text:
    McGOLDRICK v KUEBLER
    Ohio Appeals, 6th Dist, Lucas Co
    No 2319.
    Decided March 24, 1930
    H. Joe Cannon, Toledo, and Carl A. Brandes, Toledo, for McGoldrick.
    Tyler, McMahon, Smith & Wilson, Toledo, for Kuebler.
   RICHARDS, J.

It is insisted that the cause of action was barred by 11224-1 GC, as amended, which became effective August 2, 1927. This contention can not be sustained in view of a decision! of the Supreme Court in the case of Smith vs. New York Central R. R. Co., the syllabus of which is in Ohio B,ar of March.11, 1930. (8 Abs. 192; 170 NE 637; 122 Oh St 45.)

It is further urged that the amended petition does not state a cause of action. The averments show that the plaintiff became a guest of Edward Ketchell in the apartment occupied by him on the second floor of a two-story apartment building which was owned by the defendant, Herman C. Kuebler,. and that access to and from the apartment was had by means of a hall and stairway. The pleading avers that there was no handrail provided and maintained for the stairway and no light of any kind and that by reason of the failure and neglect of the defendant to provide and maintain for the stairway a substantial handrail, and by reason of his failure to provide and maintain artificial light so located as to amply light the stairway, the plaintiff was injured in leaving the apartment by the stairway about nine o’clock at night, and that he missed a step on the stairway and fell to the bottom, sustaining serious injury.

The plaintiff pleads also the existence of an ordinance of the city of Toledo, known as Section 405, which requires the owner or lessor of tenement houses, flats and apartments having two or more apartments, to provide artificial light properly located to light stairways and corridors therein and requiring the light to be kept burning the full period of darkness. The amended petition also contains an averment that the violation of the ordinance proximately caused the plaintiff’s injuries and that no handrail was provided for the stairway by the defendant at the time the premises were leased or at any time thereafter.

Nowhere in the amended petition is there an averment to the effect that the injury was caused without the fault or negligence of the plaintiff, but under the authority of Street Railway vs. Nolthenius, 40 Ohio St., 376, such an averment is not required unless the other averments of the pleading suggest an inference that the plaintiff may have been guilty of contributory ngeligence. While the pleading is not very specific, it does charge that the injuries were directly caused by reason of the failure and neglect of the defendant in the respect named. We think the language of the pleading does not raise an inference of negligence on the part of the plaintiff and hence there was no implication of contributory negligence for him to negative.

General Code Section 1006 requires the owner of a tenement house or apartment to provide and maintain for stairs and stairways a substantial handrail extendihg from the top to the bottom thereof. The duty being cast upon the owner by ordinance to light the stairway and by statute to provide a handrail therefor, this court is of the opinion that the pleading states a good cause of action. While the circumstances relating to contributory negligence may properly be developed in the trial, as w,as done or attempted in the case of Flury vs. Central Publishing House; 118 Ohio St., 154, and Painesville Utopia Theatre Co. vs. Lautermilch, 118 Ohio St., 167, yet they do not appear in the pleading under review.

The case of Goodall vs. Deters, decided by the Supreme Court December 11, 1929 and reported on page 432 of Ohio Bar for January 21, 1930, (8 Abs. 28; 619 NE 443; 121 Oh) St 432), was a case in which there does not appear to have been any statute or ordinance casting a duty upon the owner of the premises.

Paragraph 7 of the amended petition was erroneously stricken therefrom by order of the trial court. While some parts of the paragraph may have been immaterial, yet it contains the averment that the apartment was used as a place of public resort to which the public in great numbers were accustomed to go for social enjoyment and that this was with the knowledge of the defendant. The section of the General Code already cited requires the owner to provide handrails for stairways in places of public resort, and the allegation was proper.

For the reasons given the judgment will be reversed and the cause remanded for further proceedings.

Williams and Lloyd, JJ., concur.


source: Caselaw Access Project

author: RICHARDS, J.

license: Public Domain

text:
    PRUNKLE v DRZEWIECKI
    Ohio Appeals, 6th Dist, Luacs Co
    No 2323.
    Decided March 17, 1930
    Marion W. Bacóme, Toledo, for Prunkle.
    Stanley A. Konczal, Toledo, for Drzewiecki.
   RICHARDS, J.

Under the state of the evidence in this case it is apparent that summons was never served on John Prunkle in any manner and that he had no knowledge of the bringing or pendency of the action until long after the judgment was rendered, and has not had his day in court on the original action.

Judgment reversed and cause remanded for further proceedings not inconsistent with this opinion.

Williams and Lloyd, JJ., concur.


author: HUGHES, J.

text:
    BUCYRUS (city) v SEARS
    Ohio Appeals, 3rd Dist, Crawford Co
    No 1238.
    Decided March 19, 1930
    Charles F. Schaber, Bucyrus, for City.
    R. V. Sears, Bucyrus and C. J. Scroggs, Bucyrus, for Sears.
   HUGHES, J.

- From our examination of the cases digested, we find a line of authorities without conflict, upholding the right of municipalities to make water charges and light charges for service furnished- by city plants, a lien against the property supplied.

In the case of City of East Grand Fork v. Luck, a Minnesota case reported in 107 N. W. at 392, and cited in the brief for the city, a review of many of the cases is had, and the various objections to such procedure by a municipality are ably answered, both by the argument of the learned judge who rendered the opinion, and by the cases cited by him.

It is said therein, that the property owner has no absolute right to call upon a city for water without regard to suitable terms controlling its use, and the city has the undoubted right to prescribe what those terms shall be, subject only to the rule that they must be reasonable and not prohibitory.

In the case at bar, the city had provided by its rules and regulations, that any property furnished with water would be chargeable therewith and that a lien' would be held against it for the charges. A property owner who pipes his property and connects with the city water works, assents and agrees to these terms.

Judge McKenna, in rendering the opinion in the case ■ of Dunbar v. City of New York, 251 U. S. 516, makes the same comment; that is, in substance he says that that the consent of the owner was implied from the fact that the law and the rules and regulations imposing the water rents, preceded the service, which the owner permitted his property to receive, and likewise the water charge in controversy was imposed and made a lien on plaintiff’s property by these rules, and the consent of plaintiff in implied. No other conclusion can be possible.

The judgment is therefore reversed and the cause remanded, with instructions to overrule the demurrer, and for further proceedings according to law. Exceptions saved.

Before Judges Hughes, Justice & Crow.


text:
    STATE ex BALL v INDUSTRIAL COMMISSION
    Ohio Supreme Court
    No 22196.
    Decided May 7, 1930
    Kinkade, Matthias, Day and Allen, JJ., concur. Marshall, C. J.,. and Robinson, J. concur in judgment.


text:
    MOLNAR v BERISWELL, et
    Ohio Supreme Court
    No 21998.
    Decided May 7, 1930
    Marshall, C. J., Kinkade, Robinson, Day and Allen,' JJ., concur. Jones, J., dissents from the judgment.


author: BY THE COURT.

text:
    BOBST et v FENTON et
    Ohio Appeals, 4th Dist, Scioto Co
    No 248.
    Decided March 12, 1930
    William J. Meyer, Portsmouth, for Bobst et.
    A. Z. Blair, Portsmouth, for Fenton, et.
   BY THE COURT.

Following the election for members of the County Board of Education of Scioto County at the November election, 1929, Fred' Bobst and others undertook to contest the election of Fenton and others who had been declared elected. The contestors filed the notice of appeal to the Court of Common Pleas contemplated by 5149 GC. That court upon motion dismissed the appeal upon the gro.und that no contest could be had for this particular office under the section referred to. The right to contest was asserted under the provisions of Section 5148 and following of the General Code. Section 5148 gives the right to contest the election of anyone who has been declared elected “to any county office or to the office of probate judge”. It is now sought, to reverse the order of the Common Pleas dismissing the appeal, and the soundness of that order depends upon whether or not a member of a county board of education is a county officer.

The election of members of all of the different boards of education are by statute required to be made in the odd numbered years. Section 1, Article XVII, of the Constitution as adopted in 1905, requires county officers to be elected in the even numbered years. If we were to hold that members of the county board of education are county officers we would be required to hold that the section providing for their election in the odd numbered years is unconstitutional. State ex rel v. City of Cincinnati, 19 Ohio 178, and Cline v. Martin, 94 OS. 420, require an affirmance of the judgment.

Middleton, PJ., Mauck and Blosser, JJ., concur.


text:
    HARTANG v BUCHHOLZ
    Ohio Appeals, 6th Dist,. Erie Co
    No 321.
    Decided April 19, 1930
    John F. McCrystal, Sandusky, for Hartang.
    King Ramsey & Flyn, Sandusky, for Buchholz.
   RICHARDS, J.

It is urged that the plaintiff was guilty of contributory negligence in turning to the left to cross the Main Market Road as he had seen a car approaching 250 to 300 feet distant and without giving any signal, but according to the evidence oil the plaintiff and his wife, their car had crossed the line of traffic on a main highway in safety and was struck by the defendant’s car to the south of said highway and the defendant, in order to strike plaintiff’s car at that point, must have veered to his right, off the main road. Under these circumstances we think there was sufficient evidence to have carried the case to the jury.

The judgment will therefore be reversed and the cause remanded for a new trial.

Williams and Lloyd, JJ., concur.


text:
    WALDRON v SOUTHWESTERN BUS CO
    Ohio Appeals, 6th Dist, Huron Co
    No 259.
    Decided April 23, 1930
    Young & Young,, Norwalk, for Waldron.
    G. Ray Craig, Norwalk, for Bus Co.
   RICHARDS, J.

The defendant company, while she was a passenger, owed her a high degree of care for her safety, but she alighted from the bus in a place of safety and the relation of carrier and passenger thereupon terminated. The proximate cause of herí subsequent injury was either her own negligence in walking in front of an approaching automobile, or the negligence of the operator of such automobile, and the defendant was in no sense responsible for the injury resulting therefrom. Having discharged the passenger in a place of safety, there could be no causal connection between that act and the injury which she suffered. She was familiar with the surrounding conditions and the operator of the bus owed no duty to warn her of approaching automobiles.

Reining, Admx. vs. Northern Ohio Traction & Light Co., 107 Ohio St., 528;
Cleveland R. R. Co. vs. Sebasta, et al., Supreme Court of Ohio, May 29, 1929, published in Ohio Bar July 9, 1929.

The authorities on this question are collected in a note to Chesley, Admr. vs. Waterloo, Cedar Falls & Northern R. R. Co., (Iowa), 12 A. L. R., 1366.

For the reasons given the judgment will be affirmed.

Williams and Lloyd, JJ., concur.


text:
    AMERICAN LIABILITY CO v FENTON
    Ohio Appeals, 6th Dist, Erie Co
    No 325.
    Decided April 19, 1930
    King, Ramsey & Flynn, Sandusky, for Liability C.o
    John F. McCrystal, Sandusky, for Fenton.

      Williams, Lloyd and Richards, JJ., concur.


author: BY THE COURT

text:
    SAYERS v STAHL
    Ohio Appeals, 6th Dist, Williams Co
    No 184.
    Decided April 21, 1930
    Weaver & Weaver and C. L. Newcomer, Bryan, for Sayers.
    Charles T. Stahl, Bryan, and E. C. Peck, Bryan, for Stahl.
   BY THE COURT

There are in general only two grounds for the dissolution of an attachment: first, that the affidavit is insufficient, and, second, that the grounds stated in the affidavit are untrue. Swan’s Treatise, 20th Ed., page 480. The dissolution of the attachment was not made on either of these grounds. Under the circumstances the plaintiff had a right to have his attachment remain in force and his lien preserved until his claim was satisfied or the proceeds of the sale of the attached property, in so far as they were applicable] to his claim, were applied thereon. Upon sale of the property under the agreement, the lien would attach to the fund derived therefrom.

For the reasons given the judgment will be reversed and] the cause remanded with directions to overrule the motion “to dismiss” the attachment, and for further proceedings according to law not inconsistent with this opinion.

Williams, Lloyd and Richards, JJ., concur.


text:
    SMITH Exrx etc v STEVENSON Admr etc
    Ohio Appeals, 3rd Dist, Hardin Co
    No 222.
    Decided March 25, 1930
    Stickle & Cessna, Kenton, for Smith.
    John H. Smick, Kenton, for Stevenson.
   HUGHES, J.

By the terms of his will, it is made very clear that this expense was to be made a charge against his estate, and we entertain no doubt but that she is entitled to at least a judgment against his administrator requiring the allowance of this claim as a valid one against his estate.

The manner in which this claim will be paid and the property out of which the same shall be realized, is a matter to be worked out in the probate court by the administrator of his estate.

For these reasons, the demurrer should be overruled.

Before Judgese Hughes, Justice and Crow.


text:
    WILLIAM H. DICK v DORIS DICK
    Ohio Appeals, 6th Dist, Williams Co
    No 180.
    Decided April, 1930
    Charles E. Scott, Bryan and Russell V. Maxwell for William Dick.
    A. L. Gebhard, Bryan and J. Arter Weaver, Bryan, for Doris Dick.
   BY THE COURT

It is sufficient to say, in answer to the claim made by William H. Dick, that as long as the order fixing the amount stands, it must be complied with, and such order can only be modified by order of court made on application therefor. The order adjudging him to be giulty of contempt and sentincing him therefor, should be affirmed.

Williams, Lloyd and Richards, JJ., concur.


author: JUSTICE, J.

text:
    MARION STEAM SHOVEL CO v HUNTER
    Ohio Appeals, 3rd Dist, Marion Co
    No 732.
    Decided April 11, 1930
    Guthrey, Strelitz & Guthrey, Marion, for Shovel Co.
    L. E. Myers, Marion, for Hunter.
   JUSTICE, J.

There is no bill of exceptions or finding of facts either to inform us upon the issue of the claimed injury or to advise us of the facts which prompted the trial court in allowing plaintiff’s counsel the sum of fifty dollars as attorney fees, to be taxed as costs. In such a state of the record, however, a presumption of law arises that the trial court had before it such facts as warranted it in finding that plaintiff was injured as claimed in the petition, and in allowing the fifty dollars as attorney fees. 116 OS. 188.

We leam from the journal entry however, that a judgment was entered in favor of the plaintiff and against the defendant, in the sum of $194.75. This is wrong. Section 1465-90, GC so far as pertinent here, provides that:

“If the finding of the court or the verdict of the jury is in favor of the claimant’s right to participate or to continue to participate in such fund, the court shall certify such finding or verdict to the industrial commission and the commission shall thereupon order compensation to be paid in the manner provided by this act for the payment of other awards, and such certificate of the court shall be entered in the record of judgments of such court and shall for the purpose of error proceedings, be in lieu of final judgment in such cause.”

In State ex rel Kauffman v. Industrial Commission of Ohio, 121 OS. 472, our Supreme Court held:

“By virtue of Section 1465-90, General Code, in cases heard on appeal to a common pleas court from the industrial commission, the jury may only find whether or not the claimant is entitled to participate in the workmen’s compensation fund, and the court may only pronounce judgment whether the claimant is entitled to participate in the workmen’s compensation fund and to be paid in the manner provided by the workmen’s compensation law.”

Manifestly, the judgment, as entered, is erroneous. The trial court should have proceeded as directed by said Section 1465-90, GC. Its failure to follow the provisions of said statute, however, does not, in the light of the record, require a reversal of this judgment.

An examination of the journal entry discloses that the trial court, although it does not in so many words so state, did in effect find that plaintiff was entitled to participate in the workmen’s compensation fund. A judgment, therefore, should have been pronounced by it, entitling plaintiff to participate in the workmen’s compensation fund, and to be paid in the manner provided by the workmen’s compensation law, and thereafter the judgment so entered should have been certified by the trial court to the Industrial Commission.

It, therefore, occurs to us that this court should so modify the judgment in question as to bring it into harmony with the facts .as found by the trial court and with the law as expressed in the statute. By so doing no substantial rights of The Marion Steam Shovel Company will be affected and substantial justice will be done. Section 11364, GC.

This court has, of course, power to modify judgments and to remand a cause with instructions.

We, therefore, conclude to and do hereby modify said judgment ,as herein pointed out, and the trial court is directed to certify said judgment as modified to the Industrial Commission and the judgment, as modified, is affirmed.

Before Judges Hughes, Justice and Crow.


text:
    GRIFFITH in re
    Ohio Appeals, 4th Dist, Athens Co
    Decided March 12, 1930
    John E. Todd, Columbus, and J. H. Cooper, Columbus, for Griffith.
    R. D. Williams, Athens, contra.
   BY THE COURT

Two .alienists testified that in their opinion Griffith is sane. The superintendent of the hospital and his medical staff express the opposite view. The two testifying for the petitioner were in contact with Griffith for an hour or two. The hospital physicians have been in contact with him for several months. If Griffith is insane the evidence of it is in what are claimed to be delusions from which he suffers. Whether the beliefs of Griffith are delusions or beliefs which he is justified in holding is the sole question. One of these beliefs relates to his wife’s fidelity. It is claimed for him that inasmuch as his wife told him she had been unfaithful and adheres to her story on the witness stand he can not be said to be deluded because he believes it to be true. Tf that were the whole story the contention of the applicant would be a strong one. There were other evidences of delusion however that are not accounted for. The decree of the trial court was in accordance with the weight of the evidence.

Middleton, PJ., Mauck and Blosser, JJ., concur.


text:
    MARTING v BURNS et
    Ohio Appeals, 4th' Dist, Lawrence Co
    Decided March 31, 1930
    Corn & Jenkins, Ironton afid James Collier, Ironton, for Marting .
    A. R. Johnson, Ironton, for Burns, et.
   BY THE COURT

The judgment must be affirmed. If this set off may be asserted in this way it will, if sustained, defeat the claim of Beulah Burns, who on the face of the pleadings, including the cross petition, is not indebted ta Marting in any way or amount. Doughery v. Cummins, 1 W. L. B, 283. It must be further observed that this cross petition is not addressed to the equity side of the court on any facts which would require an accounting between J. C. Burns and the plaintiff in error but is a straight action at law for a personal judgment against said Burns.

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

glosser, J., not sitting.


author: WILLIAMS, J.

text:
    PETERSON et v NEW YORK CENTRAL RD CO
    Ohio Appeals, 6th Dist, Ottawa Co
    No 125.
    Decided April 7, 1930
    True, Crawford & True, Port Clinton, for Peterson.
    Graves & Duff, Port Clinton, for Railroad .
   WILLIAMS, J.

The railroad company acquired title to the strip of land from Henry and Josephine Schumacher by deed dated June 22, 1872. We think it is a matter of no consequence whether there were two witnesses on the deed to the railroad company at the time it was recorded or not. It is not questioned that the grantor of the railroad company had a good record title, arid of that the plaintiffs and their predecessor in title had due notice. We find, .however, that the title of the railroad company to the strip of land is a valid and subsisting title. This strip of land has been travelled for nearly 50 years by the public, and the plaintiffs and many others owning land abutting upon it have built dwelling houses thereon,' and it has been treated as a public way and so used for much more than 21 years prior to the commencement of this action in the court below, and we do not hesitate to hold that the plaintiffs and the public generally have an easement over this strip of land known as South Railroad street. On the other hand, the railroad company acquired it for railroad purposes and has used it in connection with its railroad property for nearly 50 years and still has a right to so use it so long as it does not unreasonably interfere with travel by the public. The railroad1 company has a right to maintain the two sidetracks flush with the street, and may continue in the future to use the strip of land for railroad purposes and for sidetracks, provided always, that it does not unreasonably interfere with its continued use by the public as in the past for purposes of public travel.

Decree will be entered for the plaintiffs enjoining the railroad company from interfering with the plaintiff in the use and enjoyment of South Railroad street as a public way, but the railroad company shall be permitted to maintain its present tracks flush with the surface on South Railroad street and shall be per^ mitted to use South Railroad Street for railroad purposes in so far as such use does not interfere with the reasonable use thereof as a public way.

Lloyd and Richards, JJ., concur.


text:
    FIRST CITY TRUST & SAVINGS BANK v DOOLITTLE, Exr etc
    Ohio Appeals, 9th Dist, Summit Co
    No 1767.
    Decided March 3, 1930
    Slabaugh, Seiberling, Huber & Guinther, Akron, for B,ank.
    Doolittle, Foust & Holden, Akron, for Doolittle.
    Funk, PJ and Washburn, J., concur.
   Full opinion will be published later. Watch Omnibus Index.


text:
    NOAH DELAWDER v LOUIS DELAWDER, et
    Ohio Appeals, 4th Dist, Lawrence Co
    Decided April 9, 1930
    A. J. Layne, Ironton, for Noah Delawder.
    A. R. Johnson, for Lucinda Delawder.
   BY THE COURT.

In this case we adopt the view

“that the husband stands in a fiduciary relation to his wife, and that therefore when he purchases property with her money the well established principle in courts of equity that if a trustee invests the funds he holds in a fiduciary capacity in the purchase of property, taking the title. in his own name, a trust will result.”
6 L. R. A. 381. See note.
Allen Admr. v. Deardorf, 14 Ohio 16.

The evidence establishes that the wife was the owner of a one half interest in 5314 acres of land which was a part of what was known as the home f,arm consisting of 137 acres. This farm was sold ■ for 54,000.00, and it is apparent that the proceeds therefrom or the greater part thereof were used in the purchase and improvement of the farm described in the petition, the title to which was taken in the name of the husband. The relation of the husband being a fiduciary one it is not material when the wife’s part of the money received from the sale of the first farm was used in the payment for and improvement of the farm, involved in this suit.. The remaining evidence shows only a condition of affairs in the relation of the husband and wife which can be said to be generally common to all married people living on farms, and falls far short of establishing any further trust in this property in favor of the wife.

A decree may • be entered granting the wife the title in fee to the undivided one fifth of the real estate described in the petition and dower in the remaining four fifths of said real estate.

Partition is awarded as prayed for, subject to the wife’s rights as herein defined, and this cause is remanded to the Court of Common Pleas for further proceedings according to law.

Middleton, PJ., Mauck and Blosser, JJ., concur.


text:
    STATE ex STAPLES v SHEETS etc
    Ohio Appeals, 4th Dist, Scioto Co
    Decided April 9, 1930
    Blair & B,all, Portsmouth, for State ex.
    W. L. Dickey, Portsmouth, for Sheets.
   BY THE COURT.

This is a proceeding in error from the the Court of Common Pleas of this county and is an action in mandamus whereby the plaintiff in error sought an order of that court against the defendant in»error as chief of police of the City of Portsmouth requiring of him ,an enforcement of the provisions of 13049 GC. which makes it unlawful to exhibit a moving picture show on Sunday. In the Common Pleas Court a general demurrer to the amended petition was sustained, and after an examination of that pleading we are convinced that there wasi no error in such disposition of the case by that court.

The amended petition demands that the Court of Common Pleas shall order the respondent “to take such course and do such acts by and thru the police department of said city” as will prevent the party or parties complained of from operating on Sunday. Again, “to arrest and prosecute ,any and all persons so violating the provisions of 13049 GC. And again, “take such course of action as will effectually prevent ** and to take such steps and do such acts authorized by the laws of Ohio as will prevent any violation of the provisions of 13049 GC by exhibitions of theatrical performances, to wit, motion picture shows”. The petition specifies the places where the demands quoted shall be executed.

It is apparent, we think, that this amended petition undertakes to impose upon the Court of Common Pleas the duty of controlling the general course of conduct of the chief of police in respect to the violation of the section mentioned. It is well settled by the authorities that a duty en-forcible by mandamus must be specific and definite and that it may not be one of a general character which leaves to the respondent any discretion in its performance. State ex rel v. Murphy, 3 C. C. 332, 18 R. C. L., Section 33, page 119, 64 A. L. R. 975. If an order by mandamus of the character demanded in this case may be issued similar orders may be demanded and required for the enforcement of any and all criminal statutes in this state. The effect of such authority, if allowed, would impose on the Court of Common Pleas such a control of the official conduct of police and other officers of that character as would require all of its time and service.

We find no precedent which supports the granting of such an order as is demanded in this proceeding, and the judgment of thei Court of Common Pleas is affirmed.

Middleton, PJ., Mauck and Blosser, JJ., concur.


text:
    MOORE et v DUNN et
    Ohio Appeals, 6th Dist Ottawa Co
    No 121.
    Decided April 7, 1930
    S. S. Middleton, William Dunipace, Bowling Green, and M. E. Tripp, for Moore et.
    L. K. Chambers, Genoa, for Dunn, et.
   RICHARDS, J.

As the amount given to the husband, Andrew Jackson, lapsed by his de,ath, and Clara Jackson died intestate as to the share in the will intended for him, the provisions of 10582 GC apply and after exhausting the personalty, the undevised real estate is first chargeable with the debts in exoneration, as far as it will go, of the real estate that is devised. No other or different arrangement or intent is apparent in the will. The most that can be said in that regard is that the testatrix intended that if her husband survived her he should be entitled to the provisions in his favor contained in the will. It is apparent, therefore, that the devise to Andrew Jackson having lapsed by his death, all of the undivided half of the real estate as to which she died intestate is first liable, and must first be exhausted in the payment of debts before that can be subjected which was devised to the sister, Eva Dunn.

For these reasons the judgment must be affirmed.

Williams and Lloyd, JJ., concur.


text:
    KEYS v STATE
    Ohio Appeals, 4th Dist, Lawrence Co
    Decided April 9, 1930
    A. J. Layne, Ironton, for Keys.
    Lee D. Andrews, Prosecuting Attorney, Ironton, for State.
   BY THE COURT.

Keys was convicted of the unlawful possession of intoxicating liquor and prosecutes error from that judgment. The affidavit charged that it was a second offense and1 he was found guilty as charged.

He complains, first, that having filed a plea in abatement, in which he set forth that he had already been twice convicted of violating the prohibition laws and proved the truth of the plea in abatement, the trial court nevertheless denied his plea and proceeded to try him as for a second offense when in fact he was guilty of a third offense if anything. We find no error in this. The state may not have known of both prior convictions, and in any c,ase he can not complain because he was tried for a minor offense when he was subject to trial for a major offense.

After the plea in abatement had been denied the trial proceeded and the state did not offer any testimony upon the trial proper showing that the accused was being tried for a second offense. The court having before it, however, the accused’s plea in abatement, in which he directly acknowledged that he had been twice convicted of violating the state prohibition laws, the court was warranted in finding that it was a second offense if anything. Moreover, the accused was on the stand and testified that he had paid two fines for violating the liquors laws, and it may well be presumed that the two fines to which he testified related to the two offenses set up in his plea in abatement.

The only substantial question in the case is whether or not the judgment is supported by sufficient testimony. The prohibition officers entered a barn which the defendant had been occupying for a number of years. The defendant was not in the barn at the time, having as he says left town early that morning and not returning until shortly .after the raid was completed. They found near an old organ in the barn a small amount of intoxicating liquor in a half pint bottle. They discovered a path leading from the barn some thirty feet or more over a railroad fill, and following that path found a number of jugs of whiskey. Keys was not proven to have had physical contact with any of the liquor so found, but there was also found in the barn 151 gallon jugs, hundreds of bottles, quarts, pints and half pints, and hundreds of new corks, which strongly indicate that the whiskey concealed near the barn was being used by Keys in selling whiskey. This impression, which doubtless the trial court had, was strengthened by Keys’ own testimony. He says that he bought these bottles and jugs of junk dealers for re-sale. The fact is, however, that a lot of them were new and had never been uncrated. His explanation seemed to be wholly inadequate to the trial judge. And as that court was satisfied of his guilt, and as we are not clear that the trial court erred in that respect, we affirm the judgment.

Middleton, PJ., Mauck and Blosser, JJ., concur.


author: BLOSSER, J.

text:
    FRIEND v HILLIARD
    Ohio Appeals, 4th Dist, Hocking Co
    Decided April 16, 1930
    Edwin D- Ricketts, Logan, for Friend.
    F.'N. R. Redfern, Adelphi, Eugene Wright, Logan, for Hilliard.
   BLOSSER, J.

The defendant claims that the agreement was not clearly proven and that even if proven it comes within the statute of frauds and is not inforcible. After a consideration of the case we think that the parties made the agreement as claimed by the plaintiff, and that pursuant thereto she paid her share of the costs and gave the defendant a valuable right by dismissing her case number 6476. This was a sufficient consideration. 9 Ohio Jurisprudence, 301. She can not be restored to her former position if said agreement of compromise is not carried out. By tendering the defendant the agreed price of thirty dollars she was entitled to the deed for the roadway. We doubt if the statute of frauds is applicable to this case, but even tho it is applicable there was such p,art performance as to take the case oút of the statute and the plaintiff is entitled to have the agreement specifically performed.

Agreements or settlements and compromise are highly favored in law. Courts will in a proper case decree' specific performance of an agreement of compromise and settlement in accordance with the general rules and principles applying in the case of other contracts. 7 Ohio Jurisprudence 1010, Wright, 406, 12 C. J. 361, 5 R. C. L. 901. See also Weed et al v. Terry, 2 Douglas (Mich) 344.

A decree for specific performance may be entered in accordance with the prayer of the petition.

Middleton, FJ., and Mauck, J., concur.


author: PER CURIAM

text:
    ROSA REDER, estate of, on complaint of JACOB REDER, et v IKE REDER
    Ohio Appeals, 9th Dist, Summit Co
    No 1684.
    Decided April 8, 1930
    Johnathan Taylor, Akron, for-Plaintiff in Error.
    R. H. Nesbitt, Akron, for Defendant in Error. 1
   PER CURIAM

The only error complained of is that the trial court, over objection, permitted evidence to be given and considered by the jury as to the good reputation of Ike Reder for truth.

It is conceded that in a criminal prosecution, where the question of whether a witness is guilty of a crime involving moral turpitude becomes a legitimate subject of inquiry on the trial, his good character for truth may be established by adducing evidence of his general reputation in that respect.

Webb v. State, 29 OS. 351.

While it id a general rule that a party cannot fortify the credit of his witness by proving good character for truth until the credibility of the witness has been assailed, it is also settled that where evidence is offered directly attacking the credibility of a witness, evidence to sustain the witness’s credibility is clearly competent in civil as well as criminal cases.

Therefore, in order to show that the admission of evidence of the good reputation of Ike Reder was error, it is incumbent upon the complainant to show by the record that Ike Reder’s reputation was not directly attacked.

The record in this case does not so show, for only a small part of the testimony adduced at the trial is shown in the bill of exceptions, and the trial judge did not certify that no such evidence was introduced;-' on the contrary, the trial judge certified that the bill of exceptions contains only about one-fifth of the evidence offered upon the trial’ and that “there is not a complete record showing the acts and conduct of the defendant, Isaac Reder, tending to prove acts involving moral turpitude, in rebuttal whereof testimony as to reputation was permitted to be introduced.”

The record contains all of the testimony of Ike Reder on cross-examination and it therefore seems that said certificate of the trial judge is a declaration that there was evidence constituting a direct attack upon the credibility of Ike Reder and that said attack was in reference to his acts and conduct involving moral turpitude and that the evidence about which complaint is made was admitted to counteract such attack.

But regardless of whether the certificate of the trial judge means- what we have just indicated, it is sufficient to preclude us from finding that there was no direct attack upon the credibility of Ike Reder when only one-fifth of the testimony appears in the record.

Under the state of the record we cannot say it was error to admit evidence as to the good reputation of Ike Reder for truth.

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


text:
    STATE ex FORGEY v DAVIS, et
    Ohio Appeals, 4th Dist, Lawrence Co
    Decided April 9, 1930
    A. Z. Blair, Portsmouth, for relator.
    A. J. Layne, Ironton, for respondents.
   BY THE COURT

There is no statutory provision in Ohio, or was not at the time the election in question was held, for contesting the election of members of the board of education of a county district. It has’been determined in this state that where no statutory proceeding for contesting an election is provided that an action in quo warranto lies. State ex rel v. Patterson, 84 OS. 89. The doctrine of this case was reiterated in Link v. Karb, 89 OS. 326, 348, and in Prentiss v. Dittmer, 93 OS. 314, 322.

It has been argued in this case that this court in an action of this kind sits as a commission and is limited in its powers by statutes referred to. This position is not sound. It has been held that under the statute passed for contesting elections pursuant to Article II, Section 21, of the Constitution this court acts as a commission rather than in a judicial capacity. By Article IV of the Constitution, however, both the Supreme Court and the Court of Appeals are given original jurisdiction in quo warranto and the jame language is used in conferring jurisdiction on both these courts. The jurisdiction of the two courts is therefore complete and equal, and this court has all the jurisdiction that .any court has in a proceeding of this kind.

The demurrer to the petition is overruled

The relator will be required to give security for costs by filing a bond in the sum of five hundred dollars, with sureties to the satisfaction of the clerk of this court.

The respondents are given leave to answer within ten days after the costs have been secured as required hereby.

A like disposition, of course, is made of the demurrers in the companion cases.

Middleton, PJ., Mauck and Blosser, JJ., concur.


author: LEMERT, J.

text:
    ZANESVILLE (city) v KING
    Ohio Appeals, 5th Dist, Muskingum Co
    Decided March, 1930
    T. F. Thompson, Zanesville, for City.
    George & Leasure, Zanesville, for King.
    LEMERT PJ and SHERICK, J (5th Dist) and ROBERTS, J (7th Dist) sitting.
   LEMERT, J.

The plaintiff in error by its petition claims several, or the usual, grounds of error, but it relies principally and chiefly upon three grounds; to-wit,

1. That the Court erred in its charge to the jury relative to the violation of the Statute or Ordinance by defendant below, ,and that the Court erred in admitting, on behalf of plaintiff, Section 413 of the,City Ordinances, over the objection of defendant.

2. Plaintiff in Error claims that the Court erred in refusing to charge the jury as requested by defendant below; the Request to be found on Page 84 of the transcript in this case.

3. Plaintiff in Error contends that the judgment rendered did not respond to the law and the evidence.

Coming now to consider the grounds of error insisted upon by Plaintiff in Error, to-wit, the first ground, that the Court erred in its charge to the jury relative to the violation of the Statute or Ordinance by defendant below.

We find that at the top of page 80 in the transcript, the Court charged “I further charge you that the violation of the Statute or Ordinance, passed for1 the protection of the public, is negligence per se— that is, of itself — and where such act of negligence by the defendant is the direct and proximate cause of the injury, not directly contributed to by the injured person, the city is liable, etc.”

It is further claimed by the Plaintiff in Error that the Court erred in admitting on behalf of plaintiff, Section 413 of the City Ordinance, over the objection of defendant. Said city Ordinance reads as follows:

“It shall be unlawful for any person to place or to. permit to be placed in any street or alley of this city any firewood, lumber or material for building, to remain a longer time than one day, except as hereinafter exempted, or to place or to permit to be placed in any street or alley any shavings, chips, .ashes, earth, stone, brick, gravel, sand, manure, filth, nuisance or obstruction of any kind whatever, to the annoyance, detriment or inconvenience of those residing in the neighborhood, or to the public, in the free use of said street or alley. Any person offending against any of the provisions of this Section shall be fined in any sum not more than Five Dollars, and every twenty-four hours that any such nuisance or obstruction shall remain afterwards shall be considered as a new offense, and the offender, on conviction thereunder, shall be fined not exceeding Five Dollars for each offense.”

After a careful examination of the testimony! introduced in this case we find and hold that the charge of the court to the jury with reference to this Ordinance and the admitting of such Ordinance in evidence and permitting counsel for plaintiff to read same to the jury, was error. We further find and believe it was prejudicial error.

There was nothing in the entire evidence on behalf of the plaintiff that authorizes or would warrant the Court in making such a charge. It would have the tendency to, and no doubt did,, instill in the minds of the jury that, from the evidence as adduced, the said defendant below violated one of its own Ordinances, which would, in law, amount to a misdemeanor and thereby subject the City, itself, to a fine— or, in other words, the City, itself, could not violate its own Ordinance.

Taking the evidence as a whole, it shows that the only thing that was done by the City was that the City had, several years prior thereto, construectd a water plug in said alley, and by the wearing away of water and automobiles and of some dirt on one side of the plug had left part of the plug on one side exposed three or four inches.

With reference to the other claimed charges of error complained of by plaintiff in error, we find there is no error.

It therefore follows, for the reasons hereinbefore given, that there is error in this case prejudicial to the rights of the plaintiff in error, the defendant below, and the judgment herein will be reversed and said cause remanded to the Court below for further proceeding according to law.

Exceptions may be noted.

Sheriek, J., and Roberts, J., concur.


text:
    BOWERS v KERMAN
    Ohio Appeals, 9th Dist, Summit Co
    No 1804.
    Decided April 10, 1930
    Donald Gottwald, Akron, for Bowers.
    Charles Sacks, Akron, for Kerman.
    Funk, PJ and Washburn, J., concur.


text:
    JONES v HARMON et
    Ohio Supreme Court
    No 22155.
    Decided May 14, 1930

      Marshall, CJ., Kinkade, Robinson and Matthias, JJ., concur. Jones and Day, JJ., concur in the syllabus but not in the judgment, since they do not agree with the law pronounced in Heidle v. Baldwin, 118 Ohio St., 375.


text:
    STATE AUTOMOBILE INSURANCE ASSN v LINN
    Ohio Supreme Court
    No 22079.
    Decided May 14, 1930
    Marshall, CJ., Kinkade, Robinson, Matthias and Allen, JJ., concur.


text:
    McCOMBS v LANDES
    Ohio Appeals, 3rd Dist, Marion Co
    No 717.
    Decided April 2, 1930
    Mouser, Young, Mouser & Wiant, Marion, for McCombs.
    Carhart & Warner, Marion, for Landes.
   JUSTICE, J.

Two specifications of error are presented. One of them pertains to the charge, and the other relates to the sufficiency of the evidence. The trial court, in part, charged the jury as follows:

fThe plaintiff cannot recover unless she has shown by a preponderance of the evidence that at the time of the accident of which she complains, she herself was in the exercise of due and ordinary care for her own safety.”

This is wrong. In Columbus Railway Co. v. Ritter, 67 OS. 53, our Supreme Court held:

“The court erroneously placed upon the plaintiff below the burden of disproving contributory negligence charged in the answer, as part of her case in chief. Such has never been the law of this state.”

True, the trial court later in the charge, correctly placed the burden of proving the alleged contributory negligence upon the defendant, but it is well settled law in this state that a court will not presume that the jury followed the correctI rule to the exclusion of the incorrect rule.

In Swisher v. Krabaugh, 25 Ohio Appellate Reports, 233, the court held:

“Where instructions are contradictory or present conflicting rules of law which might lead to different results, such instructions are erroneous and prejudicial.”

Manifestly, the trial court erred in the charge in this respect. In all other respects, however, the charge, when construed as a whole, is, in our opinion, free from prejudicial error.

It is insisted, however, by counsel for defendant that notwithstanding the erroneous charge, still the judgment must be affirmed upon the application of “the two issue rule,” enounced in Sykes v. Haverstick, 23 OS. 629. This rule, as stated by Judge Matthias, in Cowley v. Bolander, 120 OS. 553-557, is as follows:

“Where two issues are presented by the pleadings and submitted to the jury, and a general verdict is returned for one of the parties, and a finding in his favor upon either issue entitles him to a judgment, the issue having been tried and submitted without error the judgment so rendered will not be reversed for error relating exclusively to the other issue.”

In the instant case two issues were presented, and a general verdict for defendant was returned. Either one of the issues determines the controversy. The erroneous instructions relate only to the issue of contributory negligence. The question therefore naturally arises as to whether or not the other issue has been tried; free from error. If it has, under the rule above stated, the judgment at bar, notwithstanding the erroneous charge, must be affirmed; otherwise not.

It is urged, as a second specification of error, that the verdict is manifestly against the weight of the evidence. In order to pass upon this proposition we were compelled to read the record. Briefly stated, it discloses that on the evening of March 22, 1929, about the hour of 6:45 P. M., at the intersection of the Marion-Mt. Gilead road and the Columbus-Saridusky Highway in Marion county, Ohio, two automobiles collided. One of them was a Willys-Knight, owned and driven by Charles F. McCombs. The other was a Ford, owned and operated by the defendant. McCombs was driving in a westerly direction upon the Marion-Mt. Gilead Road, which was a main thoroughfare. The defendant was driving in a southerly direction upon the ColumbusSandusky Highway, which wass not a main thoroughfai’e. Riding as a passenger in the Willys-Knight, was the plaintiff, wife of Charles F. McCombs. It was daylight at the time of the collision. McCombs was driving about twenty miles an hour, having slowed down his automobile as he approached the intersection. Plaintiff and Charles F. McCombs first saw the defendant 'approaching the intersection, about one hundred ,and fifty feet north thereof. Their view to the northward along said ColumbusSandusky Highway, however, was unobstructed for a distance of several hundred feet. McCombs sounded his horn as he approached the intersection. There was a stop sign about seventy-five feet north of the intersection on the west side of the Columbus-Sandusky Highway. The defendant knew of its existence, having theretofore traveled upon said road. He, however, on the day of the collision did not observe or see said sign and did not stop prior to entering the intersection. He testified that he looked to the east before entering the intersection and did not see the oncoming Willys-Knight car. The WillysKnight car was struck on the right side hear or at the right hind wheel. The Ford wag struck on the left side near or at the front left wheel. Defendant had an unobstructed view to the east along the Marion-Mt. Gilead Road for a distance of approximately a thousand feet. Plaintiff and her husband Charles F. McCombs testifield that the Willys-Knight car entered the intersection first and was struck by the Ford' automobile. Defendant and his wife, who was riding with him, testified that after entering the intersection the Ford automobile was struck by the. automobile in which plaintiff was riding. According to Charles F. McCombs’ testimony, defendant, some few days after the collision, stated to him “that he was, awfully sorry that he ran into them”, meaning plaintiff and Charles F. McCombs, and that he “knew there was a stop sign but he ran through it.” Defendant, however, denied making such a statement. After the collision the Willys-Knight car was located about forty feet west of the intersection on the south side of the Marion-Mt. Gilead. Road and the Ford automobile was located south of said Marion-Mt Gilead Road near the southwest comer of said intersection. The plaintiff, by reason of the collision, was seriously injured. The record discloses other facts, but they are not controlling and hence are not set forth.

With such facts before us, established, as we believe, by the greater weight of the evidence, we are unanimously of the opinion that the verdict upon the issue of the alleged negligence of the defendant is not sustained by sufficient evidence. It therefore follows that the “two issue rule” can have no application in this case and hence cannot save the judgment, as under the rule of law enounced in Merrick v. Boury, 4 OS. 60, and kindred cases, it becomes our duty to set aside the verdict and award a new trial.

Holding, these views, it follows that the judgment of the court of common pleas should be reversed.

Before Judges Hughes, Justice & Crow.


author: FARR, J.

text:
    COX et v BOARD OF EDUCATION of CAMPBELL, OHIO
    Ohio Appeals, 7th Dist, Mahoning Co
    Decided March 14, 1930
   FARR, J.

First it is claimed that this action was taken by the Board for political reasons, which is prescribed by 486-17 GC., and that therefore it is violative of this section which provides that no one in civil service shall be dismissed from their employment for political or religious reasons. It was stated by counsel representing the School Board that there was not one syllable of testimony in this cause indicating the Board had been moved to take this action for political or religious reasons. An examination of the Record now before the court discloses that statement to be true. Therefore, the above section of the statute does not apply in this instance.

It was also urged by counsel for the School Board that the action taken by the Board does not and would not operate as a discharge of the above named persons, and that suggests itself as a proper observation, especially in view of the fact that it is disclosed that the resolution of the Board continues these persons in their employment at the sum of $175.00 per month, and they have the right to so employ under the provisions of Sec. 7880 of the General Code, to which further reference need not be made, save and except to say that it authorizes a Board of Education to employ superintendents, teachers, custodians or other employes. Then there is the presumption obtaining in behalf of this school board that they acted regularly in this instance.

Therefore, the conclusion is that no showing has been made entitling these plaintiffs to a temporary restraining order, and the same is refused. An entry may be taken accordingly..

Pollock and Roberts, JJ., concur.


author: SULLIVAN, J.

text:
    UNION CASUALTY CO v MONTELIONE
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10597.
    Decided April 14, 1930
    Gentsch & Lang, Cleveland, for Casualty Co.
    White, Hammond, Brewer & Curtiss, Cleveland, for Montelione.
   SULLIVAN, J.

It is claimed by the plaintiff that there is credible evidence in the record showing tuberculosis and from clause (h) quoted above it will be seen that the existence of this disease is a basis for recovery under the policy providing there is no other element in the case which precludes it.

The special claim is made that the tuberculosis applies to the epididymis, and is known as “tubercular epididymitis”. Epididymis is known as an oblong body and as the dictionaries say*, is composed of the convoluted efferent duet of the testis at the posterior part of the organ. A further analysis of the word is that it is compound in its nature in the Greek, composed of the words “epi” and “didymos” the former meaning “upon” and the latter “testicle”, signifying therefore, “upon the testicle” and located at the posterior part of that organ.

The plaintiff asserts that the tuberculosis applies to this organ and is therefore proof that the assured had tuberculosis under the provisions of the policy quoted above, under clause (h). There is no serious claim made and nothing in the proof of substantial nature that tuberculosis applies to any other portion of the body. Therefore, as to the disease itself, it can only have application in the record to this organ described.

The defendant claims that even if these assertions of the plaintiff are true, that it comes under the inhibition in that provision of the policy quoted above as General Provision (II) which excludes it from consideration because it is a “disease or condition” to use the words of the provision, “not common to both sexes.’”

It will be noted that there are two words connected by the conjunction “or” to-wit, “disease” and “condition” and while under the record, confining the disease to the organ in question it might be said that the disease was tuberculosis and therefore is a disease common to both sexes, the defendant however, as to the existence of tuberculosis even as to the organ in question, contends that the evidence is insufficient to show tuberculosis because the examination was of such a -perfunctory nature that the conclusion that it was tuberculosis was not based upon the existence of bacilli, and it is argued that the general trend of the evidence in this case as to the existence of the disease in any other portion of the body is so slight, that it is unworthy of legal consideration, and that therefore, if we confine ourselves to the question of tuberculosis as to the organ, it is urged by the defendant that the verdict and judgment is clearly and manifestly against the weight of the evidence, and should be reversed upon this ground alone. We find, however, that a proper construction of General Provision (2) as quoted above, makes it necessary to take into consideration not only the word “disease” but the word “condition” in order to determine whether there is any virtue in the argument of plaintiff that tuberculosis, is a disease or condition common to both sexes.

When we anlalyze the evidence in connection with the word “condition” we come to the conclusion that tuberculosis of this particular organ in question is not á condition that is common to both sexes because such an organ does not exist in the female sex but is confined alone to the male sex.

The condition of the organ may be tubercular in its nature but the organ and the disease when considered together create a condition which is that an exclusively male organ is contaminated with the disease of tuberculosis. This is a situation or condition which is not common to both sexes and in our judgment we must consider the word “condition” with the same assiduity that we consider the word “disease” and in thus doing it is our judgment that adhering to the word “condition” we find under the record that such a status is not common to both sexes.

Opposing counsel dwelt mainly in the argument of the case upon the question of disease alone, as if the word “condition” were not just as material under the provisions of General Provisions (2). We find the same situation in the briefs.

Our ojyn view is that this word cannot be eliminated from consideration and that it has a significance much broader in its nature than the word “disease.” “Condition” is the state or mode in which a person or thing exists. The disease and the organ itself, even though the disease were tubercular is a state or mode produced by the tuberculosis and the organ and it is upon this theory that we distinguish between the word “disease” and • “condition” because the latter word is more elastic and significant in its nature and therefore embodies more than the word “disease.”

We are not prepared to say, from an examination of the record, that the judgment and verdict is clearly and manifestly against the weight of the evidence as to the question of tuberculosis as it applies to the organ under consideration, but if' we are correct in our holding that under the facts in the record a condition was created not common to both sexes, then there can be no recovery under the policy, under the provisions quoted.

■ Thus holding, the judgment of the lower court is hereby reversed and the fact which we use as the basis for this decision is the reason above noted and that being ultimate in its nature, final judgment is rendered in behalf of plaintiff in error, The Union Casualty Company.

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


text:
    PHEILS v TOLEDO (city)
    Ohio Appéals, 6th Dist, Lucas Co
    No 2334.
    Also Cases Nos 2335, 2336 and 2337
    Decided March 3, 1930
    G. F. Branigan, Toledo, and G. E. Taylor, Toledo, for Pheils.
    March Winchester, Assistant Law Director, Toledo, for City.
   WILLIAMS, J.

We hold that the verdict is not manifestly against the weight of the evidence in the cases brought by Smith and Colburn. The evidencei of the defendants' tends to show that the speed of the car as it approached the cinder portion of Parker Avenue was 35 to 40 miles per hour, and that the young lady in the wrecked car had been drinking intoxicating liquor. This evidence, coupled with that as to the condition of the street, would warrant the jury in drawing the inference that the occupants of the car were on something of a lark and therefore riot ordinarily careful. Helen Croker herself did not testify and perhaps she would have contradicted the statements as to her use of alcoholic beverages, had she done so. In weighing the evidence, however, we take the record as we find it. The jury may well have based its verdict for the defendant and against the plaintiffs Smith and Colburn upon the theory that Smith and Colburn were each guilty of contributory negligence in the way they conducted themselves as they approached this point of great danger. The same thing might be said as to Textor, but counsel are making no claim against the weight of the evidence..

The case of Dr. Pheils has a different aspect. He was not present, and as the driver, who had possession of the car, was merely a bailee, Dr. Pheils can not be barred of recovery for damage to the car by the contributory negligence of the driver. Gfell vs. Jefferson Hardware Co., 10 Ohio App. 427. All the- evidence adduced tended to show negligence on the part of the city in failing to protect or guard the street at the point of the precipice so as to make it reasonably safe for public travel, and as to Dr. Pheils we are of the opinion that the verdict is manifestly against the weight of the evidence.

The judgment in favor of the city and against Dr. E. H. Pheils is reversed and the cause remanded for a new trial, and as to other plaintiffs in error, the judgments are .affirmed.

Lloyd and Richards, JJ., concur.


text:
    ASHTON v STATE
    Ohio Appeals, 3rd Dist, Allen Co
    No 530.
    Decided March 19, 1930
    Henderson & Durbin, Lima, for Ashton.
    A. M. Rogers, Lima, for State.
   JUSTICE, J.

The first proposition is easily disposed of.

In Breese v. State, 12 OS. 146, our Supreme Court held:

“A judgment will not be reversed because the verdict is contrary to the evidence, unlesá it is manifestly so, and the reviewing court will always hesitate to do so where the doubts of its propriety arise out of a conflict in oral testimony.”

In the case at bar, a sharp conflict exists in the'oral testimony upon the issue of the fitness of fluid extract of ginger for use for beverage purposes. Different minds, in weighing it, might readily reach different conclusions. True, the United States Pharmacopoia classifies said fluid as unfit for beverage purposes, but it does not classify said fluid as unfit for use for beverage purposes. Furthermore, such classification is not conclusive, and manifestly the trial .judge, who was the trier of the fact, was not bound by it.

We have carefully read the entire record and are of the opinion that the finding of the trial court is not manifestly against the weight of the evidence in this respect.. Our answer, therefore, to the first question is in the affirmative.

Turning now to the second proposition. It is undoubtedly true that the mere possession for non-beverage purposes, of the fluid extract of ginger, containing one half of one per cent or more of alcohol by volume, does not in- and of itself, constitute a violation of 6212-13 et seq. GC, commonly known) ,as the Crabbe Act. We quote the pertinent portion of 6212-15, GC. “Liquor, and liquor preparations and compounds for non-bevérage purposes . . . may be . . . possessed . . . ., but only in accordance with the provisions of Title 2 of the Act of Congress known as ‘National Prohibition Act’ passed October 28, 1919.” But when such possession is coupled with an intent to use said fluid in violation of law, then it is certainly true that such possession does fall under the ban of the Cr.abbe Act. To hold otherwise would be to destory the force and effect of certain provisions of 6212-16 GC, which, so far as pertinent here, reads as follows:

“It shall be unlawful to have or possess any liquor . . . intended for use in violation of law.”

To like import is the pronouncement in Shy v. State of Ohio, 17 Ohio Appellate Report, 147.

Section 6212-14, GC, so far as pertains here, provides:

“In the interpretation of this act the word ‘liquor’ or the phrase ‘intoxicating liquor’ shall be construed to include , . . any liquid or compound whether or not same is medicated, proprietary, or patented, and by whatever name called, containing one half of one per cent or more of alcohol by volume which is fit for use for beverage purposes.

Section 6212-15, GC, so far as pertains here, provides:

“No person shall, after the passage of this act, . . . possess . . . any intoxicating liquor except as authorized in this act......”

Obviously, the fluid extract of ginger described in the affidavit is “liquor” and “intoxicating liquor” within the meaning of the Crabbe Act.

In the instant case there is abundant evidence tending to prove that Ashton had the fluid extract of ginger in his possession for the purpose fo selling it ,as a beverage. He was not a grocer in any sense of that word; his stock of merchandise, if such it may be called, belies such a thought. The surrounding circumstances speak louder than words and plainly spell “bootlegger.” Our answer to the second question, obviously, is in the affirmative.

Upon the whole case we are unanimously of the opinion that Ashton hád a fair trial.

Holding these views, it follows that the judgments of the court below should be affirmed.,

Before Judges Hughes, Justice & Crow.


text:
    REBECCA MOLLOY, Gdn v DAVID MOLLOY & AMANDA MOLLOY
    Ohio Appeals, 6th Dist, Lucas Co
    No 2357.
    Decided March 31, 1930
    H. P. Whitney, Toledo, and Paul H. Shank, Toledo, for Rebecca Molloy.
    Warren L. Smith, Toledo, for David and Amanda Molloy.
   RICHARDS, J.

David Molloy was adjudicated a bankrupt on February 15, 1928 and the record contains a duly certified copy of his discharge in bankruptcy. It. is well settled that such adjudication can not be attacked collaterally and that if it is to be vacated and set aside, the proceeding therefor should be brought in Federal Court. It is claimed, however, that the adjudication does not amount to a discharge of the promissory note in this case for the reason that it was not properly scheduled as a debt of the bankrupt. Section 3 of the Bankruptcy Act of 1898 requires the bankrupt to file a list of his creditors showing their residences and the amount due each of them, together with the consideration thereof and the security held by them, if any, and the creditors so listed receive thereafter the notices required in bankruptcy proceedings. The indebtedness to Frances C. Molloy as scheduled was $4,000.00 on a promissory note, while the note sued on is for the amount of $5,000.00. There is, however, evidence in this case to show a payment of $2,000.00 on the note shortly after it was executed and, computing interest on the note to the time the bankruptcy proceedings were filed, the amount then due would be approximately $4,000.00, so that the argument that the $4,000.00 listed may have been for indebtedness on another note is hardly tenable. In addition to all this, a creditor being listed as such for any amount would receive notice of the bankruptcy and that she was listed as a creditor. The case in this respect is similar to Blake vs. Alswager, 10 American Bankruptcy Reports, N. S., 672. In that case, in the course, of the opinion, the court uses the following language on page 674:

“The fact that in his schedule of creditors and liabilities the defendant listed the plaintiff as a creditor and some of her claims as liabilities, but did not list the claims sued upon, does not make .them exempt from the bankruptcy proceedings.”

We think that the indebtedness was sufficiently scheduled and that the defendant David Molloy was duly released from the indebtedness by his discharge in bankrupty.

That discharge, however, would not affect the liability of Amanda Molloy, the comaker on the promissory note. Section 16 of the Bankruptcy Act of 1898 provides that the liability of a person who is a co-debtor with, or guarantor or in any manner a surety for a bankrupt, shall not be altered by the discharge of such bankrupt. So far, therefore, as the bankruptcy proceedings are concerned, the defendant Amanda Molloy still remains liable on the obligation.

We have read with care the evidence contained in the bill of exceptions and beyond the fact that it contains evidence of a repayment of $2,000.00 in cash, we find no facts or circumstances sufficient to justify the rendition of a verdict and judgment in favor of the defendant Amanda Molloy. On the contrary, as to her, the verdict is manifestly against the weight of the evidence.

For the reasons given the judgment will be affirmed as to David Molloy and reversed and remanded for a new trial as to Amanda Molloy.

Williams and Lloyd, JJ., concur.


text:
    BOBST etc v BOARD OF EDUCATION
    Ohio Appeals, 4th Dist, Scioto Co
    No 249.
    Decided March 12, 1930
    William J. Meyer, Portsmouth, for Bobsfc.
    A. Z. Blair, Portsmouth, for Board.
   BY THE COURT

While there are several grounds urged in support of the demand for an injunction we find but one of any merit, and that is the claim that the advertisement for bids for the contracts was made by the defendant board in but one newspaper of general circulation in said district. In answer to this claim it is contended that there was no other newspaper of general circulation in said district and that therefore the provisions of 7623 GC., requiring publication in two newspapers of general circulation if so many there were in said district, was and is not controlling. The provisions of said section are mandatory. Perkins v. Bright, 109 OS. 14. It follows that if there were two or more newspapers of general circulation in the school district when the advertisement for bids was made it was necessary to make that advertisement in two newspapers.

The evidence shows that the Wheelersburg Rural School District has a population of three thousand, that the County of Scioto in 1920 approximately sixty three htousand and that that population is now much greater. It shows further that the Portsmouth Morning Sun has a daily circulation, except on •Sunday, of ninety six papers in said district, thirty seven hundred in Scioto County, and further circulates generally in surrounding counties. The evidence shows that the single paper chosen for the advertisement was the Portsmouth Times. It is certainly apparent that under such admitted facts there is not room for much controversy. This is particularly true in view of the holding in the' case of State ex rel v. Commissioners of Wood County, 14 C. C. (n.s.) 531, affirmed without opinion 84 OS. 447. It is held in that case that

“A newspaper having a circulation of eight hundred in a county containing a population of fifty thousand distributed over twenty townships, and in fifteen of those townships containing a population of thirty five thousand, a circulation of only thirty six, is a newspaper of general circulation within the meaning of the statute providing for the publication.”

In the instant case, as before observed, the evidence shows a circulation of ninety six in a distirct with a population of three thousand, and a much greater circulation in the surrounding county and adjoining counties. We have no difficulty in determining that the Portsmouth Morning Sun at the time the advertisement was made was a newspaper of general circulation not only in the district in question but also in all the surrounding territory, and that that newspaper met fully the requirements of the statute in respect to being a newspaper of general circulation in the district.

The injunction as prayed for will be allowed and a decree may be entered the same as was made in the Court of Common Pleas.

Middleton, PJ., Mauck and Blosser, JJ., concur.


author: LEVINE, J.

text:
    YOUNG etc v MESZAROS et
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10606.
    Decided March 17, 1930
    Frank A. Green, and G. Z. Weintraub, Cleveland, for Young.
    James L. Lind, Cleveland, for Meszaros, et.
   LEVINE, J.

From the statement of claim it appears that the negotiations between the parties were verbal and if plaintiff were to depend on such verbal agreement the conclusion reached by, the municipal court would be undoubtedly correct. A close examination of the statement of claim, however, discloses that the plaintiff relies wholly upon the written .agreement which is attached to the petition wherein the defendant promises, in writing, to pay $200.00 commission to plaintiff for services already performed. If under the same circumstances the defendant executed a promissory note to the plaintiff for $200.0,0 and suit was entered thereon, it would be no defense to the action that the note was given for services rendered in connection with the sale of real estate upon a verbal understanding between the parties. We can see no distinction between the promise made in the present case and the giving of a promissory note excepting that the former is non-negotiable.

The statute of frauds, it must be remembered, is purely defensive in its character, of which the party sued may avail himself. He may, if he chooses, waive that defense. In the present case this promise in writing for $200.00 commission for services already performed, merely amounts to a waiver of the defense of the statute of frauds of which the party could have availed himself if he chose.

If it be contended that there was no consideration for the written promise, and were the court to seriously consider said contention, it would not justify the trial court in rendering judgment upon the pleadings because the matter of consideration may be shown by parol evidence and need not be contained in the writing itself.

We are of the opinion that the statement of claim sets forth a valid cause of action, not for the real estate commission as such, but instead it is founded upon a written promise which may or may not have been supported by a consideration. It is, in our opinion, the duty of the trial court to overrule the objection to the introduction of any evidence and hear testimony upon the issues presented.

Holding as we do, the judgment of the municipal court is ordered reversed and the same is remanded for a new trial according to law.

Vickery, J., concurs. Sullivan, J., not sitting.


text:
    TESTA v STATE
    Ohio Appeals, 7th Dist, Mahoning Co
    Decided Oct 11, 1929
    Ambrose, Wall & Bence, Youngstown, for Testa.
    R. L. Thomas, Prosecuting Attorney, Youngstown, for State.
   FARR, J.

At the inception of the hearing before the Justice of the Peace, counsel for the accused made the following statement:

“Have the record show the following objections to the proceedings before this court presiding or in anywise attempting to preside over the trial of this defendant, for the reason and upon the following grounds:
1. That Charles W. Martin is a justice of the peace and defendant objects to his jurisdiction.
2. Said Charles W. Martin, as squire, is further objected to by the defendant on the ground that he is financially interested in this prosecution.
3. That notwithstanding the provisions of the statute under the authority of the case of State v. Tari, defendant now objects to the jurisdiction of the justice and demands that he be discharged.”

it becomes readily apparent that the objection to the judgment in this case is based largely upon the Tari decision. It is provided 1448 GC that:

“A justice of the peace, mayor or police judge shall have final jurisdiction within his county in a prosecution' for violation of any provision of the laws relating to the protection, preservation or propagation of birds, fish, game, etc.”

It is also provided in 1452 GC that regardless of whether the accused is acquitted or convicted, that the costs must be certified by the justice of the peace to the County Auditor, who in turn certifies the amount to the County Treasurer, who pays the same. The amount is then certified to the Secretary of Agriculture, who makes a certificate to the Auditor of State, where a voucher is drawn for the payment of costs in such cause.

It becomes clear that the Justice of the Peace has no financial interest in the outcome of the trial, for the reason that in any event, whether the accused is convicted or acquitted and discharged, he receives his fees, and for such reason the principle announced in the Tari case does not apply, and it was so held by the Attorney General of Ohio in opinion 204 of the 1927 Opinions of the Attorney General of Ohio, 342.

Further discussion - is not necessary or profitable, since this is the only issue in the cause. For the reason given the judgment of the court below is affirmed.

Pollock and Roberts, JJ. concur.


text:
    PEARL ST SAV & TR CO v TRAYMORE REALTY CO et
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10375.
    Decided March 17, 1930
    Baler, Hostetler & Sidlo, Cleveland, for Pearl St. Sav & Tr Co.
    Nicola & Horn, N. D. Davis and John A. Alburn, all of Cleveland, for Realty Co et. Judges WILLIAMS and RICHARDS (6th Dist) sitting.
   RICHARDS, J.

The mortgagee and the holder of the meeanic’s lien are entitled to have their mortgages and mechanic’s lien foreclosed and the real estate subjected to the satisfaction of the liens, and this should be done on principles of equity in the inverse order of the sales which have been made. In view of the language of the mortgage extending the benefits of all the provisions and conditions thereof to the successors and assigns of the parties, the right to have releases made inures to the benefit of the purchasers of the various lots.

It is urged by the plaintiff, under authority of Brown vs. Cleveland Trust Company, 10 O.C.C., N.S., 430, that the right to make payment of the sums fixed by the mortgage and secure a release of the premises conveyed can not exist after an action in foreclosure has been brought. Whatever the rule may be where such claim is made by the mortgagor, it appears to this court that purchases having been made on the faith of the right to have the various lotss purchased released upon payment of the amount stipulated in the mortgage, this right still exists in those who have made such purchases and are now ready, able and willing to make such payments. Vawter vs. Crafts, 41 Minn., 14; Taylor vs. Carter, 211 Mich. 365. Such offers were made informally in the case in the Court of Common Pleas and the amount to be paid should be the amount stipulated plus interest thereon from the time the offer was made in the Court of Common Pleas, but the amounts so to be paid must be paid into court within ten days from the entry of this decree. In order to better protect the rights of' the several interested parties, the sale should be made under 8623-120, GC the details as to upset price, advertising, etc., to be such as may be agreed upon by counsel, and if not so agreed upon, then such as may be fixed by the court. Provision should be made fore receiving separate bids upon the several lots fronting on Pleasant Valley Road and York Road. .

WILLIAMS, J. concurs.


text:
    VECCHIO v. STATE
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10521.
    Decided April 21, 1930
    Morganstern & Morganstem, Cleveland, and Peter A. McNamara, Cleveland, for Vecchio.
    Ray T. Miller, Prosecuting Attoreny and David Ralph Hertz; both of Cleveland, for State.
   SULLIVAN, J.

Discussing the last assignment of error first it is obvious that the only question at issue was whether the defendant was guilty of the crime charged and not whether the mother of the prosecutrix had made similar charges against the step-father. If the assignment of error was that the court refused to permit evidence showing carnal relations on or about the time in question with the step-father, and that the conversation between the mother and stepfather was upon that point, then it might be said that there was error on the part of the court providing the offer to prove would show such conduct or statement on the part of the stepfather as would bear upon the point at issue raised by the indictment at bar, but the mere refusal of the court to permit the introduction of an accusation by the mother would not be in line with such reasoning, and there is no rule that would make the accusation, in the form that it is raised in the instant case, competent evidence. It is plainly a collateral issue and in no wise bears upon the issue in the case at bar.

Coming to the assignment of error that the prosecutor was guilty of misconduct in his argument to the jury we do not think the contention is well founded, for the reason that inasmuch as the defendant did not take the stand to deny the accusation under the indictment, he became the subject, under the amendment of the constitution, of comment on the part of the prosecuting attorney, and we do not find in the language used by the prosecuting attorney, that he went beyond the constitutional limitations. By way of inference and argument he asserts that in ninety-nine cases out of a hundred the reason defendants did not take the stand in criminal cases was because the prosecutor had in-his file sufficient information to establish the guilt of the accused. This is a general observation and does not specifically apply to the defendant in the case at bar, and we do not think, therefore, for this reason that it was error and when we come to consider the constitutional privilege given the prosecutor by the amendment we do not think that even if such language had been used as specifically applicable to the defendant in the instant case, that it would have been eror because such a comment is an inference following the neglect and refusal of defendant to take the stand and deny the charges made.

Coming to the assignment of error that the court erred in permitting the state to offer testimony concerning defendant’s age after both the state and the defense had completed its argument, upon examination of the record we find that there is no prejudicial error here for the reason that the state had failed to show that the defendant was over, the age of eighteen as provided for in the statute and we think it would have been clear error on the part of the court under such a situation to refuse the application of the state, even at that point in the trial, to offer evidence concerning the defendant’s age. It was a matter of discretion and we do not think there was an-" abuse of it when we come to consider the circumstances of facts surrounding the case at the time.

Coming to the remaining assignment of error, that the testimony was insufficient in law to convict, we are of the opinion that this assignment of error is not sustained by the record, for the reason that there was corroborating evidence. For instance, the birth of the child as bearing upon the statement of the prosecutrix as to the commission of the crime, and the statement of another witness who testified as to the age of the defendant, which was material and vital in order to convict under the statute. However, the vital circumstance which corroborates the story of the prosecutrix is the neglect and refusal of the defendant to take the stand and deny the charges made. This in and of itself is very substantial corroboration of the testimony to prove the crime, because the silence of defendant under charges when he had the privilege of the witness stand is an inference and conclusion which supports and corroborates the testimony of the prosecutrix. Under the constitutional amendment, giving the state the right to comment upon the absence of the defendant in a criminal case to testify, it is clear that the legislature intended thereby to impress, in the trial of a criminal case, upon the court and jury the significance of the silence, under fire, of the defendant, under the charges of an indictment. Thus we think that the evidence in the case is sufficient as it was submitted to the jury, to form the foundation of a conviction under the rules of the criminal law, and for that reason the judgment of the common pleas court is hereby affirmed.

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


text:
    DENNISON COAL & SUPPLY CO v BARTELHEIM, etc.
    Ohio Supreme Court
    No 22063.
    Decided May 21, 1930
    Robinson, Matthias, Day and Allen, JJ., concur. Kinkade, J., dissents.


text:
    UNION TRUST CO v LESSOVITZ
    Ohio Supreme Court
    No 22098 (Appeal Case)
    No 22099 (Error case)
    Decided May 21, 1930

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


text:
    VOYTKO v BUNTING, et
    Ohio Supreme Court
    No 22107.
    Decided May 21, 1930
    Kinkade, Matthias and Allen, JJ., concur.


text:
    WYMER-HARRIS CONSTRUCTION CO v GLASS, Admr, etc.
    Ohio Supreme Court
    No 22056.
    Decided May 21, 1930
    Marshall, CJ., Kinkade, Jones, Matthias, Da^ and Allen,, JJ., concur.


text:
    HOCKING VALLEY RY CO v WYKLE
    Ohio Supreme Court
    No 22149.
    Decided May 21, 1930


text:
    MARTIN V. HOWELL v EMILY D. HOWELL, et
    Ohio Supreme Court
    No 22081.
    Decided May 21, 1930

      Marshall, CJ., Robinson, Jones and Matthias, JJ., concur.


text:
    SHIELDS et v SUPREME COUNCIL OF THE ROYAL ARCANUM
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No. 10119.
    Decided March 17, 1930
    Payer, Minshall, Karch & Kerr, Cleveland, for Shields.
    Ian M. Ross, Cleveland, for Supreme Council.
    Judges WILLIAMS & RICHARDS (6th Dist) sitting.
   WILLIAMS, J.

Plaintiff in error relies upon waiver of the provisions of the policy by the establishment of a custom of giving notice. There is some question whether the return of the so-called card constituted the giving of notice, but if we assume, for the purposes of argument, that it did, and that the course of action was such as to constitute a waiver of the provisions of the policy as to payment without notice, we are still confronted with a conflict in the evidence as to whether or not the card was in fact returned. The collector maintained that the card was treated like all other cards that were received and that all were returned, and the plaintiff in error adduced evidence tending to show that it was never received.

The trial court was warranted in believing the testimony of the collector and disbelieving the testimony adduced to the contrary, and, therefore, in finding that notice was given by returning the card. We can not say that the decision of the court is manifestly .against the weight of the evidence and, finding no reversible error apparent on the face of the record, the judgment must be affirmed.

Richards, P., concurs.


author: PARDEE, J.

text:
    COX v STATE
    Ohio Appeals, 9th Dist, Summit Co
    No. 1785.
    Decided March 17, 1930
    Lloyd R. Reed, Akron, for Cox.
    Don D. Isham, Prosecuting Attorney and George R. Hargreaves, Asst. Prosecuting Attorney, both of Akron, for State.
   PARDEE, J.

The part of the foregoing ,as to the alibi is erroneous, as It first placed upon the defendant the burden of proving his alibi beyond a reasonable doubt, and then, at the suggestion of the prosecuting attorney, said charge was modified to state that defendant’s alibi should be proved by a preponderance of the evidence.

It has long been the rule in this state that an alibi is not an affirmative defense, and it has been frequently held that the defendant is not required to prove it by any degree in the minds of the jury as to his guilt. The charge in the instant case placed an undue burden upon the accused, and that part of the charge of the court immeditaely following the erroneous part hereinbefore quoted does not overcome the prejudicial part thereof. These parts of the charge are inconsistent, and the jury did not understand, them, as is evidenced by their later return into court and the request they made to the court in regard thereto. At that time the court. had the opportunity of clearing up this inconsistency in the minds of the jury but it did not do so.

We do not know, of course, what the jury thought about the charge as given. It may have thought that inasmuch as the defendant did not prove his alibi by the greater weight of the evidence he therefore was not entitled to any benefit from it, .although his evidence as to alibi might have raised a reasonable doubt in the minds of the jury as to his guilt.

The Supreme Court in a recent case stated the proposition in the following language:

(Here follows quotations).

Marcoguiseppe v. State, 114 OS 299, at p. 301.

We /are therefore unanimously of the opinion that the error of the court in stating the rule of evidence as to alibi was prejudicial to the accused, which requires a ■ reversal of the judgment.

FUNK, P. J., and WASHBURN, J., concur.


text:
    FAUBER v RIBER
    Ohio Appeals, 4th Dist, Highland Co
    Decided February 27, 1930
    Clark E. Holloday, Hillsboro, for Fauber.
    George L. Garrett, Hillsboro, for Riber. •
   BLOSSER, J.

The demurrer admits the allegations of the petition. The plaintiff predicates his right of recovery on the theory that the defendant as such mayor, having a financial interest in the case by reason of his being entitled to a part of the fees and costs as part of his compensation, was for that reason disqualified to sit in the case and that the judgment rendered by him against the plaintiff was void. He cites as his principal authority for this proposition the Tumey Case, 273 U. S. 510. A careful reading of this case will disclose that the Supreme Court did not hold the statutes under which the mayor acted were unconstitutional, but only that the judgment in a case of this kind is voidable and can be taken advantage of when the objection to the mayor sitting in the casé is seasonably raised and error is prosecuted therefrom.

In the ~ present case the action of the mayor was not void but only voidable. He was personally disqualified from sitting in the case by reason of his financial interest in the fees .and costs. The case is analogous to a disqualified juror sitting in a case. A party has the right to challenge such juror, but if he sits in the case and the judgment is against such party he can prosecute error but certainly such party has no right to maintain ,a civil action for damages against such juror. It being conceded that the mayor was duly elected and qualified, he had the powér as such mayor to hear and determine a case of this kind when brought before him. His disqualification to sit was personal by reason of his financial interest. The power to hear and determine a case is jurisdiction. This is fully explained in the case of Sheldon’s Lessee v. Newton, 3 OS. 494. The mayor’s action and judgment in this case was final unless reversed on error. This judgment can not be attacked collaterally, and the only remedy which' the aggrieved party had was by prosecuting error to the judgment rendered. This interpretation is borne out in the Tumey Case and is also clearly expressed in the case of Tari v. State, 117 OS. 481. This principle is recognized in the case of Ex Parte Elicker, 117 OS. 500, which holds that an application for a writ of habeas corpus can not be made a substitute for proceedings in error.

It is the universal rule and well settled that in general a judicial officer can not be held liable in a civil action for any act done by him in his judicial capacity. Wheeler v. Gavin, 5 O. C. C. 246. This is the general rule and is elementary.

“It is unquestionable, and has been from the earliest days of the common law, that a judicial officer can not be held to account in a civil action for his determination and acts in his judicial capacity however erroneous or by whatever motives prompted. This rule rests on the highest considerations of public policy.”’

15 Ruling Case Law, Section 53.

It follows from the foregoing that the demurrer to the second amended petition was properly sustained and that there was .no error committed by the trial court in sustaining the same.

MINDLETON, P. J., and MAUCK, J., concur.


author: BY THE COURT:

text:
    KAIFER et v OHIO LEATHER CO et
    Ohio Apueals, 7th Dist, Mahoning Co
    Decided Nov 8, 1929
    James Kennedy, J. V. Murphy and Barnum & Hammond, all of Youngstown, for Kaifer, et. .
    Harrington, DeFord, Huxley & Smith, Youngstown, for Leather Co, et.
   BY THE COURT:

It is not now believed that it would be profitable or necessary to enter into a detailed discussion of the facts, which are somewhat involved as disclosed by the amended petition, which consists of many pages. It is sufficient now to say that it was desired to restrain what may be termed the reorganization of this corporation in 1923, which reorganization would substantially change the character of the holdings of the various stockholders, consisting of many shares of preferred stock, to bear a certain rate of interest and a certain amount of no par stock, and this reorganization was brought about, Kaifer and his co-plaintiffs objecting to the same, and complaining that they were not notified of certain meetings that were held, and complaining also that by the reorganization they were deprived of the sum of $17.50 per share, which had accumulated as dividends upon each share of stock. A reorganization was had under favor of Article 13, Section 2, of the Constitution of the State of Ohio, which provides how corporations shall be formed:

“Corporations, how formed. Corporations may be formed under general laws; but all such laws may, from time to time, be altered and repealed.”

Subsequent legislation consisting of Sections 8728-1 to 8728-11 of the General Code was enacted, and it is under favor of these sections that this reorganization was had or attempted to be had.

It is sufficient in this connection to say that after having carefully considered the issues raised, the conclusion is that the plaintiff and his co-plaintiffs owned their holdings in this corporation subject to the above constitutional provision and therefore subject to the legislation incident thereto, above Sections 8728-1 to 8728-11. Having reached that conclusion, it is again sufficient to say that the conclusion reached by the Referee is correct; that the corporation had a right to reorganize as it did, and that the stockholders objecting hold their interests subject to the constitutional provision, and the consequent right of the legislature to enact the above legislation, authorizing the reorganization of the corporation.

For the reasons given, a judgment will be entered in harmony with the finding in the report of the Referee and an entry may be prepared accordingly. If it is desired when the opinion is revised, the issues may oe discussed at greater length, but it does not now seem necessary in view of the fact that all counsel on both sides are fully advised as to the facts, and the foregoing covers the controlling issue.

Pollock, Roberts and Farr, JJ. concur.


text:
    WICKENS v CARPENTER
    Ohio Appeals, 4th Dist, Washington Co
    Decided March 12, 1930
    H. S. Dyar, Marietta, for Wickens.
    C. T. O’Neill, Marietta and E. F. Folger Marietta, for Carpenter.
   We find no prejudicial error in the record and the judgment is affirmed.

MIDDLETON, P. J., and MAUCK, J., Concur.


text:
    ALFRED E. BARNES v HELEN L. BARNES
    Ohio Appeals, 7th Dist, Mahoning Co
    Decided Nov 8, 1919
    L. L. George, Youngstown, for Alfred Barnes.
    Max Brunswick, Youngstown, for Helen Barnes.
    SHERICK, J. (5th Dist) sitting in place of Roberts, J.
   FARR, J.

As a ground for reversal it is insisted that the allowance of alimony is excessive and that the plaintiff in error is unable to discharge his obligation in the pyament thereof. It will be recalled that these parties were married ,and lived together for a period of about ten years. Five children were born as a result of that marriage, all of whom were living at the time the cause was heard. It was charged upon the part of the plaintiff below that a pretended friend, by the name of Semple, became a frequent visitor at his home, and that his wife became estranged, bestowing her affections upon Semple and withdrawing them from him. Some testimony was offered upon the trial below to show that Semple’s automobile was sometimes parked in the vicinity of the home, also that some considerable friendship sprang up and obtained between Semple and Mrs. Barnes. On the other hand, Mrs. Barnes sought to show that her husband had been guilty of extreme cruelty and gross neglect of duty. The trial court, after hearing all of the testimony, reached the conclusion that neither party was entitled to a divorce. While some circumstances disclosed by the record may indicate rather a strong friendship between Mrs. Barnes and Semple, yet there is no positive showing that any improper relations existed between the two, nor is it shown that Barnes was guilty of extreme cruelty or gross neglect of duty. The time came when they were estranged from each other, perhaps they no longer occupied the same sleeping room, and the privilege of sexual intercourse had been extended to the husband but a single time, but the court found that neither party was entitled to a divorce, and with that this court is in accord,' and the judgment in that regard is affirmed.

It is claimed, however, that Barnes is unable to pay the sum of $100.00 per month ,as alimony. However, this court has no authority to interfere with the allowance made. A case of interest in this connection is that of Meissner v Meissner, 5 C.D., 305.

The same principle is announced in 26 C. C., N.S., 523. Likewise in the case of Conant v. Conant. 26 O.D., 60, a case worthy of notice in this connection, so that this court has no authority to alter the decree as to the allowance of alimony, and the judgment is affirmed.

Pollock and Sherick, JJ. concur.