text:
    No. 12512.
    Bowers et al. v. Myers et al.
    Decided June 20, 1911.
    Error to Circuit Court of Wayne county.

      Mr. Ed. S. Wertz, for plaintiffs in error. Messrs. Critchñeld & Hay, for defendants in error.
   Judgment affirmed.

Spear, C. J., Davis and Price, JJ., concur. Donapiue. J., not participating.


source: Caselaw Access Project

license: Public Domain

text:
    No. 12578.
    Burrell v. Holtz, Treas., et al.
    Decided June 20, 1911.
    Error to Circuit Court of Licking county.

      Mr. S. L. James, for plaintiff in error. Mr. U. G. Denman, attorney general; Mr. Phil B. Smythe, prosecuting attorney; Mr. Justus Wilson; Mr. Carl Norpell; Mr. J. A. Alburn and Mr. Clarence D. Laylin, for defendant in error.
   Judgment affirmed on authority of Adler v. Whitbeck, 44 Ohio St., 539, and of Conwell v. Sears, 65 Ohio St., 49.

Spear, C. J., Davis, Spiauck, Price and Johnson, JJ., concur.


text:
    No. 12606.
    Browne v. Riley, Auditor, et al.
    Decided June 20, 1911.
    Error to Circuit Court of Licking county.

      Mr. J. R. Fitsgibbon, for plaintiff in error. Mr. U. G. Denman, attorney general; Mr. Phil. B. Smythe, prosecuting attorney; Mr. Carl A. Norpell; Mr. Justice Wilson; Mr. J. A. Alburn and Mr. Clarence D. Laylin, for defendants in error.
   Judgment affirmed on authority of Adler v. Whitbeck, 44 Ohio St., 539.

Spear, C. J., Davis, Shauck, Price and Johnson, JJ., concur.


text:
    No. 12743.
    Smith, Admx., et al. v. Jenney, Admr., et al.
    Decided June 20, 1911.
    Error to Circuit Court of Hamilton county.

      Mr. J. M. Dawson, for plaintiffs in error. Mr. William H. Mackoy and Mr. Herbert Jenney, for defendants in error.
   Judgment affirmed.

Davis, Price and Donahue, JJ., concur.


text:
    No. 12793.
    Appler, Admx., v. The Portsmouth Street Railroad & Light Co.
    Decided June 20, 1911.
    Error to Circuit Court of Scioto county.

      Mr. James S. Thomas and Mr. Oscar W. Newman, for plaintiff in error. Messrs. Milner, Miller & Searl, for defendant in error.
   Judgment of circuit and common pleas court reversed and cause remanded.

Spear, C. J., Price, Johnson and Donahue, JJ., concur.


text:
    No. 12847.
    The State of Ohio v. Jackson.
    Decided June 20, 1911.
    Error to Circuit Court of Sandusky county.

      Mr. U. G. Denman, attorney general; Mr. Timothy S. Hogan, attorney general; Mr. E. C. Froehlich; Messrs. Kohn & Northup and Messrs. 'Fell & Schaal, for plaintiff in error. Mr. Geo. A. True and Mr. Fuel H. Crawford, for defendant in error.
   Judgment affirmed.

Davis, Price and Donahue, JJ., concur.


text:
    No. 13051.
    Harding v. Commissioners of Road District No. 1 et al.
    Decided June 20, 1911.
    Error to Circuit Court of Mahoning county.

      Messrs. DeC-amp & Jackson, .for plaintiff in error. Messrs. W. S. Anderson & Son, for defendants in error.
   Judgment affirmed.

Spear, C. J., Davis, Price, Johnson and Donahue, JJ., concur.


text:
    No. 11698.
    The Akron Engineering Co. et al. v. Nevin et al.
    Decided June 27, 1911.
    Error to Circuit Court of Summit county.

      Messrs.

      Allen, Waters, Young & Andress, for plaintiffs in error. Mr. Rial M. Smith; Mr. J. A. H. Myers and Messrs. Otis, Beery & Otis, for defendants in error.
   Judgment affirmed.

Spear, C. J., Davis, Shauck, Price, Johnson and Donahue, JJ., concur.


text:
    No. 12013.
    The Great Lafayette v. Pennsylvania Company.
    Decided June 27, 1911.
    Error to Circuit Court of Mahoning county.

      Mr. Myron A. Norris and Mr. James V. Murphy, for plaintiff in error. Messrs. Arrel, Wilson & Harrington, for defendant in error.
   Judgment affirmed.

Spear, C. J., Davis and Price, JJ., concur.


text:
    No. 12059.
    Pavey v. The Board of Commissioners of Fayette County et al.
    Decided June 27, 1911.
    Error to Circuit Court of Fayette county.

      Mr. John Logan, for plaintiff in error. Messrs. Post & Reid, for defendants in error.
   Judgment affirmed.

Spear, C. J., Shauck and Johnson, JJ., concur.


text:
    No. 12440.
    The City of Akron et al. v. Morgan, a Taxpayer, etc.
    Decided June 27, 1911.
    Error to Circuit Court of Summit county.

      Mr. N. M. 'Greenberger, city solicitor, and Mr. Jonathan Taylor, assistant city solicitor, for plaintiffs in error. Messrs. Otis, Beery & Otis and
      Messrs. Grant, Seiber & Mather, for defendant in error.
   Judgment affirmed.

Davis, Price and Donahue, JJ., concur.


text:
    No. 12441.
    The City of Akron et al. v. Morgan, a Taxpayer, etc.
    Decided June 27, 1911.
    Error to Circuit Court of Summit county.

      Mr. N. M. Greenberger, city solicitor, and Mr. Jonathan Taylor, assistant city solicitor, for plaintiffs in error. Messrs. Otis, Beery & Otis and Messrs. Grant, Seiber & Mather, for defendant in error.
   Judgment affirmed.

Davis, Price and Donahue, JJ., concur.


text:
    No. 12652.
    Little v. Aultman, Miller & Co. et al.
    Decided June 27, 1911.
    Error to Circuit Court of Summit county.

      Mr. Harry L. Snyder; Messrs. ITagelbarger & Mottinger; Messrs. Hoyt, Dustin, Kelley, McKeehan & Andrews and Mr. T. H. Bushnell, for plaintiff in error. Messrs. Rogers & Rowley, for defendants in error.
   Judgment affirmed.

Davis, Price, Johnson; and Donai-iue, JJ., concur.


text:
    No. 12653.
    Keller v. Keller, Admr., et al.
    Decided June 27, 1911.
    Error to Circuit Court of Licking county.

      Mr. S. L. James, for plaintiff in error. Messrs. Flory & Flory and Messrs. Fulton & Fulton, for defendants in error.
   Judgment affirmed.

Davis, Si-iauck, Price and Joi-inson, JJ., concur.


text:
    No. 12654.
    Lavin et al. v. Stasel, Receiver.
    Decided June 27, 1911.
    Error to Circuit Court of Licking county.

      Mr. J. F. Lingafelter and Mr. L. C. Russell, for plaintiffs in error. Mr. Albert A. Stasel, for defendant in error.
   Judgment affirmed.-

Davis, Price and Johnson, JJ., concur.


text:
    No. 12665.
    McMann, County Treasurer, v. Wood et al., Receivers, et al.
    Decided June 27, 1911.
    Error to Circuit Court of Huron county.

      Mr. Don J. Young, for plaintiff in error. Mr. A. V. Andrews, for defendants in-error.
   Judgment affirmed.

Spear, C. J., Davis, Shaucic and Donahue, JJ., concur.


text:
    No. 12667.
    The City of Elyria v. Metcalf.
    Decided June 27, 1911.
    Error to Circuit Court of Lorain county.

      Mr. H. A. Pounds, for plaintiff in error. Messrs. Webber & Metcalf, for- defendant in error.
   Judgment affirmed.

Spear, C. J., Davis, Spiauck, Price, Johnson and Donahue, JJ., concur.


text:
    No. 12674.
    The Mt. Gilead National Bank v. Pollock.
    Decided June 27, 1911.
    Error to Circuit Court of. Morrow county.

      Mr. L. K. Powell and Messrs. Harlan & Wood, for plaintiff in error, Mr. T. B. Mateer and Mr. M. W. Spear, for defendant in error.
   Judgment affirmed.

Spear, C. J., Davis, Spiauck, Price and Johnson, JJ., concur.


text:
    No. 12701.
    The Lima Locomotive & Machine Co. v. Van Pelt, a Minor, by etc.
    Decided June 27, 1911.
    Error to Circuit Court of Allen county.

      Messrs. Smith & Baker and Messrs. Prophet & Eastman, for plaintiff in error. Mr. I. R. Longsworth, for defendant in error.
   .Judgment affirmed.

Si-iauck, Price, Johnson and Donahue, JJ., concur.


text:
    No. 12708.
    Harmon, Receiver, v. Moriarity.
    Decided June 27, 1911.
    Error to Circuit Court of Lucas county.

      Mr. Morison R. Waite and Mr. Julian H. Tyler, for plaintiff in error. Mr. Wm. B. Duck and Mr. Harry E. King, for defendant in error.
    Judgments reversed and judgment for plaintiff in error. Grounds stated in journal entry.
   It is ordered and adjudged by this court, that the judgment of the said circuit court be, and the same hereby is, reversed for error in affirming and in not reversing the judgment of the court of common pleas of Lucas county, Ohio, in the case of Thomas Moriarity v. Judson Harmon, Receiver. And proceeding to render the judgment which the said circuit court should have rendered, it is considered and adjudged by this court that the said judgment of the court of common pleas of Lucas county in said cause of Thomas Moriarity v. Judson Harmon, Receiver, be and the same hereby is reversed for error in overruling the motion made by said Harmon, Receiver, at the conclusion of all the evidence, for an order arresting said evidence and directing the jury to return a verdict for said Judson Harmon, Receiver, and in not granting* said motion, and for error in overruling the motion of said Judson Harmon, Receiver, for a new trial, this court being of opinion that there is no evidence contained in the record tending to show negligence on the part of the employes of the said receiver in the operation of its train or otherwise, nor that any act of said employes brought about, or contributed to, the injury to said Moriarity.

Spear, C. J., Davis, Shauck, Johnson and Donahue, JJ., concur.


text:
    No. 12946.
    Hoshor v. The Board of Commissioners of Fairfield County.
    Decided June 27, 1911.
    Error to Circuit Court of Fairfield county.

      Mr. C. A. Radcliffe and Mr. M. A. Daugherty, for plaintiff in error. Mr. T. T. Courtright, prosecuting attorney; Mr. U. S. Brandt; Mr. W. H. Land and Mr..J. E. Todd, for defendant in error.
   Judgment affirmed on the reasoning of the opinion of the circuit court of Fairfield county in this case.

Davis, Shauck and Price, JJ., concur. Donai-iue, J., not participating.


text:
    No. 13049.
    The State, ex rel. Howell, a Taxpayer, v. Eirick et al., Commissioners of Cuyahoga County, et al.
    Decided June 27, 1911.
    Error to Circuit 'Court of Cuyahoga county.

      Mr. William Howell and Mr. George L. Dake, for plaintiff in error. Mr. John A. Cline, prosecuting .attorney, and Mr. Walter D.

      Meals, assistant prosecuting attorney, for defendants in error.
   Judgment affirmed.

Davis, Price and Donai-iue, JJ., concur.


text:
    No. 11866.
    The City of Columbus v. Walcutt.
    Decided June 30, 1911.
    Error to Circuit Court of Franklin county.

      Mr. George S. Marshall, city solicitor, and Messrs. ■Weinland, Hoover & Davies, for plaintiff in error. Messrs. Huling & Huling, for defendant in -error.
   Judgment affirmed.

Spear, C. J. Davis, Shauck, Price and Joitnson, JJ., concur.


text:
    No. 11973.
    Sperry v. Kirkpatrick.
    Decided June 30, 1911.
    Error to Circuit Court of Knox county.

      Messrs. Owen & Carr, for plaintiff in error. Messrs. Waight '& Moore, for defendant in error.
    Judgment reversed. Grounds stated in journal entry-.
   It is ordered and adjudged by this court, that the judgment of the said circuit court be, and the same hereby is, reversed and this court finds that on the conceded facts the real estate and the gas contract referred to and described in the pleadings were owned by sáid parties equally, and that an accounting should be made between the parties of the amounts received and paid out in the purchase of the said land and selling any portions thereof and the amounts received and paid out under the said gas contract, each party being credited with the amount paid in by him for either of said causes and charged with the amount received by him therefrom and a balance struck of the amounts due to each of the said parties in the said land and contract and proceeds thereof, and it is ordered that this cause be sent to the circuit court to take said accounting in accordance with this finding according to law and enter its decree and judgment accordingly.

Spear, C. J., Davis, Shaucic and Jopinson, JJ., concur. Donahue, J., not participating.


text:
    No. 12003.
    The Baltimore & Ohio Railroad Co. et al. v. The City of Newark.
    Decided June 30, 1911.
    Error to Circuit Court of Licking county.

      Mr. Robt. J. King; Mr. F. A. Durban and Messrs. Kibler & Montgomery, for plaintiffs in error. Mr. Frank A. Bolton, city solicitor, for defendant in error.
   Judgment affirmed.

Spear, C. J., Price and Donahue, JJ., concur.


text:
    No. 12527.
    The City of Zanesville v. Gray.
    Decided June 30, 1911.
    Error to Circuit Court of Muskingum county.

      Mr. T. F. Thompson, city solicitor, for plaintiff in error. Mr. E. F. O’Neal, for defendant in error.
   Judgment affirmed.

Price, Johnson and Donahue, JJ., concur.


text:
    No. 13021.
    The State, ex rel. Stafford, v. The State Board of Appraisers and Assessors.
    Decided June 30, 1911.
    In Mandamus.

      Messrs. Graham & Stafford, for relator. Mr. Timothy S. Hogan, attorney general, and Mr. Joseph McGhee
      and Mr. C. C. Marshall, assistant attorneys general, for respondent.
   Peremptory writ awarded.

Spear, C. J., Davis Shauck and Price, JJ., concur.


text:
    No. 13118.
    The State, ex rel. City of Toledo, v. Sanzenbacher, Auditor.
    Decided June 30, 1911.
    In Mandamus.

      Mr. Cornell Schreiber, city solicitor, and Mr. Alonzo G. Duer, assistant city solicitor, for relator. Mr. Timothy S. Hogan, attorney general; Mr. J. M. McGillivray and Mr. Clarence D. Laylin, for respondent.
    Peremptory writ awarded. Grounds stated in journal entry.
   This cause came on for hearing and trial on the pleadings, and was argued by counsel. On consideration whereof, the. court, construing Section 5649-2, Section 5649-3 and Section 5649-3a, of the Act of June 2, 1911, limiting tax rates, find that by the provisions of these sections levies may be made as follows:

1. The taxing authorities of any taxing district may levy taxes not exceeding the aggregate of ten mills on each dollar of the tax valuation of the property of such taxing district for state, county, township, school and municipal purposes, subject to the further limitation of the paragraphs following.

2. In addition thereto levies may be made for sinking fund and interest purposes necessary to provide for any indebtedness incurred before the passage of said act, and any indebtedness that may be incurred after the passage of said act by a vote of the people.

3. In case such levy for the year 1911 shall produce ail amount greater than the amount of taxes levied in the year 1910, then such levy of ten mills on the dollar must be reduced to such a rate as will produce no more money than the taxes levied for the year 1910.

4. A municipal corporation may levy for municipal purposes as provided in preceding paragraphs 1, 2 and 3, an aggregate of five mills on the taxable property within such corporation only in the event that such levy of five mills, when added to the levy of state, county, township and school purposes, shall not exceed in the aggregate ten mills on the dollar,' of the taxable property within such taxing district exclusive of levies for sinking fund and interest purposes necessary to provide for any indebtedness incurred before the passage of said act and any indebtedness that may be incurred after the passage of said act by a vote of the people, and provided further, that such levy of ten mills on the dollar of taxable property shall not produce for the year 1911 an amount greater than the amount of taxes levied in the year 1910, and whenever such levy exceeds either of said limitations, then it is the duty of the budget commission to revise and reduce said levies in manner and form as directed and authorized by Section 5649-3c, General Code, as enacted June 2, 1911, having due regard to the proportions of the total amount that each taxing board or taxing officers are authorized to levy, so that such aggregate of all taxes for all purposes in each taxing district shall not exceed ten mills on the dollar exclusive of sinking fund and interest purposes as aforesaid, and shall not produce for the year 1911 a greater amount of taxes than levied in the year 1910, as provided in paragraph three of this entry. But whenever any levy for township, county, school or municipal purposes exceeds the maximum amount that may be levied for such purpose as provided by Section 5649-3a, General Code, then such excessive levy must first be reduced by the budget commission to the maximum amount provided in such section before said budget commission proceeds to revise and reduce all the levies certified for such taxing district to bring the aggregate of all within the limitations above referred to, to-wit: ten mills on each dollar of taxable property and to an amount not greater than the taxes levied in the year 1910.

5. The right to levy five mills on the taxable property, within such corporation is further limited by the provision that if said levy of ten mills for the year 1911 will produce more taxes than were levied in the year 1910, then such levy should again be scaled by the budget commission until the same will produce no larger revenue than the taxes levied in the year 1910.

6.. The five mills, which, subject to the qualifications hereinbefore defined, may be levied by a municipal corporation for corporation purposes, are exclusive of such levies for interest and sinking fund purposes as are or may be necessary to provide for any municipal indebtedness incurred prior to the passage of the act of June 2, 1911, and any indebtedness thereafter incurred by a vote of the people.

This court, therefore, finds that the relator is entitled to a peremptory writ of mandamus commanding the auditor of Lucas county, defendant herein, to ascertain the rate of taxes necessary to produce the amounts to him certified by the budget commission of Lucas county, provided that the aggregate, (exclusive of the levy for the sinking fund and interest purposes, for indebtedness heretofore incurred, and indebtedness that may have been incurred by a vote of the people), shall not exceed the rate of ten mills and the total fund raised thereby including the amount necessary for the sinking fund and interest as aforesaid shall not exceed the amount raised in the year 1910, then to enter the same upon the tax duplicate of Lucas county.

Also, that he ascertain the rate of the levy necessary for sinking fund and interest purposes to provide for indebtedness incurred before the passage of said act and any indebtedness that may have been incurred since the passage of the act by a vote of the people, if any, and add such levy to the tax duplicate in addition to said ten mills, but the total of both levies not to exceed the total sum levied in the year 1910.

It is therefore ordered, adjudged and decreed that a peremptory writ of mandamus issue against the defendant, as auditor of Lucas county, commanding him to make levies as provided herein.

Spear, C. J., Davis, Shauck, Price, Johnson and Donahue, JJ., concur.


author: Donahue, J.

text:
    The Village of Barnesville v. Ward.

      Street wide enough for park strip for dowers, etc. — Barriers placed around park strip — Not obstructions or nuisances, when — ■ City may not maintain dangerous barriers around strip — Liability of city to one undertaking to pass over strip.

    1. Where a street is sufficiently wide that enough will remain unobstructed for the purpose of public travel, a municipality may maintain or permit to be maintained, park strips between the curbing of the paved street and the pavement of the sidewalk in which strip grass, flowers and trees may be grown for the purpose of beautifying and ornamenting the streets of the city and contributing to the pleasure and comfort of its citizens, and may by proper barriers prevent travel thereon.

      2. The trees, grass and flowers growing thereon and proper barriers placed around the same to protect them, are not obstructions or nuisances within the meaning of the statute requiring the city council to keep the streets of a. municipality open, in repair and free from nuisance.
    3. A city may not maintain or permit to be maintained, a fence, wire or other barrier around such park strips dangerous to the life or safety of any traveler who undertakes to pass over the same, and if a pedestrian in the exercise of due care for his own safety is injured by reason of the dangerous condition of such barrier the municipality is liable in damages for such injury if it knew, or in the exercise of ordinary care, ought to have known the dangerous condition thereof.
    (No. 12894 —
    Decided October 31, 1911.)
    Error to the Circuit Court of Belmont county.
    Josiah P. Ward brought a civil action against the village of B arnésville in the common pleas court of Belmont county, praying damages in the sum of $10,000 for personal injuries sustained by him in tripping and falling over a wire placed between the paved sidewalk and the curb on the east side of Arch street, south of Walnut street, in said village. In his petition he averred that this wire was supported upon posts, or stakes, about two feet high and 18 inches apart at each end, and about 30 feet from end to end, and that the wire was stretched around these stakes and was permitted to sag in the middle so that it was about 8 inches high at the place where he was injured; that this obstruction had been continued there for many weeks prior to December 10, 1908; that the same was dangerous and likely to injure pedestrians lawfully going upon said street, all of which the defendant village well knew, or in the exercise of ordinary care ought to have known, and that plaintiff had no notice or knowledge of such dangerous condition and that in the night season of December 10, 1908, while he was carefully-walking on said street he was tripped by said wires, and violently thrown upon the curb and pavement, sustaining severe injuries, for which he asks damages.
    The village for its answer admits it is a municipal corporation; admits that Arch street is a public street of said village frequently traveled and used as such by the public generally and improved by paved sidewalks, curbing and street paving, and denies every other allegation of ■ the petition.
    For a second defense it denies plaintiff was injured in the manner alleged in the petition, and avers that if he was injured in any manner or form whatever that his own negligence and want of care contributed to that injury. The defendant for a third defense avers that that portion of the street around which this wire was stretched was a grass plat between the paved sidewalk and the curb of the street; that the defendant village adopted, established, permitted and maintained a plan and system of leaving a strip of ground between the outside of the paved portion of the sidewalks and the inside of the curb of said paved street on which to maintain grass plats and shade trees in order to beautify, ornament and add to the cleanliness and healthfulness of said streets, and in accordance with said plan and system trees were permitted to be placed and grow upon said strip of ground and grass was sown thereon, or the same was sodded; that passageways were made over ánd across said strip of ground leading from the paved part of the sidewalk to the curb, over which pedestrians could pass when wishing to cross to the opposite side of the street; and that said strip of ground by reason of the grass and shade trees thereon growing indicated to pedestrians that it was not to be used as a part of the sidewalk and was not intended to be traveled or crossed by pedestrians.
    It is also averred that the defendant knew, or ought to have known before, and at the time of his injury, that such strip of ground was not to be used for the purpose for which he attempted to use it; that there was no occasion or necessity for his attempting to so use it and in doing so he assumed all risk and hazard of danger. Defendant denies that it was charged with any duty or obligation to keep that portion of the strip of ground occupied by trees' and grass plats, and located between the regular passageways leading from the portion of the sidewalk to the curb of the street open for travel, in repair and free from obstructions.
    For a fourth defense defendant avers that the plaintiff attempted to pass from the paved portion of the sidewalk over and across said strip of ground and grass plat, or lawn, to the curb of the street without necessity, and for his own pleasure and convenience departed from said paved portion of the sidewalk passageway and street crossings upon which he would have avoided injurv.
    The plaintiff replied denying the averments of the second, third and fourth defense.

      Upon the issue so joined the jury returned a verdict in favor of the plaintiff. A motion for new trial was overruled and judgment rendered upon the verdict, which judgment was affirmed by the circuit court. The plaintiff in error now seeks the reversal of the judgment of the common pleas court and the reversal of the judgment of the circuit court affirming the same.

      Messrs. Smith & Howard and Mr. J. C. Tail-man, for plaintiff in error.
    Ward knew or ought to have known of this system of public improvement and the reservation of a part of the street from travel and for comfort, health and ornamentation. He knew or ought to have known that this wire was there. Upon the matter of knowledge we submit the following authorities: Norwalk v. Tuttle, 73 Ohio St., 242; Schaefler v. Sandusky, 33 Ohio St., 246; Akron v. Keister, 6 C. C., N. S., 603; Bond Hill v. Atkinson, Admx., 16 C. C., 470; Cincinnati v. Taylor, 19 C. C., 737; Toledo v. Smith, 13 C C., N. S., 504.
    This, too, should be borne in mind, that the holding of the courts that a pedestrian may cross the ordinary traveled way, as he may find it convenient, is not holding that he may cross a part of the street properly reserved from travel just as he pleases, especially where there are not passageways provided through the reserved part. The holding goes no farther than to say that the passageway must be kept open and safe for travel. Dayton v. Taylor’s Admr., 62 Ohio St., 11; Rail

      road Co. v. Transportation Co., 32 Ohio St., 116; Groveport v. Bradfield, 2 C. C., 145; McCurdy v. Newark, 10 N. P., N. S, 526.
    We cite this last decision of the common pleas court of Licking county in the Newark case, which case seems to be precisely the same as the case at bar, to call attention to the reasons of the judge for his opinion, and to show that the lower courts of Ohio have differed on the rules of law. Raymond v. Lowell, 53 Am. Dec., 57; Wellington v. Gregson, 1 Pac. Rep., 253; Fockler v. Kansas City, 68 S. W. Rep., 363; Keith v. Worcester, 82 N. E. Rep., 680; Louisville v. Johnson, 69 S. W. Rep., 803; Larsen v. Sedro-Woolley, 94 Pac. Rep., 938; Bell v. Clarion, 84 N. W. Rep., 962; Alline v. Le Mars, 33 N. W. Rep., 160; Collins v. Dodge, 35 N. W. Rep., 368.
    Now we claim that the court in the case at bar charged the jury in the abstract and not in the concrete, and it was erroneous as given. Coal Co. v. Estievenard, 53 Ohio St., 59.
    A municipal corporation is not an insurer of the safety of persons using its streets, and is not subject to the usual conditions of such an insurer. Dayton v. Glaser, 76 Ohio St., 471.

      Mr. Albert W. Kennon and Mr. Newell K. Kennon, for defendant in error.
    The first instruction requested has no application to the facts of this case. This instruction does not even refer to the wires or any other obstruction, the gravamen of the case and jury’s inquiry; there is absolutely no evidence that the defendant had adopted such “plan” or “policy” to plant shade trees and grass, but, if so, the dangerous wires were not trees or grass.
    • As to the second instruction requested. We have stated there is absolutely no evidence tending to show that the defendant or its council permitted anything as to this sidewalk on Arch street or took any other action relative thereto. And this is an attempted insertion of contributory negligence, when not in issue, in some unrecognized shape and makes the startling announcement that the defendant is not liable to its citizens, or others, owes none any duty, for injuries from traps, contraptions or other dangerous obstructions on the sidewalk. Such doctrine is violative of humane principles, reason, law and express statutory imposition. Section 3714, General Code; Fockler v. Kansas City, 68 S. W. Rep., 363; Augusta v. Tharpe, 38 S. E. Rep., 389; Glasgow v. Gillenwaters, 67 S. W. Rep., 381; Olathe v. Mizee, 29 Pac. Rep., 754; Baker v. Grand Rapids, 69 N. W. Rep., 740; Brusso v. Buffalo, 90 N. Y., 681.
    The facts in the case of Groveport v. Bradfield, 2 C. C., 145, and in the case of Dayton v. Taylor’s Admr., 62 Ohio St., 11, easily differentiate those cases from the case at bar.
    In the case at bar the wire was not an ordinary danger ever present in a street reasonably well kept. It was a danger which, at the point where it existed and as long as it did exist, destroyed the street itself for the purposes for which the street was dedicated and maintained. Durbin v. Napoleon, 21 C. C., 160.
   Donahue, J.

The question presented by the record in this case is in some respects a novel one in Ohio. There seems to be neither a statute nor adjudicated case dispositive of some of the propositions urged by the plaintiff in error in its defense to plaintiff’s suit. It is undoubtedly the common practice in this state, and it would seem to be practically the universal interpretation of the law that where a street is sufficiently wide that enough will remain unobstructed to meet the needs of public travel, a municipality may maintain or permit to be maintained, park strips between the curbing and the paved street and the pavement of the sidewalk in which strip grass, flowers and trees may be grown for the purpose of beautifying and ornamenting the streets of the city and contributing to the pleasure and comfort of its citizens, and may, if it be deemed necessary, construct or permit to be constructed proper barriers around the same to prevent travel thereon, and such trees, grass and flowers growing upon such park strip and the proper barriers placed around the same to protect them are not obstructions or nuisances within the meaning of the statute requiring the city council to keep the streets of a municipality in repair, open for travel and free from nuisances. This construction of the law would not authorize a municipality to maintain, or permit to be maintained, a fence, wire or other barrier around such park strip in such condition as to become dangerous to the life, or the safety, of any traveler who undertakes to pass over the same, and if a pedestrian in the exercise of due care for his own safety is injured by reason of the dangerous or defective condition of the barrier the municipality is liable in damages for such injury if it be shown that it knew or in the exercise of ordinary care should have known the dangerous condition thereof. The plaintiff in error contends that the trial court erred in refusing to give its first and second special requests. These requests were predicated upon the assumption that no matter if the wires placed around this strip of ground were so placed as to be dangerous that the plaintiff in going upon this strip was negligent and assumed all the risk of injury by reason thereof, and the court very properly refused to give the same.

That the plaintiff attempted to cross this park strip at a point other than where the passageways were provided was not negligence per se. Whether he was negligent in so doing under all the circumstances of the case was a proper question for the jury. It is claimed on behalf of this plaintiff that in passing along the pavement he saw directly ahead of him a quantity of ice that had accumulated there and that in order to avoid this ice he attempted to cross to the other side of the street at a place where no passageway across this park strip had been provided for that purpose, but that he had no knowledge whatever of the existence’ of this wire at this point and that the strip was so narrow, being only about eighteen inches wide that it could be easily covered by one step of a pedestrian, and, therefore, not likely to need such protection and the pedestrian would not naturally expect to find such obstruction there; that two stakes were driven at each end of the strip eighteen inches apart and thirty feet from end to end; that a small wire had been placed around the top of these stakes and had been permitted to sag in the middle so that at the point plaintiff attempted to cross it was not more than ten or twelve inches high; that the place was not lighted by any street lamp and the night was so dark that a pedestrian in the exercise of due care for his own safety could not see this wire or protect himself from injury therefrom, and that, therefore, this wire so placed and permitted to remain was a dangerous nuisance and likely to produce just such an injury to a pedestrian exercising due care for his own safety as the plaintiff sustained. There is evidence in this record in support of these facts upon which plaintiff rests his right to recover in this action.

The fact that a municipality may maintain or permit to be maintained a barrier around such strips to prevent pedestrians from going thereon does not authorize the maintenance of such a dangerous construction as would be a menace to the life or safety of a pedestrian exercising due care for his own safety in an attempt to cross over the same.

If the jury found from the evidence that this wire was in the condition described by some of the witnesses, then it could rightly find that it was not a barrier to prevent, but rather a device to trip and punish any one who would attempt to cross this strip in the night season. That a pedestrian has not sufficient civic pride to refrain from going upon or passing over this strip does not justify the placing of a nuisance there that might probably cause his death or do him great' bodily harm if he should .attempt to do so and the pedestrian could not be held to have assumed the risk of injury from such a device if it be shown that he had no knowledge of its existence’ and could not in the exercise of due care for his own safety see the same or be required to anticipate its presence. True, if he had collided with a tree or with a proper barrier placed there to prevent him from going upon the strip or with a stepping stone, or other obstruction that might reasonably be expected to be found there then the contention of the plaintiff in error that he assumed the risk of injury from such obstruction would obtain. In the absence of knowledge of the fact he could not be required to contemplate the existence of this wire placed so near the ground that it would not prevent his going upon the strip, but rather would more likely result in his injury than in the accomplishment of the purposes for which it is now claimed it was so placed, and while it might be a proper and sufficient guard in the day time, or even in the night season, if properly lighted, yet it was a question for the jury to determine whether under the circumstances of this case it was a legitimate barrier, one that he ought to have expected to meet and, therefore, assumed the risk of injury therefrom, or whether it* was a dangerous and unlawful nuisance, the existence of which he would not be required to have in contemplation at the time he attempted to cross the same.

It is also claimed on behalf of the plaintiff in error that the court erred in the rejection of the testimony of S. S. Foreman. The defendant sought to show by this witness the plan of the improvement of the streets of this village with reference to the maintenance of park strips between the curbing of the paved street and the paved portion of the sidewalks, and it was permitted to show this plan as fully as the nature of this defense required. The objections to the questions appearing on pages 255, 256 and 257 of the record were properly sustained for the reason then stated by the court that they were leading questions.

From the whole record it appears that the issue was properly submitted to the jury and that its verdict is sustained by evidence.

The judgment of the circuit court affirming the judgment of the common pleas court is affirmed.

Judgment affirmed.

Spear, C. J., Davis, Spiaucic, Price and Johnson, JJ., concur.


author: Johnson, J.

text:
    Horton v. The State of Ohio.

      Obtaining property by false pretenses — Section 7076, Revised Statutes — Indictment must be certain and precise — No defense to indictment that money obtained was unlawful.

    1. An indictment under Section 7076, Revised Statutes, for obtaining money by false pretenses must set forth the alleged false pretenses with such certainty and precision as will reasonably apprise the defendant of what he will be required to answer, and so that the court may determine what evidence is admissible and must allege that the pretenses were in fact false and made with intent to defraud.
    2. It is no defense to an indictment for obtaining money by false pretenses that the transaction in which the money was so obtained was unlawful.
    (No. 12919 —
    Decided October 31, 1911.)
    Error to the Circuit' Court of Mercer county.
    At the October term 1909 of the court of common pleas of Mercer county the grand jury returned an indictment against John Horton for obtaining money under false pretenses from one Frank Linneman. Omitting formal parts the indictment is as follows: “That John Horton unlawfully did falsely pretend with intent to defraud one Frank Linneman, that he was selling counterfeit money; by which said false pretenses the said John Horton, then and there unlawfully did obtain from said Frank Linneman sixty-five dollars in money, of the value of sixty-five dollars, of the personal property of said Frank Linneman; whereas in truth and in fact said John Horton was not selling, and had no intention at said time to sell and deliver any counterfeit money; and said Horton at the time he so falsely pretended as aforesaid well knew the said false pretenses to be false.”
    A motion to quash and a demurrer were filed to this indictment and were overruled.
    On the trial at the close of the state’s case the defendant interposed a demurrer to the evidence and moved the court to instruct the jury to return a verdict for defendant. This was also overruled. The defendant was convicted and sentenced.
    On error to the circuit court this judgment was affirmed and error is prosecuted here to reverse the judgments of the courts below.

      Mr. John E. Egan; Mr. George W. Mannix, Jr., and Mr. Robert R. Nevin, for plaintiff in error.
    The indictment does not state that the false pretenses were in fact false. 19 Cyc., 394; People v. Reynolds, 71 Mich., 343; People v. Behee, 90 Mich., 356.
    The alleged false pretenses are not properly made and negatived by specific and special averments. Ellars v. State, 25 Ohio St., 385; Winnett v. State, 18 C. C., 515, 62 Ohio St., 650; Reg. v. Kelleher, 14 Cox C. C., 48; 2 Wharton on Crim. Law (10 ed.), Section 1167; People v. Blanchard, 90 N. Y., 314; 12 Am. & Eng. Ency. Law (2 ed.), 811; Commonwealth v. Drew, 19 Pick., 179; State v. DeLay, 93 Mo., 98; State v. Peacock, 31 Mo., 413.
    The indictment must show that the prosecuting witness relied upon the false representations set out in the indictment, and that the same were the motive or the cause for his paying the money. Schleisinger v. State, 11 Ohio St., 669; Redmond v. State, 35 Ohio St., 83; 2 Wharton Crim. Law (10 ed.), Section 1175; State v. Metsch, 37 Kans., 222; State v. Lemon, 46 Mo., 375; Winnett v. State, 10 O. C. D., 245; People v. Gates, 13 Wend., 311; Johnson v. State, 11 Ind., 481; State v. Benson, 110 Mo., 18.
    According to the indictment, the facts represented, if true, would have been of no pecuniary advantage to the prosecuting witness, as counterfeit money is nothing. 1 McClain’s Crim. Law, 667; People v. McAllister, 49 Mich., 12; People v. Morphy, 100 Cal., 84.
    The alleged false representations according to the indictment were such as no man had the right to rely upon, and in the absence of any alleged disability on the part of the prosecutor, they are not sufficient to sustain a conviction. Buckalew v. State, 11 Tex. App., 352; In re Schurman, 40 Kans., 542; State v. Ripley, 31 Me., 386; Commonwealth v. Grady, 76 Ky. (13 Bush), 285; Chapman v. State, 2 Head (Tenn.), 36; Commonwealth v. Barker, 8 Phila., 613; Commonwealth v. Warren, 6 Mass., 72; State v. Cameron, 117 Mo., 642; Roberts v. State, 39 Tenn. (2 Head), 501; Bonnell v. State, 64 Ind., 498; State v. Estes, 46 Me., 150; Burrow v. State, 7 Eng. (Ark.), 65; 23 Cent. Dig., 672; Commonwealth v. Hutchinson, 2 Par. Eq. Cas., 309; In re False Pretenses, 9 O. Dec., 825.
    Therefore, if the plaintiff in error agreed to deliver nothing, and in the eyes of the law that is exactly what the charge in the indictment states, he certainly is not guilty if nothing was delivered. Foster v. State, 68 S. E. Rep., 739.
    The indictment shows a common criminal design. Commonwealth v. Hermon, 15 Phila., 386; Anonymous, 10 O. D. Re., 649; 23 Cent. Dig., 670.
    We contend that the indictment in this case shows clearly and convincingly, that the prosecuting witness and Horton were engaged in a transaction that was criminal in its nature, and they had a common design, and acted in pursuance of said criminal design; and that under the laws of Ohio the transaction, detailed by the indictment in this case, does not constitute an indictable offense, and especially not under the statute making the obtaining of anything of value under false pretenses a crime. Anonymous, 10 O. D. Re., 649, 22 22 W. L. B., 371; State v. Crowley, 41 Wis., 271; McCord v. People, 46 N. Y., 470; People v. Livingstone, 47 N. Y. App. Div., 285, 62 N. Y. Supp., 9; People v. Tompkins, 186 N. Y., 413; Foster v. State, 8 Ga. App., 119; State v. Burnett, 119 Ind., 592; Chapman v. State, 2 Head (Tenn.), 36; Commonwealth v. Warren, 6 Mass., 72; State v. Simpson, 10 N. Car. (3 Hawks), 620; Commonwealth v. Barker, 8 Phila., 613; Miller v. State, 73 Ind., 88; Commonwealth v. Hickey, 1 Clark, 436, 3 Pa. Law, 86; 19 Cyc., 405, 412; In re Fitzpatrick, 21 C. C., 519; People v. Wilson, 6 Johns., 320; People v. Clough, 17 Wend., 351; People v. Stetson, 4 Barb., 151; State v. Riley, 65 N. J. L., 192; People v. Klock, 106 N. Y. Supp., 267.

      If it is true as we claim that the representation relied upon in this case was a promise to do something in the future, then there is no question of course, but what the state failed to make out was a legal case of obtaining money by false pretenses. Dillingham v. State, 5 Ohio St., 280; Winnett v. State, 18 C. C., 515; State v. Petty, 119 Mo., 425; Commonwealth v. Hutchinson, 2 Par. Eq. (Pa.), 309; State v. Magee, 11 Ind., 154; Scarlett v. State, 25 Fla., 719; Ryan v. State, 45 Ga., 128; People v. Miller, 169 N. Y. 339.

      Mr. John G. Romer, prosecuting attorney, for defendant in error. ■
    The object and purpose of an indictment is that the accused may have notice of what he is to meet; of the act done, which it behooves him to controvert. The question is, does the (defendant) plaintiff in error know what the state is talking about? Does he know the time, place, etc. Carper v. State, 27 Ohio St., 576; State v. Toney, 81 Ohio St., 130; Pontius v. People, 82 N. Y., 339; Joyce on Indictments, Secs. 251, 338, 371; Clement v. United States, 149 Fed. Rep., 305; Commonwealth v. Hulbert, 12 Metc. (Mass.), 446.
    It is to be observed that the language of the statute is, “any false pretenses.”
    In the construction and interpretation of statutes, both civil and criminal, the word “any” is construed as a term of inclusion; and is given the full force of “every” or “all.” 1 Bouvier’s Law Dict., 147; 2 Am. & Eng. Ency. Law (2 ed.), 414; Lovell v. State, 48 Tex. Crim., 85; Johnson v. So. Pac., 196 U. S., 1; Church v. United States, 143 U. S., 457; McMurray v. Brown, 91 U. S., 257; 1 Words & Phrases, 42; State v. Antonio, 2 Tread. (S. Car.), 776; Ex parte Neet, 157 Mo., 527; 2 Bishop’s New Crim. Law, Secs. 433, 436; Bartlett v. State, 28 Ohio St., 669; Lefler v. State, 153 Ind., 82; Bowman v. State, 45 So. Rep., 308; Musgrave v. State, 133 Ind., 307; Gilmore v. People, 87 Ill. App., 128; Bowen v. State, 9 Baxt. (Tenn.), 45; People v. Cole, 65 Hun, 624; 2 Wharton Crim. Law (10 ed.), Secs. 1188, 1192.
    Therefore, since the law was designed to protect the weak, the inexperienced and the credulous as well as the strong, experienced and prudent, the only test to determine the sufficiency of a false pretense is by its effect.
    We believe, therefore, that the pretense set out in the indictment is sufficient, because such pretense was made with intent to defraud and actually did defraud. The proofs fully sustain the allegations, and conclusively show that Horton did make the said false pretenses knowingly and that Linneman believed them and parted with his money. In re Cummins, 16 Colo., 451; 2 Bishop’s Crim. Law, Sec. 469; Hughes’ Crim. Law & Pro., Sec. 624; People v. Martin, 102 Cal., 558; People v. Watson, 75 Mich., 582; Commonwealth v. O'Brien, 172 Mass., 248; People v. Lennox, 106 Mich., 625; People v. Ward, 5 Cal. App., 36; People v. Smith, 84 Pac. Rep., 449; Commonwealth v. Henry, 22 Pa. St., 253.

      If the indictment charges a crime, the verdict is not contrary to law and same is sufficient, as a general verdict of guilty provided it is supported by sufficient evidence. Thomas v. State, 16 S. E. Rep., 94; State v. Haines, 23 S. Car., 170; 12 Am. & Eng. Ency. Law (2 ed.), 811; State v. Dowe, 1 Am. Rep., 271; Underhill on Crim. Evidence (2 ed.), Sec. 439; Morris v. State, 54 Fla., 80; State v. Tripp, 113 Ia., 698; State v. Montgomery, 56 Ia., 195; Holton v. State, 109 Ga., 127; Dillingham v. State, 5 Ohio St., 280.
   Johnson, J.

Defendant contends that the indictment is defective in that it is indefinite and does not sufficiently set forth the alleged false pretenses and does not allege that the pretenses were in fact false, and further that the indictment does not charge a crime under the law.

This court has many times declared that a criminal offense must be charged with reasonable certainty in the indictment so as' to apprise the defendant of that which he may expect to meet and be required to answer; so that the court and jury may know what they are to try, and the court may determine without unreasonable difficulty what evidence is admissible. And an indictment for obtaining money or property by false pretenses must aver all of the material facts necessary to be proven in order to convict, and that the false pretenses were false in fact and induced the owner to part with his property. Dillingham v. State, 5 Ohio St., 280; Schleisinger v. State, 11 Ohio St., 669; Du Brul v. State, 80 Ohio St., 52; People v. Behee, 90 Mich., 356.

First. It will be noted that this indictment contains no averment that there was any attempt by Plorton to induce Linneman to purchase any counterfeit money, or that Linneman did purchase any such money. There is no allegation that Horton sold or agreed to sell or deliver any counterfeit money or any other thing to Linneman by which Linneman was induced to and did pay him the $65.00.

In Schleisinger v. State, 11 Ohio St., 669, the court say at page 673: “There is however no colloquium set forth in the indictment showing a negotiation between the parties and that the representations and pretenses were made with intent thereby to obtain from said Woods and Pew any goods whatsoever.”

The important matter is that there is no allegation of any transaction, contract or negotiation in which, by reason of the false pretenses referred to, Horton obtained the money from Linneman.

On the trial the prosecuting witness described the transaction in question and testified that defendant told him he was selling counterfeit money three for one, and that he Linneman gave defendant $65.00 for which defendant promised to give him $300.00 counterfeit money in eight days.

As pointed out already the indictment charges only that defendant falsely pretended that he was selling counterfeit money. It is not alleged that he pretended to have counterfeit money or that he was delivering it. But according to the testimony of the prosecuting witness that pretense was not a false pretense because he was then selling and did sell to him counterfeit money to be delivered at a future time.

The promise to deliver the counterfeit money at a future time could not be made the basis of a conviction for crime. Dillingham v. State, 5 Ohio St., 280; State v. Petty, 119 Mo., 425; Commonwealth v. Drew, 19 Pick., 179; People v. Miller, 169 N. Y., 339.

Plaintiff in error challenges the indictment on two other grounds:

1. That the false representations averred in the indictment were such as no man had the right to rely on and that in the absence of any alleged disability on the part of the prosecutor they are not sufficient to sustain a conviction.

2. That there was a common criminal design between the parties.

Many decisions are cited by the parties in support of their respective views of these questions and they disclose much conflict of authority.

As to the first proposition there are cases which hold that where the pretense is absurd or irrational, and the prosecutor had at the time the means of detection, such pretense is not within the law of crimes.

It would not be profitable here to discuss these cases in detail. We agree with the view that many of such holdings have gone too far. The weak and feeble have equal rights with the strong.

The careless or unwary are entitled to the protection of these false pretense statutes as well as of all other statutes. Most people think the fanciful story of a confidence man who sells a gold brick is absurd and should carry its own refutation, but many inexperienced, unwary but honest men have been caught by it and no one would think the offense was not an indictable one.

The second of the above contentions presents a different question and one as to which there is a diversity of decisions. Can there be a conviction for obtaining money by false pretenses when the transaction, on the part of the person from whom the money is obtained, would have been unlawful if the representations of the defendant had been true, or if one pretends to be engaged in the commission of a particular crime, when in fact he is not so engaged, can he be convicted for obtaining money by false pretense, from one who desired to participate in.the same crime and who parted with his money in that behalf?

In McCord v. People, 46 N. Y., 470, the accused falsely pretended to be an officer with a warrant to arrest the prosecuting witness, and he thereby induced the witness to deliver to him certain property. The court held that the prosecutor parted with his property as an inducement to a supposed officer to violate the law and his duty and that the indictment could not be sustained. The court say at page 472: “Neither the law, or public policy designs the protection of rogues in their dealings with each other, or to insure fair dealing and truthfulness, as between each other, in their dishonest practices. The design of the law is to protect those who, for some honest purpose are induced, upon false and fraudulent representations, to give credit or part with their property to another, and not to protect those who for unworthy or illegal purposes, part with their goods.”

This case has been followed in a number of New York cases and in some other jurisdictions. People v. Klock, 106 N. Y. Supp., 267; People v. Stetson, 4 Barb., 152; People v. Tompkins, 186 N. Y., 413; State v. Crowley, 41 Wis., 272; Foster v. State, 8 Ga. App., 119. State v. Crowley and Foster v. State were cases in which the false representations were made in transactions for the sale of counterfeit money. The court in Foster v. State say: “This, case is also to be distinguished from those cases in which the defendant, by imposing upon the credulity or weak-mindedness of the prosecutor has caused him to pay money for something which could not be of value, but which the prosecutor was led to believe was in fact so. In such cases a prosecution for cheating and swindling may lie. But in this case, the prosecutrix acted with her eyes open; she admitted that she knew that the money she was to get would not be good money.”

A different rule has been adopted in a number of states. Generally stated, the rule in those states is, that, it is no defense to an indictment for obtaining money under false pretenses that the transaction in which the money was paid was illegal. Commonwealth v. O’Brien, 172 Mass., 248; People v. Martin, 102 Cal., 558; People v. Watson, 75 Mich., 582; Lovell v. State, 48 Tex. Cr., 85; In re Cummins, 16 Colo., 451; Commonwealth v. Henry, 22 Pa. St., 253; 2 Bishop Crim. Law, Sec. 469.

In Commonwealth v. O’Brien, 172 Mass., 248, after a discussion of the different views taken of the question the court say: “With the greatest respect for the New York and Wisconsin courts we think this end is more effectually reached if we do not read into the absolute words of the statute an implied exception, which allows a knave to cheat any one out of his money, if the knave can succeed in persuading his victim into a scheme, which has any technical illegality on the victim’s side. The question of allowing the latter a personal remedy is entirely different.”

In People v. Tompkins, 186 N. Y., 413, defendant induced one Felix to part with a large sum of money on the false representation that defendant as an employe of the Western Union Telegraph Company had means of obtaining advance information as to results of horse races, which were being betted on in a certain pool room. Felix went to the pool room and made a bet on a certain horse falsely named as winner. The court while yielding to the authority of McCord v. People and of what it states to be a firmly established rule in that state, yet questions the soundness of. the rule and in its syllabus suggests the “alteration of the rule to the legislature.” In the opinion it is stated that the rule is at variance with a more reasonable view and the decisions in at least twelve states.

The primary object sought to be accomplished in prosecutions for crime is the suppression of crime. The effort is one to protect the public and prevent wrongdoing.

If it were a civil proceeding of course where the injured person is a party to the unlawful enterprise he would not be heard to complain and the law would leave the parties where it finds them.

There is a natural feeling that, where two persons are co-offenders, it is unjust that one should be punished and the other not, especially that one should be permitted to invoice the aid of the courts to punish his confederate while he escapes himself. But the dissatisfaction should be, not that one is punished, but rather that the other is not. It is no argument in favor of either that the other equally deserves conviction.

The statute of Ohio, Section 7076, Revised Statutes, which denounces obtaining money or property by false pretenses, is broad and complete. “Whoever, by any false pretense, with intent to defraud, obtains from any person, any thing of value.”

Shall we read into this criminal statute the principle of civil jurisprudence which requires the complaining party to come into court with clean hands and thus deny to the state (in the effort to prevent wrongdoing) the equally sound principle of criminal law that the guilt of one man shall not be received as an excuse for that of another. We think to so hold would in some degree throw around crime the protection of the law.

If a sharper working a confidence game or a scheme to obtain money by false pretenses could weave into his tricky negotiation some element which is unlawful and criminal he could hold it over the head of his victim and could call it to his aid in escaping prosecution.

However for the reasons already given in this opinion we feel forced to the conclusion that the indictment in this case does not state the accusation against defendant in such a manner as to directly and specifically advise him of what he must prepare to meet and that it does not meet the requirements of well-settled rules so as to secure to him the constitutional safeguard of the right to demand the nature and cause of the charge against him, and therefore the motion to quash and the demurrer should have been sustained.

For error in overruling, the judgments of the courts below are reversed.

Judgments reversed and judgment for plaintiff in error.

Spear, C. J., Davis, Shauck, Price and Donahue, JJ., concur, in the judgment. Davis, J., dissents to second proposition of syllabus.


author: Price, J.

text:
    Darling v. Darling et al.

      Tract of land partly in one county and partly in another — Action for partition — Commissioners appraise county parts separately — Sale of land ordered — Tenant in common elects to take part at appraisal — Court approves and. orders recall of sale — Another tenant elects to take same land — Moves court to vacate previous election — Rights of electors.

    At the February term of the court of common pleas of Richland county, for the year 1908, in an action for partition of certain land, one tract situate in Ashland county and the other in Richland county adjoining, the commissioners appointed by the court to make partition, reported that the same could not be made without manifest injury to the value of the estate, and appraised the land in Ashland county separately from the appraisal of the tract in Richland county, which report was approved by the court. No election was made by any of the tenants in common to take any part of the estate at the appraised value.
    Thereupon, at the same term, the court ordered a public sale of the entire estate, and the sheriff in pursuance of a writ for that purpose advertised that said premises would be publicly sold on the 26th day of September, 1908.
    At the subsequent September term and about five days prior to the day of sale, one of said tenants in common, without notice to any of his co-tenants, and without their knowledge, announced to the court that he elected to take the Ashland county land at its appraised value. The court approved the election and adjudged said tract to him, and also ordered a recall of so much of the order of sale as related to the land so elected.
    Another of the tenants in common, on discovering said proceedings, also elected to take the same land, at its appraised value, which election was disapproved by the court. The latter co-tenant moved the court to set aside and vacate the election first made and the orders concerning the same. This motion was overruled. On error, the circuit court reversed the orders and proceedings concerning said first election and remanded the case for further proceedings.

      Held: The circuit court did not err and its judgment is affirmed.
    (No. 11833 —
    Decided October 31, 1911.)

      Error to the Circuit Court of Richland county.
    The facts are stated in the opinion.

      Mr. H. T. Mannor and Mr. C. H. Workman, for plaintiff in error.

      Mr. T. Y. McCray and Mr. Glenn M. Cummings, for defendants in error.
   Price, J.

The plaintiff in error and certain defendants in error are tenants in common, in certain lands, fifty acres of which are in Ashland county, and the other lands, consisting of about three hundred and twenty acres, are situate in Richland county.

On the 4th day of March, 1908, Camille King, one of said tenants in common, filed in the court of common pleas of Richland her petition praying for the partition of all of the lands, and she alleges that she is seized in fee simple of one-seventh part, and that G. L. Darling, Willard E. Darling, Plerbert Darling, Laucena P. Glasgow, Florence Statler and Relia M. Stichler, are each seized of one-seventh part as tenants in common with the plaintiff.

Most of the defendants waived summons and entered their appearance. The others were duly served with process.

On the 4th day of August, 1908, the court found the interests of the several tenants as alleged in the petition and ordered partition accordingly. Commissioners were appointed to make partition, if the same could be made, if not, to appraise the premises.

On the 20th day of August, 1908, the commissioners reported that the estate could not be divided without injury to the value thereof, and returned appraisement of the lands in Ashland county separate from the appraisement of the lands in Richland county. The record shows the following: “And thereupon neither of the said parties electing to take the said estate or any portion thereof at its appraised value, on motion of the plaintiff, it is ordered that said estate be sold at public auction according to law, and that an order issue therefor to the sheriff of Richland county.”

The writ issued the next day.

The foregoing order of sale was made at the February term, 1908, and on August 20th of that year.

The next step disclosed by the record was taken on the 21st day of September, 1908, when W. E. Darling filed his application to take the premises (fifty acres) situate in Ashland county at the appraised value thereof, and the record says: “And the court being advised in the premises do adjudge the same to W. E. Darling, upon his paying into the sheriff the amount of said appraised value less his proportionate share, and said sheriff of this county is ordered upon his so doing, to make, execute and deliver a deed for said premises. Order of sale with reference to said Ashland county tract is hereby recalled.”

On the 26th day of October, and at the September term, 1908, the sale of the Richland county lands was confirmed and deeds ordered. This order of confirmation was contested and as to the Ashland county lands, G. L. Darling, one of the co-tenants had filed his motion on the 30th day of September, 1908, to set aside the deed to W. E. Darling for the fifty acres in Ashland county pursuant to his election, and the grounds of his motion are set out in an affidavit in support thereof, which in substance are, that he had no notice or knowledge that Willard Darling had elected to take the Ashland county land at the appraised value thereof until the day of sale fixed by the sheriff’s writ, and until a few minutes before the hour of sale; that he had not consented to said election, and that he attended the sale for the purpose of purchasing said Ashland county tract and that he, G. L. Darling, then elected to take said tract at the appraised value. This election was not recognized and the court refused to disturb the election made by Willard E. Darling and the deed made by the sheriff in pursuance thereof, and G. L. Darling excepted to the rulings of the court.

Having approved of the election of Willard E. Darling as to the fifty acres in Ashland county and disregarded the offer to elect made by G. L. Darling, the court confirmed the sales as to the other lands and ordered distribution.

G. L. Darling prosecuted error in the circuit court to reverse the order and proceedings of the court of common pleas in relation to the fifty acres in Ashland county.

The circuit court reversed the order and proceedings of the court of common pleas had and made regarding the said fifty acres and remanded the case to the court of common pleas for further proceedings according to law.

Willard E. Darling prosecutes error here to reverse the judgment of the circuit court.

The order of partition and also the order of sale of all the lands, were made during the February term, 1908, although made in August of that year. The sheriff, in pursuance of the order of sale, advertised the sale to take place on the 26th of September, 1908. All parties in interest would naturally look forward to that date as the time fixed to dispose of the entire estate. No tenant in common had announced an election to take any part of the premises at the appraisal. But at the subsequent September term, and only five days prior to the day of sale as advertised, Willard E. Darling made an election to take the Ashland county land at the appraisal, and the court recognized his election and ordered that the “order of sale with reference to said Ashland county tract is hereby recalled.” This election and the order quoted were had and made without any notice to the other co-tenants, certainly without notice to or knowledge of G. L. Darling, and, as said, at a term of court subsequent to that when the first order of sale was made. G. L. on the day of sale promptly endeavored to have the court set aside the proceedings, so summarily had, but without success in that court, and it seems that Willard E. was permitted to secretly gain an advantage over his co-tenants. We think this was error.

Section 5762, Revised Statutes, provides: “When the commissioners are of opinion that the estate’ cannot be divided according to the demand of the writ, without manifest injury to the value thereof, they shall return that fact to the court, with a just valuation of the estate. Whereupon, if the court approve of the return, and one or more of the parties elect to take the estate at such appraised value, the same shall be adjudged to him or them, upon his or their paying to the other parties their proportion of the appraised value thereof, according to their respective rights, or securing the same as hereinafter provided.”

The next section provides, “that if one or more of the parties elect to take the estate at the appraised value, the terms of payment, unless the court on good cause shown by special order direct and require the entire payment to be made in cash, or unless all the parties in interest agree thereon, shall be one-third cash,” etc.

Section 5764 provides: “If no such election to take the estate be made, the court may, at the instance of a party, make an order for the sale thereof at public auction, by the sheriff who executed the writ of partition, or his successor in office.”

The next section directs the manner of conducting the sale.

If Willard E. Darling, on confirmation of the report of the commissioners appraising all the estate, had elected to take the Ashland county land at the appraised value, he could have properly done so, as it had a separate value. However the right to elect did not anide alone in Willard, but any one or more of the co-tenants had the same right. They stood as equals in relation to that right, and if two or more had elected to take this tract of land at the appraised value, a public sale of the same would have been required. Moreover the right of election should be exercised at the proper time, namely, after the report of the commissioners had been approved by the court, and before a sale was ordered.

The record shows that no one had made an election when the order of sale was issued and not until five days previous to the day fixed for the sale by the sheriff.

As before stated, the finding- of the court that no one had elected, and the order to sell, was made at the February term of court, and the election of Willard E. and the order of the court recalling the order of sale as to the Ashland county land and adjudging it to Willard E., were made at the subsequent September term, without notice to the other co-tenants, especially G. L. Darling. The court had no jurisdiction to entertain such an election and was without jurisdiction to adjudge the premises to Willard E. and order the sheriff to convey to him.

When the proper time and opportunity for election had passed by and a public sale of the entire lands was being advertised, the right of election had gone by, unless it could be consented to by the other co-tenants. No such consent was asked or obtained, and the election in controversy is-void, and the proceedings of the court of common pleas approving that election are likewise void.

This view is in harmony with the judgment of the circuit court and the same is affirmed.

Judgment affirmed.

Spear, C. J., Shauck and Johnson, JJ., concur. Donahue, J., not participating.


author: Shauck, J.

text:
    Albright v. Boyd et al.

      Action in this state to recover judgment — Rendered in another state —Defendant in this state cannot challenge service in other states, when — Judgment on promissory note — Defendant cannot plead facts in original suit, when — Court procedure.

    1. In an action brought in this state to recover upon a judgment rendered in another state, the defendant having been there personally served with process and having there unavailingly challenged the jurisdiction of the court over his person upon the ground that he had been fraudulently decoyed into that state for the purpose of effecting personal service upon him, will not be permitted here to challenge the validity of such service.
    2. Such judgment having been recovered upon a promissory note, the defendant will not be permitted here to plead against the plaintiff rights arising out of his relations to other makers of such note and depending upon facts which were existent when the original suit was brought, whether such relations and facts were there pleaded or not.
    (No. 12682 —
    Decided October 31, 1911.)
    Error to the Circuit Court of Darke county.
    The defendants in error brought suit in the court of common pleas of Darke county to recover of Albright the amount of a judgment alleged to have been recovered by them against him and others in the circuit court of Hancock county, Indiana. In their, petition they alleged that said circuit court is a court of general jurisdiction created by the laws of Indiana; that said judgment was rendered after the issuance of summons in the action and the personal service thereof on Albright in the state of Indiana, and that the judgment remains unsuspended and wholly unpaid.
    In his answer Albright alleged that the judgment on which the plaintiffs counted had been recovered on a promissory note executed in Darke county by Albright & Son, Thomas IT. New and himself, he being surety merely, and he further alleged the circumstances, under which he claimed it was executed, to show that he was fraudulently induced to execute it as surety and to show that he had equitable rights against other parties to the note. He also alleged circumstantially that when suit was brought upon the note in Hancock county he was by false representations decoyed from his home in Darke county, Ohio, into Wayne county, Indiana, where the summons from the circuit court of Hancock county was personally served on him; that without pleading to the merits of said action and expressly disclaiming all intention of appearing therein he filed his motion therein to quash the summons and set aside the return thereof because he had been so decoyed into the state of Indiana for the purpose of effecting such personal service, but that the court after hearing said motion overruled the same and rendered the judgment upon which this action was founded.

      To this answer the plaintiffs interposed a general demurrer which was overruled in the court of common pleas. The plaintiffs then filed a reply admitting that when Albright signed the note he was a resident of Ohio and denying all other allegations of the answer. A trial was had and the jury returned a general verdict for the plaintiffs. With their general verdict they returned special findings supporting the allegations of the answer respecting the relations of the parties to the note, all being facts existing at the time of the bringing of the suit in Hancock county, Indiana. On these special findings the common pleas court rendered judgment in favor of Albright notwithstanding the general verdict. On petition in error the circuit court reversed the judgment of the court of common pleas for error in overruling the demurrer to the answer and rendered judgment on the general verdict in favor of the original plaintiffs.

      Mr. Kirk Hoffman and Mr. D. W. Bowman, for plaintiff in error.
    Was the action of the Indiana court overruling the motion of plaintiff in error to set aside service upon him in that state because decoyed therein through fraud, a bar to his right to plead the same by way of defense to an action brought against him on said judgment in Ohio, and that said Indiana court was without jurisdiction over his person?

      It may be' stated at the outset as settled, that no valid judgment in personam can be rendered against a defendant without personal service upon him in a court of competent jurisdiction, or waiver of summons and voluntary appearance therein. Clark v. Wells, 203 U. S., 170.
    In such case the court has no jurisdiction of his person, and its judgment against him would be void. Kingsborough v. Tousley, 56 Ohio St., 450; Ridgeway v. Bank, 11 Hump. (Tenn.), 524.
    It is the law of this state. Pilcher v. Graham, 18 C. C., 5. This is the general rule. Abercrombie v. Abercrombie, 64 Kans., 29; Van Horn Bros. v. Manufacturing Co., 37 Kans., 523; Dunlap & Co. v. Cody, 31 Ia., 260; Fitzgerald Const. Co. v. Fitzgerald, 137 U. S., 98; Frawley, Bundy & Wilcox v. Casualty Co., 124 Fed. Rep., 259; Duringer v. Moschino, 93 Ind., 495; Saveland v. Connors, 121 Wis., 28; Wanzer v. Bright, 52 Ill., 35; Freeman on Judgments (3 ed.), Sec. 566.
    Such defendant is not bound to appear and move to set aside the service, but can safely ignore the proceedings and stand on his rights and attack the judgment when it is sought to be enforced against him. Duringer v. Moschino, 93 Ind., 495; Frawley, Bundy & Wilcox v. Casualty Co., 124 Fed. Rep., 260; Pennywit v. Foote, 27 Ohio St., 600; Wood v. Wood, 78 Ky., 627; Thompson v. Whitman, 18 Wall., 457; Grover & Baker Mach. Co. v. Radcliffe, 137 U. S. 294.
    A judgment is only within the protection of this constitutional guarantee when the jurisdiction of the court over the person and subject-matter is conceded.

      The effect of Article IY, Section 1, of the Constitution of the United States, is to provide that as matter of evidence only, it shall be entitled to full faith and credit, (Claflin v. McDermott, 12 Fed. Rep., 375), and goes no farther than to preclude all inquiry into the merits of the subject-matter of the judgment when jurisdiction is conceded. M’Elmoyle v. Cohen, 13 Pet., 323.
    That this motion does not enter the appearance of the defendant is well settled. Smith v. Hoover, 39 Ohio St., 249; Elliott v. Lawhead, 43 Ohio St., 171; Long v. Newhouse, 57 Ohio St., 348; Handy v. Insurance Co., 37 Ohio St., 366; Fitzgerald Const. Co. v. Fitzgerald, 137 U. S., 98; Railroad Co. v. Combs, 13 Ind., 491; Greene v. Railroad Co., 62 Ohio St., 67; Oil Well Supply Co. v. Koen, 64 Ohio St., 431; Cooper v. Reynolds, 10 Wall., 318; Jones v. Jones, 108 N. Y., 415.
    It may be said that the action of the Indiana court overruling motion to set aside service of summons upon plaintiff in error because decoyed into that state for such service upon him is res adjudicata and conclusive upon the parties in this action upon the judgment. But, we answer, that there can be no res adjudicata, if that court was without jurisdiction of the person of the plaintiff in error. Greene v. Railroad Co., 62 Ohio St., 67; Hixson v. Ogg, 53 Ohio St., 361; Trustees v. Clannahan, 53 Ohio St., 403; Kelley v. Stanbery, 13 Ohio, 421; Snell v. Railway Co., 60 Ohio St., 272.
    In such cases, even where the court has acquired jurisdiction of the parties, ruling upon motions for interlocutory orders is not res adjudicata. In other words, as a general rule the doctrine of res adjudicata does not apply to interlocutory orders in the same case, and need not be adhered to. Bank v. Bank, 59 Kans., 357; Commissioners v. Sergeant, 24 Kans., 574; Watson v. Jackson, 24 Kans., 442; Castle v. Madison, 113 Wis., 346; Benz v. Hines, 3 Kans., 390; 3 Bates Pl. & Pr., 2633; Fanning v. Ins. Co., 37 Ohio St., 344; United States v. Bliss, 172 U. S., 321.

      Mr. W. A. Hough and Messrs'. Robeson & Yount, for defendants in error.
    The motion to strike out that part of the defendant’s answer relating to the service of summons upon him in the state of Indiana, was properly sustained.
    The matter of the service of the summons was the matter in dispute, had been fully adjudicated and determined, and in itself is res adjudicata in every respect. Therefore, it could not be again tried by another tribunal between the same parties. 1 Van Fleet’s Former Adjudications, 2; Capwell v. Sipe, 51 Fed. Rep., 667, 59 Fed. Rep., 970; Frawley, Bundy & Wilcox v. Casualty Co., 124 Fed. Rep., 260.
    A case exactly in point is that of Tootle v. McClellan, 12 L. R. A., N. S., 941. Attention is called to the journal entry recited in the opinion. Jaster v. Currie, 198 U. S., 144.
    The adjudication which is binding may be had as well upon a motion as upon any other pleading.
      Henderson v. Cabell, 83 Tex., 541; White v. Bank, 98 Cal., 166; 2 Van Fleet’s Former Adjudications, 740; Phelps v. Mutual, etc., Assn., 112 Fed. Rep., 453.
    The records and judicial proceedings of the courts of any state are, properly authenticated, entitled to have such faith and credit given to them in every court of the United States as they have by law or usage in the courts of the state from which they are taken. Art. 4, Sec. 1, U. S. Const.; U. S. Compiled Statutes, 1901, 677, Sec. 905; Railroad Co. v. Ferry Co., 119 U. S., 615; Old Wayne., etc., Assn. v. McDonough et al., 164 Ind., 321.
    What is insisted upon is this: That having litigated the question of the service in the Hancock circuit court, having submitted himself to the jurisdiction of the court upon that issue only, and having had a full hearing thereon upon his own and other affidavits setting out all the facts he now seeks again to set up, he is bound by the decision of the Hancock circuit court, upon this question which he himself submitted so long as such decision stands unappealed from, and not attacked in a direct proceeding for fraud upon the court. This decision made the service good, and Albright was in Hancock circuit court by virtue of the service itself.
   Shauck, J.

The record does not permit the proposition that the judgment of the circuit court of Hancock county was rendered against Albright without service of summons upon him. It distinctly appears that a summons was issued and a return of personal service thereof was made and this return was in accordance with the fact. Since the answer admits the personal service of summons in the action, the only proposition which the defendant in error can make in opposition to the jurisdiction of the court in Indiana is that in order to get opportunity for personal service his adversaries had decoyed him into that state by false representations and had thus abused the process of the court. The determination of that question was peculiarly for the court whose process was alleged to have been abused. He invoked its authority by a motion to quash the writ and set aside the return. Its decision was adverse to him and as he did not resort to a superior court of Indiana, or resorted unavailingly, for a reversal of its judgment he cannot be permitted to litigate that question again in this state. This conclusion is well sustained by the cases cited in the briefs and with respect to it the courts below appear to have been in accord.

But the judge of the court of common pleas was of the opinion that although in the circumstances appearing the defendant could not be permitted to again contest the jurisdiction of the Indiana court over his person the demurrer to his answer should be overruled to the end that he might assert in the courts of this state rights which he alleged against other parties to the note on which suit was brought in the court of Indiana, although they are not parties here. What rights he thought it permissible to assert here appear from the special findings of the jury in consideration of which he rendered judgment in favor of the defendant notwithstanding the general verdict against him. Respecting the special findings it is to be observed that they all relate to rights of Albright against persons who were parties to the suit in Indiana although not parties here; that they are rights arising out of the relations of parties to the note which was the foundation of the suit in the circuit court of Indiana, and that they concern facts which were existent when the suit was brought and passed to judgment in that state. Discriminating attention to these suggestions will readily exclude from controlling consideration here most of the legal propositions which are urged and the cases which are cited by counsel for the plaintiff in error. In view of the numerous decisions of the state and federal courts upon the subject of res adjudicata and the credit which the federal constitution requires to be given to the judgments of other states, original discussion of the subject is not needed and perhaps would not be interesting. In Goodrich v. Jenkins, 6 Ohio, 43, in accordance with both earlier and' later decisions of this court, it was said as the basis of decision: “The rule is inflexible in this country. In an action upon the transcript of a judgment, in a sister state, nothing can be pleaded or proved, that could have been pleaded and proved in the original action, whether it was so pleaded and proved or not.”

The common pleas court erred in overruling the demurrer to the answer and in rendering judgment in favor of the original defendant notwithstanding the verdict against him, and the circuit court properly rendered judgment on the general verdict.

Judgment affirmed.

Spear, C. J., Davis, Price, Johnson and Donapiue, JJ., concur.