text:
    No. 6136.
    City of Canton v. Shull, Adm’r.
    (Decided January 23, 1900.)
    Error to the Circuit Court of Stark county.

      Ed. L. Smith, City Solicitor, and A. A. Thayerf for plaintiff in error.

      Sterling db Wernts, for defendant in error.
   Judgment of the Circuit Court reversed and that of the Common Pleas affirmed on authority of Commissioners v. Coffman, 60 Ohio St., 527.


source: Caselaw Access Project

license: Public Domain

text:
    No. 6150.
    Jones v. Jones et al.
    (Decided January 23, 1900.)
    Error to the Circuit Court of Cuyahoga county.

      Burke da Ingersolls and W. O. Rogers, for plaintiff in error.

      Hamilton da Hamilton and Sguire, Sanders db Dempsey, for defendants in error.
   Judgment affirmed.


text:
    No. 6151.
    Graf et al., Receivers, v. Milligan, Adm’r.
    (Decided January 23, 1900.)
    Error to the Circuit Court of Ross county.

      W. B. Richie and TP. H. leete, for plaintiffs in error.

      Entrekin db Phillips and Blackburn db Rhyno, for defendant in error.
   Judgment affirmed.


text:
    No. 6600.
    Reynolds v. Village of Maurice City.
    (Decided January 23, 1900.)
    Error to the Circuit Court of Putman county.

      Krauss db Eastman, for plaintiff in error.

      Watts & Moore and A. J. McClure, for defendant in error.
   Judgment affirmed.


text:
    No. 5683.
    Simon, Trustee, et al. v. McCree et al.
    (Decided January 30, 1900.)
    Error to the Circuit Court of Stark county.

      Claris, Ambler <& Claris and Miller <& Pomerene for plaintiffs in error.

      Day, Lynch <& Day; McCarty <& McDoioell and Frank W. Babcock, for defendants in error.
   Judgment affirmed.


text:
    No. 5880.
    The A. H. Pugh Printing Company v. Dexter.
    (Decided January 30, 1900.)
    Error to the Superior Court of Cincinnati.

      Cohen <& Mack and Paxton, Warrington <& Boutet, for plaintiff in error.

      Drausin Wulsin and Frank O. Suwe, for defendant in error.
   Judgment affirmed.


text:
    No. 6041.
    Board of Education of Harrison Township, Ross County, v. First National Bank of Plymouth.
    (Decided January 30, 1900.)
    Error to the Circuit Court of Ross county.

      Luther B. Yaple ; John C. Entrelsin and John P. Phillips, for plaintiff in error.

      Albert Douglass, for defendant in error.
   Judgment of Circuit Court reversed and that of Common Pleas affirmed on authority of Board of Education v. Andrews & Co., 51 Ohio St., 199.


text:
    No. 6085.
    Farmers’ National Bank of Findlay v. Doty.
    (Decided January 30, 1900.)
    Error to the Circuit Court of Hancock county.

      Jason Blackford efe Byal and J. B. Metzler, for plaintiff in error.

      J. A. db E. V. Bope and Doty db Kibler, for defendant in error.
   Judgment affirmed.


text:
    No. 6123.
    Burke v. Ritchie et al.
    (Decided January 30, 1900.)
    Error to the Circuit Court of Cuyahoga county.

      Burke db Inger soils, for plaintiff in error.

      Wm. II. Upson; Grant db Sieber and Baird db Voris, for defendants in error.
   Judgment affirmed.


text:
    No. 6474.
    Davies v. Partridge.
    (Decided January 30, 1900.)
    Error to the Circuit Court of Licking county.

      J. B. Davies, for plaintiff in error.

      Kibler db Kibler, for defendant in error.
   Judgment of the Circuit Court vacated, and cause remanded to that Court with instructions to consider the bill of exceptions.


author: Davis, J.

text:
    Gray et al., Executors, v. Case School of Applied Science.

      A general legacy — Draws interest from end of first year — From date of appointment of executor.

    In this state a general legacy bears interest, at the legal rate, from the end of the first year from the date of the notice of the appointment of the executor, unless it be clearly apparent that the testator did not so intend.
    (Decided February 20, 1900.)
    Error to the Circuit Court of Cuyahoga county.
    This case was tried in the courts below on the amended petition of the plaintiff, the answer to the amended petition and a demurrer to the answer. The demurrer was overruled by tbe court of common pleas and judgment entered for tbe plaintiff in error for tbe amount admitted in the answer to be due. But tbe court refused to render judgment for interest from August 15, 1891, as claimed in tbe petition.
    Tbe defendant prosecuted error to this decision in tbe circuit court of Cuyahoga county, and that court reversed tbe court of common pleas and rendered judgment in favor of tbe defendant in error, for tbe amount of tbe legacy bequeathed to it by tbe will of Laura K. Axtell, with interest for one year from the date of tbe bond of tbe executors.
    It is alleged in tbe amended petition that tbe testatrix died in 1890; that her will was proved August 15, 1890, that the executors qualified on that date, and that the first publication of notice of tbe appointment of tbe executors was on August 20, 1890. By tbe will of tbe testatrix a legacy of $50,000 was given to tbe Case School of Applied Science, and by a codicil an additional legacy of $1,000 for a specific purpose. Payment of $42,587.50 was made on tbe first-named legacy. The executors filed their final account on tbe 8th day of April, 1896, and on August 18, 1896, a general order of distribution was made by which it appears that tbe assets are sufficient to pay all debts, and to settle all tbe bequests with interest as claimed. Tbe amended petition also avers that tbe personal assets from tbe time of tbe death of Sirs. Axtell bad been sufficient to pay all tbe legacies Avith interest, but that they were not collected until November 4,1895,
    The answer to tbe amended petition avers that there Avere sufficient assets in tbe bands of the executors to pay the legacies prior to November 4, 1895, and that the time for settling another estate, tbe Kerr estate, from which assets were to be received by the Axtell estate, bad been extended from time to time, and that it was not settled until November 4, 1895. It also claimed that tbe real estate of Kerr added to the estate of Mrs. Axtell’s assets were at no time sufficient to pay the legacies with interest. The judgment of the court of common pleas was reversed by the circuit court. To reverse the judgment of the circuit court the defendant below filed this petition in error.

      F. J. Jerome and Lewis J. Wood, for plaintiffs in error.
    A reading of the very short record in this case shows that the point to be decided is: From what time does a general legacy draw interest?
    Our contention is, and it is alleged in the answer and admitted by the demurrer, that there was not at the end of the year nor at any time prior to November 1, 1895, a sufficient fund on hand for the payment of the general legacies. And our further contention is that no matter what was the amount of the assets, nor what amount of money had been collected from them, the general legacies were not due and payable and did not begin to draw interest until the order of distribution was made on the 18th day of August, 1896. Lease v. Downey, 5 O. C. C. R., 480; 3 Circ. Dec., 235.
    Formerly the ecclesiastical courts and courts of equity had jurisdiction over testamentary and administration matters, and it was under that state of things that the rule was adopted making legacies due and payable one year after the death of the testator, allowing interest upon the same from that time.
    That rule has been adopted in a few of our states; in some of them by statute.
    California, section 1368.
    Pennsylvania — Pepper and Lewis statutes, p. 1507, section 173.
    Under these Pennsylvania statutes it is held, and properly, of course, in the 167 Pa. St., p. 463, that a legacy bears interest from the time it is payable.
    The legislature of Ohio has made provision for enforcing the payment of a legacy; it has provided for fixing the time when a legacy shall be due and payable and may be put in suit and a judgment had for its payment, and by such provisions has fixed the time when the legacy shall begin to draw interest.
    Sections 6195 to 6202, inclusive, were enacted in 1857 — shortly after the supreme court, in the McLaughlin case in 4 Ohio St., 508, held that the powers of the probate court were exhausted when the order of distribution was made, and it had no jurisdiction to entertain a petition to enforce the payment of the amount awarded to the distributee.
    These sections recognize the fact that no tribunal except the probate court can compel an accounting by an executor, or can hear and determine his accounts, and that until such hearing and determination and an order of distribution there is no cause of action for the recovery of the legacy; it is not due and payable and, as we contend, cannot therefore draw interest.
    Section 6195 certainly fixes the time when the right of action of plaintiff in error herein accrued — thirty days after the settlement of the account and an order of distribution made thereon. This suit is based on that statute, as shown by the petition.
    The accruing of a cause of action and the maturing of a claim are one and the same thing. So .we take it that this claim, this legacy, was not mature, it was not due, until a suit could be brought for it, and we learn from the statute quoted that a suit could not be brought till thirty days after the account and order of distribution.
    Not being due before that time it could not draw interest until that time. Interest must either be provided for by contract or by statute. At common law interest was not allowed. 11 Am. and Eng. Enc. of Law, page 379 and cases cited; Sanderson v. Reed, 75 Ill. App., 190.
    Our interest statute provides for the payment of interest on all money when it becomes due and payable on any bond, bill, note, or other instrument of writing. Rev. Stat., 3181.
    Thus it would seem that a legacy, which is money due at some time under a will — a written instrument — should bear interest from the time it becomes due and payable.
    A legatee is not entitled to the payment of his legacy at the end of one year or at any time until there has been an account and order of distribution.
    Our statute so declares and the courts have so construed it. Dawson v. Dawson, 25 Ohio St., 443.
    Section 524 gives to probate courts exclusively jurisdiction over the accounts of guardians as well as of executors and administrators. Newton v. Hammond, 38 Ohio St., 430.

      Williamson, Cushing & Clarice, for defendants in error.
    We conceive that the decided and statutory law of Ohio clearly establish the rule of law for this state to be as decided by the circuit court. Webster et al. v. Bible Society, 50 Ohio St., 1.
    Following the statement of the law by this court, the claim of the defendant in error was in the lower court, and the decision of the circuit court sustained the claim, that interest should be allowed upon the legacies claimed from one year from the date of the qualifying of the executors — not from one year from the death of the testator.
    Many statutes of Ohio clearly indicate the intention upon the part of the law making power that estates shall be settled within one year from the qualifying of the representative; — as if to follow the immemorial practice out of which grew the interest rule for which we contend, viz: 'Revised Statutes 6062, 6040, 6074, 6106, 6109.
    Thus does the whole scheme of the statutory settlement of estates in Ohio proceed as if upon a set-tied purpose that settlement shall be concluded within one year from the date of the bond.
    The statutory provisions and decisions from the loAvest courts of record to the highest, Avould seem to settle the rule for this state, that general legacies, such as those claimed by the defendant in error under the Avill of Mrs. Axtell, bear interest from one year from the date of the qualifying of -the executors.
    Such is the law in other states and in England. Rotch v. Emerson, 105 Mass., 431; Davis v. Swan, 4 Mass., 208; Kent v. Dunham, 106 Mass., 586; Martin v. Martin, 6 Watts, 67; Huston App. 9 Watts, 473; Derby v. Derby, 4 R. I., 414; In re Spencer, 16 R. I., 25; Budd v. Garrison, 45 Maryland, 418; Spriggs v. Weedon, 21 Maryland, 156; Halsted v. Mccker, 18 N. J. Equity, 136; Wheeler v. Ruthven, 74 N. Y., 431; Bradmer v. Faulkner, 12 N. Y., 474 ; Cooke v. Meeker, 36 N. Y., 18; Loring v. Woodward, 41 N. H., 391; Chambers v. Chanibers, 87 Ky., 144; Wood v. Penoyre, 13 Vessey, 333; Pearson v. Pearson, 1 Sch. and L., 10.
    This one-year rule is laid down as the general rule, also, by the authoritative text book writers. Williams Executors, 2d Ed., p. 533; Crosswell Executors and Administrators, Sec. 503; Settlement of Decedent’s Estates, Giauque, 155; Williams Executors, Vol. 2, p. 1533; Craigbaum v. Southard, 23 Bull., 438; 10 Dec. Re., 803.
    This rule, which is thus distinctly adopted in nine states, including Ohio, and by all authoritative writers of text books, is bottomed upon three grounds in the books. 1 Sch. and L., 10.
    But the fact and the law is that the question Avhether suit can be brought or not at the expiration of one year from the giving of bond by the executor, has nothing whatever do to with the determining of this rule of interest and so of the decision that should be rendered in this case. The rule to be deduced from the authorities as well as from right reason is, that whether an action may be commenced or not at the expiration of a year from giving of bond, nevertheless interest from the expiration of that year becomes an accretion to the legacy, because in no other way can the intention of the testator be carried out. Kent v. Dunham, 106 Mass., 586; Ogden v. Patten, 149 Mass., 82.
    The common law rule has been made statutory in Pennsylvania, but it was adopted by the courts of that state before the statute was passed. Hustings appeal, 9 Watts, 472.
   Davis, J.

It has heretofore been a rule in Ohio, as elsewhere, that a general legacy shall bear interest at the legal rate from the end of the first year from the testator’s death, unless it shall be apparent that the testator did not so intend. In other words, it is an established rule of construction, in contemplation of which the testator is presumed to have made his bequest, and which will only be overturned when the testator clearly manifests a different intention. In this case, the circuit court, in view of the right of the legatee to require payment of his legacy at any time within four years after the executor or administrator has given bond for discharge of the trust, on first giving an indemnity bond to the executor or administrator (R. S., section 6128), seems to have held that the legatee was entitled to interest from the expiration of one year from the date of the bond of the executors. 15 C. C., 488; 8 Circ. Dec., 241.

The circuit court, however, actually found that the court of common pleas erred in refusing to render judgment for interest from the expiration of one year from the probate of the will.

Revised Statutes, Secs. 6062, 6040, 6106 and 6109, all seem to recognize that an executor should have at least one year in which to collect assets and to ascertain the condition of the estate. So that this ruling of the circuit court, although not exact, was in accord with the principle that “in those states where statutes or the judge of probate allows a year in which to pay debts and legacies, such legacies are not due until the end of a year from granting letters testamentary, and the interest should be computed from that time.” Wheeler v. Hatheway, 54 Mich., 550; Webster et al. v. Bible Society, 50 Ohio St., 17.

The general rule of construction, as thus modified to harmonize with our statutes, is challenged here, by -the plaintiffs in error, on the following grounds: 1. That there was not at the end of the year1, nor at any time prior to November 4, 1895, a sufficient fund on hand for the payment of the general legacies. 2. Regardless of the amount of the assets, or of the amount of money in the hands of the executors, the general legacies were not due and payable, and did not begin to draw interest, until the order of distribution was made on the 18th day of August, 1896. Or, to put the last ground of objection in another form, “a legatee is not entitled to the payment of his legacy at the end of one year, or at any time until there has been an account and order of distribution.”

If the general rule which has been stated above, still prevails, and there were assets sufficient for the payment of the legacy and applicable thereto, although not collected, it avails nothing to say that the condition of the estate was such that payment of the legacy at that time was impracticable, or that the assets were not then convertible; for that would be equivalent to saying that a man should not pay -interest on his debt because he could not pay the principal when it became due. The whole theory of the rule which we have under discussion is, that interest should be allowed from the time when a legacy ought to be paid to the time when it is paid, as a compensation for the delay of payment; and the claim that interest should not be allowed because the executors were not ready to pay the legacy when it ought to have been paid, and when the legatee could have compelled payment, on giving a bond of indemnity, is altogether untenable.

The further contention of the plaintiffs in error that a legatee is not entitled to the payment of his legacy at any time until there has been an accounting and an order of distribution, seems to us to be based on a misconception of the scope and purpose of Revised Statutes, sections 6195-6202. These enactments were designed to confer on the probate court and the court of common pleas the power of enforcing an order of distribution made by the probate court on the settlement of an account by an executor, administrator or guardian. Looking at their history and context, it will appear that they do not in terms, or by construction, exclude the remedy provided for a legatee by Revised Statutes, sections 6128 and 6211. They are merely cumulative to the latter sections. Dawson v. Dawson, 25 Ohio St., 443; Webster v. Bible Society, 50 Ohio St., 17.

It was held by this court in the last cited case that the cause of action on a general legacy accrues when, by the terms of the will or rules of law it becomes due and payable and the executor has sufficient assets in Ms hands applicable thereto. From that time, it wouid seem, interest should run; and, in the absence of direct legislation upon the subject, the general rule should be applied according to the analogies of our statutes. From the general tenor of the statutes we may gather that the executor could not be expected nor required to obtain control of. the assets and to reduce them to money, and to have obtained knowledge of the demands against the estate, in less than one year from the time of giving notice of his appointment. Hence a general legacy would not be both due and payable until after the expiration of one year from the date of notice of the appointment; nor, as it has already been shown, can the time of payment be ordinarily deferred until settlement and distribution of the estate.

It remains that in none of the cited statutory provisions, has the hitherto prevailing rule as to interest on general legacies, been abrogated; nor has it in any manner become the subject of direct legislation. In applying the rule to this case, the circuit court, attempting to conform it to the analogies of the Ohio statute, held that “the court of common pleas erred in * * refusing to render judgment for interest upon the unpaid portions of the bequest mentioned in the said amended petition, from the expiration of one year from the date of the probate of the willbut inasmuch as the probate of the will,- the appointment of the executors and their qualification, were all on the same day, and the first publication of the notice of appointment was only five days later, we find no substantial error in the judgment of the circuit court, De minimis non curat lex. The judgment is

Affirmed.


text:
    The City of Dayton v. Taylor's Administrator.

      Municipal corporation may establish drainage in manner at its discretion — Cannot be called to account by cottrt respecting error of judgment in plan — Notice of defect creates duty to remove defect — Liability of corporation — Unnecessary assumption of risk by pedestrian — Mtmicipal law.

      1. The manner in which drainage may be accomplished, if at all, is peculiarly within the discretion of a municipal corporation, and it cannot be called to account by the courts respecting its errors of judgment in the plans of a public improvement for drainage adopted by it. But after the construction of the improvement, when a defect dangerous to travel in a street, arising from such construction or the impairment thereof, is brought to the notice of the corporation, it becomes its ministerial duty, under the statute, to remove the defect, and a neglect or a refusal to remove the defect after such notice would make the corporation liable for an injury resulting therefrom.

      2. A pedestrian who, without necessity and for his own pleasure and convenience, departs from the sidewalks and street crossings, upon which he would have avoided injury, and crosses a street intersection diagonally, and is injured by slipping into a catch-basin which lay between the crossings, must be held to have assumed the risks which lay in the path which he thus chooses.
    (Decided February 20, 1900.)
    Error to the Circuit Court of Montgomery county.
    This action was begun by Charles H. Taylor in the court of common pleas of Montgomery county, and since its commencement he has died, and his administrator has been made a party and prosecutes the action. The amended petition upon which the action was tried alleges that prior to the 13th of December, 1892, at which time the plaintiff received the injuries complained of, the defendant constructed a catch-basin on the southeast corner of Pierce and Hawker streets; that the top of the curb at the corner of the street and on either side of the line of the street crossing, was about sixteen inches above the bottom of the gutter; that there was a sudden and dangerous inclination of the ground around the catch-basin for a distance of about ten feet that extended on either side of the line of the street crossing and to the mouth of the catch-basin; and that on the date mentioned the catch-basin Avas open and unprotected; that on the night of said day there was no light of any kind at or near the said street crossing; that the manner in Avhich the catch-basin Avas constructed, the sudden and unnecessary fall given to the ground around the catch-basin, permitting the mouth of the same to remain open and unprotected, and the fact that there was no light at or near the crossing, all of which defendant knew and caused and permitted to remain in said condition, made it dangerous and unsafe for persons to travel on said street. Plaintiff also alleged that on the night of the 13th of December, 1892, while he was traveling along said Pierce street on his way home, without any fault or negligence on his part, he was precipitated against the top of and into said catch-basin, whereby he was seriously injured and sues for damages.
    The defendant, in answer to the amended petition, admitted that it had constructed a catch-basin at the southeast corner of Pierce and Hawker streets prior to the 13th of December, 1892, and that on the night of said day the plaintiff was traveling on foot on Pierce street and fell and hurt himself at the corner of Pierce and Hawker streets, and denies each and every other allegation in the petition contained. Defendant also alleges that it caused the said catch-basin, curbs, gutters and street crossing to be constructed in a careful, prudent and workman-like manner, placed the same in condition safe for pedestrians and caused the same to be so kept, and they were so kept on said night of December 13, 1892, and that said city was not in any degree negligent in regard to said catch-basin, curbs, gutters or crossing, and in no way contributed to the plaintiff’s accident; and that said accident was entirely due to the plaintiff’s own carelessness.
    In reply, the plaintiff denied that the city of Dayton constructed the catch-basin, curbs, and street crossing in a careful manner, placed the same in a ■condition safe for persons traveling on the street, and denies that they were so on that night. He ■denies that he was well acquainted with the corner and catch-basin and knew them to be unsafe or dangerous, and denies that he was careless.
    On the trial of said action in the court of common pleas the defendant requested the court to give the following special charge to the jury, to-wit: “If you find that the plaintiff departed from the sidewalk and way provided by the city for pedestrians, he assumed the risk of what might happen to him; and if you find from the evidence that the accident would not have happened if plaintiff had stayed upon the ■sidewalk and had crossed Hawker street at the regular sidewalk crossing, and that plaintiff’s act in •crossing catacorner from one corner of Pierce and Hawker streets to the other where the catch-basin is, was the proximate cause of the accident, your verdict will be for the defendant.”
    This was refused by the court and the defendant excepted. The verdict being for the plaintiff, the defendant filed a motion for new trial, which was overruled. A petition in error was filed in the cir■cuit- court and the judgment of the court of common pleas was affirmed. The action is now brought in ■this court to reverse the judgments of the circuit court and of the court of common pleas.

      Edwin P. Matthews, City Solicitor, for plaintiff in •error.
    The city must keep its streets in a reasonably good condition for use in the customary way by ordinary people. It is not an insurer against accidents, nor of safety of people, and it is not bound, to anticipate improbable or unprecedented events,, and to provide against their probable results. Van. Dyke v. Cincinnati, 1 Disney, 537; Village v. Kallager, 52 Ohio St., 183; Dillon on Mun. Corps., Sec.. 1019 ; Sachet on Ins. to Juries, pp. 368, 369 and 370; Beltz v. City of Yonkers, 48 N. Y., 401; Buscher v. City of La Fayette, 36 N. E., 371; Morse v. Belfast,. 77 Maine, 44; Perkins v. Fayette, 68 Maine., 152;, Fitzgerald v. City of Berlin, 64 Wis., 207.
    It does not appear from any of the evidence, even the plaintiff’s, that the city was negligent either in constructing or maintaining this catch-basin, or the-streets in its vicinity. It cannot be held negligent in the matter of the plans. Cooley on Torts, p. 620; Thomas oh Negligence, p. 993; Tiedman on Mun. Corps., Sec. 344-u; Sachet on Ins. to Juries, p. 377.
    There were no street lights at this corner. This,, however, does not constitute negligence on the part, of city. Cooley on Torts, p. 620; McHughes v. St. Paul, 1 Am. Neg. Rep., 273.
    Where a person tripped over a curbstone it was. held that the city was not responsible. Thomas on Negligence, p. 991.
    Appliances for drainage are necessary, and if they are constructed properly and with care, the city is. not liable for accidents which happen on account of same. McComber v. City of Taunton, 100 Mass., 256.
    Plaintiff could have crossed the street in the line of the sidewalhs and at right angles, and had he done-this, he would not have been hurt. He was guilty' of contributory negligence in leaving the traveled path, and is not entitled to recover. Beach on Contributory Negligence, Sec. 477; Groveport v. Bradfield, 2 C. C. R., 150; 1 Circ. Dec., 411; Tiedman on Mun. Corps., See. 352, pp. 719 and 720; Jones on Mun. Negligence, Sec. 227; Railroad Co. v. Transportation Co., 32 Ohio St., 116.

      George V. Nauerth, for defendant in error.
    Ro brief was filed by the defendant in error.
   Davis, J.

It is the duty of a municipal corporation to keep its streets in repair and free from obstruction and nuisance. It is sufficient, however, if the streets are kept in reasonably safe condition for the ordinary modes of travel. It is impossible to so conceive a plan of construction, and to so carefully maintain it, that injuries may not happen on the streets to heedless persons; and therefore cities and villages are not held liable as insurers against accidents occurring upon their streets, and are held only to the exercise of reasonable caution and foresight in providing for the use of the streets in the ordinary modes, and with ordinary care, by the traveler.

The defect complained of in this case was a catch-basin for surface water, at the intersection of two streets. There is no evidence that it was imperfectly constructed or improperly placed, or that it had become defective and dangerous since its construction, It was located at a corner of the intersection so that it was out of the traveled path of pedestrians, and it was so constructed, with a projecting top stone, that persons driving upon the street, and exercising ordinary care would no‘t be liable to accident from it. It was similar to other catch-basins in the city f.nd was built after plans and specifications prepared in the city engineer’s office, and was inspected and accepted by that officer.

Rut it is the plaintiff’s allegation “that the manner in which said catch-basin was constructed, the &udden and unnecessary fall given to the ground around the said catch-basin, they permitting the mouth of the same to remain open and unprotected, and the fact that there was no light at or near the said crossing * * * made it dangerous and unsafe for persons to travel on said streets.” The mere existence of tlie facts, that there was a sharp inclination of the ground to the catch-basin for the distance of ten feet, that the opening at the curb had neither screen nor .bars over it, and that the height of the curb from, the bottom of the gutter to the top of the catch-basin was sixteen inches, does not constitute negligence;. and there was no evidence to show that these were not-necessary conditions to the successful operation of the catch-basin. Indeed, there was some testimony directly to the contrary. Yet, however, these facts may be, appliances for drainage are necessary, and the manner in which drainage may be accomplished, if at all, is peculiarly within the discretion of the municipality, and it cannot be called to account by the courts respecting its errors of judgment in the plan of a public improvement. Wheeler v. Cincinnati, 19 Ohio St., 21, 22. But, according to many authorities, it would be held liable for negligence in carrying out the plan. At least, in Ohio, it cannot be doubted that if, after the construction of an improvement according to a plan and specifications adopted by the municipal authorities, notice should be brought home to the municipality that a street was not reasonably safe for use under ordinary circumstances, by reason of a faulty construction of the improvement, it would become a ministerial duty of the corporation to remove the defect, and a failure or refusal to do so after such notice, would make it liable to respond in damages for an injury resulting from the defect. City of Circleville v. Sohn, 59 Ohio St., 285. If it be conceded that such a defect existed here, there is an entire absence of proof that the corporation was aware of it.

Nor does it appear that the absence of a light at that point contributed in any degree to the plaintiff’s injury. If he had followed the ordinary traveled'way for pedestrians, he would not have come in contact with the catch-basin, which was situated between the street crossings at the southeast corner of the intersection of Pierce and Hawker streets. Without any necessity therefor, so far as appears in the record, and solely for his own pleasure and convenience, he left the sidewalk at the northwest corner of the street intersection and went diagonally across Hawker street to the southeast corner, where, using the plaintiff’s own language, he “walked right into the basin.” It is very clear, however, that he did not walk into, nor fall into, the catch-basin; for owing to the form of its construction, that could not be. It was raining and freezing, and the street was slippery. He must have fallen and slipped into the basin. The only way in which he could have gotten his leg into the opening was by sliding. It does not appear that it was the absence of a light which caused him to fall and slide into the catch-basin; but it does appear that he was out of the ordinary traveled way for pedestrians, that there was no necessity for being out of the way, and that if he had kept on the sidewalk and crossings, he would have avoided the injury. He was not exercising ordinary care for his own safety, under the circumstances; and in departing from the usual and safe way which the municipality had provided for him, he assumed all of the risks which lay in the path which he chose for himself.

We, therefore, hold that the court of common pleas erred in refusing to instruct the jury as requested by the defendant, and erred also in overruling the motion of the defendant for a new trial. For these errors, the judgment of the common pleas court and the judgment of the circuit court in affirming the same, are reversed and the cause is remanded for a new trial.

Judgment reversed.


text:
    State ex rel. U. S. Mortgage & Trust Co. v. Godfrey, Auditor.

      Delinquent tax sale of land — Does not vest purchaser with title, at time of sale — Purchaser may be invested with title in two years — If land not redeemed — Duty of auditor as to transfer of such land to name of purchaser.

    1. A sale of land at a delinquent tax sale does not vest in the holder of a certificate of purchase at such sale, the title to the property so sold; but the holder of such certificate acquires a right to be invested with the title to such land at the expiration of two years from the sale, if not redeemed.
    2. It is the duty of the auditor, after delivering a certificate of purchase of delinquent land sold for taxes, to transfer the same into the name of the purchaser; and it is also his duty, when the same lands have been sold and conveyed by the owner, or conveyed under a judicial sale of the owner’s interest, within two years from the delinquent tax sale, to transfer the the same to the grantee under the deed; but if such lands should not be redeemed within two years from the time of the delinquent tax sale, and the auditor has executed and delivered a deed therefor to the purchaser, it will then be the duty of the auditor to transfer the land to the name of the holder of the tax deed.
    (Decided February 20, 1900.)
    Error to the Circuit Court of Lucas county.
    Tbe relator filed in the circuit court of Lucas county its petition for a writ of mandamus against Wiliiam M. Godfrey, the auditor of said county, which is as follows:
    The relator, the United States Mortgage & Trust Company, for its petition says:
    That it is a corporation duly incorporated under the laws of the state of New York;
    That William M. Godfrey is now and for more than one year last past has been, the duly elected qualified and acting auditor of the county of Lucas in the state of Ohio.

      Relator further says: That, on the 10th day of December, 1897, Mary T. Henahan and Michael Henahan were and for four years prior thereto had been and until the 10th day of July, 1899, continued to be, the owners in fee simple of the following described property, to-wit:
    (Here follows description of the property.)
    That, to secure, the payment of a promissory note, the said Mary T. Henahan and Michael Henahan, on said 10th day of September, 1897, executed and delivered to relator, their mortgage deed covering said property, which was duly recorded in the office of the recorder of Lucas county, Ohio.
    That the condition of said mortgage having been broken, relator in the month of October, 1898, filed its petition in the court of common pleas of Lucas county, Ohio, in a suit against said Mary T. Henahan and Michael - Henahan, praying for the foreclosure of said mortgage and the sale of said property; that said Mary T. Henahan and Michael Henahan were each duly served with summons in said suit, and that thereafter and at the April term, 1899, of said court relator recovered a judgment and decree in said suit, foreclosing said mortgage and ordering a sale of said property by the sheriff of said county; that in pursuance of said decree the sheriff of said county, on the 17th day of June, 1899, sold said property to relator and that thereafter and at said April term of said court, said sale was duly confirmed by said court and said sheriff ordered to execute and deliver to relator a deed of conveyance of said property; that on the 10th day of July, 1899, said sheriff, in pursuance of said proceedings in said court, duly executed and delivered to relator a deed of conveyance of said property, whereby relator became the owner in fee simple thereof.
    Relator further says: That on the 17th day of January, 1899, at a sale of lands for delinquent taxes held by the treasurer of Lucas county, Ohio, the said'treasurer sold said property to one Charles H. Wiltsie and the said William M. Godfrey, auditor of said county as aforesaid, issued to said Wiltsie certificates of purchase of said property.
    Relator further says: That on the tax duplicate in the office of the auditor of said county for each of the years 1897 and 1898, said property stood in the names of said Mary T. Henahan and Michael Henahan; but that said auditor, immediately after the delivery -of said certificates of purchase, transferred said property on his duplicate for 1898 into the name of said Charles H. Wiltsie, the purchaser, as required by Section 2888 of the Revised Statutes of Ohio; that said transfer was made by said auditor by stamping the words and letters “Chas. H. Wiltsie, T. T. 1899” on said duplicate on the same lines with the names of said Mary T. Henahan and Michael Henahan.
    Relator further says: That on the 21st day of September, 1899, relator duly applied to the said William M. Godfrey, cpunty auditor as aforesaid, to have the property transferred on the tax list into the name of relator, the owner thereof, at the same time presenting the deed executed by the sheriff as aforesaid showing title in relator, and exhibiting to said auditor the record of said suit, and at the same time tendering the fee required by law;
    That said county auditor refused and still refuses to transfer said property into the name of relator, the owner thereof, to the great injury of relator.
    Relator further says: That the sole ground of refusal by said county auditor to so transfer said property was and is that the said property has been transferred into the name of said Charles H. Wiltsie, the purchaser at said tax sale.
    And relator says that said Charles H. Wiltsie has no title to said property; that he is not the owner thereof; that two years have not elapsed since the delinquent tax sale of said property at which said Wiltsie purchased the same, nor has the county auditor executed or delivered any deed for said property to said Wiltsie.
    Wherefore, relator prays that a writ of mandamus issue, commanding said William M. Godfrey, auditor of the county of Lucas as aforesaid, on receipt of the fee prescribed therefor to transfer said property on the tax list into- the name of relator and to endorse on said sheriff’s deed (when presented for that purpose) that the proper transfer has been made in his office.
    The defendant demurred to the petition on the ground that the petition does net state facts sufficient in law to entitle the relator to the remedy sought. The circuit court sustained the demurrer, and the relator not desiring to plead further the court dismissed the petition. The relator, by a petition in error here, seeks to reverse the judgment of the circuit court.
    Swayne, Hayes é Tyler, for plaintiff in error.

      Charles E. Sumner, for defendant in error;
   Davis, J.

It will conduce to clear thinking in this case t® note that certain sections of the Revised Statutes cited by the defendant (Secs. 2899 and 2900), as well as all of the other sections included in the same chapter, relate solely to the forfeiture and redemption of lands which have been offered for sale at a delinquent tax sale and were not sold for want of bidders. The procedure for the sale or redemption of forfeited lands is strikingly different from that for delinquent taxes; and the legislation.respecting these two classes of tax sales is so carefully distinguished by the legislature itself, that sections relating to one class cannot be safely relied on in construing the effect of proceedings in the other class.

. ..One of the questions raised in this ease ,is whether the certificate of purchase which the auditor is required to issue to a purchaser at a delinquent tax sale, confers upon such purchaser a title to the land or lot sold for taxes. Although it is provided (Revised Statutes, Sec. 2875) that “said certificates of purchase shall be assignable in law, and an assignment thereof shall vest in the assignee or his legal representatives all the right and title of the original purchaser ” not the right and title of the original owner; yet, in view of the requirement that.no deed shall be made until the expiration of two years from the sale, and that nothing shall be done in the meantime to mark off or designate the property sold, together with the reservation of the right of redemption to be exercised within the same period, as well as the declaration of the statute (Sec. 2877) that the deed so made shall vest in the grantee, his heirs and assigns, a good and valid title both in law and equity, thereby plainly implying that title had not vested before, we cannot resist the conclusion that the sale for taxes is a sale of the interest of the owner defeasible by redemption; and that it is no more a title, while it is only evidenced by the certificate of purchase, than is a contract for the sale of real estate, before the execution of a deed thereunder. That it confers a right and may ripen into the privilege of calling in the legal title,, yet does not confer a legal title, can scarcely be doubted. Rice v. White, 8 Ohio, 210. The only thing that is surely conferred upon the purchaser holding the certificate of purchase is the lien of the state for taxes (Sec. 2880) ; for the right to a conveyance may be defeated by redemption within the two years.

The contention in this case arises out of an apparent conflict between Revised Statutes, Secs. 2888 and 1025. It is said that the former section is mandatory upon the auditor; but it is not more so, in our view, than section 1025, which provides as follows: “The auditor shall, on application and presentation of title * ■■ * •; * transfer any land or town lot, or part thereof, charged with taxes on the tax list, from the name in which it stands into the name of the owner, when rendered necessary by any conveyance * * *; and the auditor shall indorse on the deed, or other evidences of title presented to him, that .the proper transfer of the real estate therein described has been made in his office, or that the same is not entered for taxation, and sign his name thereto.”

The imperative nature of this duty of the auditor is manifest when Revised Statutes, Sec. 1025, is read in the light of Revised Statutes, Sec. 1159, which provides that “the recorder shall not record any deed of absolute conveyance of land until the same has been presented to the county auditor, and by him indorsed “Transferred” or “Transfer not necessary.” If when a deed, which is in due form, is presented to the auditor for transfer, he may, merely for the reason that he has theretofore issued a certificate to a purchaser at a delinquent tax sale, refuse to transfer the deed, whether it be the deed of the owner or, as in this case, a sheriff’s deed, the result is that such deed is excluded from the records, and the grantee named in the deed is by that act of the auditor prevented from giving to the world such constructive notice of his title as the record of deeds would, and is designed to, afford.

The auditor is required under a penalty, to enter on the duplicate a transfer of the lands sold for taxes into the name of the purchaser; but this transfer is confined to the duplicate, and neither it nor the certificate finds a place in the records of title. It does not become a linli in the chain of title, and is not intended therefor, but is intended merely to facilitate the collection of taxes and to show the purchaser’s right to a deed if the land should not be redeemed. It may ripen into a title- if the property be not redeemed and the deed made to the purchaser by the auditor; and in that case the deed will find -its way to the records and become a part of the chain of title. The auditor may, therefore, and should, retain upon the duplicate the transfer to the holder of a certificate; but he cannot refuse within the two years from the date of the tax sale, to transfer any conveyance from the owner, or a deed made in pursuance of a judicial sale of his interest in the property, nor to indorse the same, so that the conveyance may be admitted to record. This could not interfere with the rights of the purchaser holding a certificate of purchase at a delinquent tax sale; for if the land should not be redeemed within the two years, the purchaser will receive his deed from the auditor, which is prima facie good as against the world, and it would then be the duty of the auditor to endorse a certificate of transfer upon this deed also, so that it may also go upon the records. In that way the rights of all parties will be preserved, and such we believe to have been the intention of the legislature.

Judgment reversed.


author: Spear, J.

text:
    Vandenbark v. Mattingly et al.

      Creditor’s bill — Procedure against equitable assets — Section 5464 Rev. Stat. — Jurisdiction of court of common pleas — Not ousted by pendency in probate court of petition by assignee to sell lands, when — Legal procedure.

    The jurisdiction of the court of common pleas of an action in the nature of a creditor’s bill, brought under authority of section 5464, Revised Statutes, is not ousted because of the pendency in the probate court of a petition for an order to sell lands by an assignee for the benefit of creditors, where the object of the action in the common pleas is to subject to the payment of the plaintiff’s judgment a fund belonging to such judgment debtor, (a secured creditor of the assignor), being proceeds of a sale of the assignor’s lands which may remain in the hands of such assignee for distribution.
    (Decided February 20, 1900.)
    Error to the Circuit Court of Muskingum county.
    The plaintiff in error brought action in the common pleas of Muskingum against Thomas Mattingly, Martha E. McGowan, George L. Foley, as assignee in trust for the benefit of creditors of Thomas Mattingly, and certain other persons, creditors of Mattingly, in the nature of a creditor’s bill. The petition showed the recovery, January 6, 1896, of a judgment by the plaintiff against the defendants Mattingly and Martha E. McGowan, in the sum of $441.60 and costs; that the same remained in full force wholly unsatisfied; that the defendant Mattingly is wholly insolvent and owns no personal property or real estate subject to execution out of which any part of said debt can be made; that Martha E. McGowan, owns no personal property or real estate subject to executiofi, but is the owner of equitable interests in certain notes (particularly described) , and which were secured by mortgage on lands of said Mattingly in the county.
    Defendant Foley, as assignee of Mattingly, on November 14, 1895, filed a petition in the probate court of Muskingum, asking an order to sell the real estate of Mattingly to pay debts, making all lienholders parties. The land has not been sold, but will probably sell for a sum in excess of the amounts due the mortgage creditors and leave a balance belonging to Mrs. McGowan. Equitable relief was asked, and that the portion of the fund realized from the sale of the land Avliich should be found coming to Mrs. Mc-GoAvan, be subjected to the satisfaction of plaintiff’s judgment.
    To this pleading Mrs. McGowan filed the following answer:
    “Martha E. McGowan, one of said defendants, pleading only to the jurisdiction of the court, for ansAver to the petition says: the said Thomas Mat-tingly made an assignment for the benefit of creditors under the statutes of Ohio on or about the 6th day of November, 1895, to said George L. Foley as assignee, and therein conveying to said Foley in fee a certain valuable farm which on the 29th day of February, 1896, was sold at public auction by said Foley as such assignee, to one Michel Mattingly for the stun of $7,950. This defendant, at the time of said sale, held a mortgage on said farm for $7,000, Avith interest thereon at the rate of 5 per centum per annum from September 1,1894. She had pledged the notes secured by said mortgage to secure debts of the said Thomas Mattingly to the amount of $6,503. There is no means in the hands of said assignee applicable to the payment of any unsecured creditors of said Thomas Mattingly. The costs and expenses of said assignment chargeable to said real estate and which must necessarily be paid out of the proceeds of the sale of said realty, will equal, if not exceed, the remainder of the purchase money of said realty, after satisfying the said mortgage to this defendant. The remainder of said purchase money, after satisfying the holder of said mortgage notes stated in the petition coming to this defendant under the said mortgage, is in the hands of said assignee as such and subject to the order of the probate court of said county.
    “The said Collin Vandenbark is a party defendant in the said probate court in the case of George L. Foley, as assignee of Thomas Mattingly, v. Thomas Mattingly and others, in which said land was sold as aforesaid and said fund produced, and all and singular the parties plaintiff who have signed petitions in this court to have applied any of said funds secured by this defendant’s said mortgage, are defendants in said action pending in said probate court. This defendant has all the while been, and now is, a defendant in said action in said probate court.
    “Wherefore, this defendant says that this court has not jurisdiction of the subject matter of this action.”
    To this answer a general demurrer was filed by the plaintiff, and a like demurrer by The Citizens’ National Bank, a judgment creditor which had become defendant on its own motion. On hearing, the demurers were overruled, and neither the plaintiff nor the Bank desiring to plead further, the petition of the plaintiff and the cross-petition of the Bank were dismissed and judgment awarded against them for costs. On error this judgment was affirmed by the circuit court. The present proceeding is by plaintiff below to reverse these judgments.

      Charles M. Y anden!) ark, for plaintiff in error.

      W. 3. Ball, for Mattingly and McGowan.
   Spear, J.

One question only, is presented by the record. . That is: Had the court of common pleas jurisdiction of the action? We are of opinion that the answer must be in the affirmative.

The plaintiff’s suit was brought under favor of section 5464, Revised Statutes, which gives authority to a judgment creditor, where his debtor has not personal or real property subject to levy on execution sufficient to satisfy the judgment, to reach any equitable interest of the debtor in any real estate as mortgagee, or otherwise, or in any chose in action, due or to become due, or in any judgment or order, and to subject such equitable interest to the payment of the judgment by action. Such action is equitable in its nature. To obtain the relief desired, the creditor must appeal to a court having adequate equity powers, in other words, general equity powers. Such powers are possessed by the court of common pleas. That court, therefore, was the proper court in which to begin the action unless jurisdiction of the subject matter and the parties had previously been acquired by another court possessed of adequate equity powers. The answer avers, and the contention is, that as to this controversy the probate court had acquired jurisdiction by virtue of the assignment of Mattingly and the commencement by the assignee of a proceeding in that court to procure an order to sell the lands of Mattingly. But the probate court is a court of limited, and not of general, jurisdiction. All grants of jurisdiction are specific, and the auxiliary and incidental powers of the court are expressly limited to such as are necessary and proper to carry into effect the powers expressly granted. Davis v. Davis, 11 Ohio St., 391. True, within this rule, that court was clothed with jurisdiction to fully execute the trust created by the assignment, which included all the assigned property, but the assignment conveyed only the property of Mattingly. It did not, and could not, convey the property of Mrs. McGowan; nor did the creditor ,seek. to reach the property of Mattingly. His effort was to ’ subject the ’¡property of' Mrs. MeGowan and that only. Hence the trust created by Mattingly’s assignment could be fully executed by the probate court without adjudicating the claim of Vandenbark against his debtor.

It appears by the answer that Vandenbark is a party defendant in the proceeding in the probate court, and that Mrs. McGowan is also a party. It does not appear that the former was a party at the time his action in the common pleas court was commenced. If not the probate court had not then acquired jurisdiction of the matter in issue, even if it had power to acquire such jurisdiction. And it can hardly be urged with reason that if the common pleas had jurisdiction of the action at its commencement, such jurisdiction could be ousted by the making of the plaintiff a party to the proceeding in the probate court. Miers v. Turnpike Co., 11 Ohio, 273.

It is not necessary here to take space in giving construction to either section 6351 or 6145, Revised Statutes. The authority given the probate court to order payment of liens and encumbrances by the former section is not applicable to the claim of Vandenbark against Mrs. McGowan. There was, at the time’ of the assignment, no existing lien in favor of Vandenbark for the court to order paid, or refuse to so order, and as before stated, he was not asking relief against Mattingly, nor against the assigned property, but against Mrs. McGowan and her interests only. His action was, primarily, to obtain a lien. Nor did the latter section which gives power to that court “to determine the equities between the parties and the priorities of lien of the several lien-holders on said real estate, and to order a distribution of the money arising from the sale of such real estate according to the respective equities and priorities of lien as found by the court,” apply to the claim of Vandenbark for the same reason, and for the further reason that the amendment of that section, of date April 14, 1896, making the same applicable to proceedings by assignees, was not passed until after Yandenbarlds action in the common pleas had been commenced. The fact that the assignee might be required to pay the fund belonging to Mrs. McGowan into the common pleas by virtue of its order, rather than directly to her, is a mere incident, and cannot affect the question of the jurisdiction of that court.

The demurrer to the answer should have been sustained. The judgments below will be reversed and the cause remanded to the court of common pleas for such further proceedings as may be necessary to preserve and enforce the rights of the parties.

Reversed.


text:
    Shaw v. Foley, Assignee of Mattingly, et al.

      Exemptions allowed married woman — Living apart from husband— Section 5319 Rev. Stat. — Applies to demand for money in lieu of homestead — Averment in pleadings — Service of summons— Waiver of notice.

    1. The rule established in Kimmel v. Paronto, 52 Ohio'St., 468, that “under section 5319, of the Revised Statutes, a married woman is entitled to the benefit of all exemptions allowed by law to the heads of families, though she be living apart from her husband, and have no child or children living with, or supported by her,” is not confined to a case where the demand is for an allowance of wearing apparel and household goods in lieu of homestead, but applies also to a case where the demand is for an allowance' of money in lieu of a homestead.
    2. Under our liberal practice an averment in a pleading that the party, at a date stated, “began an action in the court of common pleas,” etc., followed in a subsequent part of the pleading by an averment that one of the defendants was served with summons and the other defendants waived service and entered their voluntary appearance in said action, will be taken as an allegation of fact, and, if uncontradicted, will justify a finding that the action was in fact commenced at the date named.
    (Decided February 20, 1900.)
    Error to the Circuit Court of Muskingum county.
    November 1,1895, George L. Foley, as assignee for the benefit of creditors of Thos. Mattingly, commenced a proceeding in the probate court of Muskingum for an order to sell certain real estate of his assignor, and Martha E. McGowan, who had a mortgage on the real estate to secure seven notes of $1,000 each, given her by Mattingly about September 1, 1884, all past due, was made defendant.. The notes had all been pledged by Mrs. McGowan, as surety for Mattingly, to certain other creditors of his, all of whom were also made defendants. The claims of these parties having been satisfied, they are not further concerned in the case. Mrs. McGowan answered, setting up her right to any surplus arising from the sale of the land after satisfaction of the claims of the other defendants named.
    George W. Shaw (plaintiff in error), having, on November 25,1895, obtained a judgment for $100 and costs against Mrs. McGowan, on December 10, 1895, filed a petition in the court of common pleas of Muskingum, in the nature of a creditor’s bill to subject the surplus arising from the sale which might be found going to Mrs. McGowan, to the satisfaction of his judgment, making Mrs. McGowan, the assignee, and the other named defendants parties to his action.
    January 8, 1896, one Collin Vandenbark began a similar action in the common pleas against the same defendants, seeking to subject the same fund to the payment of a judgment recovered by him January 6, .1896, against Mrs. McGowan, for $441.80- and costs.
    The Citizens’ National Bank became defendant in both the Shaw and Yandenbark cases, setting up a judgment against both Mattingly and Mrs. McGowan, for $301.87 and costs, and praying proper relief against Mrs. McGowan, the same to be satisfied out of the funds in the hands of Foley, assignee.
    Subsequently Yandenbark, the Bank and Shaw became each on his own motion, party defendant to the suit of the assignee in the probate court, where each filed answer and cross-petition.
    Mrs. McGowan then filed an answer to the cross-petitions, averring that “she is, and all her life has been, a resident of Muskingum county, in the state of Ohio; that she is a married woman living separate and apart from her husband, who left her without cause on her part and for no cause of complaint against her; that she is not the owner of a homestead; that she owns no real estate; her husband is not the owner of a homestead; that no allowance has ever been made to him or to her in lieu of a homestead; that she was the owner of all of the several notes secured by mortgage named in the said assignee herein until the same were, so far as they have been, paid and satisfied by said assignee under the order of this court; that she pledged and delivered all of said notes for the indebtedness of her co-defendant, Thomas Mattingly, but not to the full value of said notes. She demands, claims and prays that the net sum of five hundred dollars in lieu of a homestead, according to the statute, be set off to her out of the proceeds remaining after satisfying the indebtedness for which her said notes were pledged as aforesaid. She further says said promissory notes were all the while her sole and separate property subject only to the claims of the pledgees thereof under her delivery of them in pledge as aforesaid.”
    To this answer a reply was filed by Vandenbark.
    Upon hearing in the probate court, May 28, 1896, findings were had in favor of Shaw and of Yandenbark, upon their claims, and against Mrs. McGowan upon her demand for an allowance in lieu of a homestead, and a judgment entered ordering the surplus arising from the sale, after payment of costs, to be paid to those judgment creditors in the order named. From this judgment an appeal was taken by Mrs. McGowan to the court of common pleas, where, upqn trial, issues were .found, as to the claim of Mrs. McGowan, in her favor and the sum of $500 ordered paid to her out of the surplus after payment of costs, and as between Shaw and Yandenbark, in favor of Shaw.
    Error being prosecuted by Yandenbark to the circuit court, that court affirmed the judgment of the common pleas as to Mrs. McGowan’s claim in lieu of a homestead. The court, however, reversed the judgment as to the order respecting the priority of liens, holding that after costs and the claim of Mrs. McGowan had been satisfied, Yandenbark should be first paid, then the Bank, and lastly Shaw. To this judgment Shaw brings error. Also by cross-petition in error Yandenbark brings error.

      Fred 8. Oates and H. F. Achauer, for plaintiff in error.
    Upon the facts the circuit court held, as a matter of law, that the claims of Collin Yandenbark and The Citizens’ .National bank, in the order named, were prior liens to that of the plaintiff in error.
    We claim the law to be:
    1. The probate court had no jurisdiction over the fund in Foley’s hand due to Martha McGowen and the parties to whom she had pledged the seven notes, further .than to determine questions of priority under and by virtue of R. S., Sec. 6351. Having determined that matter the probate court exhausted itself. These notes were the property of Martha McGowan, subject to the rights of the persons to whom they had been pledged.

      As a mere incident of Ms trust the fund provided for the payment of those notes was in the hands of Foley, assignee. Davis v. Davis, 11 Ohio St., 386.
    Whatever jurisdiction the probate court had in the matter under consideration must have been by virtue of Sec. 6351, R. S. Havens v. Horton, 53 Ohio St., 342; Mercer v. Cunningham, 53 Ohio St., 353.
    Upon these cases the circuit court based its opinions. While we are willing to admit that the jurisdiction of the probate court as to the assigned property is full and complete, yet our contention is that the property of Martha McGowan was not assigned property, and it was her property, which we were pursuing, and the probate court not being one of general jurisdiction, was not “adequate” to furnish us with the remedy we were seeking under Section 5464, E. S.
    But the decision of the circuit court in effect clothes probate courts with general equity jurisdiction; and such a holding is not warranted by the statute law of the state.
    2. If this action of Shaw was rightly brought, then he being prior in time to Vandenbark and the Bank, had a prior lien. 4 Ohio St., 623 and 13 Ohio, 197. All of these matters have been fully and ably discussed in case 5738 by counsel for Collin Vandenbark; the question in that case being identical with those here presented, we deem it unnecessary to further discuss them.

      Charles M. Vandenbark, for Collin Vandenbark.
    Collin Vandenbark certainly had the right to go into the common pleas court and file his petition in aid of execution as he did, to get his lien and get it fixed. As to priority see Sec. 5464, E. S. The record does not show that Shaw served the assignee with summons even in common pleas; it does show that the assignee did enter his appearance to that petition filed by Shaw in common pleas court, but does not show that he entered his appearance before summons was served on the assignee by Collin Vandenbark on his petition; the record does not show when Foley entered his appearance in Shaw’s case in common pleas, and although the record does show that Shaw filed his petition December 10, 1895, and Collin Vandenbark, January 8, 1896, nothing can be presumed; Collin Vandenbark’s lien stands fixed at January 8, 1896, till Shaw alleges and proves a date previous as to the entering of appearance, the date when the assignee entered his appearance on Shaw’s creditor’s bill is not even alleged; Shaw no doubt relied on the case of Cincinnati v. Hafer, 49 Ohio St., 60. We claim that is the law only as between the parties. As to third parties the time of service of process fixed the lien; Bowery v. Odell, 4 Ohio St., 623. “The filing of a creditor’s bill and service of process’ gives the lien. Union Bank v. The Bank, 6 Ohio St., 254 and section 5055, R. S. So as to any lien fixed by common pleas court, Collin Vandenbark is ahead of Shaw, and also ahead of the Citizens Rational Bank and Luby, because they filed no pleadings anywhere in common pleas till after Collin Vandenbark’s service of process, and if Vandenbark, Shaw and Luby had no right to file petitions in common pleas court to get a lien and only (with the Bank) had a right to file answers and cross-petitions in probate court, then from that standpoint Collin Vandenbark is still ahead of all of them in any view, because he filed his answer and cross petition first, and if service of process is to count for anything in probate court, Collin Vandenbark is still ahead of the Bank, Shaw and Luby, because Vandenbark was the only one who got process on the assignee which he did on his amended answer and cross-petition.
    And we further claim that the plaintiff in error, Martha E. McGowan, is not entitled to $500 or any part of this $700 in lieu of a homestead, as a wife nor in any other way; and eertainly she can not hold it as a widow; no claim in the pleadings and no evidence that she is a widow.
    So the question is presented in the abstract, can a married woman who owns a house and lot “in Ohio” not exceeding in value $1,000, get in debt in Ohio, then abandon her family, desert her husband without any fault on his part and live over in England, or any place outside of Ohio, then claim this house and lot as a “homestead” against her creditors, even if her husband has a homestead in Ohio, and he and his children live in it; or $500 in lieu of that homestead? The husband got all the things of Section 5430, R. S., simply because “he had a family.” Sproul v. McCoy, 26 Ohio St., 577. Can she have the $500 simply because she is a married woman? We claim not; that section 5319 — even with the construction put upon it by the court in Kimmel v. Paronto, 52 Ohio St., 468.
    We claim all the exemption laws must be considered together with the idea that the state’s principle is to preserve the home, and that this exemption is not for an individual, but for the benefit of the family to keep them together, as such “husband and wife living together.” Regan v. Zeeb, 28 Ohio St., 483; Sears v. Hanks, 14 Ohio St., 300; Elliott v. Platter, 43 Ohio St., 198; Davis v. Dodds, 20 Ohio St., 473; Dwinell v. Edwards, 23 Ohio St., 603.

      Ball & Swingle, for Martha E. McGowan.

      Durban & McDermott, for Citizens National Bank.
   Spear, J.

The errors complained of by plaintiff in error, as well as by Vandenbark, cross-petitioner in error, are as to the affirmance of the judgment of the common pleas allowing to Mrs. McGowan $500 in lieu of a homestead, and in holding that the probate court had jurisdiction of the controversies between the judgment creditors as to priorities of their respective claims against Mrs. McGowan. The plaintiff: in error further insists that the circuit court erred in holding that the judgments of Vandenbark and the Bank were prior liens to that of the plaintiff in error.

Respecting the claim of Mrs. McGowan for allowance in lieu of homestead. The first objection urged is that the judgment of the common pleas in favor of Mrs. McGowan is not supported by any evidence. An inspection of the record, including the bill of exceptions, makes it apparent that the facts set forth in the answer of Mrs. McGowan were not seriously contested at the trial. The evidence offered by her was not contradicted; and, although brief and somewhat fragmentary, tended, we think, to support the material elements of her claim. We cannot say that the trial court erred in its conclusion and finding that all the allegations of her answer were true. It is, however, strenuously contended that, admitting the facts to be as the court found them, yet the intent of our homestead laws being to give exemptions to heads of families in order to preserve the home for the benefit of the family and to keep the members together, and not fof the benefit of any individual, Mrs. McGowan is not entitled to the allowance claimed because it does not appear that she was, in this sense, the head of the family. The proposition is urged in an able and ingenious brief by counsel for the cross-petitioner in error. The argument, however, if accepted, would seem to defeat the apparent intent of section 5319 of the Revised Statutes, and to require the overruling of this court’s holding in Kimmel v. Paronto, 52 Ohio St., 468. The section retejed to reads as follows: “When a married woman sues or is sued, like proceedings shall be had and judgment rendered and enforced as if she were unmarried, and her property and estate shall be liable for the judgment against her, but she shall be entitled to the benefits of all exemptions to heads of families.” In giving construction to this section the court, in the case above cited, held: “Under section 5319, of the Revised Statutes, a married Avoman is entitled to the benefit of all exemptions allowed by law to the heads of families, though she be living apart from her husband, and have no child or children living with or supported by her.” “The last clause of the section,” it was further held, “does not mean that to entitle a married woman to such exemptions she must be the head of a family, and it is not essential to her right to them that she shall be living with her husband, or have a child or children living with or supported by her.” In principle the case is on all fours with the case at bar. Attention is called by counsel to this distinction in fact between the cases, viz: The claimant in the Kimmel case demanded wearing apparel and household goods as exempt; in the present case the demand is for money. But we are satisfied that there is no distinction in legal effect, and that, unless we are prepared to overrule the Kimmel case, we cannot do other than sustain the ruling below. We think it wiser to adhere to that decision.

It may be proper to add that we have not overlooked other sections relating to exemptions, and while it may be conceded that there is an absence of entire harmony in the phraseology in parts of the legislation, yet the purpose of the whole we think not difficult to ascertain. Attention is specially directed .by counsel to section 5441, as amended April 12,1884. The full scope of the amendment may be open to some question, but there is not sufficient reason to conclude that the amendment was intended to repeal or modify the effect of section 5319,' and we are of opinion that the two may well stand together. As conclusion, we do not think the courts below erred in making to Mrs. McGowan the allowance in lieu of homstead.

The question as to the jurisdiction of the probate court to adjudicate the controversies between the judgment creditors of Mrs. McGowan becomes unimportant in view of the conclusions stated further on. No objection was made in the common pleas as to its jurisdiction on appeal, and no question as to that is made here.

As between the judgment creditors, what was the rightful order of priority? It is insisted by plaintiff in error that he has the first lien on the fund belonging to Mrs. McGoAvan because his action in the common pleas was commenced first. The claim of Vandenbarlc to priority rests upon the assumption that, Avhile his petition was filed after that of plaintiff in error, yet he first got service upon the defendants, and the action is to be deemed commenced, not necessarily at the date of the filing of the petition, but at the date of the summons which is served, or at the date of the entry of appearance where voluntary appearance is entered. The record discloses that the trial court had before it, in determining priorities, the pleadings only. Vandenbark’s answer alleges that he “duly caused a summons to be issued from said court of common pleas on the said George L. Foley, as said assignee, and the same was duly served upon him by the proper officer on the 8th of January, 1896; said Mattingly and Martha E. Mc-GoAvan duly entered their appearance in said case and Avaive issue and service of summons.” Shaw’s ansAver avers tliat “on the tenth of December, 1895, he began an action,” etc. (referring to the creditor’s bill), * * "* “that the defendant, Martha E. McGowan, was served Avith summons; that * * * Foley, assignee, waived service and entered voluntary appearance in said action.” The precise point made in favor of Vandenbarlc is that the record does not show any summons issued in the Shaw case for Foley, assignee, and does not show that the assignee entered his appearance before summons was served on him in the Vandenbark case, and that Vandenbark’s lien stands fixed as of January 8th, 1896, until Shaw alleges and proves an entry of appearance previous to that date. Probably this was the view taken by the circuit court when it placed the Bank ahead of Shaw, although we have no brief by the Bank definitely stating the ground. However, it seems clear to us that this proposition is fatally faulty in that it avoids giving force to the allegation in the answer of Shaw that he began his action on the tenth day of December. While it may be claimed that this averment partakes somewhat of the nature of a legal conclusion, yet it is not more obnoxious to that objection than many other averments which we meet with in pleadings that are regarded as allegations of fact, for instance that in Vandenbark’s cross-petition to the effect that on the date named he recovered a judgment, etc.; and, standing uncontradicted either by reply or proof, and taken in connection with the subsequent averment of entry of appearance by the assignee, it would, we think, be reasonable to give to it the force of an allegation of fact, and as implying that proper service was had at the date named. The presumption of fact as to service in time is somewhat strengthened by what would be usual in a case where, as here, a creditor would be impelled to at least usual diligence.

The conclusion requires a reversal of the judgment of the circuit court as to priorities and the affirmance of that of the common pleas.

Reversed.


text:
    First National Bank of Cadiz v. Beebe.

      Interpleader — Section 5016 Rev. Stat. — Interposition of affidavit and request that opposing claimants interplead — Nature of practice of interpleader — Sttit by judgment creditor of legatee making debtor and administrator parties — Administrator may interpose when — Jurisdiction of probate court — Section 524 Rev. Stat.

    1. The purpose of section 5016, Revised Statutes, which permits a defendant before answer, in an action upon contract or for the recovery of personal property, to interpose an affidavit and ask that opposing claimants interplead, was intended as auxiliary to the practice in chancery respecting interpleader, and to direct the practice in the particular classes of cases named, and was not intended to regulate the entire subject of interpleader.
    2. Where a judgment creditor of one who is a legatee or distributee under a will, begins a suit in the nature of a creditor’s bill, making the debtor and the administrator with the will annexed parties, it is proper practice for such administrator to'interpose, before answer, an affidavit setting forth the grounds for interpleader, and praying that a claimant other than the plaintiff be brought in and required to litigate with the plaintiff to their respective rights to the fund.
    3. A motion in such case to quash the service on the part of the •claimant, based upon the ground that the court has no jurisdiction because the case is not one for interpleader, will be overruled.
    4. The probate court has not jurisdiction, in making an order of distribution under section 524, Revised Statutes, to determine the persons to whom distribution is to be made, and the amount going to each, but its power is exhausted in that particular when, upon final settlement of the account of the executor or administrator, it enters a general order of distribution.
    (Decided February 20, 1900.)
    Error to the Circuit Court of Harrison county.
    The plaintiff in error, the First National Bank of Cadiz, Ohio, haying on September 22, 1896, obtained a judgment against one Stuart J. Beebe, for $6,342.33, on which, execution had been issued and returned no property of any kind whereon to levy, filed a petition in the court of common pieas of Harrison county under favor o'f section 5464 of the Revised Statutes, against Stuart J. Beebe, the judgment debtor, and I. 0. Moore, as administrator de bonis non with will annexed of Walter B. Beebe, deceased (father of Stuart J. Beebe), alleging that the latter was both a legatee and creditor of the estate, and asking that the administrator pay into court, out of the claims thus belonging to Stuart J. Beebe, an amount sufficient to satisfy the judgment aforesaid.
    The defendant, I. C. Moore, as administrator, instead of filing a formal answer, filed an affidavit for interpleader, setting forth that the defendant in error herein, Angie Beebe (wife of Stuart J. Beebe) claimed to be the owmer of both his legacy under the will, and also the indebtedness, amounting to about $10,000, due him from the estate, and asking that she be required to interplead, and for such other orders as would protect him in paying out the money.
    An order to that effect was made by the court, and a copy thereof served in due form upon her. Instead of becoming a party and setting up her claim, she filed a motion to quash the service of summons (notice) on her, for Avant of jurisdiction. This motion was overruled, and her counsel electing not to answer, a decree wras entered requiring the administrator to pay sufficient of the indebtedness of Stuart J. Beebe against the estate, into court to satisfy the judgment claim of the plaintiff against him. Exception was taken to the overruling of the motion to quash and the case was taken to the circuit court on this one question. The circuit court reversed the common pleas, and the case is noAV brought here for reviews Other parties and questions wrere involved in the case, but the above facts are all that concern the present hearing.

      I). A. Hollingsworth, for plaintiff in error.

      Potvell & Minnahan and E. T. Powell, for defendant in error.
   Spear, J.

Two propositions are urged by defendant in error in support of the judgment of reversal: (a) that the case was not a proper one for inter-pleader, and (b) that the probate court of Franklin county had exclusive jurisdiction of all matters connected with the estate of Walter B. Beebe, deceased, and hence the Harrison county court had no jurisdiction of the case. If either proposition is sound the judgment of the circuit court should be affirmed.

Was the case a proper one for interpleader? It is insisted that section 5016, Revised Statutes, regulates the Avhole subject of interpleader, and that, inasmuch as that section limits such right to actions upon contract, or for the recovery of personal property, and as the case made in the petition and affidavit for interpleader do not bring it within the provisions of that section, the court was Avithout jurisdiction to entertain the action. And, it was wanting in jurisdiction for the further reason that Walter B. Beebe was a resident of the county of Franklin, at the time of his decease, and the estate was in process of settlement in the probate court of that county at the time the action was commenced in Harrison county.

The record does not show in what probate court the estate of Walter B. Beebe, deceased, was being settled, but it is probably not of consequence. It is true that the section referred to gives authority to a defendant before answer in an action upon contract, or for the recovery of personal property, to file affidavit and ask that contesting claimants interplead, and provides for the payment into court for safe keeping of the subject of the action, and it would be safe to concede that the case does not fall within either class named. But does it follow that the statute was intended to regulate the whole subject-matter of inter-pleader and take away the equitable remedy theretofore existing and enforced by the well-established practice of courts of chancery? It is to be noted that no such purpose is expressed. The section was section 42 of the code of civil procedure, and stands to-day as enacted in 1853. Section 603 of the same act has this provision: “If a case ever arise, in which an action for the enforcement and protection of a right, or the redress or prevention of a wrong, can not be had under this code, the practice heretofore in use may be adopted, so far as may be necessary to prevent a failure of justice.” This language would seem to be broad enough to cover the case in hand. But, aside from this, the matter of interpleader is of equitable cognizance. It may be resorted to “where two or more persons severally claim the same thing under different titles or in separate interests from another person, who not claiming any title or interest therein himself, and not knowing to which of the claimants he ought to render the debt or duty claimed, or deliver the property, is either molested by an action or actions brought against him, or fears that he may suffer injury from the conflicting claims of the parties.” 2 Story’s Eq. Jur., sec. 806. The cause below seems to be described by this language. And that the equitable action of interpleader still survives, we think has been the common understanding of the bench and bar since the enactment of the code. In First Presbyterian Society v. First Presbyterian Society, 25 Ohio St., 128, it is held that “where a trust is created for the benefit of an incorporated religious society, and there are two bodies which claim to be such society, a court of equity may require the claimants to interplead; and may proceed to ascertain the true beneficiary without compelling either party to establish its corporate rights at law.” Such, too, seems to be the understanding of the text-writers and of the courts of sister states. 3 Pom. Eq., sec. 1329; 2 Story’s Eq. Jur., sec. 823; Beach’s Mod. Eq. Prac., sec. 173; 1 Foster’s Fed. Prac., sec. 88; Barry v. Mut. L. Ins. Co., 53 N. Y., 536; Board of Education v. Scoville, 13 Kas., 17.

Much more might be added of like import but it seems to us unnecessary. We are of opinion that the statute, section 5016, was intended as auxiliary to the chancery practice as theretofore understood, and as directing the practice in the particular classes of cases named, and was not intended to regulate the whole subject-matter of interpleader, and that the case made by the petition and affidavit was a proper one for interpleader.

This conclusion is not inconsistent with any holding of this court in Cross v. Armstrong, 44 Ohio St., 613, or in Johnston v. Oliver, 51 Ohio St., 6.

Was the court of common pleas deprived of jurisdiction because of the exclusive jurisdiction of the probate court in the matter of the estate of Walter B. Beebe, deceased? In support of the affirmative of this proposition, it is insisted that any order which the court of common pleas might make against the administrator might be in conflict with the order of the probate court, and that such conflict between courts would work irreparable confusion and mischief, and is not permitted by our statutes. Section 524, Revised Statutes, is cited. That section gives exclusive jurisdiction to the probate court in certain matters. The language of the third division of the section is quoted, viz: “3. To direct and control the conduct, and to settle the accounts of executors and administrators, and to order the distribution of estates.” We are unable to see that the language of this clause, as construed and understood by practice which we believe to be universal, supports the contention. No question is made, or can be made, that the probate court has exclusive original jurisdiction of the subject matter in respect to that of which it is given any jurisdiction. But it is to be specially noted that the only power here given with respect to the distribution of estates is to order distribution. This does not mean that the probate court may find and direct the persons to whom distribution is to be made, and the amounts to each, but means simply that, as a result of the settlement of accounts of executors and administrators, and as a step necessary to a final distribution of the trust fund, a general order of distribution is to be made. The lights of the beneficiaries, Avliere there is conflict, are to be Avorked out in other tribunals, and by process and pleadings adapted to that end. This conclusion is in accord Avith and is supported by the holding of this court in a number of cases, the first of which is McLaughlin v. McLaughlin, 4 Ohio St., 508. The controversy in that case arose under the second section of the statute as enacted March 11, 1853 (51 O. L., 167), the third and fourth paragraphs of which are as folIoavs : “3. To direct and control the conduct and to settie the accounts of executors and administrators. 4. To enforce the payment of debts and legacies of deceased persons, and the distribution of the estates of intestates.” TÍie holding is that that section invested the court Avith poAver, upon final settlement of the accounts of the administrator, to determine the amounts justly due to distributees, and to order distribution of the money remaining in his hands to the persons entitled thereto, and that the order has the force of a judgment capable of being enforced by execution, but that the powers of the court were exhausted Avhen the order was made, and it had not jurisdiction to entertain a petition to enforce collection by a distributee against the administrator, and' hence reversed the judgment of the probate court which had undertaken to adjudicate such an action. In the opinion Ranney, J., observes: “The act did not extend so far as to permit the executor or administrator to sue in that court for a debt due to the estate, or to subject him to be sued there for a debt disputed by him; but when the funds were in his hands, and the creditors were ascertained, and their debts liquidated, it conferred full power upon the court to compel him to do his whole duty in disbursing the fund, as well to legatees and distributees as to creditors.” But section 2 of the act of March 11, 1853, was amended at the next session of the legislature (52 O. L., 103), apparently for the purpose of limiting the power of the probate court as to distribution; and in place of paragraphs 3 and 4 (heretofore quoted), there was supplied paragraph 3 (heretofore quoted), as it is now found in section 524. Commenting upon this change, the learned judge observes further on in the opinion: “This case does not call for a construction of the amendatory act, but the conclusion is irresistible, that some change was intended; and as the specific power to enforce the payment of debts, legacies and distributive shares is omitted, it may not unreasonably be supposed that in the opinion of the general assembly, the determination of the difficult questions of laAV and fact often invoUed in the settlement of rights of legatees and distributees ought not longer to remain with that court; and that the order of distribution here referred to, should be a general direction to the administrator or executor, to disburse the amount remaining in his hands after a final settlement of his account and to be used as a foundation for his liability, when sued elseAA'here, rather than a specific ascertainment of the amount due each legatee or distributee and its enforcement by execution.”

The same principle is distinctly held in Swearingen v. Morris, 14 Ohio St., 424; in Cox v. John, 32 Ohio St., 532, and in Armstrong v. Grandin, 39 Ohio St., 368. It is not necessary to do more than cite these cases, for if it be possible,to settle any rule of law by repeated adjudications of this court it is settled that, under our statute, the power of the probate court is exhausted by the making of the general order of distribution.

Attention is called by counsel for defendant in error to the case of Hupp v. Hupp, 61 Ill. App., 445. The decision seems to support the claim of defendant in error, but we have not cited to us the precise phraseology of the Illinois statute, and in any event could hardly be expected to yield a conviction as to the proper construction of our own statute, supported as it is by the decisions hereinbefore cited, to a contrary holding by an intermediate court of a sister state.

Confining the final action of the probate court to a general order of distribution, as the rule announced makes necessary, it is not perceived that any proper judgment or order which the court of common pleas might make, would in the least conflict with it.

The ground of error against the judgment of the common pleas made in the petition in error of Angie Beebe in the circuit court, and which was sustained by that court, was in overruling her motion to quash the service as to her, and in rendering judgment against her. We think that the court did not err in these respects and that the judgment of the circuit court reversing the common pleas should be reversed and that of the common pleas affirmed.

Reversed.