text:
    No. 13439.
    N. M. Uri & Co. v. Schuler, Assignee.
    Decided June 3, 1913.
    Error to Circuit Court of Crawford county.

      Messrs. Leuthold, McCarron & Leuthold, for plaintiff in error.

      Mr. H. R. Schuler, for defendant in error.
   Judgment affirmed.

Johnson, Wanamaker and Wilkin, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    No. 13908.
    The State, ex rel. French, v. Clough.
    Decided June 3, 1913.
    Error to Circuit Court of Cuyahoga couhty.

      Messrs'.' Wing,

      Myler & Turney, for plaintiff in error.

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

Shauck, C. J., Newman and Wilkin, JJ., concur.


text:
    No. 13157.
    Jones et al. v. Jones Brothers.
    Decided June 10, 1913.
    Error to Circuit Court of Knox county.

      Mr. J. M. McGillivray; Messrs. Waight & Moore and Mr. W. Z. Davis, for plaintiff in error.

      Mr. Frank W. Owen and Mr. Ferdinand Jelke, Jr., for defendant in error.
   On rehearing.

Judgment modified as shown in journal entry.

The application of plaintiff in error for a rehearing herein having heretofore been allowed, this cause came on again to be heard upon the transcript of the record of the circuit court of Knox county, and was argued by counsel. On consideration whereof, it is ordered that the former entry herein, made March 28, 1913, be vacated and set aside, and this court finds that the circuit court erred in finding, that the clause, “no monetary allowance shall be made for any delays of whatever character” (which was included in the contract between the parties), should be eliminated, and in ordering that the cause be remanded to the court of common pleas for trial to a jury, to hear and determine the injury and loss to plaintiffs caused by reason of defendants not having the entire right of way over said proposed line at the time of beginning said work on or. about November 6, 1905, and thereafter, and to fix and assess any damages therefor according to law.

. It is, therefore, ordered and adjudged that the judgment of the circuit court be, and the same is hereby, modified by striking therefrom as much thereof as is included in the finding and orders above set forth, and in all other respects the said judgment of the circuit' court is hereby affirmed.

Shauck, C. J., Johnson, Donahue, Wana-, maker, Newman and Wilkin, JJ., concur.


text:
    No. 13166.
    The Mahoning Valley Ry. Co. v. Connors.
    Decided June 10, 1913.
    Error to Circuit Court of Mahoning county.

      Messrs. Arrel, Wilson, Harrington & DeFord, for plaintiff in error.

      Mr. S. D. L. Jackson and Mr. J. V. Murphy, for defendant in error.
   Judgment affirmed.

Shauck, C. J., Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 13249.
    Moore v. Moore et al.
    Decided June 10, 1913.
    Error to Circuit Court of San-dusky county.

      Mr. W. W. Campbell and Mr. J. B. Stahl, for plaintiff in error.

      Messrs. Kinney, O’Farrell '& Riméispach and Mr. J. M. Sheets, for defendants in error.
   Judgment affirmed.

Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 13250.
    Yeoman v. Kuester.
    Decided June 10, 1913.
    Error to Circuit Court of Morrow county.

      Mr. S. C. Kingman and Messrs. Harlan & Wood, for plaintiff in error.

      Mr. Harry C. Miller; Mr. J. W. Barry and Mr. T. B. Mateer, for defendant in error.
   Judgment affirmed.

Shauck, C. J., Johnson, Donai-iue, Wana: maker, Newman and Wilkin, JJ., concur.


text:
    No. 13255.
    The Farmers Mutual Fire Insurance Assn. v. Baker.
    Decided June 10, 1913.
    Error to Circuit Court of Butler county.

      Messrs. Brennan & Stauter and Messrs. Jones '& Routsohn, for plaintiff in error.

      Mr. Isaac Baker and Mr. Walton S. Bozvers, for defendant in error.
   Judgment affirmed.

Shauck, C. J., Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur. _


text:
    No. 13257.
    Yurjevic v. Vukelic.
    Decided June 10, 1913.
    Error to Circuit Court of Jefferson county.

      Mr. W. 'C. Brown, for plaintiff in error.
    - Messrs. Erskine & Smith, .for defendant in error.
   Judgment affirmed.

Shauck, C. J., Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 13261.
    The Lancaster Leather Co. v. Carpenter.
    Decided June 10, 1913.
    Error to Circuit Court of Fairfield county.

      Mr. C. W. McCleery, for plaintiff in error.

      Mr. W. K. Martin and Mr. M. A. Daugherty, for defendant in error.
   Judgment affirmed.

Donahue, Wanamaker and Newman, JJ., concur.


text:
    No. 13262.
    Brayton v. Galbroner et al.
    Decided June 10, 1913.
    Error to Circuit Court of Seneca county.

      'Mr. George E. Schroth, for plaintiff in error.

      Mr. Milton Sayler and Messrs. Platt & Black, for defendants in error.
   Judgment affirmed.

Johnson, Donahue and Wanamaker, JJ., concur.


text:
    No. 13401.
    Claar et al. v. The Citizens Savings & Trust Co. et al.
    Decided June 10, 1913.
    Error to Circuit Court of Perry county.

      Mr. C. W. McCleery and Mr. R. U. Wilson, for plaintiffs in error.

      Mr. J. M. McGillivray; Mr. D. H. Armstrong and Mr. C. A. Donahue, for defendants in error.

   Judgment 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 is hereby, affirmed; for the reason that the errors in the charge of the court of common pleas to the jury are not found by this court to have been prejudicial, this court finding that substantial justice has been done between the parties.

Johnson, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 13407.
    Curtiss et al. v. The Chartiers Oil Co.
    Decided June 10, 1913.
    Error to Circuit Court of Perry county.

      Messrs. Booth, Keating, Peters & Pomerene, for plaintiffs in error.

      Mr. D. N. Postlewaite; Mr. T. P. Linn; Mr. A. L. Thurman; Mr. C. A. Donahue and Messrs.

      Weil '& Thorp, for defendant in error.
   Judgment affirmed.

Shauck, C. J., Newman and Wilkin, JJ., concur.


text:
    No. 13732.
    The City of Salem v. Wright.
    Decided June 10, 1913.
    Error to Circuit Court of Columbiana county.

      Mr. S. W. Ramsey and Mr. John E. Scott, for plaintiff in error.

      Messrs. Metzger & Smith and Mr. W. S. Anderson, for defendant in error.
   Judgment affirmed.

Sháuck, ,C. J., Donahue and Newman, JJ., concur.


text:
    No. 13764.
    Wise, a Taxpayer, v. The City of Barberton et al.
    Decided June 10, 1913.
    Error to Circuit Court of Summit county.

      Mr. O. D. Everhard and Mr. W. E. Young, for plaintiff in error.

      Mr. Elmer Boden, city solicitor, and Messrs. Rogers, Rowley '& Mather, for defendants in error.
   Judgment affirmed.

Shauck, C. J., Jopinson, Donahue, Newman and Wilkin, JJ., concur.

Wanamaker, J., not participating.


text:
    No. 13866.
    Mason v. The State of Ohio.
    Decided June 10, 1913.
    Error to Circuit Court of Montgomery county.

      Messrs. Mattern '& Brumbaugh and Mr. W. Z. Davis, for plaintiff in error.

      Mr. Robert C. Patterson, prosecuting attorney, and Mr. Robert R. Nevin, for defendant in error.
   Judgment affirmed.

Johnson, Wanamaker and Wilkin, JJ., concur.


text:
    No. 13182.
    Brown, Trustee, v. Hester.
    Decided June 17, 1913.
    Error to Circuit Court, of Huron county.

      Mr. Sherman Kulp and Mr. A. V. Andrews, for plaintiff in error.

      Mr. A. M. Beattie and Messrs, C. P. & R. D. Wickham, for defendant in error.
   Judgment affirmed. •

Shauck, C. J.j Johnson, Donahue and Newman, JJ., concur. ■


text:
    No. 13189.
    The Toledo, Bowling Green & Southern Traction Co. v. Baxter.
    Decided June 17, 1913.
    Error to Circuit Court of Hancock county.

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

      Mr. George H. Phelps, for defendant in error.
   Judgment of the circuit court reversed and that of the common pleas affirmed.

Shauck, C. J., Johnson, Newman and Wilkin, JJ., concur.


text:
    No. 13269.
    Townsend v. Heilker et al.
    Decided June 17, 1913.
    Error to Circuit Court of Hamilton county.

      Mr. Walter M. Locke, for plaintiff in error.

      Messrs. Galvin & Bauer, for defendants in error.
   Judgment affirmed.

Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 13270.
    Poland et al., Tax Commissioners of Ohio, v. The Cincinnati, Georgetown & Portsmouth Rd. Co.
    Decided June 17, 1913.
    Error to Circuit Court of Franklin county.

      Mr. Timothy S. Hogan, attorney general; Mr. Ciar

      ence D. Lay Un and Mr. J.' M. McGillivfay, fór plaintiffs in error.

      Messrs. Dinsmore & Shohl, for defendant in error.
   Judgment affirmed;

Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 13271.
    Poland et al., Tax Commissioners of Ohio v. The Felicity & Bethel Rd. Co.
    Decided June 17, 1913.
    Error to Circuit Court of Franklin county.

      Mr. Timothy S. Hogan, attorney general; Mr. Clarence D. Laylin and Mr. J. M. McGillivray, for plaintiffs in error.

      Messrs. Dinsmore Sr Shohl, for defendant in error.
   Judgment affirmed.

Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 13275.
    The Columbus Mutual Life Insurance Co. v. Ford.
    Decided June 17, 1913.
    Error to Circuit Court of Geauga county.

      Mr. Robert S. Parks and Messrs. Sheets, West Sr Game, for plaintiff in error.

      Mr. Jay Buchwalter, for defendant in error.
   Judgment affirmed.

Johnson, Donahue, Wanamaker and Wilkin, JJ., concur.


text:
    No. 13281.
    Meredith et al., Commissioners, et al. v. Landon, etc.
    Decided June 17, 1913.
    Error to Circuit Court of Delaware county.

      Mr. E-. ' R. Williams, prosecuting attorney, and Messrs. Jewell Sr Benton, for plaintiffs in error.

      Messrs. Marriott, Freshwater Sr Bliss and Messrs..

      Overturf & Hough, for defendant in error.
   Judgment . affirmed.

Donahue, Wanamaker and Wilkin, JJ„ concur.


text:
    No. 13286.
    Hughes v. The Johnstown & Croton Telephone Co.
    Decided June 17, 1913.
    Error to Circuit Court of Licking county.

      Messrs. Fits gibbon & Montgomery, for plaintiff in error.

      Messrs. Kibler & Kibler-, for defendant in error.
   Judgment affirmed.

Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 13287.
    Green v. Ball.
    Decided June 17, 1913.
    Error to Circuit Court of Ashtabula county.

      Mr. Allen M. Cox and Mr. Stillman F. Kneeland, for' plaintiff in error.

      Messrs. McGiffett & Uliman, for defendant in error.
   Judgment affirmed.

Johnson, Donahue, Wanamaker and Wilkin, JJ., concur.


text:
    No. 13307.
    The Akron & Chicago Junction Rd. Co. v. Weedman, Exr.
    Decided June 17, 1913.
    Error to Circuit Court of Huron county.

      Messrs. Arrel, Wilson, .Harrington '•& DeFord and Mr. D. .W. Severance, for plaintiff in error.

      Mr. E. M. Palmer and Messrs. C. P. '<& R: D. Wickham, for defendant in error.
   Judgment reversed and judgment for plaintiff in error.

Shauck, C. J., Johnson, Newman and Wilkin, JJ., concur. Wanamaker, J., dissents.


text:
    No. 13447.
    Alexander et al. v. Keys et al.
    Decided June 17, 1913.
    Error to Circuit Court of Belmont county.

      Mr. J. M. Lessick; Mr. Albert W. Kennon; Mr. Newell K. Kennon and Mr. G. C. Kinder, for plaintiffs in error.

      Messrs. Mitchell & Mitchell and Mr. C. L. Weems, for defendants in error.
   Judgment affirmed.

Johnson, Wanamaker and Wilkin, JJ., concur.


text:
    No. 13593.
    Hill, Admx., v. Pere Marquette Rd. Co.
    Decided June 17, 1913.
    Error to Circuit Court of Lucas county.

      Mr. Orville S. Brumback, for plaintiff in error.

      Mr. Julian H. Tyler, for defendant in error.
   Judgment affirmed.

Shauck, C. J., Johnson, Newman and Wilkin,, JJ., concur. Wanamaker, J., dissents.


text:
    No. 13679.
    Hunt v. The State of Ohio.
    Decided June 17, 1913.
    Error to Circuit Court of Cuyahoga county.

      Messrs. Kerruish, Kerruish, Hartshorn & Spooner, for plaintiff in error.

      Mr. Timothy S. Hogan, attorney general; Mr. B. S. Johnson; Mr. J. J. Babka and Mr. Robert M. Morgan, for defendant in error.
   Judgment affirmed.

Shauck, C. J., Johnson, Donahue, Newman and Wilkin, JJ., concur.


text:
    No. 13689.
    The Public Service Commission of Ohio v. The Baltimore & Ohio Rd. Co.
    Decided June 17, 1913.
    Error to Circuit Court of Franklin - county.

      Mr. Timothy S. Hogan, .attorney general; Mr. C. C. Marshall and Messrs. Crum, Raymund '■& Hedges, for plaintiff in error.-

      Mr. F. A. Ditrban and Mr. Robert J. King,-for defendant in' error.
   Judgment modified so as to permit the defendant in error to reqüire shippers to -load at non-agency but not at agency stations.

Shauck, C. J., Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 13864.
    Schmidt, a Minor, etc., v. The Cincinnati Traction Co.
    Decided June 17, 1913.
    Error to Circuit Court of Hamilton county.

      Mr. William H. Schweikert; Mr. George J. Slaline and Mr. Stanley Matthews, for plaintiff in error.

      Mr. Joseph Wilby and Mr. R. E. Simmonds, Jr., for defendant in error.
   Judgment of the circuit court reversed and that of the common pleas affirmed.

Johnson, Donahue, Wanamaker and Newman, JJ., concur.


text:
    No. 13885.
    The State of Ohio v. Wooley.
    Decided June 17, 1913.
    Error to Circuit Court of Hardin county.

      Mr. J. R. Stillings and Mr. Kent P. Johnson, prosecuting attorneys, and Mr. T. C. Mahon, for plaintiff in error.

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

Shauck, C. J., Johnson, Donahue, -Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 13927.
    The Youngstown Wire & Iron Co. v. Scott.
    Decided June 17, 1913.
    Error to Circuit Court of Mahoning county.

      Messrs. Sea-ton & Paine and Messrs. Hoyt, Dustin, Kelley, McKeehan & Andrews, for plaintiff in error.

      Mr. D. F. Anderson, for defendant in error.
   Judgment affirmed:

Johnson, Wanamaker and Wilkin, JJ., concur.


text:
    No. 13935.
    The Board of County Commissioners of Clermont County v. Judd.
    Decided June 17, 1913.
    Error to Circuit Court of Clermont county.

      Mr. Daniel W. Murphy, for plaintiff in error.

      Mr. Charles C. Kearns and Mr. Eli H. Speidel, for defendant in error.
   Judgment affirmed.

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


text:
    No. 14241.
    In re Gilbert A. Bartholomew on behalf of Raymond Adam Bartholomew, a Minor.
    Decided June 19, 1913.
    Petition for Writ of Habeas Corpus.

      Messrs. J. R. S’ H. R. Snyder and Mr. George S. Long, for pétitioners.
   Writ refused on the ground that it appears from the application that Raymond Adam Bartholomew is in the custody of the St. Joseph Seminary pursuant to an order of the court of appeals which ‘court had jurisdiction to make the order placing him in said institution and that the order which it 'made in that behalf is not void.


text:
    No. 13262.
    Brayton v. Galbroner et al.
    Decided June 24, 1913.
    Error to Circuit Court of Seneca county.

      Mr. George E. Schroth, for plaintiff in error.

      Mr. Milton Sayler and Messrs. Platt Black, for defendants in error.
   Judgment reversed and cause remanded to the common pleas court for trial upon the issues joined.

Shauck, C. J., Johnson, Donahue, Newman and Wilkin, JJ., concur.


text:
    No. 13289.
    Jeffrey v. Bates, Admr.
    Decided June 24, 1913.
    Error to Circuit Court’ of .Franklin county.

      Messrs. Arnold & Game, for plaintiff in error.

      Mr. M. B. Earnhart, for defendant in error.
   Judgment of the circuit court reversed and that of the common pleas affirmed.

Shauck, C. J;, Donahue, Newman and Wilkin, JJ., concur.


text:
    No. 13290.
    Snyder v. Fearer et al.
    Decided June 24, 1913.
    Error to Circuit Court of-Crawford county.

      Mr. W. J. Geer; for plaintiff in error.

      Mr. L. C. Barker, for defendants in error.
   Judgment affirmed.

Johnson, Donahue and Wan am aker, JJ., concur.


text:
    No. 13297.
    Bushnell et al., Trustees, v. Gabriel, County Treasurer.
    Decided June 24, 1913.
    Error to Circuit Court of Hocking county.

      Mr. Edzvard Bushnell, for plaintiffs in error.

      Mr. H. E. Sparnon, for defendant in error.
   Judgment affirmed.

Shauck, C. J., Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 13616.
    Kevern et al. v. Thibodeau.
    Decided June 24, 1913.
    Error to Circuit Court of Cuyahoga county.

      Messrs. Kerruish, Kerruish, Hartshorn & Spooner, for plaintiffs in error.

      Mr. Harry C. Gahn, for defendant in error.
   Judgment affirmed.

Johnson, Wanamaker and Wilkin, JJ., concur.


text:
    No. 13759.
    Lamkin v. Robinson et al.
    Decided June 24, 1913.
    Error to Circuit Court of Hamilton county.

      Messrs. Healy, Ferris & Mc-Avoy and Mr. G. J. McDiarmid, for plaintiff in error.

      Messrs. Stephens, Lincoln '& Stephens and Mr. Charles M. Leslie, for defendant in error.
   Judgment affirmed.

Donahue, Newman and Wilkin, JJ., concur.


text:
    No. 13760.
    Stevens v. Robinson et al.
    Decided June 24, 1913.
    Error to Circuit Court of Hamilton county.

      Messrs. Healy, Ferris & Mc-Avoy and Mr. C. J. McDiarmid, for plaintiff in error.

      Messrs. Stephens, Lincoln & Stephens and Mr. Charles M. Leslie, for defendants in error.
   Judgment affirmed.

Donahue, Newman and Wilkin, JJ., concur.


text:
    No. 13869.
    The State, ex rel. Voorhees et al., v. Cassingham, Mayor, et al.
    Decided June 24, 1913.
    Error to Circuit Court of Coshocton county.

      Mr. Burt F. Voorhees;■ Mr. Thomas E. Duncan and Mr. James Glenn, for plaintiff in error.

      Mr. John C. Adams, city solicitor, for defendants in error.
   Judgment affirmed.

Shauck, C. J., Johnson, Newman and Wilkin, JJ., concur.


text:
    No. 13905.
    Albery v. Sessions, Admr.
    Decided June 24, 1913.
    Error to Circuit. Court of Franklin county.

      Mr. E. L. DeWitt, for plaintiff in error.

      Mr. J. M. Sheets and Messrs. Ricketts & Cope, for defendant in error.
   Judgment affirmed.

Johnson. Wanamaker and Wilkin, JJ., concur.


text:
    No. 13915.
    The Felicity & Bethel Rd. Co. v. Harvey, Admr.
    Decided June 24, 1913.
    Error to Circuit Court of Clermont county.

      Messrs. Dinsmore '& Shohl, for plaintiff in error.

      Messrs. Griffith & Nichols; Mr. C. C. Kearns and Mr. Eli H. Speidel, for defendant in error.
   Judgment affirmed.

Shauck, C. J., Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur. !


text:
    No. 13923.
    The City of Dayton et al v. Staley, a Taxpayer.
    Decided June 24, 1913.
    Error to Circuit Court of Montgomery county.

      Mr. Frank S. Breene, city solicitor; \Mr. Carl L. Bauman, and Messrs. McKemy S’ Clihe, for plaintiffs in error.

      Messrs. McConnaughey & Shea and Messrs. Gottschall & Turner, for defendant in error.
   Judgment of the circuit court reversed and •judgment for, 'plaintiffs in error.

Shauck, C. J., Johnson; Wanamaker and Wilkin, JJ., concur.


text:
    No. 13938.
    The Village of Williamsburg v. Wilson.
    Decided June 24, 1913.
    Error to Circuit Court of Clermont county.

      Mr. H. L. Britton; Messrs. Nichols & Nichols and Messrs. Griffith & Nichols, for ■ plaintiff in error.

      Mr. Charles C. Kearns and Mr. Eli EL. Speidél, for defendant in error.
   Judgment affirmed.

Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 13184.
    Warner, Admr., v. Phillips et al.
    Decided June 27, 1913.
    Error to Circuit Court of Cuyahoga county.

      Messrs. Stearns, Chamberlain & Royon and Mr. D. C. Westenhaver, for plaintiff in error.

      Mr. John J. Sullivan; Messrs. Gott & Locher; Messrs. Hoyt, Dustin, Kelley, McKeehan & Andrews; Messrs. White Grosser; Messrs. Kline, Tolies '& Morley; Mr. E. Jay Finney and Mr. A. E. Clevenger, for defendants in error.
   Judgment affirmed.

Shauck, C. J., Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 13185.
    Warner, Admr., v. Phillips et al.
    Decided June 27, 1913.
    Error to Circuit Court of Cuyahoga county.

      Messrs. Stearns, Chamberlain & Royon and Mr. D. C. Westenhaver, for plaintiff in error.

      Mr. John J. Sullivan; Messrs. Gott '& Locher; Messrs. Hoyt, Dustin, Kelley, McKeehan & Andrews; Messrs. White Grosser; Messrs. Kline, Tolies & Morley; Mr. E. Jay Pinney and Mr. A. E. Clevenger, for defendants in error.
   Judgment affirmed.

Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 13242.
    The National Commission Co. v. The Citizens Savings Bank of Upper Sandusky.
    Decided June 27, 1913.
    Error to Circuit Court of Cuyahoga county.

      Mr. T.'F. Quigley and Mr. Floward A. Couse, for plaintiff in error.

      Messrs. Carpenter, Young & Stocker and Mr. H. H. Newell, for defendant in error.
   Judgment affirmed.

Shauck, C. J., Donahue, Newman and Wilkin, JJ., concur.


text:
    No. 13304.
    Birdsill v. Lacey.
    Decided June 27, 1913.
    Error to Circuit Court of Portage county.

      Messrs. White, Johnson '& 'Cannon, for plaintiff in error.

      Messrs. Smart, Marvin & Ford, for defendant in error.
   Judgment affirmed.

Johnson, Newman and Wilkin, JJ., concur.


text:
    No. 13309.
    Truax v. Corfman.
    Decided June 27, 1913.
    Error to Circuit Court of Wyandot county.

      Messrs. Platt '& Black and Messrs. Newell & Bowers, for plaintiff in error.

      Messrs. Meek '& Stalter, for defendant in error.
   Judgment reversed and judgment for plaintiff in error.

Johnson, Donahue, Wanamaker and Newman, JJ., concur.


text:
    No. 13324.
    The Orwell Banking Co. v. Pelton et al.
    Decided June 27, 1912.
    Error to Circuit Court of Ashtabula county.

      Messrs. McGiifert & Ullman, for plaintiff in error.

      .Mr. Warren Thomas; Mr. H. E. Starkey and Messrs. Perry & Hitchcock, lot defendants in error.
   Judgment affirmed.

Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 13328.
    Loomis v. The Clinton Coal & Mining Co. et al.
    Decided June 27, 1913.
    Error to Circuit Court of Guernsey county.

      Mr. 'Robert T. Scott, for plaintiff in error.

      Mr. J. H. Mackey and Mr. G. D. Dugan, for defendants in error.
   Judgment affirmed.

Shauck, C. J., Johnson,'Donahue, Newman and Wilkin, JJ., concur.


text:
    No. 13329.
    Boyer et al., Exrs., et al. v. Boyer.
    Decided June 27, 1913.
    Error to Circuit Court of Fairfield county.

      Mr. M. A. Daugherty; Mr. W. H. Lane; Mr. Eugene Moore and Mr. C. 0. Beals, for plaintiffs in error.

      Mr. William Davidson and Mr. C. W. McCleery, for defendant in error.
   Judgment affirmed.

Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 13339.
    The Board of County Commissioners of Franklin County v. The State, ex rel. Thrailkill.
    Decided June 27, 1913.

      Error to Circuit Court of Franklin county.

      Messrs. Turner & Sherman, for plaintiff in error.

      Mr. M, E. Thrailkill, for defendant in error..
   Judgment reversed and judgment of the.court of-, common pleas affirmed.

Si-iauck; C. J., Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 13344.
    Hoffsis et al. v. Shealey et al.
    Decided June 27, 1913.
    Error to Circuit Court of Crawford county.

      Messrs. Leuthold, McCarron & Leuthold and Mr. C. H. Henkel, for plaintiffs in error.

      Messrs. Finley & Gallinger, for defendants in error.
   Judgment affirmed.

Johnson, Donahue and Newman, JJ., concur.


text:
    No. 13584.
    The National Endowment Co. v. Frost.
    Decided June 27, 1913.
    Error to Circuit Court of Hamilton county.

      Mr. C. B. Matthews, for plaintiff in error.

      Mr. Robert B. Simmons; Mr. John C. Hermann and Mr. Constant Southworth, for defendant in error.
   Judgment affirmed by consent.


text:
    No. 13952.
    The State of Ohio v. The Coshocton Gas Co.
    Decided June 27, 1913.
    Error to Circuit Court of Franklin county.

      Mr. Timothy S. Hogan, attorney ' general, and Mr. Clarence D. Laylin) for plaintiff in error.

      Mr. F. E. Pomerene and Mr. S. M, Douglass,
      for defendant in error.
   Judgment affirmed.

Shauck, C. J., Johnson, Newman and Wilkin, JJ., concur.


text:
    No. 13982.
    Wilberding, Admr., v. Miller et al.
    Decided June 27, 1913.
    Error to Circuit Court of Cuyahoga county.

      Messrs. Higley & Maurer, for plaintiff in error.

      Messrs. Stearns, Chamberlain & Royon; Messrs. McArthur '& Dunnebache; Messrs. Hoyt-, Dustin, Kelley, Mc-Keehan & Andrews; Messrs. Westenhaver, Boyd, Rudolph \& Brooks; Messrs. Henderson, Quail & Siddall; Messrs. Higley & Maurer and Mr. Bishop H. Schriber,t for defendants in error.
   Judgment modified as shown 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, modified in the following respect:

That said circuit court should have found and adjudged that the portion received by the said trustees of the amount of three hundred thousand dollars, shown in the item for 1905 as “transferred contingent capital” in Wilberding’s exhibit I, page 412 of the record, and the amount of $62,521.05, shown in the item for 1905 as “balance to credit profit and loss account,” in the same exhibit I, should be treated and charged as income and distributed accordingly;

It is hereby ordered and adjudged that the judgment and decree of the said circuit court be and the same is hereby ordered to be modified in that respect;

It is further ordered and adjudged that the said judgment of the circuit court in all other .respects be and the same is hereby affirmed.

Shauck, C. J., Johnson, Donahue, Newman and Wilkin, JJ., concur.

For opinion, see 90 Ohio State.—Reporter.


text:
    No. 14059.
    Schlagel et al. v. Spaulding, County Auditor, et al.
    Decided June 27, 1913.
    Error to Court of Appeals of Marion county.

      Mr. John H. Clark and Mr. W. Z. Davis, for plaintiffs in error.

      Messrs. Crissinger Sr Guthery; Mr. Charles L. Justice and Mr. Homer E. Johnson, for defendants in error.
   Judgment affirmed.

Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 14226.
    Huntington v. Perkins et al., Trustees, et al.
    Decided June 27, 1913.
    Error to Court of Appeals of Cuyahoga county.

      Mr. James W. Stewart and Messrs. White, Johnson Sr Cannon, for plaintiffs in error.

      Messrs. Squire, Sanders & Dempsey and -Mr. Charles T. Brooks, for defendants in error.
   Judgment affirmed.

Shauck, C. J., Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 12713.
    Snowberger et al. v. Snowberger.
    Decided September 23, 1913.
    Error to Circuit Court of Miami county.

      Mr. J. A. Davy, for plaintiffs in error. Mr. J. H. Marlin and Mr. Thomas B. Kyle, for defendant in error.
   On rehearing.

Judgment setting aside the election of the defendant in error affirmed. Judgment ordering partition reversed, upon the ground that by uncontradicted evidence the plaintiffs in error were not tenants in common with each other, and petition for partition dismissed.

Shauck, Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 13346.
    The Tiffin Art Metal Co. v. The Tiffin Consolidated Telephone Co.
    Decided September 23, 1913.
    Error to Circuit Court of Seneca county.

      Mr. Alexander Kiskadden, for plaintiff in error.

      Messrs. Royer '& Spitler, for defendant, in error.
   Judgment affirmed.

Johnson, Donahue, Newman and Wilkin, JJ., concur.


text:
    No. 13355.
    Harkness v. Kincheloe.
    Decided September 23, 1913.
    Error to Circuit Court of Muskingum county.

      Messrs. Owen '& Carr, for plaintiff in error.

      Mr. Harry C. Shepherd, for defendant in error.
   Judgment affirmed.

Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 13362.
    Wile et al. v. Fetterman et al.
    Decided September 23, 1913.
    Error to Circuit Court of Ashtabula county.

      Mr. S. L. Clark, for plaintiffs in error.

      Mr. F. J. Bishop and Messrs. Perry '& Hitchcock, for defendants in error.
   Judgment affirmed.

Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 13368.
    Lambert v. The City of Cleveland.
    Decided September 23, 1913.
    Error to Circuit Court of Cuyahoga county.

      Messrs. Wing, Myler '& Turney and Mr. John M. Pindras, for plaintiff in error.

      Mr. E. K. Wilcox, city solicitor, and Mr. Joseph C. Hostetler, assistant city solicitor, for defendant in error.
   Judgment affirmed.

Johnson, Donahue, Wanamaker, . Newman and Wilkin, JJ., concur.


text:
    No. 13369.
    Turney et al. v. Myers, Treasurer.
    Decided September 23, 1913.
    Error to Circuit Court of Cuyahoga county.

      Messrs. Wing, Myler <& Turney, for plaintiffs in error.

      Mr. John A. Cline, prosecuting attorney; Mr. Walter D. Meals, assistant prosecuting attorney; Mr. E. K. Wilcox, city solicitor, and Mr. Frank E. Stevens, assistant city solicitor, for defendant in error.
   Judgment affirmed.

Johnson, Donahue, Newman and Wilkin, JJ., concur.


text:
    No. 13372.
    Willard v. Fox.
    Decided September 23, 1913.
    Error to Circuit Court of Ashland county.

      Messrs. McCray & McCray, for plaintiff in.error.

      Messrs. Mykrants & Patterson, for defendant in error.
   Judgment affirmed.

Johnson, ' Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 13377.
    The Bellefontaine Feed & Fuel Co. v. Rogers, Guardian.
    Decided September 23, 1913.
    Error to Circuit Court of Logan county.

      Messrs. West & Chamberlin, for plaintiff in error.

      Mr. M. G. Bell, for defendant in error.
   Judgment affirmed.

Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 13394.
    Phifer et al. v. Montgomery et al., Board of County Commissioners of Hancock County et al.
    Decided September 23, 1913.
    Error to Circuit Court of Hancock county.

      Mr. George H. Phelps, for plaintiffs in error.

      Mr. Charles A. Blackford, prosecuting attorney, for defendants in error.
   Judgment affirmed.

Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 13396.
    McArthur et al. v. Greentree et al.
    Decided September 23, 1913.
    Error to Circuit Court of Hardin county/'

      Messrs. Johnson '& Johnson and Messrs. Smick & Hoge, for plaintiffs in error.

      Messrs. Stickle. & Cessna and Mr. T. C. Mahon, for defendants in error.
   Judgment affirmed.

Johnson, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 13397.
    Preusser v. The Beacon Journal Co.
    Decided September 23, 1913.
    Error to Circuit Court of Summit county.

      Mr.. J. M.

      Poulson and Mr. H. Preusser, for plaintiff in error.

      Messrs. Rogers, Rowley & Mather, for defendant' in error.
   Judgment, affirmed.

Johnson, Donahue, Newman and Wilkin, JJ., concur.


text:
    No. 13400.
    Millikin v. Tidd.
    Decided September 23, 1913.
    Error to Circuit Court of Trumbull county.

      Mr. A. L. Phelps, for plaintiff in error.

      Mr. Jay Buchwalter, for defendant in error.
   Judgment affirmed.

Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 13410.
    Robison, Exr., v. Bowler.
    Decided September 23, 1913.
    Error to Circuit Court of Cuyahoga county.

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

      Messrs. A. A. '& A. H. Bemis, for defendant in error.
   Judgment affirmed.

Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 13411.
    Hine et al., Partners, v. Blanchfield, an Infant, by etc.
    Decided September 23, 1913.
    Error to Circuit Court of Portage county.

      Messrs. Reed & Eichelberger, for plaintiffs in error.

      Messrs. R. S. & R. J. Webb, for defendant in error.
   Judgment affirmed.

Johnson, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 13414.
    The Ohio Fuel Supply Co. v. Weakley.
    Decided September 23, 1913.
    Error to Circuit Court of Fairfield county.

      Mr. L. B. Denning and Mr. L. G. Silbaugh, for plaintiff in error.

      Mr. M. A. Daugherty, for defendant in error.
   Judgment affirmed..

Johnson, Wanamaker. Newman and Wilkin, JJ., concur.


text:
    No. 13419.
    Lewis v. Lewis.
    Decided September 23, 1913.
    Error to Circuit Court of Rich-land county.

      Mr. Jesse E. LaDozv, for plaintiff in error.

      Mr. Harry T. Manner and Messrs. Cummings, McBride & Wolfe, for defendant in error.
   Judgment affirmed.

Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 13423.
    The Schorndorfer & Eberhard Co. v. The Solar Prism Co.
    Decided September 23, 1913.
    Error to Circuit Court of Cuyahoga county.

      Messrs. Wing, Myler & Turney, for plaintiff in error.

      Messrs. Peskind '& Perris, for defendant in error.
   Judgment affirmed.

Johnson, Donahue, Newman and Wilkin, JJ., concur.


text:
    No. 13432.
    Roloff v. Kerr et al.
    Decided September 23, 1913.
    Error to Circuit Court of Mahoning county.

      Messrs. Schlarb &* Carman, for plaintiff in error.

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

Johnson, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 13437.
    Nave v. The Board of Education of Green Township School District.
    Decided September 23, 1913.
    Error to Circuit Court of Clark county.

      Mr. Clem V. Collins and Mr. C. S. Olinger, for plaintiff in error.

      Mr. Lawrence E. Laybourne, for defendant in error.
   Judgment affirmed.

Donai-iue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 13444.
    The Northern Realty Co. v. The Cuyahoga River Power Co.
    Decided September 23, 1913.
    Error to Circuit Court of Summit county.

      Messrs. Rogers, Rowley . & Mather, for plaintiff in error.

      Messrs. Westenhaver, Boyd, Rudolph & Brooks and Messrs. Frank & Ream, for defendant in error.
   Judgment affirmed.

Johnson, Donahue, Newman and Wilkin, JJ., concur.


text:
    No. 13445.
    Kimber, Admr., v. Jaynes, Exr., et al.
    Decided September 23, 1913.
    Error to Circuit Court of Summit county.

      Messrs>. Musser, Kimber & Huffman and Mr. Scott D. Kenfield, for plaintiff in error.

      Mr. W. E. Pardee; Mr. J. M. Poulson; Messrs. Slabaugh, Seiberling & Huber and Mr. S. D. Kenfield, for defendants in error.
   Judgment affirmed.

Johnson, Donahue, Wanamaker, Newman and 'Wilkin, JJ., concur. .


text:
    No. 13448.
    The Loomis Realty Co. et al. v. The Goodyear Tire & Rubber Co.
    Decided September 23, 1913.
    Error to Circuit Court of Cuyahoga county.

      Messrs. Hoyt, Dustin, Kelley, McKeehan & Andrews, for plaintiffs in error.

      Messrs. Ammerman & Thompson, for defendant in error.
   Judgment affirmed.

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


text:
    No. 13985.
    Johnson, Receiver, et al. v. Weikart, Admr.
    Decided September 23, 1913.
    Error to Circuit Court of Clark county.

      Messrs. Keifer & Keifer, for plaintiffs in error.

      Mr. John L. Zimmerman and Mr. M. Ray Weikart, for defendant in error.
   Judgment affirmed.

Johnson, Donahue, Wanamaker and Wilkin, JJ., concur.


text:
    No. 13998.
    City of Springfield v. Meyer, Admx.
    Decided September 23, 1913.
    Error to Circuit Court of Clark county.

      Mr. Howard E. MacGregor, city solicitor, and Mr. John M. Cole, for plaintiff in error.

      Mr. Stewart L. Tatum, for defendant in error.
   Judgment affirmed.

Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 14051.
    The Toledo & Ohio Central Railway Co. v. Sherman, Admx.
    Decided September 23, 1913.
    Error to Court of Appeals of Lucas county.

      Messrs. Doyle '■& Lewis, for plaintiff in error.

      Mr. Orville S. Brumback, for defendant in error.
   Judgment affirmed on ground stated in journal entry.

It is ordered and adjudged by this court, that the judgment of the said court of appeals be, and the same is hereby, affirmed.

The court finds that the findings of error made by the court of appeals and included in its entry of February 13, 1913, were correct; and this court further finds that the court of common pleas erred in ruling out evidence offered by the plaintiff to show the existence of rule 915 and the decedent’s knowledge of such rule;

It is further ordered that this cause be remanded to the court of common pleas of Lucas county for further proceedings according to law.

Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 14053.
    Dean, Auditor, et al. v. The State, ex rel. Joint District Board of County Commissioners of Clark, Champaign, Greene and Madison Counties.
    Decided September 23, 1913.
    Error to Circuit Court of Greene county.

      Mr. Marcus Shoup; Mr. W. F. Orr; Mr. F. L. Johnson and Messrs. Smith & Smith, for plaintiffs in error.

      Mr. Charles E. Ballard; Mr. C. C. Crabbe and Mr. Charles FI. Duncan, for defendant in error.
   Judgment affirmed an authority of

Brissel et al., Commissioners, et al. v. The State, ex rel. McCammon, 87 Ohio St., 154.

Shauck, Donahue, Wanamaker, Newman and Wilkin, JJ., concur. Johnson, J., not participating.


text:
    No. 14234.
    Drum, a Taxpayer, etc. v. The City of Cleveland et al.
    Decided September 23, 1913.
    Error to Court of Appeals of Cuyahoga county.

      Messrs. Squire, Sanders & Dempsey, for plaintiff in error.

      Mr. E. K. Wilcox, city solicitor, for defendants in error.
   Judgment affirmed.

Johnson, Donahue, Wanamaker and Wilkin, JJ., concur. _


text:
    No. 13390.
    Yocum v. The Village of DeGraff.
    Decided September 30, 1913.
    Error to Circuit Court of Logan county,

      Mr. John F. Emans; Mr. H. Edmund Garling and Messrs. Halfhill, Quail & Kirk, for plaintiff in error.

      Mr. Edward K. Campbell; Mr. J. E. West and Mr. William W. Riddle, for defendant in error.
   Judgment affirmed.

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


text:
    No. 13395.
    The State, ex rel. Gillmer, Prosecuting Attorney, v. Sager.
    Decided September 30, 1913.
    Error to Circuit Court of Trumbull county.

      Messrs. Fillius & Fillius, for plaintiff in error.

      Mr. Washington Hyde, for defendant in error.
   Judgment reversed on authority of The State, ex rel. Maher, v. Baker, ante, 165, and because the money received was not a collection within the meaning of the statute.

Shauck, Johnson, Wanamaker and Wilkin, JJ., concur. __


text:
    No. 13417.
    The State, ex rel. Rice, v. The City of Xenia.
    Decided September 30, 1913.
    ' Error to Circuit Court of Greene county.

      Mr. M. J. Hartley and Mr. Marcus Shoup, for plaintiff in error.

      Mr. Harry D. Smith, city solicitor, for defendant in error.
   Judgment affirmed.

Si-iauck, Johnson, Newman and Wilkin, JJ., concur.


text:
    No. 13427.
    Selby et al. v. Hatfield et al., Trustees of Wayne Township.
    Decided September 30, 1913.
    Error to Circuit Court of Wayne county.

      Messrs. McClaran '& Jones and Mr. M. C. Rouch, for plaintiffs in error.

      Mr. Lyman R. Critchñeld, Jr., prosecuting attorney, for defendant in error.'
   Judgment affirmed.

Shauck, Johnson, Wanamaker and Newman, JJ., concur.


text:
    No. 13455.
    The Cleveland, Cincinnati, Chicago & St. Louis Railway Co. v. Steinhelfer.
    Decided September 30, 1913.
    Error to Circuit Court of Crawford county.

      Messrs.. Cummings, McBride & Wolfe and Mr. H. R. Schuler,■ for plaintiff in error.

      Mr. R. V. Sears and Messrs. Finley & Gallinger, for defendant in error.
   Judgment affirmed.

Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., .concur.


text:
    No. 13458.
    The Board of Education of the Village of New Boston v. Rardin.
    Decided September 30, 1913.
    Error to Circuit Court of Scioto county.

      Mr. Horace L. Small, for plaintiff in error.

      Messrs. Bannon '& Bannon; Mr. J. R. Gilliland and Mr: William J. Meyer, for defendant in error.
   Judgment affirmed.

Johnson, Donahue, Wanamaker and Wilkin, JJ., concur.


text:
    No. 13465.
    Ohio Hay & Grain Co. v. Null.
    Decided September 30, 1913.
    Error to Circuit Court of Hancock county.

      Messrs. Axline & Betts, for plaintiff in error.

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

Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 13473.
    The City of Dayton v. Warren Brothers Co.
    Decided September 30, 1913.
    Error to Circuit Court of Montgomery county.

      Mr. Frank S. Breene; Mr. Albert I. Dwyer and Mr. John Roehm, for plaintiff in error.

      Mr. Wellmore B. Turner; Mr. Alfred McCray and Messrs. Gottschall & Turner, for defendant in error.
   Judgment affirmed.

Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 13475.
    The Arthur Coal & Coke Co. v. The Pittsburg Coal Co.
    Decided September 30, 1913.
    Error to Circuit Court of Cuyahoga county.

      Messrs. Lang, Cassidy &' Copeland, for plaintiff in error.

      Messrs. Holding, Masten, Duncan & Leckie, for defendant in error.
   Judgment affirmed.

Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 13479.
    Sears et al. v. Climer et al.
    Decided September 30, 1913.
    Error to Circuit Court of Morrow county.

      Messrs. Harlan & Wood and Mr. Benjamin Olds, for plaintiffs in error.

      Mr. J. W. Barry and Mr. John S. Hayman, for defendant in error.
   Judgment affirmed.

Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 13486.
    Winterrowd v. The Farmers' Mutual Fire Insurance Company of Darke County, Ohio.
    Decided September 30, 1913.
    Error to Circuit Court of Darke county.

      Messrs. Bickel '■& Baker, for plaintiff in error.

      Messrs. Meeker & Gaskill, for defendant in error.
   Judgment reversed on ground stated in journal entry.

It is ordered and adjudged by this court, that the judgment of the said circuit court be, and the same hereby is, reversed; and this court coming now to render such judgment as the circuit court should have rendered, it is hereby ordered and adjudge that the judgment of the court of common pleas be reversed and that said cause be remanded to the court of common pleas of Darke county, with directions to overrule the demurrer of the defendant to the first and second causes of action in the petition of plaintiff, for the reason that the. sixty days mentioned in section 10 of the bylaws of defendant company begin to run from the expiration of thirty days after date of notification of assessment, and not from date of notification; said common pleas court, thereupon, to proceed according to law.

NicpoLS, C. J., Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 13490.
    Smith v. Gratigny et al.
    Decided September 30, 1913.
    Error to Circuit Court of Monroe county.

      Mr. D. E. Yost, for plaintiff in error.

      Mr. F. A. Jeffers and Messrs. Lynch '& Lynch, for defendants in error.
   Judgment of the circuit court reversed and that of the common pleas affirmed.

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


text:
    No. 13491.
    Reno v. Love et al.
    Decided September 30, 1913.
    Error to Circuit Court of Lucas county.

      Mr. Benjamin F. Reno, in propria persona. Mr. Timothy S. Hogan, attorney general; Messrs. Kohn, Northup & Morgan and Messrs. Fell & Schaal, for defendants in error.
   Judgment affirmed.

Johnson, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 13510.
    Ferguson et al. v. Blinn, Treasurer, et al.
    Decided September 30, 1913.
    Error to Circuit Court of Jefferson county.

      Mr. E. L. Finley and Mr. C. L. Weems, for plaintiffs in error.

      Mr. W. R. Alban and Mr. A. C. Lewis, for defendants in error.
   Judgment modified as shown by journal entry by agreement of counsel.

This cause coming on to be heard on the record and pleadings and by agreement of counsel, the findings and judgment of the circuit court, of Jefferson county, Ohio, rendered at its December term, 1911, is affirmed, except conclusions of law numbered, “Fourth,” “Fifth,” and “Sixth,” which are hereby modified as follows:

Fifth: Said property, reál and personal, of plaintiff in error, W. B. Ralston, is subject to an extra tax, only, for the construction of the Bloomfield and Fairplay free turnpike road.

Sixth: Said property, real and personal, of plaintiffs in error, William Miller, Nora Miller, Maggie Owens and the heirs of Susanna M. Miller, deceased, and Samuel Miller, deceased, D. M. Hervey, Isaac Hicks, S. N. Bell, Carrie Bell and W. W. Hicks, is subject to an extra tax, only, for the construction of the Bloomfield and Western free turnpike road, as shown by “Exhibit A,” except one-third (1-3) of the taxable valuation of the real and personal property of William Miller, Nora Miller, Maggie Owens and the heirs of Susanna M. Miller, deceased, and Samuel Miller, deceased, which said one-third (1-3) taxable valuation, shall be subject to an extra tax, only, for the construction of the Unionport and Smithfield free turnpike road. Plaintiffs in error and defendants in error to pay, each one-half (1-2) of the costs of this action.

And it is hereby ordered that a mandate' be sent to the court of appeals Jefferson county, Ohio, to carry this judgment as modified, into execution.


text:
    No. 14069.
    The State of Ohio v. Bundy.
    Decided September 30, 1913.
    Error to Court of Appeals of Logan county.

      Mr. Forest GJ Long and Mr. Ernest Thompson, for plaintiff in error.

      Mr. Kent W. Hughes and Mr. A. Jay Miller, for defendant in error.
   Judgment affirmed.

Nichols, C. J., Shauck, Johnson, Donai-iue, Wanamaker, Newman and Wilkin, JJ., concur. '


text:
    No. 14084.
    The Cincinnati Traction Co. et al. v. Carpenter, a Taxpayer, et al.
    Decided September 30, 1913.
    Error to Circuit Court of Hamilton county.

      Mr. Alfred Bettman, city solicitor; Mr. George H. Warrington and Mr. Joseph Wilby, for plaintiffs in error.

      Messrs. Dinsmore & Shohl, for defendants in error.
   Judgment affirmed.

Nichols, C. J., Johnson, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 14085.
    The Cincinnati Traction Co. et al. v. Carpenter, a Taxpayer, et al.
    Decided September 30, 1913.
    Error to the Circuit Court of Hamilton county.

      Mr. Alfred Bettman, city solicitor; Mr. George H. Warrington and Mr. Joseph Wilby, for plaintiffs in error.

      Messrs. Dinsmore & Shohl, for defendants in error.
   Judgment affirmed.

Nichols, C. J., Jopinson, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 14247.
    The State, ex rel. Walton, v. Edmondson, Auditor.
    Decided September 30, 1913.
    Error to the Court of Appeals of Hamilton county.

      Mr. Alfred Bettman, for plaintiff in error.
      ■Mr. Thomas L. Pogue; Mr. John V-. Campbell and Mr. Charles A. Groom, for defendant in error.
   Judgment reversed.

Johnson, Donahue, Wanamaker and Newman, JJ., concur.

For opinion, see 89 Ohio State.—Reporter.


text:
    No. 13234.
    Hinkle, Admx., v. Hinkle et al.
    Decided October 7, 1913.
    Error to Circuit Court of Clark county.

      Mr. John M. Cole and Mr. Burt Rabbitts, for plaintiff in error.

      Mr. John L. Zimmerman; Mr. Webb W. Witmeyer and Mr. M. Ray Weikart, for defendants in error.
   Judgment affirmed.

Nichols, C. J., Johnson, Donapiue, Wanamaker, Newman and Wilkin., JJ., concur.


text:
    No. 13267.
    Fish et al. v. Robinson.
    Decided October 7, 1913.
    Error to Circuit Court of Hamilton county.

      Messrs. Kramer & Bettman, for plaintiffs in error.

      Messrs. Sayler & Sayler, for defendant in error.
   Judgments of the circuit and superior courts reversed. Judgment for plaintiffs in error on the pleadings. See journal entry.

It is ordered and adjudged by this court, that the judgment of the said circuit court be, and the same hereby is, reversed; and this court finds that the said circuit court erred in affirming the judgment of the superior court of Cincinnati in said cause, and that the said superior court erred in sustaining the motion of the plaintiff in said cause in said court for judgment on the-pleadings and erred in entering judgment on the pleadings. This court finds that the following provision in' the lease set out in said pleadings, to-wit: “It is understood that the parties of the second part shall not sell, rent, transfer or assign the lea'sed premises, or any part thereof, without the written' consent of the party of the first part, or his authorized agent, under a forfeiture of five thousand dollars,” is a provision for a penalty not enforcible in said action. ' ’ •

Coming now to render the judgment which the ■said superior court should have rendered, it ■ is ordered and adjudged that the petition of the" plaintiff in the said superior court be, and the same is hereby, dismissed.

Johnson, Donahue, Wanamaker. •. Newman and Wilkin, JJ., concur.


text:
    No. 13285.
    Cochran v. Rightmire.
    Decided October 7, 1913.
    Error to Circuit Court of Knox county.

      Messrs. Ammerman & Thompson, ! for plaintiff in error.

      Messrs. Owen & Carr, • for defendant in error.
   Judgment affirmed ! on 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 is hereby, affirmed; for the sole reason that it appears from the record that one of the assignments of error in the petition in error in the circuit court was that the common pleas court erred in overruling the motion of plaintiff in error for a new trial, one of the grounds of which motion was that the verdict was against the weight of the evidence, the entry of the judgment in the circuit court being that there is error apparent on the record in the proceeding of the common pleas court but not specifying any particular error.

But this court further finds that there was no error in the charge of the common pleas court to the jury on the trial of said action nor any other error in the record of said cause in the common pleas court.

Nichols, C. J., Shauck, Johnson, Newman arid Wilkin, JJ., concur.


text:
    No. 13454.
    White et al. v. The First National Bank of Tipton, Indiana.
    Decided October 7, 1913.
    Error to Circuit Court of Allen county.

      Messrs. Becker & Becker and Mr. Walter B. Richie, for plaintiffs in error.

      Messrs. Cable '■& Parmenter, for defendant in error.
   Judgment affirmed.

Si-iauck, Johnson, Newman and Wilkin, JJ., concur. Nichols, C. J., not participating.


text:
    No. 13494.
    McCrery et al. v. The Columbia Contracting Co.
    Decided October 7, 1913.
    Error to Circuit Court of Champaign county.

      Messrs. Johnson '& Miller, for plaintiffs in error.

      Mr. C. B. Heiserman, for defendant in error.
   Judgment affirmed.

Si-iauck, Donahue, Wanamaker, Newman and Wilkin, JJ., concur. Nichols, C. J,, not participating.


text:
    No. 13496.
    Williams v. Barrow.
    Decided October 7, 1913.
    Error to Circuit Court of Perry county.

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

      Mr. Harley M. Whitcraft and Mr. T. B. Williams, for defendant in error.
   Judgment affirmed.

Nichols, C. J., Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., cpncur.


text:
    No. 13504.
    Lowell et al., Receivers, v. Perkins.
    Decided October 7, 1913.
    Error to Circuit Court of Pike county.

      Mr. E. H. Willis, for plaintiffs in error.

      Mr. L. G. Dill and Mr. S. L. Patterson, for defendant in error.
   Judgment affirmed.

Johnson, Donahue, Wanamaker and Wilkin, JJ., concur. Nichols, C. J., and Newman, J., not participating.


text:
    No. 13507.
    Altic v. Steffy et al.
    Decided October 7, 1913.
    Error to Circuit Court of Darke county.

      Mr. Martin B. Trainor, for plaintiff in error.

      Messrs. Bickel & Baker, for defendants in error.
   Judgment affirmed.

Nichols, C. J., Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 13508.
    The Delaware County Telephone Co. v. Shaver.
    Decided October 7, 1913,
    Error to Circuit Court of Delaware county.

      Mr. Harry Leonard and Messrs. Jewell & Benton, for plaintiff in error.

      Messrs. Marriott, Freshwater'S Bliss, for defendant in error.
   Judgment of-the : circuit, court reversed and common pleas court affirmed.

Johnson, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 13509.
    The Prudential Insurance Co. of America v. Meyers.
    Decided October 7, 1913.
    Error to Circuit Court of Hamilton county.

      Mr. Michael G. Heintz, for plaintiff in error.

      Mr. T. L. "Huddle and Mr. Samuel W. Bell, for defendant in error.
   Judgment affirmed.

Johnson, . Donahue, Wanamaker, Newman and Wilkin, JJ., concur. Nichols, C. J., not participating.


text:
    No. 13525.
    The Fourth National Bank of Cadiz v. Rogers.
    Decided October 7, 1913.
    Error to Circuit Court of Harrison county.

      Mr. Milton. Taggart and Mr. Albert 0. Barnes, for plaintiff in error.

      Messrs. Hollingsworth '& Worley, for defendant in error.
   Judgment of the circuit court reversed and that of the common pleas, affirmed.

Nichols, C. J., Shauck, Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 13527.
    The City of Toledo et al. v. Smith et al.
    Decided October 7, 1913.
    Error to Circuit Court of Lucas county.

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

      Messrs. Kohn, Northup

      Morgan, for defendants in error.
   Judgment affirmed.

Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur. Nichols, C. J., not participating.


text:
    No. 13529.
    German Fire Insurance Co. of the City of Pittsburgh v. Burke.
    Decided October 7, 1913.
    Error to Circuit Court of Cuyahoga county.

      Mr. C. W. Fuller and Mr. L. R. Canñeld, for plaintiff in error.

      Mr. Robert E. McKisson, for defendant in error.
   Judgment affirmed.

Johnson, Donahue, ' Wanamaker, Newman and Wilkin, JJ., concur. Nichols, C. J., not participating.


text:
    No. 13545.
    Green et al. v. Board of County Commissioners of Licking County et al.
    Decided October 7, 1913.
    Error to Circuit Court of Licking county.

      Messrs. Smythe ■& Smythe, for plaintiffs in error.

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

Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur. Nichols, C. J., not participating.


text:
    No. 13547.
    Wolford et al. v. Board of County Commissioners of Richland County et al.
    Decided October 7, 1913.
    Error to Circuit Court of Richland county.

      Messrs. Finley '& Gallinger, for plaintiffs in error.

      Mr. James W. Galbraith, prosecuting attorney; Mr. B. F.

      Long' arid Mr. C. H. Huston, for defendants in error.
   Judgment affirmed.

Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur. Nichols, C. J., not participating.


text:
    No. 13845.
    Holden v. Knapp et al., Partners as Hickory Carriage Co.
    Decided October 7, 1913.
    Error to Circuit Court of Hamilton county.

      Mr. Charles M. Cist, for plaintiff in error.

      Mr.. Stanley Matthews and Mr. E. H. Matthews, for defendants in error.'
   Judgment of the circuit court reversed and that of the superior court affirmed.

Shauck, Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ:, concur. Nichols, C. J., not participating.


text:
    No. 13288.
    Smith v. Roberts.
    Decided October 14, 1913.
    Error to Circuit Court of Trumbull county.

      Mr. Wade R. Deemer for plaintiff in error.

      Mr. D. J. Hartwell, for defendant in error.
   Judgment of the circuit court reversed and that of the common pleas court affirmed on grounds stated in journal entry.

It is ordered and adjudged by this court, that the judgment of the said circuit court be, and 'the saíne hereb}*- is, reversed. This court finds 'that the- errors for which the said circuit court ‘reversed the judgment of the common pleas, as stated -in its journal entry, were not prejudicial, ■and that on the whole record substantial justice ■ was done between the .parties by the judgment of the justice of the peace. And coming now to render the judgment that the circuit court should ■have rendered,

It is hereby ordered and adjudged that the judgment of the court of common pleas in said cause be, and the same hereby is, affirmed.

Nichols, C. J., Johnson, Donahue, Wanamaker and Newman, JJ., concur.


text:
    No. 13499.
    Esselborn et al. v. Arnold, Admr.
    Decided October 14, 1913.
    Error to Circuit Court of Scioto county.

      Messrs. Bannon & Bannon and Mr. William J. Meyer, for plaintiffs in. error.

      Mr. Theodore K. Funk, for defendant in error.
   Judgment of circuit court reversed and that of the common pleas court affirmed.

Shauck, Johnson, Newman and Wilkin, JJ., concur. Nichols, C. J., not participating.


text:
    No. 13500.
    The Kenton Telephone Co. v. Hummer.
    Decided October 14, 1913.
    Error to Circuit Court of Hardin county.

      Messrs. Cable & Parmenter, for plaintiff in error.

      Messrs. Stickle '& Cessna, for defendant in error.
   Judgment affirmed.

Nichols, C. J., Shauck, Johnson, Wanamaker and Wilkin, JJ., concur.


text:
    No. 13506.
    Nauss v. Ream et al.
    Decided October 14, 1913.
    Error to Circuit Court of Darke count)c

      Mr. Martin B. Trainor, for plaintiff in error.

      Mr. George W. Mannix, Jr.; Mr.

      John C. Clark; Mr. D. W. Bowman and Messrs. Bickel & Baker, for defendants in error.
   Judgment affirmed.

Shauck, Johnson, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 13540.
    Hobbs et al. v. Swem.
    Decided October 14, 1913.
    Error to Circuit Court of Belmont county.

      Mr. E.- T. Petty, for plaintiffs in error.

      Messrs. Prophet & Eastman and Mr. G. A. Colpitis, for defendant in error.
   Judgment affirmed on the authority of Smith v. Smith, 57 Ohio St., 27.

Nichols, C. J., Shauck, Johnson, Donahue, Newman and Wilkin, JJ., concur.


text:
    No. 13551.
    Ventolo v. Rinaldi.
    Decided October 14, 1913.
    Error to Circuit Court of Jefferson county.

      Mr. A. C. Lewis and Mr. R. R. Carpenter, for plaintiff in error.

      Mr. E. Dewitt Erskine, for defendant in error.
   Judgment affirmed.

Johnson, Donahue, Wanamaker and Newman, JJ., concur. Nichols, C. J., not participating.


text:
    No. 13554.
    Sloan v. The Lorain Coal & Dock Co.
    Decided October 14, 1913.
    Error to Circuit Court of Belmont county.

      Mr. James M. Rees, for plaintiff in error.

      Mr. P. P. Lewis, for defendant in error.
   Judgment affirmed.

Shauck, Johnson, Donahue, Newman and Wilkin, JJ., concur. Nichols, C. J., not participating. .


author: Wilkin, J.

text:
    Van Camp v. McCulley, Trustee.

      Creditor of insolvent corporation — Sues for unpaid stock subscriptions — Pending demurrer, trustee in bankruptcy appointed— Trustee may ■ be substituted as plaintiff — With leave to die amended petition and make new parties — Effect of substitution and amendment — Error to sustain demurrer to original petition, when — Court procedure.

    1. Where a creditor of an insolvent corporation enters suit in behalf of himself and other creditors against C. and other stockholders, to compel payment into court of unpaid subscriptions to capital stock of the corporation, C. demurs on the ground that plaintiff has not reduced his claim to judgment and exhausted his legal remedies, and, pending the demurrer, a trustee of the insolvent corporation is appointed in bankruptcy. Held-. The court has power in furtherance of justice to substitute the trustee as plaintiff with leave to file an amended petition and bring in another subscriber as a defendant.
    2. At a subsequent term, the demurrer still pending, the court on motion of C. struck out the former order of substitution as an irregular assumption of jurisdiction. Held: This was error.
    3. Meantime, between the order of substitution and the order to strike out, the trustee had filed his amended petition and issued summons to the new defendant, who answered. The amended petition of the trustee added matter explanatory of the origin of the indebtedness of C. and new allegations showing the right and title of the trustee to maintain the suit. Held: Neither the substitution of the trustee as plaintiff nor his amendment to the petition changed the cause of action or the nature of the action; the case was then pending upon the amended petition, and the defendant C. was still in court pursuant to the original summons to answer to the cause of action.
    4. Nevertheless, the court heard and sustained the demurrer to. the original petition and dismissed the cause. Held: This was error, and the judgment of the circuit court overruling the judgment of the common pleas court in striking out its original order and dismissing the cause, must be affirmed.
    (No. 13364
    — Decided October 21, 1913.)
    Error to the Circuit Court of Knox county.
    Facts are stated in the opinion.

      Mr.. William M. Koons and Messrs. Ruling & Ruling, for plaintiff in error.

      Mr., Lot C. Stilwell and Messrs. Waight & Moore, for defendant in error.

      Messrs. Wilson & Rector, for creditors of The Mt. Vernon Glass Company.
   Wilkin, J.

Van Camp was a stock subscriber to The Mt. Vernon Glass Company, an Ohio corporation. Barnard Brothers were creditors of the company. They entered suit in common pleas, for themselves and other creditors, against Van Camp and other subscribers to stock, for an accounting and for an order that the subscribers pay into court the amount found due from them to the company, and for such other relief as the plaintiffs and other creditors were entitled to. Barnard Brothers alleged that the glass company was insolvent and that it was indebted to them in the sum of $2,156 and to other creditors in the sum of $35,000, but they did not allege that they had reduced their claim to judgment, nor that there were no assets whereon to levy execution. Van Camp demurred that the petition did not state sufficient facts.

At the May term, 1910, on September 12, pending the demurrer, the court ordered McCulley, as trustee in bankruptcy of the glass company, to be substituted as plaintiff, with leave to file an amended petition and make one Ickes a party defendant. There was neither consent nor exception to this order. September 17 McCulley filed an amended petition, to which Ickes answered November 5. On November 10 Van Camp moved to strike out the order of September 12. At the November term, on November 29, this motion was sustained on the grounds of irregularity, for want of jurisdiction, and on the same day the court sustained the demurrer to the original petition and dismissed the case.

On error to the circuit court, October term, 1911, this judgment was reversed, judgment was entered against Van Camp for costs and the cause was remanded for further proceedings. Error is prosecuted here to reverse the judgment of the circuit court.

The plaintiff in error says: “There are only two questions here made by the record, (1) the right of a creditor to sue for balance due on unpaid stock subscriptions; (2) the right to substitute a plaintiff entitled to maintain the suit for one not so entitled.”

Stripped of unnecessary verbiage, his argument, stated in the very language of his brief, is as follows:

(1) A creditor of a corporation does not by that relation acquire an interest in unpaid balances due on subscriptions to stock. Stock subscriptions are a fund, primarily for the benefit of the corporation, in which the creditors have no interest in the absence of insolvency of the corporation. Therefore, Barnard Brothers brought a suit which they were not entitled to maintain as creditors. It was the duty of the common pleas court to sustain the demurrer to the petition.

(2) Permission to the trustee to be substituted as plaintiff can not change the original case. The trustee merely takes the place of the plaintiff; if such plaintiff were not properly in court the substitution can not cure the defect. The trustee is entitled to maintain the suit only after summons issued (on his precipe) and served. If the trustee is substituted for a plaintiff who had no cause of action, the trustee sues without due issuance and Service of summons-.

As to the first branch of the argument, the propositions may be accepted as sound, and from them the conclusion would logically follow that “it was the duty of the court to sustain the demurrer to the petition,” provided the court had performed that duty before the defect in the title to the suit had been cured by the substitution of a proper party plaintiff and before an amended petition had been filed, with proper allegations showing a right of action in the new plaintiff.

Manifestly there was in the beginning, as shown by the original petition, a cause of action in somebody. If Van Camp was owing an unpaid subscription to stock of this company and the company’s affairs were not wound up and liquidated, and the company was, as is alleged in the petition, insolvent, it was the duty of the subscribers to pay the money due for stock to somebody for the benefit of the company’s creditors. This was a duty which the court could enforce in a case properly brought before it.

The question is, in whom was the right to bring this suit? It was not in the creditors, Barnard Brothers, until they had put their claim in judgment and exhausted their remedies at law. The allegation of the latter fact was necessary to complete their right of action, and therefore there appears a defect in the title to the suit. The court was empowered, in furtherance of justice, to amend the proceedings by adding or striking out the name of any party, or by doing both. Section 11363, General Code. This it did by substituting the name of the party entitled for the name of the party not entitled. This was right. L. S. & M. S. Ry. Co. v. Elyria, 69 Ohio St., 414; McDonald v. Nebraska, 101 Fed. Rep., 171.

As to the second branch of the argument, namely, that the substitution of parties changed the original case. The mere change of the name of the plaintiff in the title would not of course change the cause of action.

The fallacy in the plaintiff in error’s argument lies in confusion of terms. The defect of party plaintiff affects not the cause of action, but the right of action. . The right of action is in the real party in interest. The cause of action is the wrong which the real party in interest suffers. It shows a substantive or positive right which that wrong has violated. The right of action is an adjective or remedial right to invoke the court for redress of the wrong. Amending the title to the action does not in any way affect the substance of the cause of action. 1 'Bouvier’s (Rawle’s Rev.), 295; Pomeroy’s Code Remedies (4 ed.), Sec. *452 et seq.; 1 Cyc., 642.

If, then, the amendment to the body of'the petition does not change the nature of the cause of action, the defendant to the suit is.not compelled to answer to a new cause. The cause of action to which he was summoned is not changed by the amendment which is made by the substituted plaintiff. He states the same indebtedness, which may be answered by the same plea, but he adds an explanation of the origin of the debt. The action is a suit in equity — a proceeding to reach and convert equitable assets. The original plaintiff was, by the statement of his case, not yet entitled to subject these assets to the satisfaction of his claim. The new plaintiff amended the statement by averments of fact' showing that he is invested by law with the right and title to convert these assets into funds— namely, by compelling payment of the stock subscriptions — for the benefit of all creditors of,the stock company. The defendant Van Camp is still in court to answer to the wrong which was complained of in the initial pleading, for the sake of the same redress which was therein prayed for. 31 Cyc., 485.

He is just where he should be, and the common pleas court erred in letting him out. What difference is it to him whether the distribution of the money which he owes to this insolvent corporation is made through a trustee in bankruptcy or through the court’s receiver in a creditors’ suit, for the creditors are the beneficiaries who will get the fund in either event ? All that the defendant can ask is that the suit be in the name of the real party entitled to bring suit, so that he cannot be haled into court again to answer upon the same demand for the same wrong.

It will be noticed the order of the common pleas court vacating its former order of substitution of the new plaintiff, was made at the November term upon motion. The former order was made at the May term. In the meantime the new plaintiff had filed his amended petition and the new defendant had answered to it. After the order expunging the former order was made, the court sustained a demurrer to the original petition and dismissed the cause. The amended petition took the place of the original petition, and the answer to the amended petition made an issue; so that there were both a proper plaintiff and a defendant in the court presenting an altercation for judicial determination. And, as we have already shown, Van Camp was also in the court by the court’s summons to answer for the wrong alleged against him in the amended petition. When the real parties to the controversy were in the court, how was justice to be subserved by turning them all out and requiring the real plaintiff to institute a new suit? The policy of the law is to simplify, expedite and shorten the course of justice. On the other hand, the statute of limitation may have intervened, or the defendant debtor may have got beyond the jurisdiction of the court, and the plaintiff would lose his right of redress entirely, and to no just purpose whatever.

The discretionary control of the court over its own orders and judgments, during the term at which they are entered, ends with the term. The power of the court to set aside or vacate its judgments, subsequent to the term, is governed by settled principles to which the action of the court must conform, and for a departure from which the judgment or order of vacation may be reversed on proceedings in error. A judgment may be set aside upon motion, at a term subsequent to the judgment, for irregularity; but in a proceeding of this kind the court exercises an equitable jurisdiction, and should not vacate a judgment or order against the right or justice of the case. Huntington & McIntyre v. Finch & Co., 3 Ohio St., 445.

The circuit court justly reversed the latter order and judgment of the common pleas court, and remanded the cause. The judgment of the circuit court must be, and is,

Affirmed.

Nichols, C. J., Shauck, Johnson, Donahue and Newman, JJ., concur.


text:
    Lewis v. The Pittsburgh, Cincinnati, Chicago & St. Louis Railway Co.

      Action by railway employe for personal injuries — Contributory negligence — Assumption of dangerous position — Directed verdict for company error — Negligence a question for jury, when— Court procedure.

    A railway yard foreman ordered an employe to work with another servant between two parallel tracks in the railroad yards where freight cars were repaired by the use of a pull-jack and chain, by means of which certain parts of a car were drawn together. The pull-jack had to be attached to the rail of the track opposite to the car, upon which another car was standing, so that it was necessary for the employes to go under the latter car between the trucks, in order to attach the pull-jack to the rail and also to detach it therefrom after the operation.
    The employe was twenty-one years old and he had never had any experience about railroad tracks or yards, and so informed the foreman when he was employed four days previous to his injury. The foreman exhibited to him the manner of attaching and using the pull-jack, but gave him no instruction as to the position he should take when operating the lever upon the pull-jack, and no warning that the cars might be suddenly jostled and started while he would be at work between them. He had thus worked with the pull-jaclc but two or three hours, and he was crouched down by the side of it between the tracks with one thigh upon the rail to which it was attached, when the car was suddenly bumped by others moving upon the track, and he was pinched under the wheel and injured. Held:

      (1) The case of The Brie Railroad Co. v. McCormick, 69 Ohio St., 45, does not apply to this state of facts;
    (2) It was for the jury to decide in the light of all the facts whether it was negligence on the part of the injured employe to sit upon the rail instead of taking a position more to the middle of the space between the tracks. Therefore it was error for the trial court, at the conclusion of the plaintiff’s evidence, to direct a verdict for the defendant company.
    (No. 14074
    Decided October 21, 1913.)
    Error to the Court of Appeals of Franklin county.
    The facts are stated in the opinion.

      Messrs. Belcher & Connor, for plaintiff in error.

      Messrs. Henderson, Livesay & Burr, for defendant in error.
   Wilkin, J.

The petition states that the plaintiff was employed February 11, 1910,, as a car repairer to work in defendant’s yard “A,” and that it was customary and unavoidable for employes to go between and under cars. There were a large number of tracks. The car which injured plaintiff was standing on one track parallel to the track upon which was another car, upon which plaintiff was operating a “pull-jack,” as he was required to do in repairing the doors of said car, and it was customary and necessary for the operator to take a position .between the trucks and under the car on the track opposite to the car which he was repairing. While he was so engaged defendant negligently caused the car under which he had taken his position to work the iack, to be suddenly propelled forward, and the rear wheels struck him, crushed his left thigh and caused him permanent injuries.

He says the negligence consisted in this: He informed defendant he had never had any experience and was wholly ignorant of the dangers incident to such employment, and the defendant did not instruct him as to. such dangers. Further, defendant caused its locomotive to propel the cars standing on the track where he was in position, so as to bump and push the car under which he was, without giving any notice or warning; and the defendant provided no means whatever for plaintiff’s protection against sudden movement of the car.

The court of common pleas directed a verdict for the defendant at the close of the plaintiff’s evidence, on the ground that there was no proof that the company knew that the plaintiff was in a position of danger, on authority of The Erie Rd. Co. v. McCormick, 69 Ohio St., 45. The court of appeals sustained the common pleas on the ground that the evidence on plaintiff’s part showed that he was guilty of contributory negligence in taking the position which he took over the rail and under the car opposite to the car upon which he was operating with the pull-jack.

The pull-jack is composed of a jackscrew about two and a half feet long, having hooks on each end, and operated by a ratchet wheel and lever at the middle, so as to pull the ends toward the middle. Its weight is about one hundred pounds. One end is hooked to the track rail opposite the car upon which the work is to be done and to the other hook is attached a chain whose other end is attached to the part of the car upon which power is to be applied. In this case the purpose was to pull up the trapdoor of a hopper car. The pull-jack is operated within the devil-strip between the tracks, by-two men, one on each side of it alternately pulling the lever toward him. The plaintiff was instructed how to work it by ocular demonstration of its use, but was not given any warning of dangers incident to its use ánd operation at the place and in the manner described. He worked with his companion, closing the doors upon this and one or two other hopper cars upon the opposite or north side of the car, and they were directed by their foreman to go around to the south side and close the doors by use of the pull-jack in the same manner that they had used it on the north side. Instead of taking a position on one side of the pull-jack opposite his companion, he crouched down upon the same side with his companion, and at the left of his companion, sitting with his left hip upon the rail between the trucks, under the car which was suddenly moved, so that he was caught and pinched under the forward wheel of the rear truck.

The plaintiff lacked a few days of twenty-one years óf age; his life had been spent on a farm; he had worked but three days for the company in the shop yards tightening bolts on cars, and on the fourth day at two o’clock he was directed by the foreman to go outside the shop yards to the repair tracks and work with the pull-jack.

The defendant company contends that the plaintiff had sufficient age and maturity of judgment to understand the dangers incident to the nature and place of the work with a simple appliance, such as a pull-jack, after the.method of the work had been exhibited to him; and that the company had no reason to expect that he would place himself in a position so manifestly dangerous as the one he took upon the rail under a car in the yards, and therefore they were not required to place a flag or watchman at that point to guard against a movement of the cars at the place where he was at work.

On the other hand, he said he had no apprehension of the danger because he had no knowledge of the methods of operations in railroad yards, but he supposed that the cars would remain stationary upon the tracks where men were placed to work about them with an instrument such as this, which required the efforts of two men to put it over the track rail, and, for that purpose at least, to place their bodies in part under the car and across the rail; and that the company should at least have warned him that the cars would be or might be suddenly put in motion upon the three parallel tracks where he was sent to work.

We think the case of The Erie Rd. Co. v. McCormick, 69 Ohio St., 45, does not apply. There was sufficient proof in support of the plaintiff’s contention to require the submission of the issue to the jury, and there was no such clear and indubitable evidence of contributory negligence in plaintiff’s proof as conclusively to defeat his right of recovery even at common law. But under our statute, Section 9018, General Code, no matter how slight or how strong the proof of negligence, the question must be submitted to the jury, and in any event if the contributory negligence were proven, though by the plaintiff’s evidence, it could not bar a recovery where that negligence is slight in comparison with the employer’s negligence.

Therefore, the common pleas erred in withdrawing the question from the jury and directing a verdict for the defendant.

The defendant makes the point that the essential elements of the plaintiff’s case were: (1) The necessity of his sitting on the rail, (2) the company’s actual knowledge of such necessity, (3) plaintiff’s immaturity of judgment, and (4) the defendant’s failure to apprise him of his danger. This is too narrow a construction of his petition. We think it presents a simple case of the master’s sending an immature, ignorant and inexperienced servant to work in a place of danger without warning him or guarding him from the dangers natural to that place in connection with the implements with which he was required to work there. This servant had a right to presume that while he and his fellow servant were attaching the pull-jack to the rail under the car, as they had been instructed, and during the time they were working with it thus hooked over the rail and until they had removed it, the car would not be moved. The defendant company is chargeable in law with knowledge of the hazards incident to the nature of the work which the foreman directs the employe to do, and it was the duty of the foreman to place a lookout, or signal, or take some other reasonably adequate means or precaution, to protect him while he was in that place of danger. His sitting on the rail is one of the incidents of the transaction which suggests the question of contributory negligence, but it is not a principal nor an essential feature of his cause of action. His petition shows a complete right of action without any reference to the question of the necessity of sitting on the rail; and his allegation that “it was customary and unavoidable for employes to go between and under the cars,” was merely descriptive of the nature of the work, by way .of shoeing that the defendant was aware of its dangers. Compare Haun v. C., C., C. & St. L. Ry. Co., 28 C. C., 422, 7 C. C., N. S., 379, affirmed 73 Ohio St., 399.

Judgments of the court of appeals and of the common pleas are reversed, and the cause is remanded for further proceedings according to law.

Judgments reversed.

Johnson, Donahue and Wanamaker, JJ., concur. Nichols, C. J., and Newman, J., not participating.


author: Newman, J.

text:
    The Brotherhood of Railroad Trainmen v. Walsh.

      Regulation of fraternal benefit association — Whereby member suffering total disability of hand, etc. — May receive full amount of beneficiary certificate- — Amputation of part of hand not total disability, when.

    A regulation of a fraternal beneficiary association, providing that' any beneficiary member in good standing who shall suffer the amputation or severance of an entire hand at or above' the wrist joint, or who shall suffer the amputation or severance of an entire foot at or above the ankle joint, or who shall suffer the complete and permanent loss of sight of both eyes, shall be considered totally and permanently disabled and shall thereby be entitled to receive, upon furnishing sufficient and satisfactory proofs of such total and permanent disability, the full amount of his beneficiary certificate, but not otherwise, does not cover the case of an amputation or severance of only a part of a hand, although the hand is permanently disabled for use in performing any manual service whatever.
    (No. 13359 —
    Decided October 21, 1913.)
    Error to the Circuit Court of Clark county.
    The facts are stated in the opinion.

      Mr. E. Jay Pinney and Messrs. Martin & Martin, for plaintiff in error.

      Mr. P. J. Higgins and Mr. Chase Stewart, for defendant in error.
   Newman, J.

Defendant in error brought an action in the common pleas court of Clark county, in which he sought to recover the amount of benefits claimed to be due him as a member of The Brotherhood of Railroad Trainmen, plaintiff in error, which is a fraternal beneficiary association. A demurrer to the amended petition was sustained for the reason that facts sufficient to constitute a cause of action were not stated therein, and the defendant in error not desiring to plead further, final judgment was rendered against him. The circuit court, upon petition in error, reversed the judgment of the common pleas court and remanded the cause with direction that the demurrer be overruled.

Defendant in error made his claim for benefits under the following regulation of the association:

“Sec. 68. Any beneficiary member in good standing who shall suffer the amputation or severance of an entire hand at or above the wrist joint, or who shall suffer the amputation or severance of an entire foot at or above the ankle .joint, or who shall suffer the complete and permanent loss of sight of both eyes, shall be considered totally and permanently disabled and shall thereby be entitled to receive, upon furnishing sufficient and satisfactory proofs of such total and permanent disability, the full amount of his beneficiary certificate, but-not otherwise.”

The injury on account of which he claimed benefits is described in his amended petition as follows:

“On the thirteenth day of November, 1908, plaintiff was an employe of the D., T. and I. Railway Company as foreman switchman in the yards of said company in Springfield, Ohio, and when in the performance of his duty as such employe in coupling cars, had his right hand caught between the bumpers of the cars, and it was thereby so crushed, mangled and broken that it became necessary to amputate the thumb thereof, and the hand from above the wrist joint was then so crushed, mangled, broken and severed that during the rest of his lif^ plaintiff is permanently disabled from using the hand to perform any manual service whatever.”

The circuit court took the position that a liberal construction of section 68 of the regulations of the association would include the injury described in the amended petition, and applied the rule announced in Farmers Natl. Bank v. Delaware Insurance Co., 83 Ohio St., 309, to the effect that where there are doubtful terms in a contract of insurance which is prepared by an insurance company, the same should be construed favorably to the insured.

To this court the language employed in section 68 is clear and unambiguous, and there fe no occasion to resort to any rule applicable to the construction or interpretation of doubtful language.

The amputation or severance of an entire hand, at or above the wrist joint, means the actual cutting off or severing of the same — the removal of the entire hand — and if a member of the association suffers in that respect, or in any of the other respects mentioned in said section, he shall be considered totally and permanently disabled, and shall receive the full amount of his beneficiary certificate, “but not otherwise.”

According to the averments of the amended petition, defendant in error had his right hand caught between the bumpers of the cars, and it was thereby so crushed, mangled and broken that it became necessary to amputate the thumb thereof, and the hand from above the wrist joint was then so crushed, mangled, broken and severed that during the rest of his life he is permanently disabled from using the hand to perform any manual service whatever. The word “severed” is used, but it is wholly inconsistent with what follows, for it is stated that during the rest of his life he is permanently disabled from using the hand — the only inference being that the hand is still there, but useless. The association did not insure him against the injury which is described in the amended petition. There is no authority on the part of the court to make a new contract for the parties. It must deal with the contract as it finds it.

The circuit court, in its opinion, refers to the case of Sneck v. Travelers’ Insurance Co., 34 N. Y. Supp., 545, and holds that the law announced there is applicable. In that casq, the policy of insurance provided against loss, by severance, of one entire hand. The insured lost only a portion of his hand, but it appeared that the part remaining was useless, and it was held that plaintiff had lost his “entire hand,” within the meaning of the policy providing for such loss. In the regulation under consideration here, the word “loss” is eliminated, and the association limited its liability to cases where an entire hand is actually amputated or severed. If, under the regulation in question, defendant in error is entitled to recover for the loss of the use of his entire hand, which has been severed in part only, then the words “at or above the wrist joint” would serve no purpose. The case of Fuller v. Locomotive Engineers’ Mutual Life & Accident Insurance Assn., 122 Mich., 548, where the court reviews a number of cases bearing upon the subject, sustains the position we have taken here.

The common pleas court committed no error in its ruling on the demurrer and in rendering judgment for plaintiff in error, and the judgment of the circuit court is reversed.

Judgment of the circuit court reversed, and that of common pleas court affirmed.

Nichols, C. J., Shauck, Donahue, Wanamaker and Wilkin, JJ., concur. Johnson, J., not participating.


author: Donahue, J.

text:
    The State of Ohio v. Mansfield.

      Original and appellate jurisdiction by supreme court — Under constitution of 1912 — Power of general assembly to alter said jurisdiction — Supreme court has jurisdiction in misdemeanor cases, when — Trial and proceedings — Sections 13682, 13683 and 13684, General Code.

    1. This court acquires both original and appellate jurisdiction directly from the constitution of th.e state as amended September 3, 1912. The general assembly has no power or authority to limit or increase that jurisdiction.
    2. Under the constitution of this state as amended September 3, 1912, this court has neither original nor appellate jurisdiction in cases of misdemeanors unless such cases involve questions arising under the constitution of the United States or of this state, or questions of public or great general interest, or in cases the records of which are certified to this court by the judges of the court of appeals under the provisions of Section 6 of Article IV of the Constitution.
    3. Sections 13682, 13683 and 13684, General Code, in so far as they purport to confer upon the supreme court appellate jurisdiction in misdemeanors, are inconsistent with the constitution as amended and therefore have no further force or effect. The question of the jurisdiction of this court under the provisions of these sections in felony cases is not involved in this case and is not here decided.
    (No. 14107 —
    Decided October 21, 1913.)
    Exceptions by the Prosecuting Attorney to the Decision of the Court of Common Pleas of Jefferson county.
    John A. Mansfield was indicted by the grand jury at the December term of the common pleas court of Jefferson county for the violation of the act of the general assembly of Ohio to prevent corrupt practices at elections, passed May 31, 1911, 102 O. L., pages 321 to 331 inclusive. This indictr ment was returned into court on the 13th day of .December, 1912, and on the 30th day of December, 1912, the defendant filed a motion to quash, and on the 14th day of January, 1913, filed an amended motion to quash containing additional grounds to those stated in the first motion. On the 6th day of February, 1913, the common pleas court of Jefferson county sustained this motion to quash the indictment, to which judgment the prosecuting attorney of Jefferson county and the attorney general of the state excepted, and the bill of exceptions taken by them in that behalf has been filed in this court under the provisions of Section 13682, General Code.
    , Mr. Jay S. Paisley, prosecuting attorney; Mr. ■T. S. Hogan, attorney general, and Mr. B. F. Welty, special counsel, for plaintiff in error.

      Mr. E. E. Erskine, for defendant in error.
   Donahue, J.

Section 13682, General Code, provides that the prosecuting attorney or attorney general may present such bill of exceptions to the supreme court and apply for permission to file it with the clerk thereof for the decision of such court upon the points presented therein.

Section 13683, General Code, directs that if the supreme court is of the opinion that the questions presented should be decided upon, it shall allow the bill of exceptions to be filed and render decision thereon.

Section 13684, General Code, provides that the judgment of the court in the case in which the bill was taken shall not be reversed nor affected, but that the decision of the supreme court shall determine the law to govern in a similar case.

These sections apply to all criminal cases, felonies and misdemeanors alike. This court has heretofore held in the case of State v. Cox, 87 Ohio St., 313, that these sections of the General Code confer appellate jurisdiction upon the supreme court to the extent and for the purposes specified therein. These sections were passed by the general assembly of Ohio under authority of Section 2 of Article IV- of the Constitution of 1851, which provided that the supreme court should have original jurisdiction in certain cases “and such appellate jurisdiction as may be provided by law.”

Section 2 of Article IV of the Constitution of Ohio, as amended September 3, 1912, gives to the supreme court of Ohio appellate jurisdiction in all cases involving questions arising under the constitution of the United States or of this state, in cases 'of felony on leave first obtained, and in cases which originated in the court of appeals.

This indictment against John A. Mansfield for a violation of the law to prevent corrupt practices at elections charges a misdemeanor only and not a felony. It is very clear that under this amendment to the constitution the supreme court has not appellate jurisdiction in misdemeanor cases, and it is equally clear that the legislature of Ohio has not now the authority to confer appellate jurisdiction upon this court.

The general schedule to the amendments adopted September 3, 1912, provides that all laws in force at the time of the adoption of the amendments, not inconsistent therewith, shall continue in force until amended or repealed. It follows, therefore, that all laws or parts of laws that are inconsistent with these amendments are no longer in effect, and this law purporting to confer appellate jurisdiction upon the supreme court in misdemeanor cases is to that extent at least inconsistent with the amendments to the constitution, and this court has no appellate jurisdiction in such cases.

Nor can this court acquire appellate jurisdiction in this cause by the further constitutional provision that in cases of public or great general interest it may direct any comí of appeals to certify its record to the.supreme court. That provision by its express terms authorizes the supreme court in such cases to review and affirm, modify or reverse the judgment of the court of appeals and not the judgment of any other court. It is limited not only to the cases therein provided for, but also to the judgments of the courts therein specified. These exceptions here presented were taken to the judgment of the common pleas court in the trial of a misdemeanor. This court has no power or authority in cases of public or great general interest to direct the common pleas court to certify its record to the supreme court for review. This court is without jurisdiction in this cause to enter any judgment or order except that these exceptions be stricken from the files of this court.

Exceptions dismissed.

Nichols, C. J., Shauck, Johnson, Wanamaker, Newman and Wilkin, JJ., concur.