text:
    No. 12281.
    The Susquehanna Coal Co. et al. v. Reed et al.
    Decided December 20, 1910.
    Error to Circuit Court of Putnam county.

      Mr. E. R. Eastman, for plaintiffs in error.

      Messrs. Watts & Moore, for defendants in error.
   Judgment affirmed.

Summers, C. J., Crew, Davis, Shauck and Price, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    No. 12282,
    Compton v. The Advocate Printing Co.
    Decided December 20, 1910.
    Error to Circuit Court of Licking county.

      Mr. S. L. James, for plaintiff in error.

      Mr. J. R. Fitzgibbon, for defendant in error.
   Judgment affirmed.

Summers, C. J., Shauck and Price, JJ., concur.


text:
    No. 12789.
    The City of Cleveland, by Baker, City Solicitor; v. The City of Cleveland et al.
    Decided December 20, 1910.
    Error to Circuit Court of Cuyahoga county.

      Mr. Newton D. Baker, city solicitor, for plaintiff in error.

      Messrs. Squire, Sanders & Dempsey and Mr. Wilbur D. Wilkin, for defendants in error.
   Judgment affirmed.

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


text:
    No. 11493.
    The Cleveland, Cincinnati, Chicago & St. Louis Ry. Co. et al. v. Sig. & Sol. H. Freiberg, a Partnership.
    Decided December 21, 1910.
    Error to Circuit Court of Hamilton county.

      Messrs. Harmon, Colston, Goldsmith & Hoadly and Mr. John H. Clarke, for plaintiffs in error.

      Messrs. Cobb, Howard & Bailey, for defendant in error.
   Judgment affirmed.

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


text:
    No 12287.
    Evans v. Evans et al.
    Decided December 21, 1910.
    Error to Circuit Court of Licking county.

      Mr. S. L. James, for plaintiff in error.

      Messrs. Kibler & Montgomery, for defendants in error.
   Judgment affirmed.

Summers, C. J., Crew, Davis, Shauck and Price, JJ., concur.


text:
    No. 12291.
    The Citizens Savings & Trust Co. v. Grossner.
    Decided December 21, 1910.
    Error to Circuit Court of Cuyahoga county.

      Mr. M. P. Mooney and Messrs. M. B.. & H. PL. Johnson, for plaintiff in error.

      Mr. Herman Preusser, for defendant in error.
   Judgment affirmed.

Summers, C. J., Crew and Davis, JJ., concur.


text:
    No. 12301.
    Holmden et al. v. Craig.
    Decided December 21, 1910.
    Error to Circuit Court of Cuyahoga county.

      Mr. H. Hughes Johnson, for plaintiffs in error.

      Messrs. Smith, Taft & Arter and Mr. E. B. Southwick, for defendant in error.
   Judgment affirmed.

Summers, C. J., Crew, Spear and Price, JJ., concur.


text:
    No. 12304.
    Henning, Trustee, v. Smila.
    Decided December 21, 1910.
    Error to Circuit Court of Wood county.

      Mr. Earl D. Bloom, for plaintiff in error.

      Mr. N. R. Harrington, for defendant in error.
   Judgment affirmed.

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


text:
    No. 12305.
    The Bloomer Brothers Co. v. Hinton.
    Decided December 21, 1910.
    Error to Circuit Court of Auglaize county.

      Mr. Anthony

      Culliton, for plaintiff in error.

      Messrs. Goeke & Anderson and Messrs. Mooney & Hirsch, for defendant in error.
   Judgment affirmed.

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


text:
    No. 11189.
    Dreher v. The W. M. Pattison Supply Co. et al.
    Decided December 22, 1910.
    Error to Circuit Court of Cuyahoga county.

      Mr. Frank Higley, for plaintiff in error.

      Messrs. Smith, Taft & Arter, for defendants in error.
   Judgment affirmed.

Crew, Davis and Shauck, JJ., concur.


text:
    No. 11630.
    Loveland et al., Partners as the Equitable Manufacturing Co., v. Marquart Brothers.
    Decided December 22, 1910.
    Error to Circuit Court of Crawford county.

      Mr. A. S. Leuthold and Messrs. Finley & Gallinger, for plaintiffs in error.

      Mr. P. W. Poole and Mr. R. V. Sears, for defendants in error.
   Judgment affirmed.

Crew, Spear and Shauck, JJ., concur.


text:
    No. 11631.
    The State, ex rel. Clark, Prosecuting Attorney, v. Key et al.
    Decided December 22, 1910.
    Error to Circuit Court of Marion county.

      Mr. John H. Clark and Mr. U. G. Denman, for plaintiff in error.

      Messrs. Jacoby & Donithen, for defendants in error.
   Judgment affirmed.

Crew, Spear, Shauck and Price, JJ., concur. .


text:
    No. 11794.
    Brenner, Justice of the Peace, v. The State, ex rel. Christman.
    Decided December 22, 1910.
    Error to Circuit Court of Cuyahoga county.

      Mr. Hermann Preusser, for plaintiff in error.

      Mr. M. P. Mooney, for defendant in error.
   On rehearing. Judgment reversed and petition dismissed. Grounds stated in journal entry.

This cause came on for rehearing, was argued by counsel and submitted to the court. On consideration whereof, it is ordered and adjudged by this court that the judgment of affirmance heretofore entered herein be and the same is hereby vacated and set aside. . And it is now, upon rehearing, ordered and adjudged by this court that the judgment of the circuit court be and the same hereby is reversed, for the reasons that it does not affirmatively appear by the petition for mandamus filed by relator Anton Christman in this case, that relator ever tendered to Charles Brenner, as Justice of the Peace, a sufficient statutory undertaking for appeal, as required by Section 6584, Revised Statutes, and hence said petition does not state facts sufficient to entitle relator to the relief asked, and for the further reason that it not being made to appear in this case that any sufficient undertaking for appeal was tendered to Charles Brenner, Justice of the Peace, within ten days from the time of the rendition of the judgment in the justice’s court, as required by law, the circuit court, in this case, was without authority by a mmc pro tunc entry to compel the justice by mandamus to accept and certify an undertaking for appeal after the expiration of the time within which such undertaking was required by law to be given. And this court proceeding to render the judgment which the circuit court should have rendered, it is considered and adjudged that the petition for mandamus filed by the relator Anton Christman be and the same hereby is dismissed.

Summers, C. J., Crew, Davis, Shauck and Price, JJ., concur.


text:
    No. 12075.
    Brenner, Justice of the Peace, v. The State, ex rel. Bauer.
    Decided December 22, 1910.
    Error to Circuit Court of Cuyahoga county.

      Mr. Hermann Preusser, for plaintiff in error.

      Mr. M. P. Mooney, for defendant in error.
   Judgment affirmed.

Crew, Spear, Shauck and Price, JJ., concur.


text:
    No. 12306.
    Gilbert v. Gilbert.
    Decided December 22, 1910.
    Error to Circuit Court of Hamilton county.

      Mr. M. C. Lykins, for plaintiff in error.

      Messrs. Cogan & Williams, for defendant in error.
   Judgment affirmed.

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


text:
    No. 12309.
    McClure et al. v. Beach et al., Partners.
    Decided December 22, 1910.
    Error to Circuit Court of Putnam county.

      Messrs. Risser & Smith and Mr. C. W. Fawcett, for plaintiffs in error.

      Messrs. Bailey & Leasure, for defendants in error.
   Judgment affirmed.

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


text:
    No. 12317.
    Winans v. Darst.
    Decided December 22, 1910.
    Error to Circuit Court of Montgomery county.

      Mr. Calvin D. Wright, for plaintiff in error.

      Messrs. McMahon & McMahon; Mr. Lee Markey and Mr. R. G. Corwin, for defendant in error.
   Judgment affirmed.

Spear, Davis and Price, JJ., concur.


text:
    No. 12816.
    The City of Cincinnati v. Schwab, Mayor, et al.
    Decided December 22, 1910.
    Error to Circuit Court of Hamilton county.

      Mr. Edward M. Ballard, city solicitor; Mr. Geoffrey Goldsmith, assistant city solicitor, and Mr. C. B. Matthews, for plaintiff in error.

      Mr. Walter M. Schoenle and Mr. Constant Southworth, assistant city solicitors, for defendants in error.
   Judgment affirmed.

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


text:
    No. 11640.
    The Wilkoff Brothers Co., a Partnersphip, et al. v. Schonthal.
    Decided January 10, 1911.
    Error to Circuit Court of Franklin county.

      Messrs. Carpenter & Voorhees and Messrs. Arrel, Wilson & Harrington, for plaintiffs in error.

      Messrs. Huggins, Huggins & Johnson, for defendant in error.
   Judgment

affirmed.

Davis, Price and Johnson, JJ., concur.


text:
    No. 11643.
    Standard Fire Extinguisher Co. v. Royal Insurance Co. of Liverpool.

      Decided January 10, 1911.
    Error to Circuit Court of Richland county.

      Messrs. Jenner & Weldon, for plaintiff in error.

      Mr. W. S. Kerr; Mr. Charles B. Obermeyer and Mr. Thomas B. Paxton, for defendant in error.
   Judgment affirmed.

Davis, Price and Johnson, JJ., concur.


text:
    No. 12372.
    Emery v. The Hocking Valley Ry. Co.
    Decided January 10, 1911.
    Error to Circuit Court of Lucas county.

      Messrs. Southard & Zabel, for plaintiff in error.

      Messrs. Wilson & West and Messrs. King, Tracy, Chapman & Welles, for defendant in error.
   Judgment affirmed on authority of The Pennsylvania Co. v. Files, 65 Ohio St., 403.

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


text:
    No. 12387.
    The City of Portsmouth v. The City of Portsmouth et al.
    Decided January 10, 1911.
    Error to the Circuit Court of Scioto county.

      Mr. PL or ace L. Small, for plaintiff in error.

      Messrs. Bannon & Bannon, for defendants in error.
   Judgment affirmed.

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


text:
    No. 12448.
    Platt et al. v. Biddle, Treasurer, et al.
    Decided January 10, 1911.
    Error to Circuit Court of Lucas county.

      Mr. L. W. Lane, for plaintiffs in error.

      Mr. Clarence B. Hadden, for defendants in error.
   Judgment affirmed.

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


text:
    No. 11384.
    The Portsmouth Street Railroad & Light Co. v. Davis.
    Decided January 17, 1911.
    Error to Circuit Court of Scioto county.

      Messrs. Milner, Miller & Searl, for plaintiff in error.

      Mr. James S. Thomas and Mr. Theodore K. Funk, for defendant in error.
   Judgment affirmed.

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


text:
    No. 11411.
    Spears v. Norfolk & Western Railway Co.
    Decided January 17, 1911.
    Error to Circuit Court of Lawrence county.

      Mr. J. O. Yates and Mr. T. A. Jenkins, for plaintiff in error.

      Mr. Theodore W. Reath and Messrs. Bannon & Bannon, for defendant in error.
   Judgment affirmed.

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


text:
    No. 11961.
    The Village of Delhi v. Storey et al., Partners as A. Storey & Bros.
    Decided January 17, 1911.
    Error to Circuit Court of Hamilton county.

      Mr. J. L. Logan and Mr. F. M. Coppock, for plaintiff in error.

      Mr. John R. Holmes and Mr. John V. Campbell, for defendants in error.
   Judgment reversed and judgment for plaintiff in error.

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


text:
    No. 12200.
    Foster et al. v. Crater et al. Exrs., et al.
    Decided January 17, 1911.
    Error to Circuit Court of Coshocton county.

      Mr. C. B. Hunt; Mr. F. E. Pomerene; Messrs. Glenn & Reasoner and Messrs. Taylor & Stewart, for plaintiffs in error.

      Messrs. Rosemond & Bell; Mr. T. A. Bonnell and Mr. E. E. Lindsay, for defendants in error.
   Judgment affirmed.

Davis, Price and Johnson, JJ., concur.


text:
    No. 12208.
    The Canton Light, Heat & Power Co. v. Plenderson, Admx.
    Decided January 17, 1911.
    Error to Circuit Court of Stark county.

      Messrs. Day & Amerman; Mr. W. L. Day and Messrs. Seaton & Paine, for plaintiff in error.

      Messrs. Rice & Souers and Messrs. Shields & Pomerene, for defendant in error.
   Judgment affirmed.

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


text:
    No. 12290.
    Hayes v. The State of Ohio.
    Decided January 17, 1911.
    Error to Circuit Court of Cuyahoga county.

      Mr. J. P. Dawley; Mr. John J. Sullivan and Mr. A. A. Stearns, for plaintiff in error.

      Mr. John A. Cline, prosecuting attorney, and Mr. W. D. Meals, assistant prosecuting attorney, for defendant in error.
   Judgment affirmed.

Price, Johnson and Donahue, JJ., concur.


text:
    No. 12341.
    Frankenberg et al. v. Bowden.
    Decided January 17, 1911.
    Error to Circuit Court of Franklin county.

      Messrs. Arnold, Morton & Irvine and Mr. F. H. Game, for plaintiffs in error.

      Mr. Charles F. Pryor and Mr. W. H. Jones, for defendant in error.
   Judgment affirmed.

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


text:
    No. 12432.
    Brown v. The City of Toledo.
    Decided January 17, 1911.
    Error to Circuit Court of Lucas county.

      Messrs. Friedman, Taylor & Foster, for plaintiff in error:

      Mr. Cornell Schreiber, city solicitor, and Mr. Alonzo G. Duer, for defendant in error.
   Judgment affirmed.

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


text:
    No. 12495.
    Hilbrant v. The State of Ohio.
    Decided January 17, 1911.
    Error to Circuit Court of Licking county.

      Messrs. Fulton & Fulton and Messrs. Kibler & Montgomery, for plaintiff in error.

      Mr. Phil B. Smythe, prosecuting attorney, for defendant in error.
   Judgment affirmed.

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


text:
    No. 12556.
    Reiser, Jr., Treasurer, et al. v. Shelley.
    Decided January 17, 1911.
    Error to Circuit Court of Henry county.

      Messrs. Cahill & Mulcahy, for plaintiffs in error.

      Mr. W. P. Duffy and Mr. Lawrence F. Conway, for defendant in. error.
   Judgment affirmed.

Davis, Price and Johnson, JJ., concur.


text:
    No. 12790.
    Spencer, Treasurer, et al. v. Alexander et al.
    Decided January 17, 1911.
    Error to Circuit Court of Cuyahoga county.

      Mr. Newton D. Baker, city solicitor, and Messrs. Wilcox, Wilkin, Stevens & Hostetler, for plaintiffs in error.

      Messrs. Ford, Snyder & Tilden, for defendants in error.
   Judgment affirmed.

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


text:
    No. 12791.
    Spencer, Treasurer, et al. v. The Avery Stamping Co. et al.
    Decided January 17, 1911.
    Error to Circuit Court of Cuyahoga county.

      Mr. Newton D. Baker, city solicitor, and Messrs. Wilcox, Wilkin, Stevens & Flostetler, for plaintiffs in error.

      Messrs. Ford, Snyder & Tilden, for defendants in error.
   Judgment affirmed.

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


text:
    No. 12972.
    Nunn, Treasurer, et al. v. Bates et al.
    Decided January 17, 1911.
    Error to Circuit Court of Cuyahoga county.

      Mr. Newton D. Baker, city solicitor, and Messrs. Wilcox, Wilkin, Stevens & Hostetler, for plaintiffs in error.

      Messrs. Ford, Snyder & Tilden, for defendants in error.
   Judgment affirmed.

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


text:
    No. 11373.
    Johnson, by etc., v. The American Sheet & Tin Plate Co.
    Decided January 24, 1911.
    Error to Circuit Court of Trumbull county.

      Mr. Edmond H. Moore and Mr. Gordon Cook, for plaintiff in error.

      Messrs. Seaton & Paine and Mr. T. H. Gillmer, for defendant in error.
   Judgment affirmed.

Davis, Shauck and Price, JJ., concur. Donahue, J., dissents.


text:
    No. 11508.
    Bellstedt et al. v. The Western Union Telegraph Co.
    Decided January 24, 1911.
    Error to Superior Court of Cincinnati.

      Messrs. Jones & James, for plaintiffs in error.

      Mr. Louis A. Ireton; Mr. Walter M. Schoenle and Mr. Wade Cushing, for defendant in error.
   Judgment affirmed.

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


text:
    No. 11703.
    Harter v. Dettmer, by etc.
    Decided January 24, 1911.
    Error to Circuit Court of Stark county.

      Messrs. Lynch & Day, for plaintiff in error.

      Mr. Milton J. Braucher, for defendant in error.
   Judgment affirmed.

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


text:
    No. 11778.
    Stone et al. v. The Buckeye Supply Co.
    Decided January 24, 1911.
    Error to Circuit Court of Noble county.

      Mr. Rufus A. Underwood, for plaintiffs in error.

      Mr. David H. Thomas, for defendant in error.
   Judgment affirmed.

Davis, Price and Donahue, JJ., concur.


text:
    No. 12307.
    Hock et al. v. Royce, Admr., et al.
    Decided January 24, 1911.
    Error to Circuit Court of Wood county.

      Mr. George W. Fries; Mr. Benjamin F. James and Mr. J. E. Kelly, for plaintiffs in error.

      Mr. T. P. Riegle and Mr. N. R. Harrington, for defendants in error.
   Judgment affirmed.

Davis, Price and Donahue, JJ., concur.


text:
    No. 12319.
    The Village of McConnelsville v. Murphy.
    Decided January 24, 1911.
    Error to Circuit Court of Morgan county.

      Mr. Charles H. Fonts and Mr. G. O. McGonagle, for plaintiff in error.

      Mr. M. E. Danford, for defendant in error.
   Judgment affirmed.

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


text:
    No. 12323.
    Crawford v. Price et al.
    Decided January 24, 1911.
    Error to Circuit Court of Jefferson county.

      Messrs. Mansfield & Merryman, for plaintiff in error.

      Messrs. Erskine & Smith, for defendants in error.
   Judgment affirmed.

Davis, Shauck, Price, Johnson and Donahue, JJ., concur.


text:
    No. 12330.
    The Tiffin, Fostoria & Eastern Railway Co. v. Woerz.
    Decided January 24, 1911.
    Error to Circuit Court of Seneca county.

      Messrs. Dore & Dore, for plaintiff in error.

      Messrs. Noble, Keppel & Noble; Mr. W. K.

      Keppel and Messrs. Platt & Black, for defendant in error.
   Judgment affirmed.

Davis, Shauck, Price, Johnson and Donahue, JJ., concur.


text:
    No. 12428.
    Seiders et al., Board of Education, et al. v. The City of Toledo.
    Decided January 24, 1911.
    Error to Circuit Court of Lucas county.

      Mr. Lloyd T. Williams and Mr. Charles A. Seiders, for plaintiffs in error.

      Mr. Orion W. Nelson and Mr. Cornell Schreiber, for defendant in error.
   Judgment modified as per journal entry herein, and, as modified, affirmed.

It is ordered and adjudged that the judgment of said circuit court be and the same is hereby modified in this, to-wit, that the possession .of the plaintiffs in error of the premises described in the petition is continued to and until the first day of July, A. D. 1911. In all other respects the judgment of the circuit court of Lucas county is affirmed.

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


text:
    No. 12624.
    The State, ex rel. Hunt, Prosecuting Attorney, v. Lewis.
    Decided January 24, 1911.
    Error to Circuit Court of Hamilton county.

      Mr. Henry T. Hunt, prosecuting attorney, and Mr. Alfred Bettman and Mr. Stanley W. Merrell, assistant prosecuting attorneys, for plaintiff in error.

      Mr. Alfred B. Benedict, for defendant in error.
   Judgment affirmed.

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


text:
    No. 12733.
    The State, ex rel. Toothaker, v. Gibson et al., Commissioners of Fraklin County, et al.
    Decided January 24, 1911.
    In Mandamus.

      Mr. Smith W. Bennett, for relator.

      Messrs. Webber, McCoy, King & Game, for respondent.
   Demurrer to petition sustained and petition dismissed without prejudice to the right of the relator to present to this court a motion in the matter of exceptions, in the case of The State v. Rhoads, being No. 12113 of the January term, A. D. 1910, of this court, for allowance of relator’s bill as costs in said proceeding.

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


text:
    No. 11436.
    Hamilton, Admx., v. The Lake Shore & Michigan Southern Railway Co.
    Decided January 31, 1911.
    Error to Circuit Court of Lorain county.

      Mr. F. M. Stevens; Mr. E. J. Pinney and Mr. C. W. Dille, for plaintiff in error.

      Messrs. E. G., H. C. & T. C. Johnson and Mr. N. D. Doughman, for defendant in error.
   Judgment affirmed.

Davis, Shauck, Price, Johnson and Donahue, JJ., concur.


text:
    No. 11531.
    Kroeger v. The Cincinnati Traction Co.
    Decided January 31, 1911.
    Error to Circuit Court of Hamilton county.

      Mr. James R. Jordan; Mr. Goeifry Goldsmith and Mr. W. A. Hicks, for plaintiff in error.

      Messrs. Kittredge, Wilby & Stimson, for defendant in error.
   Judgmerit affirmed.

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


text:
    No. 12170.
    Gregg, Admr., v. The Toledo, Fostoria & Findlay Railway Co.
    Decided January 31, 1911.
    Error to Circuit Court of Wood county.

      Mr. William B. Gregg and Mr. Benjamin F. James, for plaintiff in error.

      Mr. G. W. Ross and Mr. Jesse Stephens, for defendant in error.
   Judgment affirmed.

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


text:
    No. 12223.
    Heinbuch v. The Massillon Coal Mining Co.
    Decided January 31, 1911.
    Error to Circuit Court of Stark county.

      Messrs. Shields & Pomerene and Messrs. Rice & Souers, for plaintiff in error.

      Messrs. Welty & Albaugh, for defendant in error.
   Judgment of the circuit court reversed and that of the common pleas affirmed.

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


text:
    No. 12337.
    Cummer v. Cummer.
    Decided January 31, 1911.
    Error to Circuit Court of Cuyahoga county.

      Messrs. M. B. & H. FI. Johnson and Mr. T. H. Hogsett, for plaintiff in error.

      Messrs. Hoyt, Dustin, Kelley, McKeehan & Andrews and Mr. E. J. Blandin, for defendant in error.
   Judgment of the circuit court reversed and that of the common pleas affirmed.

Davis, Shauck, Johnson and Donahue, JJ., concur.


text:
    No. 12338.
    The Bucyrus Hay & Grain Co. v. Sponseller, Exr., et al.
    Decided January 31, 1911.
    Error to Circuit Court of Crawford county.

      Mr. R. V. Sears and Messrs. Leuthold, McCarron & Leuthold, for plaintiff in error.

      Mr. L. C. Feighner and Mr. Anson Wickham, for defendants in error.
   Judgment of the circuit court reversed and that of the common pleas affirmed.

Davis, Shauck. Price, Johnson and Donahue, JJ., concur.


text:
    No. 12345.
    The Clear Fork Oil Co. v. Thompson.
    Decided January 31, 1911.
    Error to Circuit Court of Harrison county.

      Messrs. Hollingsworth & Worley and Mr. Albert O. Barnes, for plaintiff in error.

      Mr. R. FI. Minteer, for defendant in error.
   Judgment affirmed. Grounds stated in journal entry.

It appearing that the ground of reversal by the circuit court of the judgment of the court of common pleas is not specifically stated in the journal entry, the same being a general finding of error in the record, and it - further appearing that one of the grounds of the petition in error in the circuit court was that the court of common pleas erred in overruling the motion of plaintiff in error for a new trial, and it further appearing that one of the grounds for new trial urged by the plaintiff in the court of common pleas was that the verdict is against the weight and contrary to the evidence, the said judgment of the circuit court in so reversing the judgment of the common pleas is affirmed for the reason only that the ground above stated is necessarily included in said judgment of reversal of the circuit court.

Shauck, Johnson and Donahue, JJ., concur.


text:
    No. 12350.
    Babb v. Ten Eick et al.
    Decided January 31, 1911.
    Error to Circuit Court of Miami county.

      Mr. William H. Gilbert, for plaintiff in error.

      Messrs. E. H. & R. A. Kerr and Messrs. Kerr & Kerr, for defendants in error.
   Judgment affirmed.

Davis, Shauck and Price, JJ., concur.


text:
    No. 12365.
    Strauss v. Strauss.
    Decided January 31, 1911.
    Error to Circuit Court of Cuyahoga county.

      Mr. John C. Hutchins, for plaintiff in error.

      Messrs. Kerruish & Kerruish, for defendant in error.
   Judgment affirmed.

Davis, Shauck, Price and Johnson, JJ., concur.


text:
    No. 12373.

    Shafer v. Joy et al.
    Decided January 31, 1911.
    Error to Circuit Court of Hancock county.

      Mr. E. V. Bope, for plaintiff in error.

      Mr. G. W. Ross, for defendants in error.
   Judgment affirmed.

Davis, Shauck and Johnson, JJ., concur.


text:
    No. 12376.
    Weaver et al., Partners as Bucyrus Cycle & Automobile Co. v. The Oil Well Salvage Co.
    Decided January 31, 1911.
    Error to Circuit Court of Crawford county.

      Messrs. Finley & Gallinger, for plaintiffs in error.

      Mr. W. C. Beer and Mr. Edward Beverstock, for defendant in error.
   Judgment affirmed.

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


text:
    No. 12471.
    The Cincinnati Traction Co. v. Dorenkemper, Admx.
    Decided January 31, 1911.
    Error to Circuit Court of Hamilton county.

      Messrs. Kittredge, Wilby & Stimson, for plaintiff in error.

      Messrs. Horstman & Horstman, for defendant in error.
   Judgment affirmed.

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


text:
    No. 11503.
    McCulloch v. Heffner et al.
    Decided February 7, 1911.
    Error to Circuit Court of Sandusky county.

      Messrs. Love & Culbert, for plaintiff in error.

      Messrs. Wilson, Hunt & Garn, for defendants in error.
   Judgment affirmed.

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


text:
    No. 11535.
    Hicks v. Terhune et al.
    Decided February 7, 1911.
    Error to Circuit Court of Cuyahoga county.

      Mr. T. H. Johnson and Mr. William Howell, for plaintiff in error.

      Messrs.

      Bentley, McCrystal & Arnos and Mr. J. P. Dazvley, for defendants in error.
   Judgment affirmed.

Davis, Price, Johnson, JJ., concur.


text:
    No. 11548.
    The Toledo Railways & Light Co. v. Eichelman.
    Decided February 7, 1911.
    Error to Circuit Court of Lucas county.

      Messrs. Smith & Baker, for plaintiff in error.

      Mr. Wm. K. Terry, for defendant in error.
   Judgment affirmed.

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


text:
    No. 11551.
    The Standard Tool Co. v. Lee.
    Decided February 7, 1911.
    Error to Circuit Court of Cuyahoga county.

      Messrs. Hoyt, Dustin, Kelley, McKeehan & Andrews and Mr. W. B. Stewart, for plaintiff in error.

      Messrs. McGrath & Stern, for defendant in error.
   Judgment affirmed.

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


text:
    No. 11553.
    The Cincinnati, Hamilton & Dayton Ry. Co. v. Tangeman.
    Decided February 7, 1911:
    Error to Circuit Court of Hamilton county.

      Messrs. Harmon, Colston, Goldsmith & Hoadly, for plaintiff in error.

      Mr. Frank H. Kunkel and Mr. Thomas L. Michie, for defendant in error.
   Judgment affirmed.

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


text:
    No. 11652.
    Glenn, Admr., v. The Union Central Life Insurance Co.
    Decided February 7, 1911.
    Error to Circuit Court of Knox county.

      Mr. J. B. Waight; Mr. H. C. Devin and Mr. W. L. Robinson, for plaintiff in error.

      Mr. P. V. Owen and Messrs. Maxwell & Ramsey, for defendant in error.
   Judgment affirmed.

Davis, Price and Johnson, JJ., concur.


text:
    No. 11663.
    The State, ex rel. Leonard, v. The Village of Richwood et al.
    Decided February 7, 1911.
    Error to Circuit Court of Union county.

      Messrs. Hoopes & Robinson, for plaintiff in error.

      Mr. Kent W. Hughes, for defendants in error.
   Judgment affirmed on authority of The State, ex rel., v. Board of Public Service of Columbus, 81 Ohio St., 218.

Davis, Price and Donahue, JJ., concur.


text:
    No. 11714.
    The City of Bellefontaine v. Bramble.
    Decided February 7, 1911.
    Error to Circuit Court of Logan county.

      Mr. Edward K. Campbell and Messrs. West & West, for plaintiff in error.

      Messrs. Howenstine & Huston, for defendant in error.
   Judgment affirmed.

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


text:
    No. 11732.
    Meck v. Preston et al.
    Decided February 7, 1911.
    Error to Circuit Court of Wyandot county.

      Messrs. Meck & Stalter, for plaintiff in error.

      Messrs. Carter & Goodrich and Mr. J. J. Moore, for defendants in error.
   Judgment affirmed.

Davis, Shauck, Price and Johnson, JJ., concur.


text:
    No. 11733.
    Goodman v. The Buster Brown Co.
    Decided February 7, 1911.
    Error to Circuit Court of Wyandot county.

      Messrs. Meek & St alter, for plaintiff in error.

      Messrs. Newell & Bowers, for defendant in error.
   Judgment affirmed.

Davis, Shauck, Price and Johnson, JJ., concur.


text:
    No. 12320.
    Cummings v. The May Company.
    Decided February 7, 1911.
    Error to Circuit Court of Cuyahoga county.

      Mr. L. F. McGrath and Mr. Joseph L. Stern, for plaintiff in error.

      Messrs. Hoyt, Dustin, Kelley, McKeehan & Andrews, for defendant in error.
   Judgment reversed as to final judgment. Otherwise affirmed. 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 rendering judgment “that the plaintiff in error go hence without day.” Said judgment reversing the judgment of the court of common pleas for error in overruling the motion for a new trial because the verdict of the jury was, by said circuit court, held to be against the weight of the evidence, is affirmed. And this cause is remanded to the court of common pleas of Cuyahoga county for further proceedings according to law.

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


text:
    No. 12371.
    The Springfield Railway Co. v. Baker.
    Decided February 7, 1911.
    Error to Circuit Court of Clark county.

      Messrs. Martin & Martin, for plaintiff in error.

      Mr. M. T. Burnham, for defendant in error.
   Judgment affirmed.

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


text:
    No. 12377.
    Scott v. Youngblood.
    Decided February 7, 1911.
    Error to Circuit Court of Crawford county.

      Messrs. Finley & Gallinger, for plaintiff in error.

      Mr. P. W. Poole and Mr. L. C. Barker, for defendant in error.
   Judgment affirmed.

Davis, Shauck, Price and Johnson, JJ., concur.


text:
    No. 12381.
    State, ex rel. Wilkins, Prosecuting Attorney, v. Kinsey et al., Commissioners, et al.
    Decided February 7, 1911.
    Error to Circuit Court of Tuscarawas county

      Mr. J. F. Greene and Mr. E. M. Bailey, for plaintiff in error.

      Messrs. Mitchell & Mitchell; Mr. Robert J. King and Messrs. McCarty & Pontius, for defendants in error.
   Judgment affirmed.

Davis, Shauck, Price and Johnson, JJ., concur. Donahue, J., not participating.


text:
    No. 12388.
    Maddox, Assignee, et al. v. International Harvester Co.
    Decided February 7, 1911.
    Error to Circuit Court of Fayette county.

      Mr. Thomas A. Maddox and Messrs. Rogers & Dempsey, for plaintiffs in error.

      Mr. Frank A. Chaffin, for defendant in error.
   Judgment affirmed.

Davis, Shauck and Johnson, JJ., concur.


text:
    No. 12415.
    Fuller et al. v. The Board of Commissioners of Sandusky County et al.
    Decided February 7, 1911.
    Error to Circuit Court of Sandusky county.

      Mr. J. D. Finch; Mr. T. P. Dewey and Mr. D. A. Heffner, for plaintiffs in error.

      Messrs. Kinney, O’Farrell & Rimelspach and Mr. E. C. Sayles, for defendants in error.
   Petition in error dismissed. Grounds stated in journal entry.

It is ordered and adjudged by this court that the petition in error herein should be and it is hereby dismissed on the ground that the judgment of the circuit court is not a final judgment and the error proceeding herein was therefore prematurely brought.

Davis, Shauck, Price, Johnson and Donahue, JJ., concur.


text:
    No. 12419.
    Lewandowski v. The Cleveland Steel Casting Co.
    Decided February 7, 1911.
    Error to Circuit Court of Cuyahoga county.

      Mr. Walter C. Ong, for plaintiff in error.

      Messrs. Kline, Tolies & Morley, for defendant in error. Judgment affirmed.
    Davis, Shauck, Johnson and Donahue, JJ., concur.


text:
    No. 11557.
    Madden (Bell) v. Madden et al.
    Decided February 14, 1911.
    Error to Circuit Court of Hamilton county.

      Mr. Charles W. Baker and Mr. Thorne Baker, for plaintiff in error.

      Messrs. Workum & Bowdle; Mr. William Lindsay; Mr. Charles B. Wilby and Mr. W. S. Little, for defendants in error.
   Judgment affirmed.

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


text:
    .No. 11558.
    Madden (Bell) v. Madden.
    Decided February 14, 1911.
    Error to Circuit Court of Hamilton county.

      Mr. Charles W. Baker and Mr. Thorne Baker, for plaintiff in error.

      Messrs. Workum & Bowdle; Mr. William Lindsay and Mr. Charles B. Wilby, for defendant in error.
   Judgment affirmed.

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


text:
    No. 11581.
    Busch v. Mueller.
    Decided February 14, 1911.
    Error to Circuit Court of Hamilton county.

      Messrs. Smith & Hawke and Mr. A. C. Ross, for plaintiff in error.

      Mr. Thorne Baker and Mr. Charles W. Baker, for defendant in error.
   Judgment affirmed.

Davis, Shauck, Price, Johnson and Donahue, JJ., concur.


text:
    No. 11591.
    McGill et al. v. The Cincinnati Annual Conference of the M. E. Church et al.
    Decided February 14, 1911.
    Error to Circuit Court of Greene county.

      Mr. W. F. Orr and Mr. Charles E. Ballard, for plaintiffs in error.

      Mr. C. L. Spencer, for defendant in error.
   Judgment affirmed.

Davis, Shauck, Price, Johnson and Donahue, JJ., concur.


text:
    No. 11654.
    The Security Mutual Life Insurance Co. v. The J. M. Schott & Sons Co. et al.
    Decided February 14, 1911.
    Error to Circuit Court of Llamilton county.

      Messrs. Herron, Gatch & James, for plaintiff in error.

      Mr. John J. Gasser; Messrs. Renner & Renner and Mr. Charles B. Smith, for defendants in error.
   Judgment affirmed.

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


text:
    No. 11660.
    Cole v. Brown et al., Partners as Eagle Storage & Moving Co.
    Decided February 14, 1911.
    Error to Circuit Court, of Cuyahoga county.

      Mr. Walter C. Ong and Mr. D: M. Bader, for plaintiff in error.

      Mr. J. J. McCormick, for defendants in error.
   Judgment affirmed.

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


text:
    No. 11684.
    Merritt et al. v. Cable.
    Decided February 14, 1911.
    Error to Circuit Court of Athens county.

      Messrs. Lewis & Sayre, for plaintiffs in error.

      Messrs. Kinkead, Rogers & Ellis and Messrs. Grosvenor, Jones & Worsted, for defendant in error.
   Judgment affirmed.

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


text:
    No. 11803.
    Shanks et al. v. The Board of Commissioners of Hardin County et al.
    Decided February 14, 1911.
    Error to Circuit Court of Hardin county.

      Mr. W. W. Rimser and Mr. Phil M. Crow, for plaintiffs in error.

      Mr. Hamilton E. Hoge and Mr. George Jameson, for defendants in error.
   Judgment reversed on authority of Mason v. Commissioners of Fulton County, 80 Ohio St., 151, and judgment for plaintiff in error on conceded facts.

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


text:
    No. 12389.
    Swing, Trustee, v. Rose et al.
    Decided February 14, 1911.
    Error to Circuit Court of Coshocton county.

      Mr. William S. Merred; Mr. Smith W. Bennett and Mr. Patterson A. Reece, for plaintiff in error.

      Mr. J. C. Adams and Mr. C. B. Hunt, for defendants in error.
   Judgment of the circuit court reversed and that of the common pleas affirmed.

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


text:
    No. 12404.
    Weaver v. The State, ex rel. Rulison, Prosecuting Attorney.
    Decided February 14, 1911.
    Error to Circuit Court of Hamilton county.

      Mr. Robert C. Pugh and Messrs. Little ford, Frost & Foster, for plaintiff in error.

      Mr. Henry T. Hunt, prosecuting attorney, and Mr. Alfred Bettman and Mr. Stanley W. Merrell, assistant prosecuting attorneys, for defendant in error.
   Judgment affirmed.

Davis, Shauck, Price, Johnson and Donahue, JJ., concur.


text:
    No. 12406.
    Liotta, Admr., v. Erie Railroad Co.
    Decided February 14, 1911.
    Error to Circuit Court of Cuyahoga county.

      Mr. Harry F. Payer, for plaintiff in error.

      Messrs. Cushing, Siddall & Palmer, for defendant in error.
   Judgment affirmed.

Davis, Shauck, Price, Johnson and Donahue, JJ., concur.


text:
    No. 12420.
    Haber v. Reynolds et al.
    Decided February 14, 1911.
    Error to Circuit Court of Cuyahoga county.

      Mr. James F. Wilson and Mr. P. H. Kaiser, for plaintiff in error.

      Messrs. Lawrence, Russell & Eichelberger, for defendants in error.
   Judgment affirmed.

Davis, Shauck, Johnson and Donahue, JJ., concur.


text:
    No. 12421.
    Barfield, Treasurer, et al. v. Kirk et al.
    Decided February 14, 1911.
    Error to Circuit Court of Lucas county.

      Mr. Cornell Schreiber, city solicitor, and Mr. B. A. Hayes, for plaintiffs in error.

      Messrs. Averill & Dodd and
      Mr. M. S. Dodd, for defendants in error.
   Judgment affirmed upon the grounds stated in the opinion of the circuit court of Lucas county, 13

C. C., N. S., 218. Spear, C. J., Shauck, Johnson and Donahue, JJ., concur.


text:
    No. 11605.
    The Luhrig Coal Co. v. Sauerman et al., Partners.
    Decided February 21, 1911.
    Error to Circuit Court of Athens county.

      Mr. W. E. Peters and Messrs. Dempsey & Nieberding, for plaintiff in error.

      Messrs. Grosvenor, Jones & Worsted, for defendants in error.
   Judgment affirmed.

Shauck, Johnson and Donahue, JJ., concur.


text:
    No. 11609.
    Benner, Executor, v. Kyser.
    Decided February 21, 1911.
    Error to Circuit Court of Summit county.

      Mr. W. E. Snyder, for plaintiff in error.

      Mr. Lewis D. Shisser and Mr. Jesse P. Dice, for defendant in error.
   Judgment affirmed.

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


text:
    No. 11611.
    The Cincinnati Gas & Electric Co. v. McKee.
    Decided February 21, 1911.
    Error to Circuit Court of Hamilton county.

      Messrs. Paxton, Warrington & Seasongood, for plaintiff in error.

      Mr. Charles M. Cist and Mr. A. W. Goldsmith, for defendant in error.
   Petition in error dismissed.

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


text:
    No. 11613.
    The Morris Coal Co. v. Arndt.
    Decided February 21, 1911.
    Error to Circuit Court of Guernsey county.

      Messrs'. Rosemond & Bell, for plaintiff in error.

      Mr. Robt. T. Scott and Mr. A. R. McCulloch, for defendant in error.
   Judgment affirmed.

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


text:
    No. 11615.
    Nickols et al. v. Holmann.
    Decided February 21, 1911.
    Error to Circuit Court of Erie county.

      Mr. H. L. Peeke, for plaintiffs in error.

      Mr. Henry Young, for defendant in error.
   Judgment affirmed.

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


text:
    No. 11618.
    Coffelder v. The Cincinnati Gas & Electric Co.
    Decided February 21, 1911.
    Error to Circuit Court of Hamilton county.

      Mr. Chas. M. Cist; Mr. A, W. Goldsmith and Mr. Guido Gores, for plaintiff in error.

      Messrs. Paxton, Warrington & Seasongood, for defendant in error.
   Judgment affirmed.

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


text:
    No. 11627.
    The Wills Creek Coal Co. v. Jones, Admx.
    Decided February 21, 1911.
    Error to Circuit Court of Guernsey county.

      Mr. Robt. T. Scott, for plaintiff in error.

      Mr. James

      Joyce, for defendant in error.
   Judgment affirmed.

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


text:
    No. 11670.
    Simons et al. v. Worthington.
    Decided February 21, 1911.
    Error to Circuit Court of Franklin county.

      Mr. T. J. Duncan and Mr. Emmett Tompkins, for plaintiffs in error.

      Messrs. Williams, Williams & Taylor and Mr. Charles J. Pretzman, for defendant in error.
   Judgment affirmed.

Davis, Price and Donahue, JJ., concur.


text:
    No. 11674.
    The Enquirer Company v. Coultrap.
    Decided February 21, 1911.
    Error to Circuit Court of Jackson county.

      Messrs. Outcalt & Hickenlooper and Mr. Joseph McGhee, for plaintiff in error.

      Messrs. Pugh & Pugh and Mr. J. M. McGillivray, for defendant in error.
   Judgment affirmed.

Davis, Price and Johnson, JJ., concur.


text:
    No. 11676.
    The Diamond Portland Cement Co. v. Essig.
    Decided February 21, 1911.
    Error to Circuit Court of Stark county.

      Messrs. McCarty & Pontius, for plaintiff in error.

      Messrs. Rice & Souers, for defendant in error.
    Judgment affirmed. Davis, Price and Johnson, JJ., concur.


text:
    No. 11681.
    The Toledo, Port Clinton & Lakeside Railway Co. v. Kelly et al.
    Decided February 21, 1911.
    Error to Circuit Court of Ottawa county.

      Messrs. Shunck & Thompson and Messrs. True & Crawford, for plaintiff in error.

      Mr. Malcolm Kelly, for defendants in error.
   Judgment affirmed.

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


text:
    No. 12435.
    Morrow, Justice of Peace, et al. v. Nisbet.
    Decided February 21, 1911.
    Error to Circuit Court of Cuyahoga county.

      Mr. E. J. Thobaben and Mr. E. C. Schwan, for plaintiffs in error.

      Mr. Richard H. Tee and Mr. W. J. Patterson, for defendant in error.
   Judgment affirmed.

Shauck, Johnson and Donahue, JJ., concur.


text:
    No. 12437.
    Parsons et al. v. Biddle, Treasurer, et al.
    Decided February 21, 1911.
    Error to Circuit Court of Lucas county.

      Messrs. Swayne, Hayes & Fuller, for plaintiffs in error.

      Mr. H. C. Webster, prosecuting attorney; Mr. Orion W. Nelson and Mr. Cornell Schreiber, city solicitor, for defendants in error.
   Judgment affirmed.

Shauck, Johnson and Donahue, JJ., concur.


text:
    No. 12737.
    The State of Ohio v. Metzger.
    Decided February 21, 1911.
    Exceptions to Court of Common Pleas of Lucas county.

      Mr. Holland C. Webster, prosecuting attorney, and. Mr. Roy R. Stuart, assistant. prosecuting attorney, for the exceptions.

      Mr.- George D. Welles, against the exceptions.
   Exceptions overruled.

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


text:
    No. 11592.
    Loomis v. Wehnes.
    Decided February 28, 1911.
    Error to Circuit Court of Summit county.

      Messrs. Musser, Kimber & Huffman, for plaintiff in error.

      Mr. ‘F. J. Rockwell and Mr. W. A. Spencer, for. defendant in error.
   Judgment affirmed.

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


text:
    No. 11659.
    American Surety Co. v. Stevens et al.
    Decided February 28, 1911.
    Error to Circuit Court of Mahoning county.

      Mr. Myron A. Norris and Mr. James V. Murphy, for plaintiff in error.

      Mr. J. R. Johnston; Mr. W. W. Zimmerman and Messrs. Maline & Carew, for defendants in error.
   Judgment affirmed.

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


text:
    No. 11665.
    The Consumers Gypsum Co. v. Mortus, an Infant, by etc.
    Decided February 28, 1911.
    Error to Circuit Court of Ottawa county.

      Mr. W. C. Wierman and Messrs. Smith & Baker, for plaintiff in error.

      Mr. Scott Stahl, for defendant in error.
   Judgment affirmed.

Price, Johnson and Donahue, JJ., concur.


text:
    No. 11671.
    Mowrer v. The Cleveland & Southwestern Traction Co.
    Decided February 28, 1911.
    Error to Circuit Court of Wayne county.

      Messrs. Kean & Adair, for plaintiff in error.

      Mr. Price Russell, for defendant in error.
   Judgment affirmed.

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


text:
    No. 11677.
    Clark v. Noble, Superintendent of Roads.
    Decided February 28, 1911.
    Error to Circuit Court of Cuyahoga county.

      Messrs. Hart, Canfield & Croke, for plaintiff in error.

      Mr. E. F. Reinhardt and Messrs. McGraw, Hauxhurst & Saeger, for defendant in error.
   Judgment affirmed.

Shauck, Price and Johnson, JJ., concur.


text:
    No. 12382.
    Sanford et al. v. Sanford.
    Decided February 28, 1911.
    Error to Circuit Court of Wyandot county.

      Mr. T. D. Lanker and Messrs. Carter, Carter & Carter, for plaintiffs in error.

      Messrs. Meek & Stalter, for defendant in error.
   Judgment of the circuit court reversed and that of the common pleas affirmed.

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


text:
    No. 12426.
    Riter, Admx., v. The Cleveland, Chicago & St. Louis Ry. Co.
    Decided February 28, 1911.
    Error to Circuit Court of Cuyahoga county.

      Mr. Edward S. Meyer, for plaintiff in error.

      Messrs. Cook, McGowan & Foote, for defendant in error.
   Judgment affirmed.

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


text:
    No. 12429.
    Allen v. Allen et al.
    Decided February 28, 1911.
    Error to Circuit Court of Franklin county.

      Mr. James M. Butler and Mr. Harry F. West, for plaintiff in error.

      Mr. T. J. Duncan; Mr. E. E. Tanner and Mr. Robert P. Duncan, for defendants in error.
   Judgment affirmed.

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


text:
    No. 12446.
    Kinney, Admr. de bonis non., v. The Merchants & Manufacturers National Bank et al.
    Decided February 28, 1911.
    Error to Circuit Court of Franklin county.

      Messrs. Sheets & West; Mr. George H. Jones and Mr. J. E. Todd, for plaintiff in error.

      Mr. D. A. Hollingsworth, for defendants in error.
   Judgment affirmed.

Shauck, Price, Johnson and Donahue, JJ., concur.


text:
    No. 12450.
    The Columbia Fire Cracker Co. v. The Union Paper & Twine Co.
    Decided February 28, 1911.
    Error to Circuit Court of Crawford county.

      Messrs. Finley & Gallinger, for plaintiff in error.

      Mr. C. R. Bissell and Messrs. Beer & Beer, for defendant, in error.
   Judgment affirmed.

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


text:
    No. 12452.
    Kelly v. Sullivan et al.
    Decided February 28, 1911.
    Error to Circuit Court-of Hardin county.

      Mr. C. W. Faulkner and Mr. Phil M. Crow, for plaintiff in error.

      Messrs. Smick & Hoge, for defendants in error.
   Judgment affirmed.

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


text:
    No. 12469.
    Board of County Commissioners of Hocking County v. Azbell, Admx.
    Decided February 28, 1911.
    Error to Circuit Court of Hocking county.

      Mr. Allen R. McBroom; Mr. Harry E. Sparnon and Mr. S. H. Bright, for plaintiff in error.

      Mr. Elmer O. Pettitt and Mr. C. V. Wright, for defendant in error.
   Judgment affirmed.

Shauck, Johnson and Donahue, JJ.,concur.


text:
    No. 12257.
    The City of Greenville et al. v. The Board of Education of Greenville City School District.
    Decided February 28, 1911.
    Error to Circuit Court of Darke county.

      Mr. James C. Elliott, city solicitor, for plaintiffs in error.

      Mr. D. W. Bowman and Mr. Geo. W. Manix, for defendant in. error.
   Judgment affirmed.

Shauck, Johnson and Donahue, JJ., concur.


text:
    No. 12785.
    Lea, Director of Public Service, v. The State, ex rel. Baker, City Solicitor.
    Decided February 28, 1911.
    Error to Circuit Court of Cuyahoga county.

      Messrs. Mathews & Orgill, for plaintiff in error.

      Mr. Newton D. Baker, city solicitor, for defendant in error.
   Judgment affirmed.

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


text:
    No. 12891.
    The State, ex rel. Garman, Clerk, v. McCormick et al., County Commissioners.
    Decided February 28, 1911.
    In Mandamus.

      Mr. A. R. Johnson and Mr. C. E. Robuck, for relator.

      Mr. F. A. Shively; Mr. C. F. McCoy and Mr. Henry Bannon, for respondents.
   Petition dismissed, but at the costs of the respondents. Grounds stated in journal entry.

This cause came on to be heard on the pleadings and evidence, and was argued by counsel. On consideration whereof, it is considered and adjudged that the petition herein be dismissed and that the respondents go hence. But, considering that the respondents had not, at the commencement of the action, reasonably exercised their discretion, but did so after the action was commenced, it is further considered and adjudged that the costs herein be paid by said respondents, and in default that execution issue therefor.

Shauck, Price, Johnson and Donahue, JJ., concur.


text:
    No. 11687
    Mace, Admr., et al. v. Anderson.
    Decided March 7, 1911.
    Error to Circuit Court of Fayette county.

      Mr. Mills Gardner, for plaintiffs in error.

      Mr. Joseph H. Harper and Mr. I. N. Abernethy, for defendant in error.
   Judgment affirmed.

Shauck, Price and Johnson, JJ., concur.


text:
    No. 11688.
    Mace, Admr., et al. v. Alkire.
    Decided March 7, 1911.
    Error to Circuit Court of Fayette county.

      Mr. Mills Gardner, for plaintiffs in error.

      Mr. Joseph H. Harper and Mr. I. N. Abernethy, for defendant in error.
   Judgment affirmed.

Shauck, Price and Johnson, JJ., concur.


text:
    No. 11693.
    The City of Cincinnati v. Roettinger.
    Decided March 7, 1911.
    Error to Circuit Court of Hamilton county.

      Mr. Edward M. Ballard and Mr. Geoffrey Goldsmith, city solicitors, for plaintiff in error.

      Messrs. Kinkead, Rogers & Ellis, for defendant in error.
   Judgment affirmed.

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


text:
    No. 11696.
    Brennan et al. v. Jacobsen.
    Decided March 7, 1911.
    Error to Circuit Court of Ottawa county.

      Messrs. True & Crawford, for plaintiffs in error.

      Mr. William Gordon, for defendant in error.
   Judgment affirmed.

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


text:
    No. 11697.
    Brennan et al. v. Hasselbrack.
    Decided March 7, 1911.
    Error to Circuit Court of Ottawa county.

      Messrs. True & Crawford, for plaintiffs in error.

      Mr. William Gordon, for defendant in error.
   Judgment affirmed.

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


text:
    No. 12455.
    Shroyer v. Graham, Admr.
    Decided March 7, 1911.
    Error to Circuit Court of Shelby county.

      Mr. J. E. Russell and Mr. Andrew J. Hess, for plaintiff in error.

      Mr. Charles C. Marshall and Mr. Percy R. Taylor, for defendant in error.
   Judgment affirmed.

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


text:
    No. 12472.
    Smart et al. v. Wilson, Exr.
    Decided March 7, 1911.
    Error to Circuit Court of Greene county.

      Mr. Marcus Shoup and Mr. Horace L. Smith, for plaintiffs in error.

      Mr. Charles L. Spencer and Mr. W. L. Miller, for defendant in error.
   Judgment affirmed. Cross-petition dismissed.

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


text:
    No 12585.
    The Pittsburgh, Cincinnati, Chicago & St. Louis Ry. Co. v. Francis, Admx.
    Decided March 7, 1911.
    Error to Circuit Court of Hamilton county.

      Mr. Robert. Ramsey, for plaintiff in error.

      Mr. Sherman T. McPherson and Mr. William M. Coffin, for defendant in error.
   Judgment affirmed.

Davis, Shauck, Price, Johnson and Donahue, JJ., concur.


text:
    No. 12657.
    The City of Dayton v. Cory.
    Decided March 7, 1911.
    Error to Circuit Court of Montgomery county.

      Mr. Frank S. Breene, Mr. Albert J. Dwyer and Mr. John Roehm, city solicitors, for plaintiff in error.

      Messrs. McKemy & Cline and Messrs. Nevin, Nevin & Kalbfus, for defendant in error.
   Judgment affirmed.

Shauck, Price and Johnson, JJ., concur.


author: Donahue, J.

text:
    Lytle et al. v. Baldinger et al.

      Petitiqn to set aside fraudulent sale■ — Does not constitute cause of action — Unless averring transferee knew of the fraudulent intent, when — Transfer by insolvent husband — To wife of insurance policy — Not in fratid of creditors, when — Section 6343, Revised Statutes — Creditor’s remedy in Section 3628, Revised Statutes.

    1. A petition to set aside a fraudulent sale or transfer made .in vio- - lation of the provisions of Section 6343, Revised Statutes, which does not aver ‘that the person to whom the sale, conveyance, transfer, mortgage or assignment is made knew at the time of the transaction of the fraudulent intent on the part of the debtor does not state facts sufficient to constitute a cause of action.
    2. A transfer by an insolvent husband to his wife of a policy of insurance then in force on the life of the husband is not an assignment of property in fraud of creditors or to hinder or delay creditors within the contemplation of Section 6343, Revised Statutes.
    3. In such case the only remedy of the creditor is found in the provisions of Section 3628, Revised Statutes.
    (No. 11713
    Decided March 28, 1911.)
    Error to the Circuit Court of Cuyahoga county.
    This action was brought in the court. of common pleas by the persons now plaintiffs in error, against the Equitable Life Insurance Company of Iowa, Emma C. Baldinger and Frederick D. Bal* dinger, a minor. The object of the action was to have the court declare fraudulent as. against creditors of A. F. Baldinger, deceased, certain assignments made by him of . policies of life insurance issued on his life by defendant life insurance company and assigned by him to his wife, Emma C. Baldinger,’and his minor son, Frederick D. Baldinger, and to secure the application of the proceeds of said policy to the payment of a debt due the plaintiffs, apd to .the debts of the other creditors of said Báldinger, deceased.
    The petition averred the indebtedness of A. F, Baldinger to Rebecca J. Price, which indebtedness was evidenced by a promissory note dated July 23, 1896, calling for three thousand dollars with interest, and signed by A- F. Baldinger.
    • It further averred the death of Rebecca J. Price and the terms of her will, by' which the plaintiffs iñ' .error were made sole beneficiaries, and the assignment by her executor of this note to these plaintiffs in error as a distribution to them in kind of pkrt of the estate of said Rebecca’J. Price.

      It further avers the issuing of the policies to A. F. Baldinger, and that while he was still in-' debted upon this note, and no part thereof having been paid, he assigned said policies to Emma C. Baldinger and Frederick D. Baldinger, a minor, under the age of.fourteen years; that at the date of said assignments of said policies that A. F. Baldinger was wholly insolvent and had not sufficient property aside fro'm these policies to pay and discharge his indebtedness, and at the date of his death said Baldinger had no property or estate whatever aside from said policies and said assignment of said policies was wholly without consideration and in fraud of the rights of the plaintiffs and other creditors of said A. F. Baldinger, and prayed that said assignment of said' policy may be held and decreed to be fraudulent and the same set aside and held for naught, and for such other and further relief to which they might be found to be entitled.
    The Equitable Life Insurance Compaq paid into court the sum of ten thousand dollars, being the sum of the three policies issued by it on the life of A. F. Baldinger and was dismissed from the action. Emma *C. Baldinger was appointed administratrix of the estate of A. F. Baldinger and made a party defendant in her representative capacity.
    Emma C. Baldinger filed a general demurrer to the plaintiffs’ petition, which demurrer was overruled by the common pleas court, and she thereupon filed an answer, and also answered in her representative capacity as the administratrix of the estate of A. F. Baldinger. Upon the issues joined between the plaintiffs and Emma C. Baldinger a decree was rendered by the common pleas court in favor of plaintiffs as to part of said policies and in favor of Emma C. Baldinger as to others. The- plaintiffs, and Emma C. Baldinger both appealed from this judgment of the common pleas court. The two appeals were consolidated in the circuit court and that court sustained the general demurrer of Emma C. Baldinger to the plaintiffs’ petition, and the plaintiffs not desiring to amend or further plead, the petition was dismissed and judgment rendered against the plaintiffs for costs.
    It was suggested upon oral argument of this cause that this transfer was made to Emma C. Baldinger, wife of A. F. Baldinger, and now his widow, and that Frederick D. Baldinger was not one of the assignees and that this petition should be considered the same as if his name did not appear therein.

      Messrs. Blandin, Rice & Ginn; Messrs. Hidy, Klein & Harris and Mr. Charles G. Reynolds, for plaintiffs in error.
    The act of February 12, 1893, amending Section 17 of the “act regulating the mode of administering assignments in trust for the benefit of creditors,” (now Section 6343, Revised Statutes), applies to conveyances constructively as well as those actually fraudulent as against creditors. Jamison v. McNally, 21 Ohio St., 295; Laudenback v. Foster, 39 Ohio St., 206; Bank v. Miller, 9 C. C., 111.

      Both the amendment of 1898 and that of 1902 to Section 6343, Revised Statutes, came under consideration by the supreme court in the case of Bobilya v. Priddy, 68 Ohio St., 373.
    The supreme court held the section thus amended to be 'constitutional; construing it to have no application to purchases in good faith and for fair value from an insolvent debtor. The court pointed out that the language in said amended Section 6343 is not stronger than that employed in the Statute of Frauds (Section 4196, Revised Statutes), and that the latter section had been held since the decision of Burgett v. Burgett, 1 Ohio, 469, to have no application to sales made to innocent purchasers for value.
    ' The relief sought, and to which plaintiffs are entitled, if entitled to any relief, was not the surrender value of the policies at the time of the fraudulent conveyance, but their value at the time suit was brought. These life insurance policies were simply securities for money, dioses in action, and subject to every rule of-property known to the law. Ah assignment, fraudulent as to creditors, passed no title as against them. The policies always remained the property of Baldinger for the purpose of satisfying his pre-existing debts: whether the plaintiffs shall have relief depends not on the value at the time of the conveyance, but on whether the amount they show themselves entitled to recover in the action merits to be dignified by judicial consideration. Savings Bank v. McLean, 84 Mich., 625; Appeal of Elliott’s Exrs., 50 Pa. St., 75; Burton v. Farinholt, 86 N. Car., 260.

      Laws similar to Sections 3628 and 3629, Revised Statutes, have quite generally been adopted by the various states, and we think the construction contended for has not generally been put upon them by the courts. 2 May on Insurance, Sec. 459e; Friedman Bros. v. Fennell, 94 Ala., 570; Burton v. Farinholt, 86 N. Car., 270; Bank v. McLean, 84 Mich., 625.

      Mr. William Howell and Mr. T. J. Ross, for • defendants in error.
    The petition is insufficient in that it contains no allegations of any fact or facts showing that the plaintiffs or other creditors of Baldinger were in any way injured or delayed by the assignment of these policies.
    That property is of no value, or of mere trifling value, cannot be the, subject of a fraudulent conveyance, is well established; the whole theory of the law on this subject being that the debtor has parted with something of value which the creditors might have subjected to their claims. Waite on Fraudulent Conveyances, Sec. 23; 1 Moore on Fraudulent Conveyances, Sec. 4.
    Under the bankrupt íaw, the adjudication in bankruptcy transfers to the trustee all property of the bankrupt in any manner transferable by him; but in the application of this law, the courts hold that insurance policies do not pass to the trustee unless they have vendible value. If they have no cash value, they remain the property of the bankrupt. Creditors cannot continue them in force, and thus gamble on the life of the debtor. 1 Remington on Bankruptcy, Sec. 1012; 2 Moore on Fraudulent Conveyances, 1190.
    The petition shows on its face that the proceeds of the policies are exempt from the claims of creditors.
    The courts generally hold that statutes exempting life insurance are of the same nature as exemption laws generally, and are to be liberally construed, and we submit that under a liberal construction of these statutes, the assignment of a policy of insurance by the husband to his wife is “effecting an insurance on his life” within the meaning of these statutes. If the deceased had surrendered his policies and had obtained new ones, making the wife the beneficiary, there could be no doubt that she would have been entitled to the insurance under Section 3628; and we can see no reason tvhy such a proceeding would be necessary in order to give the wife the benefit of the insurance; and it has been held that the assignment of a policy under the circumstances shown in this petition, is effecting insurance for the benefit of the wife, within the .meaning of exemption laws similar to ours. Cole v. Marple, 98 Ill., 58; Rose v. Wortham, 95 Tenn., 505; Morehead’s Admr. v. Mayfield, 109 Ky., 51, 58 S. W. Rep., 473; Tuthill v. Goss, 35 N. Y. Supp., 136, 89 Hun, 609.
    See construction of Section 3629 in Reakirt v. Besuden, 3 N. P., N. S., 646, 16 O. D., N. P., 697, 73 Ohio St., 383.
    Section 3629 was considered by this court in Webber Loper & Co. v. Paxton, 48 Ohio St., 266.

      (Counsel on both sides cited and commented upon Child v. Graham, 8 Dec. R., 294. — Reporter. )
   Donahue, J.

The general demurrer of Emma C. Baldinger to the plaintiffs' petition presents two questions.

Is it necessary to aver in a petition filed for the purpose of setting aside a sale or transfer claimed to be in fraud of creditors that the person or persons to whom the sale, conveyance, transfer, mortgage or assignment is made in violation of the provisions of Section 6343, Revised Statutes, as amended, 1902, knew of the fraudulent intent on the part of the debtor or debtors?

Do the provisions of Sections 3628 and 3629, Revised Statutes of Ohio, permit a transfer to a wife of a policy of insurance then in force on the life of the husband, the husband at the time of making the transfer being insolvent.

It would appear that Section 6343 as amended May 12, 1902, is sufficient answer to the first proposition. The presumption is, that every amendment of a statute is made to effect some purpose. That purpose may be either to add new provisions and conditions to the section as it then stands, or for the purpose of making plain the meaning and intent thereof. Whether this amendment changes the construction of the statute or simply makes its construction plain, is of little importance, the result must be the same, and every person seeking ■ to avail himself of the provisions of this section mtist by his- pleading and proof bring himself within the provisions of this statute, including, as a matter of course, the amendment of May 12, 1902, which is as follows: “Provided,however, that the provisions of this section shall, not apply unless the person or persons to whom such sale, conveyance, transfer, mortgage or assignment be made knew of such fraudulent intent on the part of such debtor or debtors.”

This provision of the section as it now stands would require an averment in the petition that the person making such purchase, or receiving such conveyance, transfer, mortgage or assignment knew of such fraudulent intent on the part of such debtor or debtors at the time of the transaction complained of.

It would also appear that Section 3628 and Section 3629, Revised Statutes, construed together sufficiently answer the second question presented; by the demurrer. It would seem to be the policy of the law, not only to permit, but to encourage-every husband to provide by insurance upon his life for the maintenance and support of his widow and children after his death. At the same time the law protects his creditors to the extent of the funds actually diverted from his estate by reason of the procuring and keeping in effect such insurance. It would not appear that the creditor ' could be injured, delayed or defrauded beyond the amount of money actually expended in the purchase of this insurance. A debtor is under no legal obligation to insure his life for the benefit of his creditors. All that the law requires of him is that the property and means of which he is possessed, saving and excepting certain property-exempt by law from execution, shall be honestly applied to the payment of his debts, and he is not permitted to give £¡,way that which in justice belongs to his creditors. So that when the law provides for the return to his estate of the money used in the purchase of this insurance, it gives to the creditor everything he is entitled to have, or could have reached by any process of law.

The same reasoning equally applies to the assignment to the wife of a policy then in forpe, for there is no provision requiring the debtor to keep that policy in force or to pay any further premiums thereon. The creditor cannot reach the policy by any process of law. It would only become available to his estate upon the death of the insured, then of course it would be applicable to the payment of his debts. But the possibilities of it ever becoming assets of his estate are so remote and so dependent entirely upon the will and the pleasure of the debtor, and not upon any legal obligation that he owes to his creditors to keep the insurance in force until his death, that the assignment of the same to his wife cannot be held to be an assignment in fraud of creditors nor could such assignment in any way, manner or form hinder or delay his creditors in the collection of their debt for there is no process known to the law that could reach the proceeds of this policy until by the terms of the policy itself it becomes an absolute obligation on the part of the insurance company to pay. The proposition that the failure of the insured to keep this policy of insurance in force by the annual payment of dues would be in fraud of creditors, and hinder and delay creditors, is just as tenable as the proposition that they have been defrauded, hindered and delayed by the assignment of the same to his wife.

The statute under consideration is even broader than above stated, for it also provides that if any person, other than the husband, either effects or transfers insurance upon his life to a married woman, that such insurance cannot be reached either by the person effecting the insurance on his own life in her behalf, or transferring the same to her after it has been effected, nor can it be reached by his creditors. From these statutes it would clearly appear that the only relief the creditor could have, is that provided in Section 3628, Revised Statutes of Ohio.

Judgment affirmed.

Spear, C. J., Davis, Si-iauck, Price and Johnson, JJ., concur.


author: Johnson, J.

text:
    The Franklin Bank et al. v. Bruns.

      Particular■ fund paid into court — Various claimants as to their rights to fund — Decree of distribution will not bear interest, when — ■ Supersedeas bond of intervening claimant — Fund does not bear interest.

    Where a particular fund is paid into court in compliance with its order of interpleader, and various claimants litigate between themselves as to their rights to the fund, a decree distributing the fund will not bear interest, and an intervening claimant who prosecutes error to that decree in good faith, and gives a supersedeas bond to stay execution cannot be compelled, in a suit on the bond, to pay interest on the fund or any part of it.
    (No. 11806
    Decided March 28, 1911.)
    Error to the Circuit Court of Hamilton County.
    The action in the court below was founded on two supersedeas bonds, given by the plaintiffs in error, in a suit between the same parties and others. One when the cause was taken on error from the superior court of Cincinnati at special term to the general term of that court and the other when the cause was taken on error to this court.
    The petition in substance avers that these bonds were given in a proceeding, brought by the Franklin Bank, against the city of Cincinnati and others, including George H. Bruns, the defendant in error here, in which the Franklin Bank asserted a lien upon a certain fund claimed to be due by the city of Cincinnati to the bank and other claimants, including Bruns; that in that proceeding, the city of Cincinnati in accordance with an order of the court, for interpleader in the case, paid to the clerk of that court the sum of $8,560.32 and was discharged from all further liability to any of the parties, on account of the claims or liens set forth; that thereafter the claims of the bank and of Bruns, and the other claimants to the fund, or any part of it, were litigated in the superior court; that on final hearing the court found in favor of the following named defendants, in said proceeding in the amounts stated, and ordered the sum distributed without priority as follows: 1. The costs of the suit taxed at $189.45; 2. To John Mueller, $1,489.95; 3. To Henry F. Kemp, $373.30; 4. To George H. Bruns the sum of $5,650.21; 5: To T. F. McClure, $859.17; and the city of Cincinnati was dismissed.
    That the Franklin Bank took exceptions to said findings, judgment and orders, and prosecuted error to the superior court in general term, and on July 20, 1900, filed the first supersedeas bond referred to; that thereafter on the third day of December, 1900, said court in general term affirmed the findings, judgments, and orders, rendered in the special term of said court, and gave judgment for costs against the plaintiffs in error; that said bank prosecuted error to the supreme court of Ohio to reverse said judgment; and upon. the 29th of December, 1900, executed the second bond referred to in the sum of $16,000 which was duly approved by the clerk of the superior court ■ of Cincinnati; that thereafter, on October 1, 1901, the said judgments were finally adjudicated and affirmed by the supreme court of Ohio.
    Plaintiff further alleges that pursuant to said orders and judgments the clerk of the superior court on October 12, 1901,* made payments to the said several parties, in the amounts stated, in accordance with the order of the court; that on that day there had accrued on plaintiff’s judgment interest for one year, three months and ten days, to-wit: the sum of $433.18.
    He further alleges that the amount paid to him, Bruns, by the clerk was the amount of his original judgment $5,650.21 which with the amounts due to the other parties and costs, consumed the fund so deposited with the clerk. Plaintiff, therefore, prays judgment for the said sum of $433.18, being the amount of interest between the first day of the special term at which judgments were rendered and the date of payment, October 12, 1901.
    In their answer to this petition the defendants aver in substance that no judgment or decree was rendered in favor of the plaintiff against the defendant, the Franklin Bank, for the sum as set forth in the plaintiff’s petition, or for any other sum whatever, and they set out in words and figures the decree that was rendered by the superior court of Cincinnati in the original proceeding of the Franklin Bank against the city of Cincinnati and others, including Bruns. That decree recites that the city of Cincinnati in compliance with an order of interpleader “made herein on June 3, 1899, had paid to the clerk of this court the sum of $8,560.32, which sum is now in the hands of said clerk to be distributed among the plaintiffs, and the remaining defendants, according to the priority of their liens upon said fund, and the court further find that the city of Cincinnati having complied with said order should be fully discharged from any liability to any of the parties herein.” The decree then proceeds to make findings in- the amounts due the several parties, including George H. Bruns, defendant in error, the amount due him being $5,650.21.
    The answer further avers that the said bank gave a bond to stay proceedings in said cause, not to the said Bruns alone, but for the use and benefit jointly and not severally of all of the defendants in said original proceeding. And further that after said judgments had been affirmed by the superior court in general term the defendants gave a second bond to stay proceedings in said cause; that said second bond was not given to the plaintiff alone, but for the use and benefit jointly and not severally of the city of Cincinnati and the other defendants named.
    The answer further avers that the plaintiff received on his judgment the sum of $5,650.21, being the full amount due and payable to him under the decree of the superior court aforesaid, and that upon receipt thereof all of his rights were fully satisfied. The answer further denies . that the plaintiff is entitled to the interest, claimed' from the 20th of July, 1900, to the 12th of October, 1901.
    The plaintiff demurred to this answer on the ground that it did not state facts sufficient to constitute a defense. This demurrer was sustained, and the defendants not desiring to plead further judgment was rendered against them, and this judgment was affirmed by the circuit court of Hamilton county, and the proceeding here is to reverse the judgments below.

      Messrs. Burch & Johnson, for plaintiffs in error,
    cited and commented upon the following authorities :

      Winston v. Rives, 4 Stewart & Porter (Ala.), 269; Justices v. Selman, 6 Ga., 432; Iron Works v. Lottimer, 25 Ohio St., 621; 22 Cyc., 1559; Perley on Interest, 59; Van Gordon v. Ormsby Bros. & Co., 60 Ia., 510; Anderson v. Wilkinson, 10 Sm. & M. (18 Miss.), 601; 2 Black on Judgments (2 ed.), Sec. 983; Bank v. Heard, 65 Ga., 189; Section 3181, Revised Statutes.

      Mr. A. J. Cunningham and Mr. Lloyd P. Baen, for defendant in error,
    cited and commented upon the following authorities:

      Justices v. Selman, 6 Ga., 432; Hayes v. Weaver, 61 Ohio St., 55; Iron Works v. Lottimer, 25 Ohio St., 621; 22 Cyc., 1559; Sherrell v. Shepard, 19 Fla., 300; Van Gordon v. Ormsby Bros. & Co., 60 Ia., 510; Anderson v. Wilkinson, 10 Sm. & M. (18 Miss.), 601; Hoggart v. Cutts, 1 Cr. & Ph., 196.
   Johnson, J.

It will be observed that the case of the plaintiff below is based on the claim that defendants were liable on the bonds for interest on the amount of his claim, from the first day of the term at which the decree was entered in the superior court, until the day of payment to him, by the clerk, after the affirmance of the decree by the supreme court.

Both of the bonds set out in the petition are signed by the same parties, and any rights which the plaintiff might have, could be enforced in an action on the last bond alone. Hayes v. Weaver, 61 Ohio St., 55.

It is shown in the pleadings that in the original proceedings there was an order of interpleader entered, directing the city of Cincinnati to pay to the clerk of the court the amount claimed by the Franklin Bank $8,560.32, and that the city having complied with the order, was discharged from all further liability to any of the parties to the action. That thereupon, the remaining parties interpleaded as between themselves. On the final hearing the court found the amounts due the several inter-pleading defendants, and directed the clerk to pay the same without priority, out of the fund so deposited after paying the costs. The amount ordered to be paid to Bruns by the clerk was $5,650.32. Under the order there was nothing left to apply on the bank’s claim, and it prosecuted error and gave the bonds sued on, in supersedeas. Bruns and the bank were opposing claimants to a particular fund, deposited in court under the order of interpleader. Neither had or asserted any claim against the other. No judgment or decree was rendered against the Franklin Bank in favor of Bruns in that case.

The court ordered its clerk to distribute a definite particular fund, of which the court had possession and control, and the supreme court simply affirmed that order.

“At common law judgments did not bear interest nor would they do so in Ohio, in the absence of statutory provision on the subject.” Marietta Iron Work v. Lottimer, 25 Ohio St., 627; Neil v. Bank, 50 Ohio St., 193.

The statutory provisions in Ohio on the subject are contained in Sections 3180 and 3181, Revised Statutes.

Section 3180 prescribes the rate of interest to be computed on all judgments rendered on instruments of writing.

Section 3181 provides: “And upon all judgments, decrees and orders of any judicial tribunal for the payment of money, arising out of a contract hereafter made or other transaction which hereafter occurs, the creditor shall be entitled to interest at rate of six per cent, per annum and no more.”

As above shown there was no judgment, decree or order against the Franklin Bank for the payment of money.

Bruns was not a “creditor” of the bank and did not claim to be. There was no privity of contract between any of the lienholders who were parties to the suit.

The provision of the statute under which execution may be stayed is found in Section 6718, Revised Statutes, which provides that “no proceeding to reverse, vacate or modify a judgment or final order rendered,” etc., shall operate to stay execution unless the clerk of the court in which the record of such judgment or final order is made, shall take a written undertaking to be executed on the part of plaintiff in error to the adverse party, with sufficient surety as follows; “When the judgment or -final order sought to be reversed directs the payment of money, the written undertaking shall be in double the amount of the judgment or final order, to the effect that the plaintiff in error will pay the condemnation money and costs, if the judgment or final order be affirmed in whole or in part.”

Manifestly the condemnation money and costs referred to, mean that which the plaintiff in error, was directed to pay.

The condemnation money and costs covered by the bond is only such as had been legally adjudged against the principal obligor on the bond in the original proceeding in which execution was stayed. The decree itself must bear interest before those giving the bond to stay it can be required to pay interest.

In 22 Cyc., 1559, the proposition is stated, that where a fund is in litigation, or the amount of a disputed claim is deposited in court, or subject to its order, interest is not recoverable thereon during the time it remains so deposited.

The rule is stated in 2 Black on Judgments (2 ed.), Sec. 983, viz: “In respect to interest, a decree has the same force as a judgment when it contests with other liens or claims for money. But this refers only to a decree in personam binding all the property of the debtor, and rendered against the defendant without reference to the sale of particular property and the distribution of the fund arising therefrom.”

And this principle is approved in National Bank of Augusta v. Heard, 65 Ga., 189.

In Van Gordon v. Ormsby Bros. & Co., 60 Iowa, 510, the court say: “The money-was paid into court to await the order of the court. It does not appear that the intervenors acted otherwise than in good faith, and we do not think they should be made to pay interest as punishment simply because they failed to establish their right to the money.”

This, rule was followed in Anderson v. Wilkinson, 18 Miss. (10 Sm. & M.), 601.

The fund in this case might on the motion of Bruns or any lienholder have been invested under the order of the court.

For these reasons we conclude that where a specific, fund is paid into court in compliance with its order of interpleader and various claimants litigate their rights to the fund • between themselves, a decree distributing the fund is not a judgment, or decree, within the statutes of Ohio governing interest and that an intervening claimant who prosecutes error to that decree, in good faith, and gives a supersedeas bond to stay its execution, cannot be compelled to pay interest on the fund or any part of it.

It follows from these, conclusions that the demurrer to the answer of the bank should have been overruled — and the judgments below are reversed; judgments for plaintiffs in error.

Judgment reversed.

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


author: Price, J.

text:
    The S. Weisberger Co. v. The Barberton Savings Bank Co.

      Liability of drawee bank — To drawer of check fraudulently endorsed ■ — -By party having same name as payee — Negligence of drawer in delivery of check — Releases liability of drawee bank, when.

    W. being indebted to R., whose place of business W. knew to be 48 Walker street, New York City, drew a check on his local bank of deposit in favor of R. for the amount of the debt, without designating therein his place of business, and enclosed the check with a letter in an envelope which he through mistake addressed to R., 48 Walker street, Cleveland, Ohio, and caused the envelope and contents so addressed to be mailed in the usual way, and it arrived in Cleveland in due course of mail, where the letter carrier found no one of that name on Walker street of that city, but found a man whose name was R. on Henry street and to whom the carrier delivered the letter. He opened it and took possession of the check, and by endorsing the name R. on the back thereof obtained the cash from an acquaintance, who endorsed and deposited said check in his bank of deposit in Cleveland. The latter bank endorsed it over to another bank in the same city, guaranteeing prior endorsements, and this bank endorsed it payable to any bank or bearer, guaranteeing all prior endorsements, and in this condition it was presented to the drawee bank, by it paid and charged to W.’s account, it having no knowledge of said mistake in addressing the letter. 'W. afterwards discharged his debt to the New York creditor by other means and brings suit against the drawee bank to recover the amount of the check so charged to his account.

      Held: The drawer of the check was first in fault, and as his negligence contributed directly to its wrongful and fraudulent appropriation, he is not entitled to recover.
    (No. 11679
    Decided March 28, 1911.)
    Error to the Circuit Court of Summit county.
    The parties to this case are corporations doing business in the village of Barberton, Summit county, Ohio, the plaintiff in error being engaged in mercantile business, and the defendant in error engaged in a general banking business. The former brought suit against the latter and for cause of action alleged in substance that on or about January 13, 1906, and prior thereto, it had deposited with the said bank an amount of money in excess of one hundred and twenty-two and 13/100 dollars ($122.13), which sum was on deposit on said day subject to check in excess of any liability or claim against the same; that on that day the plaintiff drew a check upon the bank for the sum of $122.13, payable to Max Roth of New York City; that said check so drawn was fraudulently endorsed in blank by a person purporting to be Max Roth of Cleveland, Ohio, and that said check so fraudulently endorsed was delivered to one B. Schoenfeld, and by him endorsed in blank and deposited with The Cleveland Trust Co., of Cleveland, Ohio, and by the latter said check was endorsed with the following endorsements: “Pay to the Union National Bank of Cleveland, or order, prior endorsements guaranteed.
    “Ti-ie Cleveland Trust Co.
    “Perry Office,
    “C. O. Patch, Secy-Treas.”

    The said check was further endorsed by the 'Union National Bank of Cleveland, as follows: “Pay to the order of any bank or bearer, all prior endorsements guaranteed. Jan. 10, 1906.
    “Union National Bank, Cleveland, Ohio.
    “E. R. Fancher, Cashier.”

    It is alleged that said check, with the forged endorsement thereon of Max Roth, and with the other endorsements thereon as stated, was wrongfully accepted and paid by the defendant bank, at Barberton, on or about .the 23d day of January, 1906,' and afterwards was wrongfully and without authority from the plaintiff, charged against its account with said defendant bank.
    It is alleged that when plaintiff discovered the ■forged endorsement and the wrongful payment aforesaid, and on or about February 7, 1906, plaintiff demanded that defendant correct said account, and not charge said check against its account, which defendant refused to do, and refused to pay the plaintiff the amount of the check so wrongfully paid, and it prays judgment for the amount.
    The answer admits most of the allegations made in the petition, but denies that said check was made payable to Max Roth of New York City.

    The answer avers that said check was endorsed by Max Roth, and by the said Max Roth delivered to one B. Schoenfeld, and by him was endorsed in blank and deposited with The Cleveland Trust Co., -of Cleveland, Ohio, and that this trust company endorsed the check to Union National- Bank of Cleveland, or order, and it endorsed the same payable to the order of any bank or bearer, on the day and in the form alleged in the petition.
    The Union National Bank presented the check so endorsed to the defendant bank, at Barberton, for payment, and it paid the same and charged it to plaintiff’s account.
    The defendant further alleges that said check was paid to Max Roth, of Cleveland, Ohio, without any information or knowledge to show that it was paid to any one else, and that if said plaintiff has been damaged, that it occurred by reason of its own negligence in misdirecting said check and mailing the same to Max Roth, at Cleveland, Ohio, instead of Max Roth, of New York City.
    It is then averred that plaintiff did not act promptly when it discovered its mistake and inform defendant in time to protect itself against any fraud committed.
    The new matter of the answer is • denied by reply.
    The parties waived a jury and submitted the case on the facts to the court, who found for the defendant. A judgment on the finding was affirmed by the circuit court.
    Error is prosecuted here to reverse both judgments.

      Messrs. Musser, Kimber & Huffman, for plaintiff in error.
    Plaintiff in error contends that by the statutes of Ohio and by the decisions in the courts of this state, together with the decisions in the courts of other states, a bank undertaking to pay money in pursuance of a check drawn upon it is bound to ascertain that the true and rightful payee of said check, or a proper and rightful endorsee thereof, receives such payment.
    Plaintiff in error further contends that by the false and fraudulent endorsement of the check by Max Roth of Cleveland no title whatever could pass to the second endorsee, B. Schoenfeld, and of course B. Schoenfeld could confer no other or better title to The Cleveland Trust Company bank by his endorsement of said check, and so on.

      Every endorser who endorses without qualification warrants to all subsequent holders in due course, first, that he has a good title to it, etc., second, that the instrument is at the time of his endorsement valid and subsisting. Bank v. Bank, 58 Ohio St., 207; Bank v. Bank, 68 Ohio St., 43; Dumont v. Williamson, 18 Ohio St., 516; Tiedeman on Commercial Paper, Sec. 259; 2 Daniel on Negotiable Instruments, Sec. 1364; 2 Randolph on Commercial Paper, Sec. 752; Story on Promissory Notes, Sec. 135.
    The above are well known principles of law governing commercial paper and are cited here merely for the purpose of showing the chain of liability between the different endorsers of the check in question, and also as showing that the plaintiff in error could look to the defendant in error for redress by reason of the unlawful payment of the check in question.
    Will the placing of the address of Cleveland, Ohio, instead of New York on the envelope containing the check, by the plaintiff in error, relieve and excuse the liability of the defendant in error in the case at bar?
    The payment of the check in question was not made by reason of any address placed on the envelope. No inquiry whatever was made by the bank making the first payment on the check when first presented for payment and of course no statement or act in any way influencing the payment of the check was made by this plaintiff in error. 24 Banking Law Journal, No. 10, “The Law of Bank Checks.”

      If a bank pays money to or on the endorsement of a person of the same name as the payee, but not the real payee intended by the check drawer, the payment is not valid or chargeable against- the depositor. Mead v. Young, 4 T. R., 28; Foster v. Shattuck, 2 N. H., 446; Graves v. Bank, 17 N. Y., 205; Bank v. Holtsclaw, 98 Ind., 85; 2 Morse on Banks and Banking, Sec. 474; Zane on Banks and Banking, 267; Dodge v. Bank, 20 Ohio St., 234; 30 Ohio St., 1; Armstrong v. Bank, 46 Ohio St., 512; Merrick v. Bank, 11 Dec., 293, 8 N. P., 411, 67 Ohio St., 530; Hoffmaster v. Black, 78 Ohio St., 1; Mackintosh v. Bank, 123 Mass., 393; Robb v. Pennsylvania Co., 186 Pa. St., 456; Bank v. Nolting, 94 Va., 263; Welsh v. Bank, 73 N. Y., 424; Crawford v. Bank, 100 N. Y., 50, 2 N. E. Rep., 881.

      Mr. J. A. Kohler; Mr. Arthur S. Mottinger and Mr. Charles E. Smoyer, for defendant in error.
    The question upon whom the loss should fall where a check is paid to a person of the same name as the payee seems to have occurred very infrequently in the reported decisions, there having been seemingly but four decisions upon the question. Mead v. Young, 4 T. R., 28; Graves v. Bank, 17 N. Y., 205; Bank v. Holtsclaw, 98 Ind., 85; Bank v. Ginocchio, 27 Mo. App., 661.
    First: There was no negligence on the part of the Barberton Savings Bank, and
    Second: The negligence of plaintiff in error in placing its check in the hands of the wrong Max Roth, did not throw the Barberton Savings Bank off its guard.
    When the check of plaintiff in error was returned to the Barberton Savings Bank with the name of the payee, Max Roth, endorsed on the back thereof, the defendant in error had fulfilled, to its depositor, that degree of care which it owed it. Forbes v. Espy, 21 Ohio St., 474; Bank v. Shotwell, 35 Kans., 360; Title & Trust Co. v. Bank, 196 Pa. St., 230, 43 Atl. Rep., 420; United States v. Bank, 45 Fed. Rep., 163; Construction Co. v. Bank, 64 Ill. App., 225; Robertson v. Coleman, 141 Mass., 231; Bank v. Bank, 5 N. Y. Leg. Obs., 18; Bank v. Bank, 7 Ind. App., 322.
    The negligence of plaintiff in error occasioned the loss. It should be made to bear that loss. Hern v. Nichols, 1 Salk., 289; Bank v. Bank, 58 Ohio St., 207; Insurance Co. v. Eshelman, 30 Ohio St., 659; Fullerton v. Sturges, 4 Ohio St., 530; Selser v. Brock, 3 Ohio St., 302; Bank v. Bank, 151 Mass., 280, 21 Am. St. Rep., 450; Bank v. Bangs, 106 Mass., 441; Crawford v. Bank, 100 N. Y., 55.
   Price, J.

At the trial in the court of common pleas, some of the facts were agreed upon, and they show that at the date of the check mentioned in the petition, the plaintiff in error was indebted to one Max Roth, of New York City, in the sum of $122.13, and that his place of business at that time was No. 48 Walker street of that city. To pay the above indebtedness, the plaintiff in error, on the 13th day of January, 1906, drew its check for said amount, on the defendant in error, in favor of and payable to Max Roth, in the following words: “Barberton, O., 1-13, 1906. Pay to the order of Max Roth ($122.13/100) one hundred twenty-two 13/100 dollars.

“The S. Weisberger Co.

“To the Barberton Savings Bank, Barberton, Ohio.”

This check, with a letter signed by the firm, was placed in an envelope, which was addressed to Max Roth, 48 Walker street, Cleveland, Ohio, instead of Max Roth, 48 Walker street, New York City. The letter so addressed and containing the check, shortly after it had been mailed to Cleveland, was delivered by the postoffice authorities to one claiming to be Max Roth, who lived or roomed on Henry street in the city of Cleveland. It appears that his name was Max Roth, but not the Max Roth to whom plaintiff was indebted and whose place of business was 48 Walker street, New York City. The Cleveland Max Roth, to whom the letter containing the check was delivered, took the check to a saloon-keeper in Cleveland, with whom he was acquainted, and after endorsing his name Max Roth on the back Of the check, received the cash for the same from the saloon-keeper, whose name is B. Schoenfeld. The latter endorsed and delivered it to The Cleveland Trust Co., which later endorsed and deposited it with the Union National Bank of that city, by which the check was presented to defendant bank for. payment, and it was paid and charged to the account of plaintiff. It never reached the Max Roth of New York, for whom it was intended, and plaintiff, afterwards and by means of another check, discharged its indebtedness to the New York creditor. As between the parties hereto, who should bear the loss sustained?

It is not necessary that we consider the many authorities presented by the plaintiff in error, concerning the liability of a bank to one of its depositors, for paying a forged check, nor to discuss the general rule that such bank is bound to know the signature of its depositor. Those authorities may be regarded as sound on the facts of each case there found, and still the judgment of the lower court be free from error. There is one view of this case sufficiently clear to sustain the judgment, without conflict with any authority cited in the brief or oral argument.

It stands out boldly in the plaintiff’s case — in its petition and in its evidence, that it was first at fault, if not first and solely negligent. It was a business concern, keeping an account with the defendant bank. It knew that its creditor, Max Roth, resided in New York City, doing business at 48 Walker street, and desiring to pay its debt to him, drew the check payable to him, not designating therein either the place of residence or business, and thoughtlessly or negligently enclosed it with a letter, in an envelope which it addressed to Max Roth, 48 Walker street, Cleveland, Ohio, and so addressed, the plaintiff caused it to be mailed. Bearing that address, the letter could not properly go to New York City, but could and properly did go to the city of Cleveland. Perhaps there is no Walker street in Cleveland, but the postal service, after diligent effort, found a Max Roth, or a man who claimed to be of that name, and the letter containing the check was delivered to him.

Up to this point of time, no one connected with • the check was negligent, except the plaintiff, unless it be the letter carrier .who delivered the letter. The act of the Max Roth of Cleveland, who received the letter, was criminal, and he forged the name of the real party for whom the check was intended by endorsing his name thereon.

The carelessness of the plaintiff put it within the power of the Cleveland man to perpetrate a fraud and obtain the proceeds of the check, which he did at the hands of Schoenfeld, his acquaintance. Then it took the customary course on its way to the bank of defendant upon which it was drawn. Schoenfeld, believing the endorsement of the Cleveland acquaintance legitimate, deposited the check in his bank of deposit, having endorsed his name on the back thereof. This bank endorsed and transferred it to the Union National Bank, guaranteeing prior endorsements, and it in turn endorsed it payable to any bank or bearer, guaranteeing all prior endorsements. These were Cleveland banks, which made the endorsements and transfers, but it is not alleged in the petition that the defendant bank had any information or knowl- • edge as to the residence or place of business of Max Roth, the plaintiff’s creditor, and therefore the location of these endorsing banks was not calculated to put the' defendant on inquiry or excite its suspicion. They had severally guaranteed prior endorsements. It was not practicable for the defendant to interview Max Roth, to ascertain whether he was the lawful holder of the check. While it is true that a forged endorsement transfers no title to the check, we cannot avoid a comparison of the negligent conduct of the plaintiff, with the apparent good faith of the defendant, acting as it did under the circumstances narrated.

The misdirected letter was the source of possibilities that became realities in this case. In other words, the plaintiff was first at fault and its mistake made possible what in fact has transpired. If we admit, as we do, the ordinary rule that a bank is bound to know the signature of its depositor, it is a rule to protect the rights of the depositor. But where his carelessness has contributed directly to the deception of the bank, he may not be in position to enforce such general rule.

In the case at bar, it appears that neither the depositor nor the bank intended to commit any wrong, and we may apply a rule, the substance of which is, that where one of two innocent parties must suffer because of a fraud or forgery, justice imposes the burden upon him who is first at fault and put in operation the power which resulted in the fraud or forgery.

We decide this case on its own peculiar facts and make no search for or examination of reported cases, and affirm the judgment of the lower court.

Judgment affirmed.

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