretation of the contract. There was a complete sale and delivery of the goods and íhe price was agreed upon and the goods were kept, and if there was any reason why they should not have been paid for, it would be because of a counterclaim that the defendant had against plaintiff below to recover damages by reason of the non-compliance with the subsidiary contract. This not having been pleaded and there not being any evidence to show any damage, the judgment of the court below was right and mv?t be affirmed.

Sullivan and Levine, JJ, concur.


author: SULLIVAN, PJ.

text:
    ROYAL INDEMNITY CO v BOYD
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No. 9312.
    Decided October 29, 1928
    Messrs. Baker, Hostetler & Sidlo, Cleveland, for Indem Co.
    Messrs. Day & Day, Cleveland, for Boyd.
   EPITOMIZED OPINION

In a case wherein a person attempted to board a street car, and as he placed his foot in the doorway, the door was closed upon it, throwing him to the ground, and when the car started he w,as dragged upwards of ten feet, the injury sustained was not one calling for double indemnity within the terms of an accident insurance policy providing for “double indemnity” if the injury was sustained by the insured “while riding as a passenger in or upon a public conveyance (including the platform, steps or running board thereof,” as the injury occurred while attempting to become a passenger and not after becoming a passenger.

Opinion by

SULLIVAN, PJ.

VICKERY & LEVINE, JJ, concur.


text:
    DePALMA v STATE
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10131.
    Decided Oct. 28, 1929
   VICKERY, PJ.

Now it is important to bear this in mind because the court admitted conversations and things that the girl said while she was being outraged by the friend of p.ePalma, when De Palma was not present and, of course, that would only be admissible upon the theory of a conspiracy. Now whenever there is evidence of a conspiracy either by circumstances or by direct proof tending to establish a conspiracy, whatever anyone of the conspirators said or did in furtherance of a conspiracy may be used as evidence against the other even though he was not present.

Now here were two boys that undertook to take those two girls home. They took one home and instead of taking the other one home, or taking, her to De Palma’s place, they took her into a lonely desolate spot and there both outraged her and they had some talk in Italian which she did not understand 'while they were going there, and De Palma got out of the automobile and went back behind it while the other man accomplished the purpose in outraging this girl. He then came back, apparently as though, it was pre-arranged and he gratified his lust upon this girl likewise.

Nov/ the whole circumstance here, the fact that they drove this girl out of the way and. took her in the opposite direction when they said they were going to take her home, and the fact that they cooperated together in such unity in carrying' out their nefarious enterprise, all go to bear upon the question that there was an agreement or arrangement between them which showed that they both had joined in this plan to commit this crime. The record shows in this case that the girl resisted and was forcibly outraged against her will and that the man that she called to assist her under such circumstances not only did not assist her, but apparently aided his companion to do what he could not have done alone, if the girl’s testimony is to be believed, that but for the help that DePalma gave the other man he woujd not have been able to accomplish his purpose, and then after that he calmly used this girl, and then says that it was voluntary on her nart.

We think the evidence in this case clearly shows that this man was guilty of the crime of rape and that the court committed no error in permitting what she said to the associate, the man who had never been apprehended but fled from the authorities and is still absent from Cuyahoga County.

We think the verdict of the jury was justified and the judgment will, therefore, be affirmed.

Sullivan and Levine, JJ, concur.


author: MARSHALL, CJ.

text:
    GEORGE AST CANDY CO v KLING
    Ohio Supreme Court
    No. 21657.
    Decided Nov. 20, 1929
   Syllabus by

MARSHALL, CJ.

AUTOMOBILES

(50 Re) Section 6310-28a GC, does not confer an absolute and unqualified right of way upon the driver of a motor “vehicle approaching from the right,” neither does it excuse the driver of such vehicle from the common law duty to exercise ordinary care. Heidle v. Baldwin, 118 Ohio St., 375, approved and followed.

Kinkade, Robinson, Matthias and Allen, JJ., concur.

Robinson and Day, JJ., dissent.


text:
    YOUNGSTOWN (City) v EVANS BROWN In re
    Ohio Supreme Court
    Nos. 21722 & 21775.
    Decided Nov. 20, 1929
   Syllabus by

MARSHALL, CJ.

MUNICIPAL CORPORATIONS

(360 P5) The power conferred upon municipalities to enforce within their limits local police, sanitary and other similar regulations is only.limited by general laws in conflict therewith upon the same subject matter.

Section 3628 GC, is not a law defining offenses and prescribing the punishment therefor, and is not therefore effective to bring, an ordinance purporting to define and punish offenses in conflict with Section 3, Article XVIII, of the Constitution.

Robinson, Matthias and Allen, JJ., concur. Jones and Day, JJ., concur in proposition 1 of the syllabus and in the judgment.

Kinkade, J., not participating.


author: DAY, J.

text:
    WALL v DAYTON FEDERATION CO et
    Ohio Supreme Court
    No 21717.
    Decided Nov. 20, 1929
   Syllabus by

DAY, J.

APPEAL

(30 G) The nature of the action, as shown by the pleadings and the character of the relief sought under them, determines whether such action presents a case in chancery or an action in law.

CONTRACTS

(150 B) Where a petition declares upon a breach of contract and recites facts which, if proven, woul.d entitle the plaintiff to a money judgment, and the prayer of such petition asks for a money judgment and the' answer, denies the right thereto, such action is one at law “for money only”, in which either party might demand a jury trial, and is not a suit in chancery for equitable relief, even though the appointment of a receiver, an allowance of an injunction and an accounting are asked as ancillary and incidental to the main relief sought. Such action is not appealable.

Marshall, C. J., Kinkade, Robinson, Jones, Matthias and Allen, JJ., concur.


author: HOUCK, J.

text:
    SHAEFFER-BLACK CO v HORR
    Ohio Appeals, 5th Dist., Stark Co
    No. 1022.
    Decided October 17, 1929
    Messrs. Black, McCuskey, Ruff & Souers, Canton, for Shaeffer-Black Co.
    Messrs. Burt, Kinnison, Carson &-Shad-. rach, Canton, for Horr.
   HOUCK, J.

We have examined the general charge of the trial Judge and find no error therein prejudicial to the rights of the defendant. The charge of the trial Judge was responsive to.the facts, as established on the trial. The trial Judge at the request of the plaintiff charged the Jury before argument as follows:

“I charge you as a matter of law that if the defendant company, through its servants, agents and employees, allowed its truck to stand upon the paved portion of the roadway for a period of seven hours, that this does not constitute an emergency as contemplated by statute.”

This request to charge is based upon the provisions of 6310-27 GC.

It is clear to the Court that under the conceded facts, that the charge complained of by the defendant is sound iff law and clearly applies not only to the proven but the conceded fact in the case with reference to where the truck of the defendant was standing at the time of the collision and as to the time it had stood there prior to the collision. It therefore follows that we find no prejudicial error in the charge of the Court before argument.

It is urged by the defendant that the plaintiff was guilty of contributory negligence, which in law would prevent a recovery by him. An examination of the evidence, as contained in the bill of exceptions, leads us to the unanimous conclusion that the claim of the defendant is not sound in this respect.

The law is well settled that a judgment will not be reversed unless the claimed error was material and prejudicial. If the claimed error could have made no difference in the final result, it is not sufficient ground for a new trial. Where the whole record shows that the proper judgment was rendered, it will not be reversed, although the Court mistook the law on some proposition. See Reed vs. McGrew, 5 OS., 375; Jordan vs. James, 5 OS., 88; and Harman vs. Kelley, 14 OS., 502.

We are not citing these authorities for the purpose of indicating that any doubt arises in the mind of the Court as to the soundness of the verdict, which we find is supported by the facts and the law. We simply cite these authorities in order that counsel may understand that even though a judgment may be technically wrong, yet, if substantial justice has been meted out, that a reviewing Court is not authorized to reverse the judgment.

Further comment is unnecessary. Finding no error in the record, the judgment must be affirmed.

Lemert, J. and Sherick, J., concur.


author: LLOYD, J.

text:
    ZIMMERMAN v COOK et
    Ohio Appeals, 6th Dist, Erie Co
    No. 307.
    Decided October 21, 1929
    Messrs. J. P. Hertlein and H. L. Peeke, Sandusky, for Zimmerman.
    Messrs. Henry Hart and King, Ramsey & Flynn, Sandusky, for Cook et.
   LLOYD, J.

We have carefully examined the record presented to us and are unable to find therein any evidence tending to show that the decedent was mentally unsound and incapable of making a will at the time of the execution by her of the one here in question, or that she was under any restraint or that undue influence induced its making. Influence to be undue, must be wrongful. To avoid a will, it must be of such nature as to deprive the testator of the exercise of his own judgment and volition. The. conversation above quoted of the decedent with her son shows that, as bad as was her physical condition, she understood what she had done and recognized the validity of the will which she had made, but had changed her mind and desired its revocation. It may be unfortunate and a matter of regret that she was not afforded this opportunity, but as carefully as the members of this court have examined the record of the evidence, we cannot find any warrant or justification in law for disturbing the judgment.

Williams and Richards, JJ, concur.


text:
    DREYER v SCHREIBER
    Ohio Appeals, 5th Dist, Stark Co
    No. 973.
    Decided October 17, 1929
    Messrs. Max Goodman, Esq., Cleveland, and A. E. Greenfield, Painesville, for Dreyer.
    Messrs. Lynch, Day, Fimple, Pontius & Lynch, Canton, for- Schreiber.
   HOUCK, J.

As to the claimed error in the admission and exclusion of testimony we need but to say that we find no errors of any substantial nature or such that would warrant a reversal of this judgment.

We have read the general charge as given by the trial Judge and we are satisfied that it is a clear and concise exposition of the law governing the issues raised by the pleadings and the proven facts in the case.

It is true that if conflicting charges are given by the trial Judge such as mislead the jury, that it is .ground for reversal, but such does not appear in the record before us.

Ins. Co. v. Ins. Co. 5 OS. 450.
National Malleable Cast Co v Luscom, 6 C. D. 313
Insurance Co. v. Reed, 33 OS. 283.

It is urged by learned counsel for plaintiff that the trial Judge committed prejudicial error in giving to the jury the following, pertaining to the question of contributory negligence:

“It was the duty of the plaintiff as well, even though she was riding by invitation in some one else’s car, to exercise ordinary care. It was her duty t.o be on. the look-out and use such influence and authority and power as she had under the circumstances to avoid an accident to avoid injury both to others and herself."

A careful reading of this charge leads but to one conclusion when the issues raised by the pleadings and the evidence offered in the case are considered. This charge was and is clearly applicable and pertains to the issues raised by the pleadings and the evidence offered in the trial. Thus it follows that there is no prejudicial error in this respect.

The trial Judge at the request of the defendant before argument gave in writing the following request, designated as number 2, which is claimed to be erroneous and prejudicial to the rights of the plaintiff:

“When a person without fault is placed in a situation of danger, he is not to be held to the same care and circumspection that prudent persons would exercise where no danger is present. The question in such a case is not what a careful person would do under ordinary circumstances, but what. would he be likely to do or might reasonably be expected to do in the presence of such existing peril. And I therefore say to you that if the defendant without his fault, suddenly found himself in a dangerous situation, the question for you to determine is whether or not a careful person exercising ordinary care under all the circumstances existing at the time would likely have acted as he did, and if you so find, then he is not guilty of negligence and the plaintiff cannot recover in this case.”

A citation of authorities is unnecessary as to the question of the fight and duty of a trial Judge to give written requests before argument. It is his duty to give them if they are correct propositions of law pertaining to the issues raised by the pleadings and- the facts proven on the trial. However, he is not required to give written requests before argument, even though they may be correct propositions of law standing alone,'if they do not pertain to the issues in the case and the facts adduced on the trial. The request challenged when applied to the evidence offered on the trial, as contained in the bill of exceptions is pertinent to the proven facts, and the trial Judge did not commit prejudicial error in giving request No. 2.

Did the trial Judge prejudicially err in in charging the jury as to the law of the road?

We cannot understand how counsel for plaintiff can make this claim in face of the fact that special request No. 1 in writing before argument as to the law of the road was given by the trial Judge at the request, of counsel for plaintiff. We have examined the charge and compared it with the law as given in the general charge upon the same subject and we find no prejudicial error in this respect.

Is the verdict against the manifest weight of the evidence? We must and do answer this in the negative.

Having examined all of the claimed errors in this case we find none of a prejudicial nature and that the judgment is in response to the evidence and the law, and therefore should be affirmed, which is now done.

Lemert, J, and Sherick, J, concur.


author: WILLIAMS, J.

text:
    STATE ex MARY McCLOSKEY v RICHARD McCloskey
    Ohio Appeals, 6th Dist, Erie Co
    No. 304.
    Decided October 21, 1929
    Messrs. Krueger & Rosino, Sandusky, for State ex Mary McCloskey.
    Messrs. King, Ramsey & Flynn, San-dusky, for Richard McCloskey.
   WILLIAMS, J.

The original action was brought in the court of common pleas to recover upon a bond given for the support of minor children, pursuant to the provisions of 13010 GC., after a plea q! guilty to an indictment charging the defendant, Richard Raymond McCloskey, with non-support of minor children under sixteen years of age in violation of Section 13008 GC. The amended petition alleges in substance the execution of the bond and sets out a copy. This bond runs to the State of Ohio and contains the following condition:

“If the said Richard Raymond Mc-Closkey from and after the date of the execution hereof and the approval of the same; as provided by law and until his said children, Richard George Mc-Closkey and Merceda Margaret Mc-Closkey respectively arrive at the age of 18 years, will furnish said children with the necessary and proper home, care, food and clothing or in lieu thereof will pay promptly each week for such purpose to the Clerk of said courts the sum of Six Dollars ($6.00) &nd abide the judgment of - said Court, then this bond shall be void; otherwise it shall be and remain- in full force and effect in law.”

The bond shows upon its f,ace that it was approved by the trial judge.

The amended petition then alleges there was a breach of the bond through failure of the defendant, McCloskey, to furnish care and support for the children, and to maké the payments as ordered, and that Mary McCloskey, as a result, has been compelled to expend monies in caring for and maintaining them during the period covered by the. bond. It further appears from the amended petition that sentence was suspended after the bond was given and approved.

The defendants filed a motion to strike the amended petition from the files and to dismiss the action upon the ground that such amended petition is an unauthorised pleading, filed by Mary McCloskey individually through her attorneys and not by the State of Ohio through the prosecuting attorney, of this county as required by law. The trial judge sustained this motion and entered judgment dismissing the petition at the costs of plaintiff. The action of the trial court is assigned as error in this proceeding.

Section 13010 GC., provides as follows: (Here follows quotation)

An action on a bond, executed on the provision of this section, might properly have been brought by Mary McCloskey in her own name, under the provisions of 11242 GC.

Casualty Co. v. McDiarmid, 115 Ohio St., 576, 583.

She saw fit, however, to bring the action in the name of the state of Ohio on her relation.

Section 11244, GC., provides as follows:

“An executor, administrator, or guardian, a trustee of an express trust, a person with whom, or in whose name, a contract is made for the benefit of another, or a person expressly authorized by statute, may bring an action without joining with him the person for whose benefit it is prosecuted.”

The State of Ohio has no interest in the amount that may be recovered in an action on a bond of the character of that involved in the action below. The intent of 13010 GC is plain. By its terms sentence is suspended after the bond is given and the convicted' person is given an opportunity to earn the money and to support his children in accordance with the order of the court, and security for his doing so is furnished through the bond. Money which is recovered through an action brought in court for breach of the bond goes to the person who has furnished such support.

As the. contract evidenced by the bond is made in the name of the state for the benefit of a person who may furnish the support, an action for breach of the bond may be brought either in the name of the person who is entitled to the benefit of the security given or may be brought in the name of the state of Ohio for the use and benefit of such person.

Sherwood vs. State ex rel Sherwood, 22 Ohio App., 507.

Dimmitt vs. State ex rel Milburn, 112 Ohio St., 691.

We have examined the many decisions cited and in addition have made an original investigation. It would seem that the conclusion reached is the only logical one.

The trial court erred in sustaining the motion and the judgment is reversed with directions to overrule the motion and for further procedings according to law. As the cause is remanded for the purposes above indicated, we call attention to the fact that the amended petition would be in better shape if it alleged and set forth specifically the amount expended by the relator namecl therein for the care and support of the minor children.

Lloyd and Richards, JJ, concur.


text:
    DeSANTIS et v BRUMBAUGH
    Ohio Appeals, 5th Dist, Stark Co
    No. 1048.
    Decided October 17, 1929

      Messrs. Lynch, Day, Pontius & Lynch, Canton, for DeSantis et.
    Messrs. Amerman & Mills, Canton, for Brumbaugh.
   HOUCK, J.

In order for the Court to examine, under the Taw, these affidavits in support of a new trial, they must be made a part of the original bill of exceptions, or a subsequent bill of exceptions, duly certified to and signed by the trial Judge. This the record does not disclose and therefore the Court is without jurisdiction or authority to pass upon the claimed affidavits filed in support of the motion for a new trial. While they may be filed with the papers and be a part of the files, yet in order for a reviewing Court to obtain jurisdiction and pass upon such affidavits, they must be a constituent part cl? the bill of exr ceptions.

Workmen v. Green Cab Co. 29 O. A. R. 349.

However, passing this question, and coming to the fact as to whether or not the affidavit or affidavits filed in the Common Pleas Court in this case seeking a new trial, were and are of such a character and nature as to warrant a new trial, will say that a new trial will not be granted on a mere showing that new evidence has been discovered. Newly discovered evidence, in order to be sufficient, must furnish all of the following requirements:

1 — It must be such as will probably change the result, if a new trial is granted.

2 — It must have been discovered since the trial.

3 — It must be such as could not have been discovered before the trial in the exercise of due diligence.

4 — It must be material to the issue.

5 — It must not be merely cumulative to former evidence.

6 — It must not merely impeach or contradict the former evidence.

Applying these rules to the affidavits before us we must concur in the judgment of the trial Judge ip, overruling the motion for a new trial on the claimed ground of newly discovered evidence.

Is there prejudicial error in the record with reference to misconduct of counsel in reading a decision from an Ohio Court in the presence of the jury?

The record at page 273 discloses the following:

“Judge Pontius. Now, if the Court please, I asked the Court to instruct the jury to disregard the law read and to say'to the jury that they must be guided by the law as the Court gives it to them.
THE COURT. The objection will be overruled with exceptions and let the record show that Mr. Mills adopted what he read from the book as a part of his argument.”

We do not agree with counsel for plaintiff in error that the reading from a decision by counsel for defendant in error is prejudicial in the light of what the trial Judge said to the jury, and the law governing same.

Timberman v. State, 107 OS. 266.

As already stated, relying upon the record, we do not think that said claimed prejudicial error is of such a character or nature as to require a reversal of the judgment below. While it is not proper practice to read to the jury from decisions of Courts, yet in order, for it to be prejudicial, it must be such that a reviewing Court could say that if this had not been done, a different verdict would have been returned, but in the present case, we do not so find.

Did the trial Judge err' in refusing to sustain the motion of plaintiff in error, the defendant below, for a directed verdict after the plaintiff below had rested his case, and after all of the tetsimony had been offered?

This question must be answered against the plaintiff in error and in favor of the defendant in error. Before this claimed prejudicial error should avail the record must disclose that under the facts and law that the plaintiff below failed to sustain the material allegations of his petition, and further that the law' given by the trial Judge is and was erroneous and prejudicial to the rights of plaintiff in error. This we do not find.

Did the Court err in failing to charge the jury as to the law constituting a conspiracy?

An examination of the record at page 292 discloses

“THE COURT. Probably I did not cover the question of conspiracy in this case. Conspiracy means in a general way that two or more act jointly to do something. Now there is a charge of conspiracy here in fraud. If you find from the evidence that there was a conspiracy of the four, then the act of any one would be the act of all of them, or if you find from the evidence that there was a conspiracy of three, then the act of each of the three would be the act of all three of them and if you find there was a conspiracy of two, then the act of either one of the two would be the act of both of them.”

On this record we must and do find against the claim of learned counsel for plaintiffs in error as to the fourth stated ground of error.

Having given this case careful and laborious consideration, we are of the unanimous opinion that no prejudicial error is contained in the record, and that the judgment of the lower Court should be affirmed.

Lemert, J, and Sherick, J, concur.


author: VICKERY, J.

text:
    FRIED v COHN-GOODMAN CO et
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No. 9160.
    Decided October 29, 1928
    Messrs. Lieghley, Halle, Haber & Berick, Cleveland, for Fried.
    Messrs. Mooney, Hahn, Loeser & Keough, for Cohn-Goodmian Co et.
   EPITOMIZED OPINION

Where the owner of premises leased the same for a period of years and the lease contained a clause permitting the lessee to sublet any or all of the premises, and thereafter the lessee sublet the entire premises to the defendant for the balance of the term, the lease being, in due form and signed by the lessee who became the lessor and the lessee of the new lease, but the same was not acknowledged nor recorded, it was held that the lessor of the new lease, upon notice of the defendant lessee of vacation and abandonment before the end of the term, could not maintain suit in equity to reform the lease, enforce the same and compel acknowledgement by defendant, and for an injunction restraining defendant from disturbing its assets, as acknowledgment by defendant was not necessary, it having, been in the power of plaintiff to acknowledge and record the lease. The court held further that plaintiff had his remedy at law for breach of the contract, being obliged to minimize damages, only so far as possible. .

Opinion by

VICKERY, J.

SULLIVAN, P. J. & LEVINE, J., concur.


author: Syllabus by PARDEE, J.

text:
    ORRVILLE (Village) v COYLE
    Ohio Appeals, 9th Dist, Wayne Co
    No. 856.
    Decided October 17, 1929
    Messrs. A. H. Etling, and Weiser & Weimer, all of Wooster, for Orrville (Village) .
    Messrs. Troutman & Taggart and Weygandt & Ross and Carl Hoover, all of Wooster, for Coyle.
   Syllabus by PARDEE, J.

The length of time that an obstruction is across a_ sidewalk in a village, is only one of the' elements which determine whether a village has constructive notice of its presence, and a court is not warranted in taking a case from the jury solely upon a consideration of that element. All of the facts disclosed by the evidence which have a bearing, upon the question of notice must be considered, and generally the issue is one of fact for the jury rather than one of law for the court.

Full opinion will be published later.


text:
    GROOMS v ADAMS CO COMMISSIONERS
    Ohio Appeals, 4th Dist, Adams Co
    Decided October 28, 1929
    Messrs. Blair & Ball, Portsmouth, for Grooms.
    Messrs. E. S. Young, Seaman, and W. P. Tucker, West Union, for Adams Co Comrs.
   MIDDLETON, PJ.

Every date in the notice was correct saving only that the date April 1st, 1928, should have read April 1, 1929. It is so manifest that the date for final hearing was in fact meant for the first day of April, 1929, that it is not conceivable that any one was in any way misled by the mere typographical error thus disclosed.

The other question is whether or not this particular sort of notice must be published in more than one newspaper. At the time 6864 GC was enacted there were on the statutes many provisions relating to legal publications, some requiring publication in two and others publication in a single newspaper. The legislature by this section provided for publication in

“** a newspaper published and having general circulation in the county where the proposed improvement is located”.

By its plain terms, therefore, the requirements of this action are met when publication in a single newspaper is made. It is claimed, however, that 6252 GC requires publication in two newspapers notwithstanding that the particular section under which the commissioners were acting requires publication in one only. We would be slow to adopt the view that a later statute dealing with a question in a particular and definite way is modified by an earlier section dealing with the same subject matter in a general, way. We are not confronted, however, with that question because 6252 GC provides only that certain particular kinds of notices shall be published in two newspapers. They are election proclamation, orders fixing the times of holding court, rates of taxation, bridge and pike notices and notices to contractors. These are specifically covered by the statute and require publication in two newspapers. The notice required by Section 6864 GC is not among those enumerated. Section 6252 further provides generally that such other advertisements of general interest to the taxpayers as the officers may deem propér shall be published in two newspapers, but the officers themselves are the judges of what notices are of such interest as shall require publication in two newspapers. Not only are the officials named to be the judges of what advertisements shall be published but such advertisements must be of “general interest to taxpayers”. That means of great Or extensive interest affecting a majority, a great number. Platt v. Crag, 66 OS. 75. There is no proof that the improvement in question costing less than $1,000.00 was one of general interest to the taxpayers affected by it and for the foregoing reasons 6252 GC in no way changes the provisions of 6864 GC as applied to the advertisement involved here.

We have been cited to the case of State ex rel Compton vs. Board of County Commissioners, 18 Ohio App. 462, as sustaining the view of the plaintiff herein. In that case the court was dealing with the second sentence of 6252 GC. That' sentence in mandatory language requires publication in two newspapers in counties having cities of eight thousand inhabitants or more. In the Compton case the court was concerned only with that sentence of 6252 GC and its holding has reference only to the peremptory language of that sentence. The views reached by us are not necessarily in conflict with the opinion in the Compton case.

We do not find it necessary to go into the question of whether or not the plaintiff is estopped from prosecuting this injunction.- We are content to say that the action of th§ commissioners was entirely within the law.

Mauck, J, concurs. Blosser, J, not sitting.


text:
    EDNA GARR v MACK GARR
    Ohio Appeals, 2nd Dist, Montgomery Co
    No. 898.
    Decided July 3, 1929
    Mr. C. J. Mattern, Dayton, for Edna Garr.
    Mr. Chas. J. Brennan, Dayton, for Mack Garr.
   ALLREAD, J.

One of the purposes sought by this proceedings in error is a review of that judgment. We have carefully considered the evidence. The testimony is in conflict, and we are unable to find sufficient evidence in conflict with the judgment to justify this court in reversing the same. The judgment as to the divorce will, therefore, be affirmed.

The court below refused to decide as to the custody of the child, which was asked for by both parties. We think in this the court w,as in error. It was his duty to decide as to the custody of the child. There was an agreement at the time of the separation between the husband and the wife as to the custody of the child, and as to the duty of the plaintiff, Mack Garr, to make a contribution to the wife and for the custody of the child.. This agreement is set up by the defendant, the wife, in her cross petition, and the court was asked to declare the validity thereof and fix the amount due from the defendant, and as to the custody of the child.

The court declined to pass upon this question, and we think fit was the duty of the Court of Domestic Relations to pass upon the validity of that contract, or at least to make an award of the amount due from the defendant in' error to the plaintiff in error for the custody of said child in case it should be awarded to her.

We think the failure of the trial court to pass upon these questions constitutes prejudicial error and calls for a reversal of the judgment.

The judgment, so far as it relates to the custody of the child, the validity of the contract of separation, and the award to plaintiff in case such award is made of the child, and of the amount of compensation to her for the support of said child, is hereby reversed and the cause is remanded to the Court of Common Pleas, Doiflestic Relations Division, for further proceedings.

Judgment affirmed as to the decree of divorce, and reversed in other respects.

Kunkle and Hombeck. JJ, concur.


text:
    BAILEY v MEHLING
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No. 9580.
    Decided May 13, 1929
    Messrs. Locher, Green & Woods, Cleveland, for Bailey.
    Milton C. Portmann. Esq., Cleveland for Mehling.
   EPITOMIZED OPINION

Where the owner of property gave a written easement in the form of a deed to a village to lay a sewer across the property, which was done, although the deed was not recorded, and later, the owner conveyed the property to an innocent purchaser, without notice,'with full warranty and free from incumbrances, and its purchaser leases the property for a period of 99 years to another person who desires to place a building, thereon, but is unable to do so without the sewer being relocated, the purchaser is entitled to recover the amount expended in re-locating the sewer as against the devisees of the grantor; and in such case, such devisees are liable in proportion to the share received from the grantor. The judgment should not be rendered in solido as against such devisees.

Opinion by

VICKERY, P. J.

SULLiyAN & LEVINE, J. J., concur.


text:
    COLONIAL FINANCE CO v WINKHART
    Ohio Appeals, 5th Dist, Stark Co
    No. 1027.
    Decided October 17, 1929
    Messrs. Hart & Drukenbrod, Canton, for Finance Co.
    Messrs. Amerman & Mills, Canton, for Winkhart.
   HOUCK, J.

The evidence discloses that' after the Finance Company had repossessed itself of the automobile from Winkhart, that it entered into a new and supplemental agreement with him, with reference to the unpaid payments under the chattel mortgage. That Winkhart had paid all of the back payments, except possibly half of one payment, and that the Finance Company had agreed not to sell or dispose of said car until the 5th day of May, following this agreement. The record fairly discloses that it did dispose of this car on the 2nd of May, but that it did not file the bill of sale to the purchaser until the 7th of May. That the Finance Company refused to and declined to give information, to Winkhart as to whom the car had been sold or the price received for it. Winkhart, by agreement with the Finance Company had arranged to pay off the entire indebtedness and mortgage lien on the car to the Finance Company on the 5th of May following the verbal agreement heretofore referred to between the parties hereto.

The record discloses that the 5th came on Saturday and that the bank was closed and Winkhart could not obtain the money. That on Monday following this particular Saturday, he made a tender and offered to carry out his promise and agreement to liquidate the entire indebtedness and re-possess his car, as per the verbal agreement. That at that time, the Finance Company informed him that it had sold the car, ,and that it could not and would not carry out its agreement.

Under the undisputed a&d conceded facts in this case, we hold that a new contract had been entered into between the parties and that by reason thereof, the Finance Company did not sell, in law, under its reputed chattel mortgage, the car in question by reason of the fact that at that time it held and possessed said car under and by reason of the verbal agreement entered into between the parties hereto, as hereinbefore referred to, which verbal agreement abrogated and set aside any and all rights the Finance Company had under and by virtue of its chattel mortgage.

The Court further find under the facts before us, that the Finance Company was guilty' in, fact and law of an unlawful conversion of said automobile.

See: Railroad Co. v. O’Donnell, 49 OS. 489.

Great American Mutual Indemnity Co. v. Myer 18 O. A. 97.

We cannot escape the fact that the conduct and acts of the Finance Company in withholding knowledge from Winkhart as to the alleged sale of the car, the amount received, etc. is .not of a commendable character.

Keeping in mind that the c.ar was repossessed, and that a new agreement was entered into thereafter between the par-' ties, therefore the car must be sold fairly and openly in good faith, notwithstanding the provision in the chattel mortgage, permitting it to be sold at public or private sale without notice and that such mortgagee may become a purchaser at such sale.

As already stated, we find that the provisions of the chattel mortgage have no effect in law as between the parties hereto by reason of the fact that after the Finance Company re-possessed the car, a new agreement was entered into which abrogated and set aside all the rights of the Finance Company under and by virtue of the chattel mortgage.

After all of the testimony was in, the plaintiff below by leave of Court amended his petition in order to conform to the facts. We find no prejudicial error in this respect. This amendment was made by order of Court in the interest of justice to all parties.

In oral argument it was claimed that the trial Judge committed error in his charge as to the measure of damages. The trial Judge in charging the jury upon this question, s,aid:

“The measure of damages, if you find the issues joined' in favor of the plaintiff on that proposition, would be the reasonable market value of the automobile at the time it was re-possessed or taken possession of by the defendant in this case, less the amount of money the plaintiff still owed to the defendant.”

In the light of the facts now under review, we are unable, to find that this charge is prejudicial or by reason thereof, that the Finance Company has any ground for complaint.

The verdict was and is responsive to the evidence offered. There was proof that the value of the car was $1200.00, and we ¿o not find that the verdict is excessive.

McHugh v. State, 42 OS. 154.

Under the rule of substantial justice 'and in view of the rules of law herein laid down and the authorities cited, we are of the unanimous opinion that the judgment entered in the lower court, is sound in fact and law and no reversible error appearing in the record, this Court must and now does affirm the judgment of the Common Pleas Court.

Lemert, J, and Sherick, J, concur.


text:
    DeHOFF v MYERS et
    Ohio Appeals, 5th Dist, Stark Co
    No. 941.
    Decided October 17, 1929
    Messrs. H. C. Pontius, Esq., and Thos. Miller, Esq.', Canton, for DeHoff.
    Mr. Henry W. Harter, Jr., Canton, for Myers et.
   HOUCK, J.

Mandatory stautes are imperative and must be strictly construed, otherwise the proceeding which is taken ostensibly by virtue thereof will be void. Compliance therewith substantially is a condition precedent, that is, the validity of acts done under a mandatory statute depends on a compliance with its provisions.

The vital question presented in this case is as to whether or not there has been a substantial compliance with the statutory provisions governing the questioned election. If there has been such, then the claim of the plaintiff must fall. See 2nd Sutherland on Statutory Construction, 2nd Edition, Sec. 627.

We are also clearly of the opinion that the case of Board of Education vs. Briggs, 114 OS. page 415, adopts and follows the rule herein laid down.

It will be observed that this is a suit for injunctive relief and this remedy is summary, peculiar and extraordinary and ought not to be invoked except for the prevention of great and irreparable , mischief, and granting such relief always rests in the exercise of a sound discretion governed by the nature of -the case. The granting of injunctive relief rests wholly and entirely _in the discretion of the Chancellor or Chancellors. Substantial and positive injury must always be made to appear to the satisfaction of the Chancellor or Chancellors before allowing injunctive relief and acts which, although appearing irregular, if they have no injurious result, constitute no ground for such relief.

“One who seeks an injunction must show his - right thereto by clear evidence.
Riefsnyder v. Fertilizer Co. 9 Ohio App. 161.
“A court of equity will grant a perpetual injunction only when a party shows a clear right thereto.
Spangler v. Cleveland, 43 OS. 526.

In the light of these authorities and the peculiar facts set forth in the petition and the conceded facts stated by counsel in the argument of this case, we have no hesitancy in saying that the plaintiff is not entitled to a permaneixfc injunction against the defendants.

In this case there is no charge of fraud and no one seems to hav.e been injured in person or property and it occurs to the Court that the relief prayed for in the petition should not be granted, where no showing of substantial injury or wrong has been made. The election has been held and the electors voted to issue the bonds and to enjoin the sale of them at this time, it seems to us, would be an exercise of an abuse of discretion in a Court of equity. Viewing the case as we do, we are clearly of the opinion that substantial Justice warrants and authorizes the refusal to grant the injunction as prayed for in the petition, which is now done.

Judgment is entered for the defendants, and the petition of the plaintiff is dismissed. .

Lemert, J, and Sherick, J, concur.


author: ROBERTS, J.

text:
    INDUSTRIAL COMMISSION v POLCEN
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No. 9383.
    Decided March 4, 1929
    Messrs. Gilbert Bettman, Cincinnati, Arthur Kr,auss and R. D. Metzner, Cleveland, for Industrial Commission.
    Messrs. Locher. Green & Woods, Cleveland, for Polcen,
   EPITOMIZED OPINION

Where plaintiff had been employed for upwards of ten years in a chemical plant and at the time complained of and for a considerable period theretofore had been working in the chemical department, and it appeared that employes in this department were subjected to sulphuric fumes and vapors which caused them to cough and sneeze, a violent coughing spell 'which seized plaintiff while so employed, resulting in an inguinal hernia causing disablement, entitles him to compensation for an injury arising out of his employment; nor can such condition be attributed to an occupational disease.

Opinion by

ROBERTS, J.

MIDDLETON & MAUCK, J. J., concur.


author: WASHBURN. J.

text:
    MUCCINO v B & O RR CO
    Ohio Appeals, 9th Dist., Summit Co
    No. 1703.
    Decided October 29, 1929
    Messrs. Frank & Ream, Akron, for Muccino.
    Messrs. Waters, Andress, Hagelbarger, Wise & Maxon, Akron, for B & O RR Co.
   Syllabus by

WASHBURN. J.

When, in a proceeding to fix the value of real estate taken for public purposes, evidence is offered, in cross-examination of the sale price of other land, its competency depends upon whether there was an actual sale sufficiently near in point of time, whether the.other land is similiar in character, location and other circumstances relating to value, and whether the sale was in a fair and open market, and should be determined by the trial judge in the exercise of a sound discretion; and such determination will not be disturbed by a reviewing court unless an abuse of discretion is shown.

Full opinion will be published later.


text:
    MOORE v ALLIANCE (City)
    Ohio Appeals, 5th Dist, Stark Co
    No. 986.
    Decided October 17, 1929
    Mr. Milton C. Moore, Esq., Alliance, for Moore.
    Mr. F. E. Hunter, Esq., Alliance, for City.
   HOUCK, J.

This controversy arises out of a proper construction and interpretation of 3814 and 3824 GC.

The plaintiff contends that the assessment does not create a lien upon the lands involved in this lawsuit, until the time of the passing of the ordinance declaring the intention to pave the street along, the questioned land, by the city council.

The defendant contends that the assessment becomes a lien on the land at the time of the resolution of necessity to improve the street by the passing of such ordinance by the city., council.

The question to be determined in this case is as to when the lien for the assessment attaches. We find that the Supreme Court of Ohio has decided this question in favor of the plaintiff and against the defendants, and wé refer counsel to the case of Douglas, et al. vs. The City of Cincinnati, 29 Oh. St. 165.

The rule, seems to be and the theory on which assessments are .authorized is the presumed benefit resulting to the property from the improvement, and insofar as they are made a personal charge on the owner, it is only in respect .to the property. See Sidner vs. Alexander, 31 Oh. St. 378; 17th C. C., page 631; and 7th C. C., 320.

The conclusion of the Court is that the claim of plaintiff is sound and that he is entitled to the relief prayed for in his petition.

Lemert, J, and Sheriek, J, concur.


text:
    BECK v ALLIANCE FIRST NATL BK et
    Ohio Appeals, 5th Dist, Stark Co
    No. 1014.
    Decided October 17, 1929
    Mr. V. L. Fishel, Esq., Alliance, for Beck.
    Messjs. Andrews & Moreland, Alliance, for First Natl Bk et.
   HOUCK, J.

Coming, to the first question as to the appealability of this action, we will say that Sec. 6 of Article 4 of the Constitution of Ohio provides

“Courts of Appeals shall have original jurisdiction in' quo warranto, mandamus, habeas corpus, prohibition and procedendo and appellate jurisdiction in the trial of chancery cases.”

Is the construction of a will and the right of a trustee named therein a chancery case? If this be answered in the affirmative, then this cause is appealable, but, on the other hand, if answered in the negative, then it is not appealable and the claim of counsel for the defendants is sound.

Gerhardt v. Richardson, 109 OS. 418.
Shoe Co. v. Shoe Co., 16 O. A. R. 387.
Bank & Trust Co. v. Clark, 7 Ohio App. 6.

It is clear to us that under the Constitution of Ohio and the decisions just cited, that there can be no question as to the appealability of the case at bar.

Coming now to the second question, will say that before a Court, of equity will attempt to construe a will, it must appear upon the fac° of the instrument that some immediate necessity exists for a construction of the will. There must be a present or impending controversy to be determined. That a doubt may arise at some future time which will necessitate’ an inquiry into the significance of the language of the testator is never .sufficient to justify a construction of the will.

The applicant for the construction of a will must show that there is some necessity for his invocation of the wisdom of the Court. He must show that some provision of the will is of dubious and uncertain meaning and that he will soon be called upon to act under it. for the time and attention, of the Court cannot be occupied in construing that which stands in no need of construction or in solving speculative and contingent doubts which may never arise in the actual performance of the duties of the executor or trustee.

It' is a well settled rule of law where the language of a will is plain and its meaning is obvious, the Court has no right to qualify or control such language in any way by conjecture or doubt arising from extraneous facts. If the testament is contingent in form, although the testator through inadvertence failed to explain his intention as he undoubtedly would have done had his attention been called to the matter, it must be so declared, for the Court c,an no more make a will in part for a deceased person than it can make his whole will.

A careful reading of the will of Reuben Earnest leads us to the unanimous conclusion that it needs no interpretation, the language therein being plain, definite, certain and explicit, and where no construction is necessary, there is nothing for the Court to interpret. This rule clearly applies to the instant case. We cite counsel to the following cases as supporting the conclusion of the Court reached in this case:

Corry, et al. v. Fleming, et al., 29 OS. 140; and
Rothgeb v. Mauk, 35 OS. 503.

It appears to this Court that a further discussion of the facts and law involved in this controversy is unnecessary and the Court now enters judgment for the defendant, and the petition of the plaintiff is dismissed.

Lemert, J, and Sherick, J, concur.


author: WASHBURN, J.

text:
    GRUNDY v STATE ex MARTIN
    Ohio Appeals, 9th Dist, Lorain Co
    No. 507.
    Decided November 8, 1929
    Mr. A. H. West, Elyria, for Grundy.
    Messrs. Webber Sz Symons, Elyria, for State ex Martin.
   WASHBURN, J.

The record discloses that the magistrate did file, within the 30-day period, a certified transcript of the proceedings before him, which transcript contained copies of said original papers, and at the trial the originals were produced by the magistrate and the court permitted them to be then filed. We find no error in the rulings of the court in reference to said matter.

Hoff v, Fisher, 26 OS. 7.

It is also claimed that the court erred in permitting certain questions to be asked of a witness on cross-examination and that the judgment is excessive in amount; but we do not find any error as to either of said claims .

It is further claimed that there was error in the charge of the court, wherein the jurors were told that the proceedings were for the benefit of the public and not in the interests of or for the benefit of the complainant. The court’s charge on this subject was as follows:

“While this proceeding is in a sense quasi-criminal in its nature, the statutory remedy provided by law in bastardy is not necessarily in the interests of or for the benefit of the prosecutrix, but the objects and purposes are to protect the state and the county against the possible necessity of the care of any child that may be illegitimate. ***
“It is the state of Ohio and the state of Ohio alone and the county that are concerned in this matter, and that is to determine whether or not the defendant is the one who should support and maintain this child in the future. That is the sole question for you to determine in your deliberations.”

To so charge was plainly erroneous. Such a statement of the law was correct under the bastardy law before it was amended in 1923, but by that amendment the whole object and purpose of the law was changed; that change was pointed out by us in the opinion reversing a case tried by the same Common Pleas Court in 1926, wherein we stated that—

“From a consideration of these various statutes as they were and as they have been amended, we are of the opinion that the matter of maintenance of the illegitimate child was •eliminated entirely from the bastardy act, and that a proceeding under the bastardy act as it now is, is for the sole benefit of the mother of the child or her estate, and that the purpose of the proceedings under the present bastardy act is to compensate the mother, or her estate, for her necessary support, maintenance and expenses during, pregnancy and child-birth ***.”
Glenn Cowley v. State, ex rel. Effie Beebe, No. 366, Lorain County, decided May 8, 1926.

The .important question is as to whether the error of the court in misstating the object and purpose of the law was prejudicial.

In some cases such error might be prejudicial, but, a consideration of the record in this case leads us to the conclusion that said error in the charge did not affect the verdict of the jury. The evidence is quite convincing, and clearly the proper verdict was rendered.

Moreover, there is no criticism of the charge in other respects, and the court did charge, that—

“The jury are not concerned with the judgment to be entered upon the verdict. You simply are to say whether the defendant is guilty or not guilty. If your verdict should_.be one of guilty, the court then determines what judgment should be pronounced on that verdict. If your verdict should be one of not guilty, the court then enters up a dismissal of the case.”

The jurors were called.upon to determine whether Grundy was the father of the child and were not concerned with the question of whether, under the law, the benefit of such finding would inure to the complainant or the public, and could not properly have been influenced thereby.

Finding no prejudicial error, the judgment is affirmed.

Funk, PJ., and Pardee, J, concur.


text:
    HAUEISEN v SZALAY et
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No. 10161.
    Decided October 28, 1929
    Mr. Frank W. Emslie, Cleveland, for Haueisen.
   MAUCK, J.

Here a motion was made to dismiss the appeal on the ground that it was not a chancery proceeding.

The pleadings show that there was no issue joined upon the first cause of action and that the only controversy between the mortgagee and Cohen arose upon the second cause of action which was an action to foreclose. Foreclosure is essentially of an equitable nature _and an appeal lies. The motion to dismiss is overruled.

Coming to the merits of the case, we find that at the time the sale was made under the judgment upon the notes that were then due, not only were the conditions of the mortgage broken but the mortgagee was in possession of the mortgaged property.

In St. Mary’s Machine Co. vs National Supply Co. 68 OS. 535, it was held that after condition broken, the mortgagee is the owner of the mortgaged property and that the mortgagor has only a right of redemption.

In Sayler vs Simpson, 45 OS. 141, it is said that after condition broken, “all that was left in the mortgagor*** was an equity of redemption or an equitab^ interest to the extent of what remained after the payment of the mortgage.”

It follows therefore that at the time of the sale to Cohen of the mortgagor’s interest in the property in question, the mortgagor had only an equity of uncertain value. It was a right enforceable only in equity. If at that time there had been a foreclosure the mortgagee would have received the surplus of the proceeds of sale after the satisfaction of the mortgage, and of course only the equity side of the court could have granted foreclosure.

If the mortgagee, then in possession, had sold the property no proceeding at law would have availed the mortgagor, but equity alone could have compelled the mortgagee to account for any surplus. Clearly, therefore, the mortgagor’s interest was an equity only.

Sec 11655 GC. fixes the power of levy and sale under an execution. It describes the property that may be thus levied upon and sold. Formerly the section covered lands and tenements and goods and chattels not exempt by law. In 1880 the General Assembly added after the words “lands and .tenements” the phrase, “including vested interests therein.” Until that amendment, it was uniformly held that only legal assets jn lands and tenements were open to sale upon execution, and that it was only by virtue of the amendment in 1880 that equitable estates in lands could be levied on. Bank vs Logue, 89 OS. 288.

Manifestly, - if it required a specific amendment to subject equitable assets in lands to levy by execution, a similar change in phraseology would be required to subject an equitable interest in personal property to execution. No such change was ever made.

It will be observed that since Bank vs Logue was decided, the section in question has been again amended by confining the vested interests subject to execution, to legal interests. There was therefore, no power to reach this equity of the mortgagor by execution. The only method by which it could be reached by a judgment creditor was by ah equitable action brought under favor of 11760 GC. and that, of course, was not done in this case.

It is true that in Carty vs Fenstemaker, 14 OS. 457, and Morgan vs Spangler, 20 OS. 38, liens were sustained upon mortgaged chattel property but the property was still in the possession of the mortgagor, and in those cases sale was only had pursuant to such an action as is contemplated by 11760 GC.

It follows that in the attempted sale to Cohen, he bought nothing. That sale was, however, brought about by the procurement of the plaintiff in the pending case. It was for her benefit. She realized all the proceeds of that sale. In the pending case she seeks equitable relief. As a condition precedent, thereto, she will be required to do equity.

It is now ordered that out of the proceeds of the sale of the mortgagee’s property, Sidney Cohen be paid first, after the costs, the sum of $231.00 with interest from the day of sale. The case will then be remanded to the municipal court for execution of this order.- The petition in error filed herein will be continued until the final settlement of the case on appeal.

If our determination that the case at bar is appealable, should prove erroneous, the case may then be considered in the error proceedings. If_ the appeal shall be sustained, the petition in error will be dismissed at the cost of plaintiff in error. The costs in this court, in the appeal case, are taxed against the plaintiff.

Middleton, P. J.. concurs.