text:
    Cohen v. Cleveland.

      Acts April 27, 1872, and April 6, 1876 — Municipal corporations — Cleveland viaduct lawful structure — Damages to property owner — “ Bounding and abutting” owner — Revised Statutes, section 2315.
    Under the acts of 1872 and 1876 (69 Ohio L. 138; 73 Ohio L. 107; 3 Rev. Stats. 616, 617), a viaduct sixty-four feet wide, with a level roadway was constructed in Cleveland across the Cuyahoga river. On the south side of Superior street, between Water street and the river, a distance of 768 feet, the city condemned a strip of ground, and .the viaduct was constructed over that strip and over part of Superior street, about thirty-seven feet being over the strip opposite Cohen’s premises, and the balance over the street, so that in effect Superior street, which was ninety-three feet wide, is reduced in width between Water street and the river, and opposite Cohen’s premises its present width is sixty-six feet. The elevation of the roadway of the viaduct above Superior street gradually increases from Water street to the river, and opposite the premises of Cohen, which are on the north side of Superior street, midway between Water street and the river, the elevation is forty-five feet, and it is alleged that the viaduct diverts travel from that part of Superior street, impairs the light and air to Cohen’s premises, causes noise and the jarring of his house day and night, and has impaired the value of his property and reduced its rental value. Held:

    1. The viaduct is a lawful structure.
    2. On proof of the alleged injury, Cohen is entitled to damages.
    3. Cohen is not owner of a lot “ bounding or abutting upon the proposed improvement,” within the meaning of the municipal code,.section 564 (Kev. Stats., § 2315), and hence it was not necessary for him to file a claim for damages under that section.
    Error to the District Court of Cuyahoga county.
    Gr. E, $ J. E. Herrick, W. S. Collins, and J. F. Weh, for plaintiff in error.

      Fain, Sherwood § Bunts, for defendant in error.
   Okey, J.

Elias Cohen, on August 30, 1879, brought suit in the court of common pleas of Cuyahoga county, against the city of Cleveland, for injuries to his real estate, which it is alleged he sustained by reason of the construction of a bridge, commonly called the viaduct, across the Cuyahoga river. An answer and a reply were filed, and on the trial testimony was offered tending to show that the plaintiff was entitled to a verdict; but it appearing that the plaintiff' had filed no claim for damages in accordance with the municipal code, § 564, 66 Ohio L. 245 (75 Ohio L. 324, Rev. Stats., § 2315), the court, in effect, directed a verdict against him, w'hich was returned accordingly. Judgment was rendered on the verdict, and the district court having affirmed the judgment, this petition in error was filed to reverse as well the judgment of the court of common pleas as that of the district court.

. The city of Cleveland', situated upon Lake Erie, is divided by the Cuyahoga river, which runs north to the lake. Superior street, for more than sixty years one of the principal thoroughfares of the place, extends westwardly to the river, crossing Water street, which is pai’allel with the river, and distant about 768 feet .therefrom. Midway between Water street and the river, the premises of Cohen are situated. His lot, fronting twentj'-two and one-half feet on the street, has a depth of ninety feet, and his house is a three-story brick with stone basement. The street at this point is ninety-three feet wide. At the time the alleged grievance was committed, Cohen was and he continued to be sole owner of the premises and in possession.

The viaduct is a magnificent structure, extending from Water street,,above mentioned, to Pearl street near its junction with Dayton street on the other side of the river, and its roadway is nearly level. Its width is sixty-four feet, and it is so constructed as to accommodate travel of every sort. In order to construct this work, the city condemned a strip of ground on the south side of Superior street extending from Water street to the river, and the viaduct covers that strip to the width of thirty-seven feet opposite Cohen’s premises, and also covers part of Superior street, such part opposite Cohen’s premises being twenty-seven feet in width on the south side of the street. The elevation from the roadway of the viaduct to the surface of Superior street gradually increases from Water street to the river, and in front of Cohen’s property the elevation is forty-five feet.

The viaduct was constructed in 1877 and 1878, and the authority for building it is found in the act of 1872 (69 Ohio L. 138; 3 Rev. Stats. 616), and the act of 1876 (73 Ohio L. 107; 3 Rev. Stats. 617). These acts are supplementary to the municipal code; no objection which has been urged against their validity in this case is tenable; and in our judgmentthose acts, in connection with the municipal code, contain ample power for the erection of such structure. Hence, the viaduct can not be, in contemplation of law, a nuisance, but is a lawful structure ; and there is no complaint that there was negligence, malice, or bad faith which caused injury to the plaintiff.

But the right of Cohen to damages is not determined adversely to him by these facts. He is not entitled' to compensation under the letter of the constitution, article 1, section 19, but may be entitled to such compensation in analogy to that provision. Injuries resulting from the change of established grades in streets, though made in accordance with the statute, and without negligence or malice, and other injuries of a kindred character, have been held to afford ground for the recovery of damages against municipal corporations. Rhodes v. Cincinnati, 10 Ohio, 159; McComb v. Akron, 15 Ohio, 479 ; s. c., sub nom. Akron v. McComb, 18 Ohio, 229; s. c., 51 Am. Dec. 453; Crawford v. Delaware, 7 Ohio St. 459; Youngstown v. Moore, 30 Ohio St. 133; Keating v. Cincinnati, 38 Ohio St. 141. And see Little Miami R. Co. v. Naylor, 2 Ohio St. 235; Street Railway v. Cumminsville, 14 Ohio St. 523; Richards v. Cincinnati, 31 Ohio St. 506 ; Story v. N. Y. Elevated R. Co., 90 N. Y. 122. This court has, however, constantly acknowledged that McComb v. Akron, and cases following it, is a departure from the current of authority elsewhere; and, although these eases have not found favor with the judges delivering the opinions in Radcliff v. Brooklyn, 4 N. Y. 195 ; s. c., 53 Am. Dec. 357, 366, note; Hill v. Boston, 122 Mass. 344, 378; Alexander v. Milwaukee, 16 Wis. 247,256; Transportation Co. v. Chicago, 99 U. S. 635, we are entirely content with the doctrine, and would not change it if we could. But the justice of the Ohio rule, the firmness with which it has been adhered to for nearly half a eentutv, and the manner in 'which it is recognized and enforced in our statutes, have established the doctrine as a rule of property, and it is now too late to inquire whether McComb v. Akron was properly decided. In other states, the same rule is in part or wholly adopted by constitutional or statutory provision.

If we look alone to the allegations in the plaintiff’s petition, and the facts which the evidence tended to establish in his favor, a far stronger ground of recovery was shown than in either of the Ohio cases cited. Ye have seen that the roadway of the viaduct, in front of Cohen’s premises, is forty-five'feet above the surface of Superior street; and it is averred, and there was evidence given tending to show that the viaduct, to some extent, shuts out light and air from his premises ; that by reason of the viaduct, dust and other obnoxious substances are constantly thrown on the premises of plaintiff and on persons passing along the street; that there is constant noises and jarring his premises, day and night, by reason of travel on the viaduct; that the viaduct has diverted travel from that part of Superior street between Water street and the river; and that by reason of the premises the value of the plaintiff's property and his rents have been reduced one-half. True, evidence was offered by the city tending to show there was no ground of recovery, and therefore it was for the jury to determine in whose favor the evidence preponderated. But while the title to the street is in the city, it must be remembered that the abutting owner has a special interest in the street, which the law will not only recognize but protect. The court below seemed to recognize this view as correct, but the learned judge who presided at the trial virtually directed a verdict for the defendant, as already stated, upon, the ground that plaintiff had failed to comply with the municipal code, section 564 (Rev. Stats., § 2315), and the question before us is whether in so directing the jury there was error.

Section 564 was as follows : “ Any .owner or owners of lots or lands bounding or abutting upon the proposed im-< provement, claiming damages therefor, shall file a claim, in writing, with the clerk of the corporation, setting forth the amount of damages claimed, together with a description of the property owned for which the claim is made, within two weeks after the expiration of the time required for the publication of said notice ; and all such owners as shall fail or neglect to file their claims for damages aforesaid, within the time aforesaid, shall be deemed to have waived the same and be forever barred from filing any claim or receiving any damages therefor.” Section 575 of the same code (Rev. Stats., § 2326) provided : “ No claimant for damages shall commence any suit until he shall have filed a claim therefor with the clerk of the corporation, and sixty days shall have elapsed thereafter, to enable such corporation to appoint assessors to assess such damages, return the same to the proper officers, and sufficient further time shall have elapsed, not exceeding twenty days after the return of such appraisal, to enable the corporation to pay the assessment.” In the act of 1872 (69 Ohio L. 138, 3 Rev. Stats. 616) providing for the construction of the viaduct, it is provided (section 2) that “ owners of land or property of any kind, and lessees of said canal, claiming damages therefor, shall file a claim therefor, in writing, with the clerk of the corporation, as required by section 544 of said act; and said claims for damages shall be determined, and said work shall be done, in accordance with the provisions of the act to which this is supplementary, in so far as the same may be applicable.”

Manifestly there is a mistake in the figures “ 544,” as that section of the municipal code has no relation to filing claims, while section 564, as we have seen, does provide for filing such claims. Perhaps if that section alone made provision on the subject, we would have no difficulty in agreeing with the defendant that it was intended (People v. King, 28 Cal. 265; Tappan v. Tappan, 6 Ohio St. 64; Jenks v. Langdon, 21 Ohio St. 362; Com. v. Marshall, 69 Pa. St. 328; Sedg. Con. L. (2 ed.) 354; Hard. Stats. 241, 247); but the difficulty is that section 575, with which plaintiff complied, provides for filing claims, as well as section 564, and the plaintiff, conceding the mistake, insists that section 575 was intended, and not section 564. The difference between the sections, it will be seen, is marked, the former section (575) is much broader than the latter (564), and embraces not only the cases provided for by section 564, but apparently all claims arising from improvements — possibly others. But failure to comply with section 564, where that section is applicable, is a bar to any action; while failure to comply with section 575, though it would defeat the pending action, would not be a bar to another suit based on a claim properly filed under that section, subsequently to the first suit.

If we were required to determine whether section 564 or section 575 was intended by the figures 544 in the act of 1872, the case would not be free from difficulty. Much may bo said in favor of either construction. We are of opinion we need not determine the question. Let it be conceded that section 564 was intended. Then we are of opinion that the case would not have been different, so far as lot owners are concerned, if section 564 had been in terms incorporated into the act of 1872, instead of such reference to section 564 — if that be the section — and hence only the owners of lots “ bounding or abutting upon the proposed improvement” were required to give such notice. No doubt many houses are on substantially the same plane as the roadway of the viaduct, and the real estate on which they are built are lots “ bounding or abutting upon the proposed improvementbut is that true of the premises of Cohen? We are clear that it is not. The street, as we have seen, is, in front of his house, forty-five feet below the roadway of the viaduct. That structure has furuished a new route for travel, and has largely diverted travel from that part of Superior street, and if Cohen desires to cross the viaduct he must travel nearly one hundred and thirty yards to get upon it. In no just sense is his property a lot “ bounding or abutting upon the proposed improvement.” In reality this was no more an improvement of Superior street than an elevated railway is an improvement of a street, but the viaduct furnishes an additional and substantially an exclusive route of travel to persons going across the river.

Doubtless it is true that the words bounding and abutting have no such inflexible meaning as to require the lots assessed or injured to touch the improvement, though the usual meaning of the words is that the things spoken of do actually adjoin. Without entering very much into the origin of the word abutting, it is sufficient to say that according to Latham it does not imply that the things spoken of are “ necessarily in contact,” and to the same effect see Webster, Worcester, and Murray. In ascertaining the meaning of such word, of course regard must bo had to the intent of the law-maker, though it will be seen that the usual meaning conveyed is that the things spoken of touch or come together. Holt v. Somerville, 127 Mass. 408 ; Wakefield, ete., v. Mander, 5 C. P. Div. 248. So with the word bound. True, it was held in Richards v. Cincinnati, 31 Ohio St. 506, that “ where a strip of land ninety-one feet in width was dedicated for a street, and the municipal authorities improved a street thereon of the width of ninety feet, leaving one foot on one side thereof unused, except in sloping the embankments and excavations, the owners of property abutting on such foot of land are liable to be assessed as owners of property abutting on the improvement.” In that case, McIlvaine, J., said: “ It seems to us that, in order to exempt these proprietors from assessment as abutters on the improvement, it must appear that this intervening foot of land deprives them of full, free, and lawful access to the street improved ; but such deprivation could result only when the right and exclusive use thereto have reverted to the original dedicators and their heirs. If the public right to its use still continues, or if the right to the strip has vested absolutely iu the owners of lands abutting upon it, after abandonment by the public, then, in either case, their liability to assessment is certain. That this foot of land, before the improvement of the avenue, was subject to the use of the public, as part of a highway, is not disputed; and we are unable to find any ground upon which it can be held that such right in the public ha.s terminated. The greater part, if not the whole of this strip is utilized by the public in making slopes to the embankments and excavations of the street — a use quite as important and germane to public travel and convenience as if located in the center of the street.” And see Fass v. Seehawer, 60 Wis. 525.

It seems to us a j ust consideration of this reasoning leads to the conclusion that property situated as the plaintiff’s is with respect to the viaduct, is not lands “ bounding and abutting upon the proposed improvement,” and that the court below erred in this respect. He is deprived, and in no merely technical sense, of the full, free, and lawful use of Superior street as it existed before the viaduct was constructed.

Judgment of the district court and court of common fleas reversed, and cause remanded to the court of common fleas for a new trial.


source: Caselaw Access Project

author: Johnson, J.

license: Public Domain

text:
    Elliott v. Plattor.

      Service — Summons—Revised Statutes, sections 0354 and 5357 — Judgment— Mistake of clerk — Correction—Notice- of -proceeding — -Waiver—Mistake question of fact — Nunc pro tunc order — Exchange of lands— Mortgage part of purchase-money — Vendor’s lien — Waiver—Do-wer.
    1. A summons against A. and B., who were husband and wife, was returned indorsed: “ Served the same by leaving at each of the within named defendant’s . . . usual place of residence, a certified copy of the within summons, etc. Sheriff’s fees: Service, 45, copies, 50, etc.;” show's a good service upon each defendant.
    2. A motion to confirm a sheriff’s sale was granted and the sale confirmed, but, hy mistake, the judge noted on the court docket that the motion was refused, and this note misled the clerk and induced him to make a like entry on tho journal of the court. Held, that this was a mistake of the clerk as well as of the judge, which may he corrected, under section 5354, sub. 3, of the Revised Statutes.
    3. In proceedings under section 5357 to correct such a mistake, w'lien the adverse party appears and defends, the notice required by tnat section is vaived.
    4. Whether there was a mistake made, is a question or fact to he determined by the court upon competent evidence; and the papers in the case, the recollection of the judge who rendered the decision, in connection with that of others who heard the decision announced, as well as the minutes made by him, are competent evidence.
    5. The court, in making a correction, may, by nunc pro tunc order, make it as of the term when the mistake was made, if there are no intervening rights or equities.
    6. P. and'E. exchanged real estate. P. paid $300 and conveyed hy warranty deed and in fee, to E., lot No. 2. In consideration therefor, E. conveyed by like deed lot No. 49, and also agreed so pay off and discharge certain mortgages on lot No. 49, and executed a mortgage back to P. on lot No 2, to secure such payment by him, and to save P. harmless from said mortgages. Each put the other in possession, but E. failed to satisfy said mortgages, and P. was compelled to pay the same, to save his property. Held, that the amount necessary to satisfy said mortgages was a part of the purchase-money of lot No. 2, .for which P. could assert an equitable lien thereon, on failure of E. to pay the same.
    7. P., by taking a mortgage to secure the payment by E. of this part of the consideration, did not thereby waive his vendor’s lien on lot No. 2; nor was the covenant to pay said mortgages, nor the mortgage by E. to secure such payment, a substituted security, which defeated the vendor’s lien as between the parties.
    8. As the conveyances of lot No. 2 and the mortgage back to secure the payment of this part of the purchase-money, were simultaneous acts, and parts of the same transaction, the wife of E. had no inchoate right of dower superior to P.'s equitable lien. ■
    Error to the District Court of Defiance county.
    Hannah S. Plattor, plaintiff below, brought her action against Elliott and wife, seeking to assert a vendor’s lien against a certain lot No. 2, in the town of Defiance, and to foreclose a mortgage thereon executed by Elliott alone. It appears from the petition that Mrs. Plattor owned said lot No. 2, and Elliott lot No. 49, in Defiance ; that in 1876 they exchanged lots, Mrs. Plattor paying a difference of $300; that each conveyed to the other by deed of general warranty the respective lots, which was accompanied by an exchange of possession, thus vesting the title and possession of lot No. 2 in Elliott, and of lot No. 49 in Mrs. Plattor.
    At the same time Elliott, his wife not joining, as part consideration, executed back to Mrs. Plattor a mortgage to secure and save her harmless from certain mortgage liens upon lot No. 49, so conveyed to Mrs. Plattor, and therein bouud himself to pay off said mortgages.
    Elliott did not perform the condition, and Mrs. Plattor was compelled, in order to save her property, to pay off the prior mortgages on lot No. 49.
    The prayer is, that the amounts thus paid be ascertained; that they be declared a vendor’s lien on lot No. 2, and that the mortgage be foreclosed, etc.
    Some further averments are made touching the contract of exchange, the liens, etc., not necessary to be stated in detail.
    The summons issued against Simon Elliott and Mary Elliott was returned indorsed as follows : “ Received this writ August 30, 1881, and on the 2d of September, 1881, I served the same by leaving at each of the within named defendants’ (Simon Elliott and Mary Elliott) usual place of residence, a certified copy of the within summons and all indorsements thereon. Sheriff’s fees: service, 45; copies, 50; mileage, 32 = $1.27.”
    No answer was filed, and at September term, 1881, a judgment as upon default was rendered as prayed for, finding the amount due plaintiff, being made up of the several amounts paid by plaintiff to free said lot No. 49 from incumbrances. It was also adjudged that for these amounts the plaintiff had a vendor’s lien, being part of the consideration or purchase-money, which said Elliott had agreed to pay for said lot No. 2. The judgment further ordered the sale of the property under said indemnity mortgage and to satisfy such vendor’s lien free of Mrs. Elliott’s inchoate dower.
    A sale was. made, Mrs. Plattor being the purchaser. Before sale Mrs. Elliott demanded a homestead to be set off by the sheriff, which was refused.
    At the next term of the court, April, 1882, plaintiff filed a motion to confirm the sale and Mrs. Elliott a motion to set the same aside, the latter on the ground that the property was the homestead of herself.and minor children, which should have been set off to her.
    These motions were heard at the same terra, and the journal entry shows this motion was sustained, and the sale was set aside and motion to confirm overruled. No exception was noted on the journal by either party to this action.
    At the September term, 1882, the plaintiff filed a motion to set aside and vacate the judgment made on said motions, and correct the same, and to make a nunc fro iunc order for that purpose, to the effect that the motion to set aside the sale was overruled instead of sustained, and that the motion to confirm was granted instead, of overruled. In support of this motion, it is alleged that in fact the motion to set aside was overruled and to confirm was sustained and sale confirmed, but the clerk, by mistake and misunderstanding of the order of the court, entered upon the jour^ nal orders directly contrary to the action of the court on said motions. On the hearing of this motion for a nunc pro tunc order, a bill of exceptions was taken, showing that the defendant, Mary A. Elliott, gave in evidence the court docket entries, showing that the motion to confirm had been overruled, and the motion to set aside had been allowed, just as appears in the journal entries sought to be corrected, and that Mrs. Elliott had excepted to the action of the court on both motions. It also appears by this bill of exceptions that all the evidence upon the hearing of the motion for this nunc pro tunc order consisted of said docket entries, “the unsworn statements of counsel at the hearing, and the knowledge and recollection of the presiding judge as to what order the court intended to make at the prior term.”
    Acting upon this evidence the journal was corrected so as to show a confirmation of the sale and the overruling of the motion to set the same aside, which was entered as of the former term.
    At the same time a bill of exceptions was taken by said Mary A. Elliott to the overruling of her motion to set the sale aside, for the reason that the homestead was not set off to her, which was also allowed to bo filed as of the former term.
    From this bill it appears that this motion was heard upon the following agreed statement of facts: “That the said Mary A. Elliott was at the time of said sale and still is the wife of said Simon Elliott, and had by him three children, the oldest about the age of twelve years, and that on the day of said sale said Mary and Simon were not living together as husband and wife; that shortly prior to said sale she had gone with her children to her father’s in a county in the eastern part of the state, where they had been sinee then and at the time of the hearing of these motions, remaining, hut whether residing there temporarily or permanently did not appear and was not agreed upon ; that the said other defendant, Simon Elliott, with several minor children by a former wife, was at the time of said sale and ever since residing on said premises as their homestead.” It. also appeared on such hearing that before the sale Mrs. Elliott had, by her attorneys, demanded of the sheriff that a homestead be set off to her, which was refused.
    On error to the district court the judgment of the common pleas was affirmed. This proceeding in error is to reverse the judgment of both of said courts.
    The errors specially pointed out and relied on are:
    1. The court acquired no jurisdiction over the person of said Mary A. Elliott.
    2. It had no power to make the nunc pro tunc order, based upon the facts stated in the bill of exceptions.
    3. Upon the facts agreed upon, the court erred in not allowing Mrs. Elliott a homestead.
    4. In ordering the land sold free from the inchoate right of dower of Mrs Elliott.

      Newbegin ‡ Kingsbury, for plaintiffs in error.
    I. The clerk entered the judgment that was intended to have been entered by the court as minuted on his docket. There is no proof of any mistake whatever. It w'as not competent for the court to change the record from the memory of the judge. But if competent for the court at a subsequent term to vacate this order at all, it could not vacate it until there was a finding of the court: 1st. That there was a mistake; and, 2d. That upon the facts of the whole case the plaintiff' was entitled to the remedy moved for, that is, to have this decree vacated and to have the sale confirmed. Now, before the court could have found this, they must have found further, that Mary A. Elliott and her family were not entitled to homestead in these premises, and they must have found that there was a valid judgment against her. If the judgment was erroneous in any form bo that the defendant below, Mary A. Elliott, was entitled to have it set aside, then this sale should not have been confirmed, and this court must find, without reference to her right of homestead in the premises, that the judgment was erroneous in barring her of all right of dower therein. • Watson v. Paine, 25 Ohio St. 340; Huntington v. Pinch, 3 Ohio St. 445.
    As to finding that homestead should not have been assigned before the order could be- vacated, see Hettrick v. Wilson, 12 Ohio St. 136. Says the court: “Nor is there any finding or adjudication by the.court that the plaintiff had a valid cause of action.” This case governs also as to requirement of notice.
    The case of Lambert v. Mustard, 18 Ohio St. 419, does not change this principle, as in that case testimony was heard.

    The general doctrine respecting amendments of judgments and orders at a subsequent term of court, nunc pro tune, is that they must be made from something appearing of record, or quasi record; that is, something from which records can be made, as journal entries, etc. Bruce v. Strickland, 47 Ala. 192; Priest v. McMaster, 52 Mo. 60; Robinson v. Brown, 82 Ill. 279; Harpending v. Wylie, 13 Bush (Ky.) 158; Miller v. Chandler, 29 La. Ann. 88; Burns v. Edgefield, 3 Tenn. Ch. 137.
    Such amendment can not be made from the minutes of the judge on the docket: Markward v. Doriat, 21 Ohio St. 637; nor from opinion of the court on motion for new trial: Cathcart v. Commonwealth, 37 Pa. St. 445; nor can it be made from a memoranda, nor from the memory of a judge: Boon v. Boon, 8 Smedes & Marshall, 318.
    But if testimony is permitted in these eases it must be shown that testimony was heard, considered, and the amendment made in accordance with the testimony thus heard; nothing of which appears in this ease. There is no pretense that there is any amendment by any thing of record, nor is therf any statement that any testimony was heard. Murphy v. Swadner, 34 Ohio St. 672. It can not be made from the minutes of the judge’s docket, much less against them, as in this case. Markward v. Doriat, supra. That there must be evidence heard as a basis for an order nunc pro tunc, see 37 Ohio St. 147, and cases cited in brief of Gilmore, counsel; also 40 Ohio St. 110.
    II. The order setting aside the sale and overruling the motion to confirm the sale as first made at April term was right, and if the proper order and ruling was made by the court at thefirst term, no matter whether it was made under mistake or not, it could not and should not afterward be set aside. Murphy v. Swadner, supra. There must have been error to the substantial prejudice of a party before a judgment can be set aside.
    III. But there is no valid judgment here against either of the plaintiffs in error; neither of them ever appeared and neither of them had any legal service to appear. The court then never acquired any jurisdiction over them or either of them. The return of the sheriff is that he served.the summons “by leaving at each of the within named defendants’ (Simon Elliott and Mary Elliott) usual place of residence, a certified copy of-the within summons and all the indorsements thereon.”
    We submit that the only construction that can be put upon this is, that he left one copy at the residence of these defendants. It appears in the body of the petition as well as in the title that Mary A. Elliott was the wife of Simon Elliott. The return, in substance, says a copy was left at the usual place of residence of these defendants. Now, as we have said, unless the contrary appears, the residence of the wife is the residence of the husband. This toas no service; the law requires that service shall be made by “leaving a copy at his usual place of residence,” i. e. the residence of each defendant. Revised Statutes, sec. 5042.
    A summons for three defendants returned “served by leaving a copy of this writ at the residence of the within named defendant,” held good as to neither. Gamble v. Warner, 16 Ohio, 371.
    These defendants had but one residence; hence there was but one copy left for both, and neither was served. It follows, therefore, that there being no valid decree for a sale of these premises, even as against Elliott, the husband, the sale was properly set aside, and the order setting it aside should not have been vacated at a subsequent term. Kelam v. Toms, 38 Wis. 592; Blackburn v. Sweet, id. 578 ; Likens v. McCormick, 39 Wis. 313; Richards v. Sperry, 7 Wis. 219 ; People v. Salazer (Cal.), 12 The Reporter 427.
    But the decree was erroneous in this, that it barred the wife, Mary A. Elliott, of right of dower. Eor this reason alone the sale was properly set aside on the second ground named in motion of Mrs. Elliott.

      N. G. Johnson, with whom was W. D. Hill, for defendant in error.
    If the orders óf a court are improperly made, the same court at a subsequent term may correct the same on motion, and vacate the same and order the entry made which should have been made. Rev. Stats., § 5354; Dial v. Holter, 6 Ohio St. 246; Hunt v. Yeatman, 3 Ohio, 15; Fowble v. Rayberg, 4 Ohio, 45; Reynolds v. Stansbury, 20 Ohio, 344; Botkin v. Pickaway Co., 1 Ohio, 375; Landon v. Reid, 10 Ohio, 202; 3 Ohio St. 508; 8 Ohio St. 204; 14 Ohio St. 468.
   Johnson, J.

1. Was-there a good service on Mrs. Elliott ? The return shows the service of two copies by leaving at each of the defendants usual place of residence a certified copy, etc.

Whether these defendants had separate places of residence, or the same place, the fair and reasonable interpretation of the return is, that each was served with a copy as required by the statute.

2. As to the power of the court to¡ correct a mistake of a former term and to make a nunc pro tunc order.

The motion to confirm the sale, made at the April term, had in fact been sustained and the sale confirmed. The motion to set the sale aside had in fact been overruled. Mrs. Elliott’s attorney was present defending against the former motion and prosecuting to the latter, and excepted to the action of the court on both motions.

By an error of the judge in noting his action on these motions, the. motion to confirm was noted on the court docket, “ motion overruled, defendant excepts,” and the! motion to set the sale aside was noted, “ motion allowed, defendant excepts.”

These exceptions by defendant show that the oral announcement by the court of its action were just the reverse of those noted on the judge’s minutes, or at least that the defendant’s counsel so understood them.

The defendant offered these minutes in evidence in her behalf, and can not now object to their competency, if they tend to prove that there was a mistake. In addition to the significance of these exceptions, noted in the minutes, the bill of exceptions shows that the court heard the unsworn statements of counsel, and all this evidence, and upon the knowledge and recollection of the judge who presided at the hearing of the former motions, as well as upon the hearing of this, found that the journal entry was a mistake, and made the order complained of, as of the former term. No objection was made to the court hearing unsworn statements of counsel at the hearing of this motion. A witness is competent to give evidence without being sworn, if the parties consent or waive the administration of the oath, as urns done in this case. Neither urns it error for the judge to act upon his own recollection of the facts, in connection with other like evidence tending to show the mistake in a case like this, wlfere there was no evidence other than the journal entry to show there was no mistake. Upon all the evidence in the case the court did not err in finding that there was a mistake, and in making a nunc pro tunc order confirming the sale.

It is claimed however, that this was not a “mistake, neglect, or omission, of the clerk, or irregularity in obtaining a judgment or order,” within the meaning of section 5354 Revised Statutes. In the first instance it was the mistake of the judge in making these notes on his minutes differing from the judgment the court had officially announced. The clerk, by following these minutes, instead of the judgment actually announced, adopted that mistake, and it became in fact and in law a mistake of the clerk as well as of the judge. It was a mistake made by both within the meaning of the statute. How the clerk was induced to enter a mistaken entry upon the journal is immaterial, if the entry was in fact a mistake.

3. Did the court err inhot allowing Mrs: Elliott’s de-. mand for a homestead, or rather in not setting aside the sale because the sheriff' had refused to allow and set one off to her ?

We think not. As she did not sign the mortgage, she was not precluded from making the demand of a homestead, if it was her home at the time.

The evidence shows that at the time of the sale she and her husband were not living together as man and wife; that shortly prior thereto she had taken her three minor children and gone to her father’s in the eastern part of the state, leaving her husband aud several minor children by a former marriage residing on the premises, and this state of separation continued when this motioii was heard, but whether this residence with her father was temporary or permanent did not appear.

Upon this state of facts, agreed upon by the parties, the motion to allow a homestead was overruled, and we think correctly.

It was admitted that Mrs. Elliott had left her home before demand and gone to a distant part of the state, and was not living on the premises with her husband as his wife at the time of sale, and continued to and was residing away for more than three months, having her owd children with her, and leaving her husband and his children by a former marriage residing in the homestead.

In this state of the case the burden was upon her to show that her removal was only temporary, with intention of returning.

In the absence of such proof, the admission that she was not living with her husband as his wife raises a presumption that was sufficient to warrant the court in finding against her until that presumption was removed.

4. Did the court err in ordering a sale of the land free of Mrs. Elliott’s inchoate right of dower ?

Elliott exchanged lot No. 49 for lot No. 2.

The terms of the exchange were-that Mrs. Plattor was to pay $300, and convey to Elliott lot No. 2 by warranty deed, and in consideration or payment Elliott was to convey to her lot No. 49, and pay off certain mortgage liens thereon.

Accordingly, Mrs. Plattor paid the $300, and conveyed to Elliott by deed of general warranty lot No. 2, aud put him in possession, and Elliott by like deed conveyed to her-lot No. 49, and executed a mortgage.on lot No. 2, binding himselfito lift certain mortgages on lot No. 49, and save her harmless therefrom. He failed to do this, and she was compelled to discharge these liens to save the property she had purchased. These conveyances were all part of the same transaction.

The conveyance of lot No. 49 and the payment and discharge of the liens thereon, were the agreed equivalent for the comuyance of lot No. 2 and the payment of $300.

Mrs. Plattor paid $300, and conveyed in fee lot No. 2, and took the title to lot No. 49 and a covenant from Elliott to pay off the liens thereon. A failure to perform this covenant was a failure to that extent, to pay the agreed equivalent or purchase price of land conveyed to the vendee.

The taking of the mortgage to secure this covenant was not the waiver of the vendor’s lien, if one existed.

It being a covenant to pay off these liens, as part of the consideration for the land deeded to him, it was a part of the purchase-money agreed to be paid in exchange of lands. In equity it was as much so as if he had agreed to pay that amount to his vendor directly, with which to pay off these liens.

The vendor’s lien is based upon the theory that it would be unconscionable that the vendee should hold the land and no+ pay for it, and therefore, as between vendor and vendee, the latter in equity holds the title, under a trust to pay what he had agreed as the price or purchase-money.

Unless the vendor has shown an intention by taking other security, equity will presume that the vendee holds the lands in trust to pay what he agreed to pay.

The mere giving of a bond, note, or covenant for the purchase-money will not discharge an equitable lien; yet, where other security is substituted for the consideration, and was, in fact, the thing bargained for, the lien is lost. 1 Lead. Cases in Eq. 319; McKillip v. McKillip, 8 Barb. 552.

Here, however, there was no substituted security. The mortgage on the same land was not a waiver of the vendor’s lien, nor was it taken in discharge of it.

D., X. & B. R. R. Co. v. Lewton, 20 Ohio St. 401, is directly in point. There L. granted a right of way to the railroad company, and in consideration, the latter was to pay $1,500 at á future day, and to construct certain crossings and cattle-guards upon L.’s land.

The company took possession and constructed its road. It was held, that L. had an equitable lien upon the property sold, as well for the damages for not constructing its road as agreed as for the purchase-money.

This court says (20 Ohio St. 411): “The judgment for damages for not constructing the road in the manner provided for in the contract, is as much the price of the interest sold to the railroad company, as was the $1,500 agreed to be paid in money. The only difference is that the amount of cash was ascertained and agreed upon by the parties,, while the amount of the damages was not ascertained until judgment. Both sums arose on contract, and constituted the • compensation the vendee was to return to the vendor for the interest purchased.”

So here,Elliott agreed in part payment to convey certain land, and in full payment to pay off’ certain liens thereon, known to the parties This amount was as much part of the compensation to be paid as if the promise had been to pay the vendor, as part of the purchase-money, a sum equal in amount to such liens.

The taking of a mortgage on the land conveyed to Elliott was not a substituted security, nor does it disclose any intention to waive the vendor’s lien.

Judgment affirmed.


author: McIlvaine, C. J.

text:
    Mannix v. Commissioners of Hamilton County.

      Revised statutes, section 896 — Practice—Error from, common pleas on appeal from, county commissioners.

    A petition in error to review the decision of the court of common pleas, rendered in a case appealed from the board of county commissioners under section 896 of Revised Statutes, can be maintained.
    Motion for leave to file petition in error to the District Court of Hamilton county.
    In June, 1881, plaintiff:' in error filed with the board of county commissioners of Hamilton county, an application for the refunder of taxes alleged to have been erroneously paid. This application was subsequently rejected by the commissioners, and plaintiff in error thereupon appealed to the common pleas court in conformity with section 896 of the Revised Statutes. There the issues were made up, a full hearing and trial had, and upon the 23d day of July, 1883, the court rendered judgment in favor of plaintiff in error.
    To this judgment the commissioners excepted, and filed a petition in error in the district court, seeking to reverse the same. Plaintiff in error then filed in the district court a motion to dismiss the said proceedings in error, on the ground that the district court had no jurisdiction of the cause, which motion was overruled. The district court then assumed jurisdiction; proceeded to hear the cause; entered a judgment reversing the common pleas court, and rendered judgment for costs against plaintiff in error, who then filed a motion to set aside said judgment, for a rehearing on the grounds that there was error in the ruling of the district court, and that said court had no jurisdiction, which motion was overruled.
    To all these adverse rulings plaintiff in error excepted, and now prosecutes this petition in error in the supreme court, seeking to reverse said rulings and proceedings in the district court.
    J. D. Macneale, for the motion.

      Charles Evans, contra.

   McIlvaine, C. J.

What is the meaning and effect of section 896 of Revised Statutes ? It reads as follows: “ If a person is aggrieved by the decision of the county commissioners in any case, such person maj, within fifteen days thereafter, appeal to the next court of common pleas, notifying the commissioners of such appeal at least ten days before the time of trial, which notice shall be in writing, and delivered personally to the commissioners, or left with the auditor of the county, and the court shall, at their next session, hear and determine the same, which decision shall be final.” This section was formerly section 18 in the commissioners’ act, and has been found in the statutes of the state for many years.

The question is now raised: Can the decision of the court of common pleas rendered on an appeal from the county commissioners be reviewed on error ?

The plaintiff in error contends that error will not lie, unless the decision to be reviewed be absolutely void. On the other hand defendants in error claim that it will lie to review a decision voidable merely.

The solution of this question depends on the effect to be given to the word “ final ” in the section above quoted.

It may be coustrued to mean that the decision “leaves nothing for the further consideration of the court ” rendering it. 13 Ohio, 421. If this be the extent of the legislative meaning, the decision may be reviewed by appeal or on error A judgment must be final in this sense, in order that a review on appeal or on error may be maintained. It may be construed, however, as denying the right to review the decision by appeal, or on petition in error — either or both. This is the sense and meaning of this section, for which plaintiff in error contends.

That the right of appeal whereby the decision appealed from is vacated, and the matter in dispute is submitted to the appellate court, as if no previous decision had been made, has, in practice, under this section, been denied, and this view has been approved by this court. 88 Ohio St. 528. This view is certainly in accord with the general policy of the state (evidenced by present and previous legislation), which has been to deny the right of a second appeal in the same case, and we see no good reason for departing from it now.

The right to review such decisions on petition in error is not hampered by any such policy or practice. Indeed, the practice and policy of the state has been in favor of such reviews. In the argument of the case, it is admitted that the practice in courts below has been to review such decisions on error. This practice, unchallenged, has prevailed in this court. Several cases are reported in which the practice is maintained. Commissioners of Clermont Co. v. Robb, Wright, 48, and 5 Ohio, 491; Bowersox v. Commissioners of Seneca Co., 20 Ohio St. 496; Commissioners of Belmont Co. v. Ziegelhofer, 38 Ohio St. 523.

The distinction between void and voidable judgments, as claimed by plaintiff in error, has not received the attention of the court in any of these cases, and we can see no reason on which the right to review on error should be made to depend on such distinctions.

The right to review such decisions on error is plainly within the terms of chapter 1, title 4, part 3, of the Revised Statutes, and we can see no reason why the construction heretofore placed in practice, upon section 896, should be departed from.

Motion overruled.


author: Eoleett, J.

text:
    McKelvey v. McKelvey.

      Will — Construction—“Heirs”—Each relative receiving legacy so regarded.

    A testator, who was a bachelor, gave a legacy to each living brother by name as his brother ; he also, by name, gave a legacy to each child of ■ his deceased brothers and sister, designating the children as heirs of such deceased brothers or sister; and, by name, he gave a legacy to each child of an aged and very feeble sister, designating these children as heirs of such sister, but gave her nothing;' he also gave legacies to some, not relatives; and had the infirm sister been dead, the relatives who received legacies would have been all of his heirs apparent, though the testator called no one his heir except in the residuary clause, which is : “ It is my will and desire that whatever money will be left after paying the different sums given to my heirs in this my last will and testament, shall be divided equally amongst them.” In the distribution of the residue — held, that the testator regarded among his heirs each relative to whom he had given a legacy; and such children of the brothers and sisters, take, per capita, with such brothers, an equal share in the residue.
    Error, to the District Court of Belmont county.
    Thomas McKelvey died in February, 1882, leaving his will, made on June, 23, 1879. On March 11, 1882, this will was duly admitted to probate in Belmont county, and is as follows :
    “Item 1. I give and devise to the heirs of my deceased brother James McKelvey: To his son Robert McKelvey, thirteen hundred and eighty-eight dollars ($1,388); to his son James McKelvey thirteen hundred and eightv-eight dollars ($1,388); to his son David McKelvey, one thousand three hundred and eighty-eight dollars ($1,388); to his daughter Margaret Ann Mitchell, eight hundred dollars ($800); to his daughter Rachel Dixon, five hundred dollars ($500); to his daughter Mary McConnell, eight hundred dollars ($800).
    Item 2. I give and devise to the heirs of my sister Elizabeth McCaffrey : To her daughter Margaret McCann, eleven hundred and twenty dollars ($1,120); to her daughter Rebecca Robison, nine hundred dollars ($900); to her daughter Isabella Paul, $100 in addition to $800 that she has already received; to her daughter Martha Reid, nine hundred dollars ($900); to her daughter Fanny McCaffrey, nine hundred dollars (900); to her son James McCaffrey, nine hundred ($900).
    Item 3. I give and devise to the heirs of my deceased brother Robert McKelvey: To his son James McKelvey, twelve hundred and thirty-three dollars ($.1,233); to his son John McKelvey, twelve hundred and thirty-three dollars ($1,233); to his son Thomas McKelvey, twelve hundred and thirty-three dollars ($1,233); to his daughter Eliza Harvey, twelve hundred and thirty-three dollars ($1,233); to his daughter Nancy Myers, twelve hundred and thirty-three dollars ($1,233).
    Item 4. I give and devise to my brother Weir McKelvey, five thousand dollars in addition to a mortgage that I now hold on the house he now lives in, in Bellaire city, said mortgage to be released at my decease.
    Item 5. I give and devise to my brother George McKelvey, six thousand dollars.
    Item 6. I give and devise to the heirs of my sister Margaret Drugan: To her son William Drugan, fifteen hundred dollars ($1,500).
    Item 7. I give and devise to Matilda Anderson, wife of Jacob Anderson, five hundred dollars ($500).
    Item 8. I give and devise to the United Presbyterian church of Belmont congregation, to be applied to the building of a new church for Belmont congregation, nine hundred dollars ($900). I also give and devise one hundred dollars ($100), the interest of which shall be applied to .keeping the graveyard at the Belmont United Presbyterian church in good order’, and the trustees of said church shall keep the said one hundred dollars on interest for said purpose and no other.
    Item 9. I set apart out of my personal property or money, twelve hundred dollars for my funeral expenses and Scotch granite monument.

      Item 10. I give and devise to my brother Samuel Mc-Kelvey, twenty-two thousand and eighty dollars ($22,080).
    Item 11. I give and devise to my brother Joseph McKelvey, twenty-two thousand and eighty dollars ($22,080).
    Item 12. It is my will and desire that whatever money will be left after paying the different sums given to my heirs in this, my last will and testament, shall be divided equally amongst them.
    Item 13. I do hereby nominate and appoint David Mc-Kelvey and William McKelvey, sons of Samuel and Joseph McKelvey, executors of this, my last will and testament.”
    In settling up the estate there was about $20,000 to be disposed of under “Item 12” of the will.
    The children of the deceased brothers and sisters of the decedent, who are legatees under the will, claim that after paying the costs and expenses of administering the estate and the several legacies provided for in the will, the residue should be equally divided, per capita, among them and the surviving brothers of the decedent.
    But the surviving brothers of the testator claim that the residue should be distributed, per stirpes, equally among the living and deceased brothers and sisters of the decedent, so that only the share of a deceased brother or sister should be distributed equally among his or her lawful heirs.
    The executors brought this action for the court to construe the will and to determine the matters in doubt and controversy. The following is an agreed statement of facts used on the trial in the district court on appeal:
    “ It is agreed that Thomas McKelvey was never married; that he had originally six brothers- and two sisters as his next of kin; that prior to the time of making his will, being the will in controversy, two of his brothers, viz : James and Robert, and his sister, Margaret, had deceased; that he made his said will on the 23d day of June, 1879; that he had then living four brothers, viz: Weir, George, Joseph, and Samuel, and one sister, viz., Elizabeth McCaffrey, all well known to him; that his sister, Elizabeth, was at the time aged and in very feeble health; that his brother, James, died, leaving as his children and heirs the persons named in the first item of said will, who are all living; that his sister, Elizabeth McCaffrey, who was living as aforesaid, had the children named in the second item of said will, and no others; that they are all still living; that Elizabeth died since this case was tried in the court of common pleas, leaving said persons as her heirs; that his brother, Robert, had died as aforesaid, leaving the persons named in the third item of said will as his only heirs, who are all living; that his sister, Margaret, had died, leaving as her only heir the person named in the sixth item of said will, who is still living; that his brothers, Weir, George, Joseph, and Samuel, are still living; that the testator died about February, 1882, aged about •-years, leaving no other heirs, except the persons named in said will; that he left an estate valued in round numbers at about $100,000; that after paying the specific bequests, there will remain to be distributed under the 12th item of the will about $20,000; that Matilda Anderson, named in the 7th item of the will, is not an heir of said testator.”
    On the trial in the district court, the agreed statement of facts, and the copy of the will on file with the petition, were all the evidence that was offered, and “the court found and adjudged that the remaining estate of the testator, under the 12th item of the .will, ■ should go to the brothers and sisters of the testator living, each one-eighth part thereof, and to the children of the deceased brothers and sisters of the testator, to each family, per stirpes, the one-eighth part thereof.” The finding and judgment were excepted to, and a motion for a new trial was overruled, and a bill of exceptions was filed.
    The plaintiffs in error now claim that:
    “The court erred in adjudging that the residue of the estate of Thomas McKelvey, deceased, to be distributed under item 12 of his will, should be divided into eight shares, and one share each given to his living brothers and sister, and one share each to the families of the deceased brothers and sister.
    “The court erred in refusing to divide said residue of the testator’s estate into twenty-two shares, and giving to plaintiffs in error each one share.”

      Wm. Okey $* Son, for plaintiffs in error.

      L. JDanford, for the brothers and Wm. M. Dragan.

      George R. E. Gilchrist and Robert White, for Elizabeth McCaffrey’s administrator and other defendants in error.
   Eoleett, J.

We need not examine or restate the principles governing the constructions of wills, for in Townsend v. Townsend, 25 Ohio St. 477, this court held that:

“ 1. In the construction of a will, the sole purpose of the court should be to ascertain and carry out the intention of the testator.

“ 2. Such intention must be ascertained from the words contained in the will.

“3. The words contained in the will, if technical, must be taken in their technical sense, and if not technical, in their ordinary sense, unless it appear from the context that they were used by the testator in some secondary sense.

“ 4. All the parts of the will must be construed together, and effect, if possible, given to every word contained in it.”

The will and facts show that Thomas McKelvey remembered each brother and sister, and the children of those deceased, and the children of his infirm sister, Elizabeth; and that he did not intend to die intestate as to any part of his property. Collier v. Collier, 3 Ohio St. 373. He considers all his estate to be money, and that no debts exist.

The sole question is, when all the first eleven items as specified in the will are satisfied, amongst whom shall the residue be divided ?

“ Item 12 ” reads : “ It is my will and desire that whatever money will be left after paying the different sums given to my heirs in this, my last will and testament, shall be divided equally amongst them.”

The word “them” personates and refers to the words “ my heirs,” as there qualified; but what persons were intended by the testator when he thus used the words “ my heirs?” They are persons to whom the testator gave different sums in the will. In the strictly proper sense of the word heir, no one is an heir until after the death of the ancestor; yet we use the word heirs as including heirs-at-law, heirs presumptive, and heirs apparent. Iu arriving at its true meaning in a particular will, we must look at all parts of the will to see in what sense the word is used by the testator. When the testator uses the word heirs, does he mean to designate children, or brothers and sisters, or legatees, or heirs apparent ? etc.

In this will the testator used “ heirs ” for children of his living sister, Elizabeth, and for the child of his deceased sister, Margaret, and for the children of his deceased brothers, James and'Robert. In other parts of his will the testator does not designate his brothers or sisters as his heirs, but he calls each one deceased, “ my deceased brother ” or “my sister,” and he calls each one living, “my brother” or “ my sister.”

He gives nothing to his living sister, Elizabeth. As she was old and infirm the testator probably expected to outlive her, and so regarded her as dead, and he gave to her children, by name, as though she were dead (and she was dead when the ease was tried in the district court).

Had Elizabeth been dead, all his relatives to whom he gave legacies would have been all his heirs apparent.

In the first eleven “ items ” of his will, the testator calls no one his heir; but he used the word heirs either for children who could inherit from a deceased parent, or for children who were heirs apparent of a living sister.

The testator had given nothing to his deceased brothers and sister, or to a living sister, but he had given by name to each one of their children — their heirs-at-law and heirs apparent — .as the persons who should share definite portions of his property. From his bounty, for apparently good reasons, probably regarding her as deceased, he had left out his living sister, Elizabeth, but he gave to her children, designating them as her heirs, and to his heirs apparent (in-eluding as such the children of Elizabeth) he had given carefully computed legacies of different amounts. These heirs apparent he seems to regard as his own heirs; and he does not express a desire that the residue of his property should be divided among those named in proportion to the sums given.

Had the testator died intestate as to the residue, the law would divide it, as the living brothers claim it should be divided now. But a testator is not presumed to die intestate as to any part of his estate. Collier v. Collier, supra. And here the testator declares in Item 12 : “ It is my will and desire that whatever money will be left after paying the different sums given to my heirs, in this, my last will and testament, shall be equally divided amongst them.” His thoughts are upon the residue, and to whom and how this residue shall go. His use of the word “ heirs,” and the nature of the gifts and legacies, do not show that in the use of the words “ my heirs ” he included all the legatees. And the most reasonable meaning of the testator in this will is, that the word “ them ” refers to the “ heirs ” to whom different sums had been given in this will.

In his will he had given “ different sums” to twenty-two persons, who were heirs apparent, if we regard Elizabeth as deceased, as the testator seemed to regard her.

The money left — the residue — should be “ divided equally amongst them,” the twenty-two “heirs” named in the will. Only the residue is in dispute here.

This construction is in harmony with every part of the will, and gives effect to each part. See Huston v. Crook, 38 Ohio St. 328.

The judgment of the district court is reversed, and cause remanded for further proceedings.

Johnson, J., dissented.


author: Okey, J.

text:
    Beals v. Lewis.

      Appeal — Waiver by receiving amount of judgment — Usury—Estoppel to assert — Usury in successive loans finally secured by mortgage — Right to deduct on foreclosure.

    1. In an action for an account of the amount due on a mortgage of real estate and a sale of the mortgaged premises, the only question was whether usurious interest was embraced in the mortgage. The court found that the mortgage did embrace Í>1,533.30 illegal interest, and found the amount due to the plaintiff to be as claimed by him, less such illegal interest, rendered judgment accordingly, and ordered a sale of the property to satisfy such judgment. The plaintiff received and receipted for the full amount of the judgment so rendered. Held, that the plaintiff did not thereby waive the right to appeal to the district court with respect to such alleged usurious interest. Tdbler v. l^iseman, 2 Ohio St. 207, distinguished
    2. A., B., and 0., partners, having executed a promissory note to D. embracing usurious interest, and having also executed to him a mortgage on real estate to secure the note, A. conveyed to B. and C. his interest in the partnership property, including the real estate mortgaged, B. and C. agreeing, in consideration thereof, to pay the firm debts, including the debt to D. Held, that B. and O. were not estopped to assert such usury, in an action by IX for the sale of the mortgaged premises; nor is the assignee in bankruptcy of B. and C. precluded from making such defense, although B. and 0., in the bankrupt proceeding, reported D.’s debt at the full amount claimed by him.
    3. In 1869, 1870, and 1872, A. loaned money to B., talcing at each loan a promissory note therefor, the note for the loan of 1870 embracing, also, the amount of the loan of 1869, and the note for the loan of 1872 embracing, also, the amount of the two preceding loans. In each off the notes usurious interest was incorporated. Held, that in an action to foreclose a mortgage given to secure the payment of the note of 1872, and obtain a sale of the mortgaged premises, all the illegal interest should be deducted.
    Error to the District Court of Huron county.
    March 11, 1872, Levi Lewis aud his sous, Charles A. Lewis and George W. Lewis, being partners in the mercantile and other business, in Huron county, under the firm name of Lewis & Sons, executed to Charles ~W. Beals a promissory note for $4,500, due in one year, with interest at eight per cent. To secure the payment of the note, the makers of the note, as individuals and as partners, executed a mortgage to Beals on real estate, in that county, which they owned, and that mortgage was filed for record and became a lien, March 20,1872.
    On September 1, 1876, Levi Lewis conveyed to his co-partners all his interest in the partnership property, including that mortgaged, they agreeing, in consideration thereof, to pay the firm debts, including the debt to Beals. Four days thereafter Levi Lewis died intestate. No administrator was appointed, nor did the surviving partners cause any inventory to be made of the, property, but they continued the business under the firm name of O. A. & G-. W. Lewis, and paid all debts of the firm, except Beals/
    May 14,1877, O. A. & G-. W. Lewis, as partners and as individuals, made an assignment under the state law to Elmer E. Husted, one of the defendants in error, for the benefit of their creditors, and they included in the assignment the mortgaged premises.
    April 30, 1878, C. A. & Gr. W. Lewis filed their petition in bankruptcy in the district court for the northern district of Ohio. Husted was appointed assignee in that proceeding, and they received a final discharge February 19,1879. Beals presented his claim to the assignee, amounting to au alleged balance of $5,509, with interest from June 3, 1878. The assignee claimed this included $1,533.30 usurious interest, and hence refused to allow the claim except with that amount deducted therefrom. Beals refusing to accept the amount so admitted by the assignee, brought suit in the court of common pleas of Huron county to foreclose the mortgage, making all persons in interest parties, and praying for an account of the amount due and an order of sale.
    After the cause had been tried and a judgment had been rendered finding-the amount due Beals to be as claimed by the assignee, Beals gave notice of appeal to the district court, but before the appeal was perfected he received from the assignee the whole amount of the judgment, and afterward prosecuted the appeal. In the district court the only question was whether Beals was entitled to recover the above mentioned sum of $1,533.30, with interest from May 24,1880, or whether he was precluded from recovering it on the ground that it was usurious interest, which had been incorporated in the above mentioned note. The cause was heard on petition, answers, replies, and testimony, and the finding of the district court as to the illegal interest was the same as that of the court of common pleas. This petition in error was prosecuted by Beals to obtain a reversal of the judgment of the district court.
    The debt to Beals arose in this way. The first loan to Lewis & Sons was $500, November 4, 1869, for which a note was given for $506.16, due in four months, with interest at eight per cent, and signed in the firm name. On March 7, 1870, Beals loaned the firm an additional sum of money and took from the firm a note embracing as well such loan as also the amount of the first note, the amount of such second note being $2,592.60. And on March 11, 1872, Beals loaned to the firm an additional sum of money and took from the firm the note and mortgage for $4,500, above mentioned, such note embracing as well the money so loaned as also the amount of such second note. In each of these three notes illegal interest was incorporated, the amount of such illegal interest being $1,533.30, as above stated.

      Young $ Young and Cf. T. Stewart, for plaintiff in error.

      G. L. II. L. Kennan, and J. JS. Dickson, for defendants in error.
   Okey, J.

1. In some cases a party, by receiving the amount of a judgment in his favor, waives the right to prosecute error or an appeal. Tabler v. Wiseman, 2 Ohio St. 207, 216. But that principle does not apply here. The plaintiff received the amount admitted to be due, and for which the court had rendered judgment; but the only matter in controversy was as to $1,533.30, which the defendants alleged and the court found to be usurious interest, which the plaintiff was not entitled to recover. We think it was competent for the plaintiff to receive the amount of the judgment, and prosecute an appeal, and finally a proceeding in error, with respect to the claim for $1,533.30. U. S. v. Dashiel, 3 Wall. 688; Embry v. Palmer, 107 U. S. 3.

2. Levi Lewis conveyed his interest in the partnership property to C. A. & G. W. Lewis, in consideration, among other things, that they would pay the partnership debts, Including the debt of Beals. Busby v. Finn, 1 Ohio St. 409; Cramer v. Lepper, 26 Ohio St. 59 ; and Jones v. Ins. Co., 40 Ohio St. 583, are cited to show that C. A. & G. W. Lewis are estopped. These cases do not apply. The defense is "interposed by C. A. & G. W. Lewis, not as the assignees or vendees of Levi Lewis, but as debtors, as makers of the note, and as mortgagors, and they may well make such defense. 1 Jones on Mortg., § 644 ; 1 Pomeroy’s Eq., § 391. Nor is the assignee precluded from making such defense, although O. A. & G. W. Lewis may have returned the debt, in the bankruptcy proceeding, at the full amount claimed by Beals. Union Bank v. Bell, 14 Ohio St. 200, 210; In re Prescott, 5 Biss. 523.

3. It is said the transaction of March 7, 1870, by which the note of $506.16 was canceled, and a new note, embracing that note and an additional sum of money, was executed, operated as payment of the old note; and that the same effect followed the transaction of March 11, 1872, when the second note was canceled, and the note and mortgage for $4,500, embracing such second note and an additional sum of money were executed. But prima, facie the second and third notes were notes in renewal (Baggs v. Loudenback, 12 Ohio 153 ; 34 Ohio St. 146), as well as evidence of the additional loans, and we see nothing in the transactions which leads to the conclusion that we should regard either the first or second notes as paid. They were simply canceled, and the debt they evidenced remained unsatisfied. The only transaction was a loan of money by Beals to Levi Lewis and his two sons, and although the money was not all advanced at one time, but different amounts were advanced on three different occasions, the lender and borrowers were in each case the same, and in the notes evidencing the debt Beals was always the payee, Lewis & Sons the makers. The district court did not err.

Judgment affirmed.


text:
    Street Railway Company v. Bolton.

      Negligence — Master and servant — Injury to passenger while assisting driver of street ear.

    The plaintiff was a passenger on defendant’s street railroad, on a car northward bound. The railway was a single track, with occasional sidetracks for the passage ot cars moving in opposite directions. The north-bound car, having been drawn beyond the side-track, where it was to have met the south-bound car, it became necessary to push it back to the side-track, so that the cars could pass and each proceed to its destination. At the request of the driver of the north-bound car, the plaintiff assisted him in pushing the car back to the side-track. While so engaged, without fault on his part, he was injured by the carelessness of defendant’s driver on the south-bound car Held:

    1. The plaintiff did not engage m the service ot defendant as a mere volunteer.
    2. Under the circumstances the plaintiff can not be considered as a fellow-servant with the driver ol the south-bound car
    3. In the case stated, the doctrine of respondeat superior applies.
    Error to the District Court of Muskingum county.
    On the 28th of April, 1879, the Mclntire Street Railway Company, the plaintiff in error, was the owner of, and operating a street railroad in the city of Zanesville. The railroad was constructed of a single track, with occasional side-tracks, whereby cars drawn by horses moving in opposite directions were enabled to pass. On the day named the defendant in error was a passenger on one of the cars going northward. This car having been driven past the side-track, where it should have passed the south-bound car of plaintiff iu error, it became necessary to push the northbound car backward to the side-track so that the southbound car could pass, and thus enable each car to proceed to its destination. At the request of the driver of the north-bound car, on which Benjamin Bolton, the defendant in error, was a passenger, he assisted the driver to push the car backward on the side-track, and while so engaged he, defendant in error, was injured by the carelessness and negligence of the driver of the south-bound car, while engaged in the business of the plaintiff in error, and without any fault or negligence of the defendant in error.
    Eor this injury the defendant in error brought his action against plaintiff in error in the court of common pleas of Muskingum county, and recovered a verdict and judgment.
    On the trial the court refused to instruct the jury that, “ if they find that the plaintiff, without the knowledge or consent of the defendant, volunteered to assist the driver of the north-bound car in the performance of his duties as such driver, the plaintiff thus volunteering to assist, whether with or without request of such driver, would for the time being stand in no better relation with respect to defendant’s liability, than would a servant of the defendant, and would assume the risks incident to such service; and that the plaintiff, while thus'assisting such driver, can not recover damages resulting to him from the negligence of the driver he is assisting, or from the negligence of the driver of the south-bound car, provided they were persons possessing ordinary care and skill in their employment, and one not superior in authority to the other; that an employer is not liable in damages to an employe for injuries resulting to such employe from the negligence of a co-employe not superior in authority, and to whom the employe injured did not owe obedience, if such employes possessed ordinary care and skill in their'employment; and, if the plaintiff volunteered to assist the driver, as before stated, and while so assisting was injured by the negligenee of either of said employes, lie can not recover, for he assumes the risks incident to such undertaking, and does not stand in any better position in respect to defendant’s liability than did the employe he was thus assisting.” But did instruct as follows :
    “ That if the plaintiff was requested by the driver of the north-bound car to assist in pushing it back, and he did so assist, and in doing so was injured by the carelessness or negligence of the driver of the north-bound car or of the south-bound car, he can recover, if such assistance was apparently necessary. Or if there was an actual necessity for him to assist the driver in pushing back the north-bound car, and he did so assist, and while doing so was injured by the negligence of the driver of either car, he can recover, whether he was requested by the driver to assist or not.”
    . The district court affirmed the judgment of the common pleas.
    This proceeding is prosecuted to reverse the judgments of the courts below.
    ■ In refusing to give the instructions requested and in the charge as given, the plaintiff in error alleges the court of common pleas erred, and that the district court erred in affirming the judgment below.

      Frank H. Southard, for plaintiff in error.

      Evans $ Beard,, for defendant in error.
   McIlvaine, C. J.

It is undoubtedly a well established principle of law that a master who is guilty of no carelessness in. employing servants is not liable to one for injuries caused by the carelessness of a fellow-servant, while both are engaged in the common service, and no relation of subordination exists between them. In such case each servant assumes the risk of injuries from the carelessness of fellow-servants.

,It is also well settled that a person who without any employment voluntarily undertakes to perform service for another, or to assist the servants of another in the service of the master, either at the request or without the request of such servants, who have no authority to employ other servants, stands in the relation of a servant for the time being, and is to be regarded as assuming all the risks incident to the business.

But it does not follow that under all circumstances a person who assists the servants of another in the discharge of their duties, without employment by the master, is to be regarded as voluntarily assuming the relation of a fellow-servant, or the risks pertaining to that relation. To illustrate; suppose a servant in driving his master’s team on the highway founders in such a manner as to prevent the use of the highway by others for the time being. Another person, who is thus impeded in the use of the road, assists the servant, either with or without request, to remove the impediments to travel from the highway. Such other person does not thereby become the fellow-servant of the driver. Indeed, in no just sense, has he voluntarily entered the service of the master. And the rule of law first above stated does not apply to the case supposed, and therefore it, was not error in the court of common pleas to refuse it.

The law of the case was properly given in the charge.

The plaintiff in the court of common pleas was not a mere volunteer, within the meaning of the rule of law contended for by plaintiff in error, but, as a passenger on the north-bound car, -was interested in having it driven to its destination. To this end it was necessary to pass the southbound car. This could only be accomplished by pushing-the north-bound car back upon the siding. In doing this, although it may not have been absolutely necessary for the passeuger to assist the driver, it was a prudent and reasonable act, justified by the circumstances of the case; not a wrongful interference and intermeddling with business in which he had no concern. It. was not, in fact or in law, an assumption of risk from the carelessness of the defendant or any of its servants.

The law in this case is well stated in Wright v. The London and N. W. R. R. Co., 1 Q. B. Div. 252.

That case was this: “The plaintiff sent a heifer (which was put into a horse-box) by defendants’ railway to their P. station. On the arrival of the train at the station, there being only two porters available to shunt the horse-box to the siding, from which aloue the heifer could be delivered to the plaintiff, iu order to save delay he assisted in shunting the horse-box, and while he was so assisting he was run against and injured through a train being negligently allowed by the defendants’ servants to come out of the siding. There was evidence that the station-master knew that the plaintiff' was assisting iu the shunting, and assented to his doing so: Held, affirming the decision of the queen’s bench, that the plaintiff was not a mere volunteer assisting the defendants’ servants, but was on the defendant’s premises, with their consent, for the purpose of expediting the delivery of his own goods; and the defendants were therefore liable to him for the negligence of their servants, according to the principle of Holmes v. North Eastern Ry. Co., L. R. 4 Ex. 254; 6 Ex. 123.”

Judgment affirmed.