text:
    The Union Central Life Insurance Co. v. Cheever.
    1. A policy of insurance upon thS life of C. was issued on the joint application of himself and wife, for her sole benefit. In answer to a question iu the application, C. stated that he had had no sickness or disease during the seven years then last past. It was stipulated in the policy that if the statements in the application were not in all respects true, the policy should become void. Held, in an action by the wife upon the policy, the declarations of C., made prior to the application, and tending to show that said statement was, to his knowledge, untrue, are incompetent.
    :2. The court permitted counsel for one of the parties, in argument to the jury, to read and comment upon matter not in evidence, nor relevant to the issue, and which was prejudicial to the opposite party, Held, an irregularity, or abuse of discretion which prevented a fair trial, and for which the verdict should be set aside and a new trial ordered.
    Error to the General Term of the ■ Superior Court of Cincinnati, affirming a judgment at Special Term, in favor of the defendant in error, entered on the verdict, and affirming an ■order denying a motion for a new trial.
    Action upon a policy of life insurance, issued upon the life ■of Charles E. Cheever, by the plaintiff in error for the sole benefit of the defendant in error, wife of said Charles, on November 27, 1872. •
    It was agreed by the parties that the policy was given in place of one for the same amount, issued upon the same terms and conditions, upon the life of said Charles E. Cheever, by the Cincinnati Mutual Life Insurance Company, and dated July 31, 1871, and in consideration in part of the representations made in the application for insurance to the latter company. The ajjplication was signed by both Charles E. Cheever and his wife. The policies of both companies contained, among-others, the following clauses. *

      “ This Policy is issued and accepted by the insured upon, the express conditions and agreements contained upon the back hereof, which are to be used and referred to in order to explain the rights and obligations of -the parties hereto, in all. cases not herein specially provided for.”
    Among the conditions were—
    “ 1st. That the statements and declarations made in the application for this policy, and on the faith of which it is issued, are in all respects true, and without the suppression of any facts relating to the health or circumstances of the insured, affecting the interests of said company.
    “8th. That in case of violation of the foregoing conditions, or any of them, this policy' shall become void.”
    The defense relied on was intentional misrepresentation and concealment, by Cheever, in answer to the following question, contained in the application for insurance by the Cincinnati Mutual, of the date of July 28, 1871: “Have you had, during-the last seven years, any sickness or disease ? If so, state the particulars, and the name of the physician or physicians who. prescribed or were consulted.” Answer, “No.”
    The reply denied that the answer to said question was untrue. It appears from the pleadings, and a bill of exceptions, containing all the testimony, that the said Cheever died on March 23, 1874; that in the year 1870 there appeared upon his neck a tumor or sore, which, prior to July 28, 1871, the date of the application, had been examined and treated by-several physicians, some of whom were of the opinion that it. was a cancer, while others pronounced it an innocent growth, or glandular affection, of a character that would readily yield to treatment, leaving no permanent injurious effect. Among the physicians who pronounced the tumor to be a malignant cancer was Dr. Gratigny, who, among other things, testified as follows:

      “ I have been practicing medicine and surgery in this city for about thirteen years. I devote my time and labors to the-treatment of cancers, tumors, and scrofulous diseases, as a specialty. I knew Charles E. Cheever; he came to me for-treatment on the 18th day of August, a. d., 1870. He had an open tumor on the left side of the neck below the ear; it-was malignant; by malignant, I mean that it was a cancer. I treated him for about six consecutive weeks, commencing August 18; I gave him medicines, and removed the cancer by means of outward applications, so that the diseased structure was separated from the healthy tissue, and wholly removed. This removal was effected in about three weeks; I saw him every d'ay during that time. It was of the species known aseucephaloid cancer; when the diseased parts were removed from the sound or healthy parts, it left a healthy granulating surface, which soon healed up, leaving a natural surface and a, healthy scar; when he left me he was well.”
    The witness testified that a paper shown him, of which the-following is a copy, was in the handwriting of Charles E.. Cheever, and was delivered to him by Cheever.
    “ Cint’i, Jany 1st, 1870.

      “ Dr. L. H. Qratigm/:

    “ Dear Sir : — About one year ago a lump or swelling commenced coming on the left side of my neck. At first I paid no attention to it, but as it kept increasing, I applied to my physician, who gave me outward applications first and after-wards operated on it, which done no good. After being under his charge for some time and growing worse daily, I changed physicians and tried sei^ral, but to no use. At a consultation held on my case last summer, my complaint was pronounced cancer, and I was told that I could not be cured, and that my time here was getting short. By accident hearing of you and. of some remarkable cures you had made, I called on you — you gave me some encouragement, and after visiting, myself, some-of your old patients, I commenced with you on the 18th of last August. I am happy to say, that in 7 weeks from that date, my neck was entirely healéd up sound and well (something my former physicians said couldn’t be done), and I am now strong, hearty, and never felt better in my life. From all indications, •I am entirely well, and think it my duty to you and to all •others afflicted, to give you the above plain statement of facts. You are at perfect liberty to use the above in any manner you see fit, and to refer all afflicted in a similar manner to me. My place of business is 228 and 230 Main street, and can refer you to most of the principal business men in this city.
    “ Charles E. Cheever.

      “ Chas. E. Cheever,
    No. 228 and 230 Main St.,
    Dec. 31, ’70.”
    This letter was offered in evidence by the company, and on the objection of the plaintiff below was excluded, the defend.ant excepting.
    The witness further testified, that a letter handed him, signed Job S. Haworth, dated Lewis, Cass county, Iowa, July 12, 1871, was delivered to him by Charles E. Cheever, and that the words in pencil, at the bottom of it, are in his handwriting ; the words in pencil are: “ Sent him one of your books and wrote him. Charlie.”
    This letter was as follows :
    “ Lewis, Cáss Co., Iowa, July 12, ’71.
    “ Mr. Oheever:

    “ Sir : — I am agoing to write you a line Concerning One Doctor Gratigna Curing Cancer I see a Statement1 in the Times as having cured One Charles E Chever of Cancer & as I am supposed to have Cancer One my Nose„I thought I would try find out the certainty of the case
    “ I want you to Answer & give me the facts in the ease if you Please & Oblige Yours Job S Haworth

      “ direct to .Lewis Cass Co Iowa ”

      “ Sent him one of your books & wrote him
    “ Charlie
    “Job. S. Hayworth, Lewis Iowa To Charley Cheaver answered July 15 1871.”
    This letter was also offered by the defendant below, and excluded by the court. The book mentioned in the note at. the bottom of this letter,' contained, among other things, a printed copy of the letter of the insured to the witness.
    N. "W. Harris was called, and testified that he was the secretary and general manager of the defendant below, and had been since 1867; and that a book shown him, containing eight, pages, was prepared by him and issued to the agents of the company.
    The plaintiff below then offered the book in evidence, but upon objection withdrew the offer. In the argument of the case to the jury, counsel for the plaintiff was permitted in “ illustration of his argument, ” and over the exception of the defendant, to read and comment upon the matter contained in said book. The following js an example of its contents.
    “ QUALITIES OR A GOOD AGENT.
    “ The public generally forms its opinion of a life insurance company by its acquaintance with its agents. The good agent appreciates this fact; and, also, that men will judge of the whole system of life insurance by him. He has high ideas of his work. He looks upon it as benefiting the party assured by giving to him quiet of mind; by inducing habits of economy, sobriety, and forethought; by setting before him an honorable motive to action and enterprise; and by leading him to the discharge of a sacred duty. He considers that his efforts are helping to rid the community of poverty and its frequent attendants, vice and crime; and also, that he is strengthening the sinews of social life by every policy he obtains ; and, what is more, that he is befriending the poor and needy, wiping sorrow from eyes dimmed with tears, and deserving the tribute of gratitute awarded to one of old: ‘When the ear heard me, then it blessed me ; and when the eye saw me, it gave witness to me; because I delivered the poor that cried, and the fatherless, and him that had none to help him. The blessing • of him that was ready to perish came upon me, and I caused the widow’s heart to sing for joy.’
    “Agents should cultivate the acquaintance of the clergy, ■ and, by every suitable means, endeavor to secure their inhu•ence. In most cases a minister will give a note of introduction, or a general letter, commendatory of the agent and the •company. Often, too, a pastor will furnish a list of the members of his parish who are most likely to insure. It is of great importance to effect an insurance upon the minister’s life. If .you are associated with Sunday-schools, churches, or any other •organization, avail yourself of the acquaintance it will give .you. _
    _ “ When a death occurs in a community, especially if the party be assured, and where it is of great advantage to the sur'viving members of a family, particulars may be profitably obtained, and the circumstances commented upon. Perhaps 'the relatives and fr.ends may be induced to insure. Yery few communities do not furnish examples where a life-policy upon •a deceased parent wquld have been a god-send to the afflicted household. It is not only proper to refer to such cases, but an ■agent is not fulfilling his duty if he does not interpret and apply such providences as a warning against the neglect of life .insurance. Sudden death gives especial point to such appeals.”
    Whether Oheever died of a recurrence of the ailment which Dr. Gratigny treated, or of a new disease, was a point of much •conflict in the testimony given at the trial.

      Matthews, Ramsey (& Matthews, for plaintiff in error:
    1. The Haw'ortli letter and the note by Oheever at the bottom thereof, was offered solely to show that Oheever, prior to the application for insurance, knew that he was diseased, and for that purpose it was competent evidence. 1 Greenl. §§ 98-103, inclusive, and authorities cited ; Best on Ev. § 495, and •authorities cited; Swift v. Ins. Co., 63 N. Y. 186.
    2. The permission b.y the court to coimsel for plaintiff, to read to the jury from the company’s book to its agents, and comment thereon, was error. Koelges v. Ins. Co., 4 Big. 266; s. c., 57 N. Y. 638; Legg v. Drake, 1 Ohio St. 246; Coster v. Merest, 3 Brod. & Bing. 272; Coble v. Coble, 79 N. C. 589; State v. Underwood, 77 N. C. 502; Winter v. Sass, 19 Kans. 556; Wightman v. Providence, 1 Cliff. 524 ; Fry v. Bennett, 3 Bosw. 200.

      E. 8. Throop, G. D. Robertson and I. M. Jordan, for defendant in error.
   Boynton, J.

As the case will go back for a new trial we .have deemed it necessary to consider only two assignments of •error.

1. Did the court err in rejecting the letter given to Dr; Gratigny by Charles E. Cheever, and the letter of Job S. Haworth with Cheever’s memorandum thereon? Although fhe letter of Cheever bears the date of January 1, 1870, it evidently was written January 1, 1871, as Cheever’s address at the foot of the letter bears the date of December 31,1870, and the case shows that Dr. Gratigny was not consulted prior to August of that year. There is no doubt that the letter and memorandum, if admissible, tended to prove that Cheever had had “ sickness and disease ” during the seven years prior to July •31, 1871, the date at which the insurance was effected, and for which he had received medical treatment from several physicians. But the testimony, we think, was incompetent. The insurance was, in terms, effected for the sole benefit of the jplaintiff below. The testimony rejected consisted of declarations of Charles E. Cheever, made, it is true, prior to the time the insurance was effected, but not under circumstances at all .affecting the rights subsequently acquired, under the policy, hy the plaintiff below. When the letter was written, or the memorandum made, Cheever could not have been acting as her ■agent. They were not the declarations of a sick person in relation to his present condition, as they related to a state of facts already past. Fraternal Mutual Ins. Co. v. Applegate, 7 Ohio St. 297. They were not a part of the res gestae of, any act or fact, then transpiring, which they tended to characterize or explain. Swift v. Massachusetts M. L. Ins. Co., 63 N. Y. 186, They neither accompanied nor were explanatory of an act performed by Cheever. Hence, as respects the rights of the wife, they were the -declarations of a stranger. There is no doubt that where evidence of an act doné by a party is admissible, his declarations made at the time, explanatory of the act and tending to elucidate it, are also admissible as a part of the res gestas. Rut it is only where some act is itself relevant and material, and to which the declarations relate, and which they tend to explain, that they become competent. Morrill v. Foster, 32 N. H. 358. The effect of the declarations offered was, that Cheever, formerly, and about a year before, had been sick of cancer, and was cured by Dr. Gratigny. This was but a naked declaration concerning a past transaction or fact, and wholly unavailing to bind or affect any one except the declarant himself. Granting this, counsel fbr the plaintiff in error contend that such declarations were admissible to prove that at the time the application was made, Cheever knew that the representations were false, and therefore fraudulent. But it is quite immaterial whether he was or was not aware that the representations were false. The parties to the policy stipulated, that if the representations, or any of them, were untrue, the policy should be void, and the court gave to the company, in its instruction to the jury, the full benefit of this stipulation. Ætna Life Ins. Co. v. France, 91 U. S. 510. Knowledge of the falsity of the representations being an immaterial'faet, there was no error in rejecting the testimony offered to show it.

But we are of the opinion that the permission to counsel for the plaintiff below, against the objection of the defendant, to read to the jury and comment thereon, the pamphlet prepared by the secretary of the company for use by its agents, was an abuse of discretion preventing a fair trial. It had been offered in evidence, and, upon objection, withdrawn. It was permitted to be read by counsel to illustrate his argument.” It will be noticed that it was not even prepared by the company which issued the policy on the application alleged to contain the false answers to the questions relating to the prior sickness of the subject insured. It, therefore, could have had no influence upon the conduct of the agents of the company to which the application was made.

In Legg v. Drake, 1 Ohio St. 287, it was held, that counsel had the right by way of argument or illustration to read a pertinent quotation or extract from a work on science or art, as well as from a classical, historical, or other publication, because, as was there stated, it would make no difference whether repeated by counsel from recollection, or read from a book; but that it would he an abuse of privilege to make the right thus to do, the pretense of getting improper matter before the jury.

To the rule there stated we fully adhere. The matter read or stated should be pertinent to the subject of inquiry, and so far calculated to elucidate it, as to aid the jury in a better understanding of the evidence produced at the trial. The matter read to the jury and commented on in the caso before us was not of this character. The question in issue related wholly to the truth or falsity of the statements of the subject insured, contained in the application respecting his previous condition of health. The matter contained in the pamphlet had no possible bearing upon that subject. It was filled with directions and suggestions, well calculated to excite prejudice against a company resorting to such methods to secure additions to its policy-holders, and4 to draw the minds of the jury away from the matter in dispute, and subject them to influences entirely foreign to the case. It contained not a word, tending to show whether Cheever had been sick or diseased during the seven years prior to the application for insurance, which was the sole question under investigation.

In the selection of jurors care is not only taken to obtain persons entirely impartial, and free from any bias resulting from previously-formed opinions, but the law carefully guards them, during the progress of the tidal, from the approach of the least improper influences which are calculated to affect their judgment. They are sworn in all cases to try the issue joined, and to render a true verdict, according to the law and the evidence given in the case. The law has established well-defined rules determining the admissibility of evidence, one of which is that the evidence offered must correspond with the allegations, and be confined to the point in issue. All hearsay evidence is excluded. The jury must receive the evidence from witnesses under oath; it being the right of the party prosecuting or defending, to have the trial conducted according to the established usage of the common law. If a juror possesses personal knowledge of a fact pertinent to the issue, he must bo sworn as a witness, before any benefit can be derived to either p'arty by the knowledge thus possessed. These are some of the safeguards the law throws around the rights of parties litigant, while undergoing judicial inquiry ; and it is easy to see that they would be of little avail, if, during the progress of the trial, and with the sanction of the court, their effect could be destroyed or evaded by the latitude of speech or comment which the law accords to counsel.- Facts, of which no proof is offered and no presumption arises, are legally outside of the case, and cannot be brought -before the jury under any pretense whatever. This is held by numerous cases besides those cited in argument. Tucker v. Henniker, 41 N. H. 317; Rolfe v. Rumford, 66 Me. 564; Berry v. The State, 10 Geo. 511 ; Dickerson v. Burke, 25 Geo. 225; Koelges v. Guardian, Life Ins. Co., 57 N. Y. 638.

In Baim, v. Wilson, 10 Ohio St. 14, it was held to be error for the court to base a charge b to the jury on a state of facts purely conjectural, and as to which it affirmatively appears, no evidence was given at-the trial. In the course of the opinion, it was said that “ the judge must confine himself in his remarks-to the law and evidence in the case. So far from being under any obligation to call the attention of the jury to a conjectural state of facts, it would be highly improj)er for him to do so.” See also, Walker v. Stetson, 14 Ohio St. 90. The reason of this rule is very obvious, and is thus stated : “ Jurors are constantly inclined to look to the opinion of the judge for instruction as to what is, and what is not evidence; when he tells them to determine a given problem from the evidence before them, they can hardly do otherwise than infer that, in his judgment, there is evidence upon which their verdict, when given, may rest.” Ibid.

It is but another application of the same process of reasoning, to say, that when the court below permitted counsel for the plaintiff to read and comment upon the pamphlet of instructions to agents, issued by the defendant, that the jury might justly ■ infer that the court was of the opinion that the matter thus read .and commented on, might properly affect their verdict. The testimony given respecting the disease of which Oheever died, wasi more or less conflicting. Some of the medical witnesses were of the opinion that he died of a recurrence of the .alleged ean- ■ cerous ailment- treated by Dr. Gratigny, while others were of the opinion that death was caused from a distinct and independent disease, originating after the policy took effect, and that the sore or tumor upon the neck did not amount to sickness or disease, as those terms are commonly understood. In view of this conflict in the testimony, we do not see how the reading of the pamphlet to the jury could be otherwise than prejudicial to the defendant to the extent of preventing a fair ••trial.

Judgment reversed, <md a new tried ordered.


source: Caselaw Access Project

author: By the Court.

license: Public Domain

text:
    The State of Ohio ex rel., etc., v. John E. Oglevee, Auditor of State.
    Mandamus.

      A. W. Waters, for the relator.

      George K. Wash, attorney-general, for respondent.
   By the Court.

The appropriation of $10,000 for Long-view Asylum, contained in the act of April 15, 1880 (77 Ohio L. 249), is valid. Chapter 10 of the revised statutes, sections 722 to 751 inclusive, in relation to Longview Asylum, does not • constitute a contract between the state and the county of Hamilton. Neither of these statutes is within the provisions-of section 29, article 2, of the constitution, which require the vote of two-thirds of the members elected to each branch of the general assembly. The payment of a claim ” against the state was not the subject-matter of this legislation. The sole object was the making of a provision for the support of a public institution which the constitution enjoins upon the general assembly. Con., art. 7, § 1.

Peremptory writ allowed.


text:
    Taylor v. The State.
    Error to the Court of Common Pleas of Muskingum County.
    ' Stephen A. Guthrie, for plaintiff in error.

      George K. Hash, attorney-general, for the state.
   By the Court.

Section 5176 of the revised statutes makes it a ground of principal challenge that a person called as a talesman has already served as a talesman, in the trial of any cause in any court of record within the preceding twelve months. By a subsequent act, passed March 29, 1880, to-amend sections 6, 12 and 14 of an act passed May 7, 1877 (74 Ohio L. 218), the ground of challenge above named is omitted. The act so amended was not included in the revised statutes, nor does it appear to have been repealed by the revision. Held, that section 5176, above named, was not affected by the act of March 29, 1880.

Judgment reversed a/nd caMse rema/ndedfor a new trial.


text:
    Pike et al. v. Robert Cummings.
    1. When an assessment for a street improvement is payable in annual installments, some of which have been paid and others remain -unpaid, and it appears that those paid were in excess of the rate limited by law, such excess should be deducted from subsequent installments, not ratably but in the order in which they mature.
    £. When such subsequent installments remain unpaid, the same still being excessive, no penalty for non-payment attaches.
    Error to the District Court of Lucas County.
    In 1871, the city of Toledo passed an ordinance for the improvement of a certain street, the cost and expense whereof (less the cost of street crossings), were to be assessed npon abutting property, payable in ten annual installments. The estimated cost, as reported by tbe city civil engineer, was $69,767.26. Tlie work was completed in 1873, when tbe .actual assessable cost was ascertained to be $51,274.67. Of tbe estimated cost tbe sum of $943.13 would have been assessable upon lot number 46, belonging to Louis II. Pike, plaintiff in error; but of the actual cost, the sum of $794.86 was the full proportion assessable upon said lot. On tbe basis of the estimated cost, the animal installment on lot 46 would have been '$94.31, while, upon the basis of actual cost, the annual installment (less interest) would have been $79.48. In 1871 and 1872, respectively, assessments were certified to the auditor, and placed upon the duplicate for collection, by tlie treasurer •of the county, upon the basis of the estimated cost. The actual ■cost not having been ascertained at that time these installments -were duly paid.
    In 1873, the third installment, npon the same basis, was certified, which, including interest, amounted to $162.44. This assessment, however, being in excess of ten per cent, of the value of tbe property (the maximum allowed by statute for any single year), was reduced to $142. This sum remaining unpaid, tbe penalty for non-payment was attached, whereupon ilie plaintiff, still claiming tbe amount to be excessive, and having tendered tbe amount admitted to be due to tbe treasurer,, brought the original action in the court of common pleas, to-enjoin the' collection of the excess and also of the penalty.
    In the court of common pleas a decree was rendered for the-plaintiff, from winch defendant appealed to the district court,, where, upon final hearing, the j)etition was dismissed.

      Pilee dk Hall, for plaintiffs in error.

      Frank H Hurd, for defendant in error.
   By the Court.

In no event can the property of the plaintiff be assessed for more than its ratable share of the actual cost, and expense of the improvement; and not even the full amount of such proportion, if that exceeds the limits of twenty-five-per centum of its value, as fixed by section 543 of the municipal, code.

The rule in such cases may be thus stated: where annual assessments are made upon the estimated cost and expense of an improvement, and some of the installments have been paid,, and others remain unpaid, and it turns out, when the actual assessable cost is ascertained, that the amount paid on installments based upon the estimated cost was in excess of the rate required by the actual cost, such excess should be allowed and credited on subsequent installments, not ratably, but in the-order in which subsequent installments may mature.

And when installments already paid are shown to be in excess of the rate limited by section 543 of the municipal code-as amended, such excess should, in like manner, be deducted •from subsequent installments. And for the non-payment of installments which are excessive,, no penalty can be attached.

Judgment reversed, and ea/ase remanded.


author: Johmson, J.

text:
    Shafer v. Hockheimer & Son.
    1. Where it appears that a justice of the peace has taken and approved bail for stay of execution, on a judgment on his docket, by which execution was stayed for the time provided by the statute, it will be presumed, on proceedings in error by the judgment debtor, to reverse said judgment, that the judgment was stayed at his instance.
    2. In such a proceeding, the judgment debtor cannot allege, as error, want of jurisdiction of the court below over his person, his causing an undertaking for stay of execution, being a waiver of any defect in the service of the summons in the action. Bussell v. Giles, 81 Ohio St. 293, distinguished.
    Error to the District Court of Butler County.
    From an agreed statement of facts it appears, that on September 1, 1875, the plaintiff in error brought suit against the defendants in error, before a justice of the peace, on a promissory note and an account. The note of the defendants was in the usual form, “ We promise to pay, &c.”
    Summons was issued, returnable September 6, and returned indorsed : “ Received this writ September 1st, 1875. I served this wrrit on the within-named defendants, A. Hockheimer & Son, by delivering to them, in person, a true and certified copy of this summons/’
    On the trial day plaintiff appeared, but defendants made default, and after waiting one hour the justice, on demand of the plaintiff, heard the evidence and rendered judgment in his favor for $84.92.
    September 14, 1875, an undertaking for a stay of execution was taken and approved by the justice, signed by two sureties, who undertook to plaintiff, that in default of payment by defendants, they would pay the judgment and costs.
    On June 9, 1876, stay of execution having expired, the plaintiff issued execution to collect his judgment.
    The defendants thereupon commenced proceedings in error in the common pleas, to reverse the judgment of the justice, on the ground that the defendants had not been legally served.
    The common pleas having affirmed the judgment, the case was taken to the district court on error, where the judgment of the common pleas, and justice were reversed, and the cause was remanded to the common pleas.
    To reverse this judgment of the district court is the object of the present action.

      Warwick c& Warwick, for plaintiff in error:
    1. A. Hochheimer & Son were served personally. They were therefore bound to appear and seek their remedy by motion to quash the summons, or stay away and suffer judgment by default. They choose the latter,, and are estopped to allege error.
    2. The justice had jurisdiction of the subject-matter, and the parties had admal notice. The alleged defect of service was a defect in ma/n/ner and not in substance, and the justice therefore acquired complete jurisdiction of the person.
    The record of the justice recites in so many words “ that A. Hochheimer & Son had been duly and legally served with summons according to law.” Defendants are therefore estopped by the record. The statute, section 1138 (§ 5) is additional merely.' 18 Barb. 574.
    3. The entering of the undertaking for stay of execution is a waiver of all errors previous to judgment, and an appearance in the case, and an admission that the judgment was legally rendered. Fee v. Big Sand Iron Co., 13 Ohio St. 563 ; Evans v. Iles, 7 Ohio St. 233; Marsden v. Soper, 11 Ohio St. 503 ; Maholm v. Marshall, 29 Ohio St. 611; Haskins v. Alcott, 13 Ohio St. 210; Whitman v. Keith, 18 Ohio St. 134. In 13 Ohio St. 563, above cited, the defendants merely entered on the record a notice of appeal and the court held that he could not afterward be allowed to deny the jurisdiction of the court; a fortiori, the defendants in this case having been served personally and having caused stay of execution to be entered, thus suspending all proceedings for eight months, have waived their right to deny a legal service of summons, or jurisdiction.
    4. By entering a stay-bond the defendants admitted the jurisdiction, the legality of the service of summons, regularity in obtaining the judgment, and the justness of the •claims.

      Thomas Millihm and II. I. Morey, for defendant in ■error.
   Johmson, J.

On behalf of defendants it is assumed that “A. JKochheimer & Son ” is a company or firm, not incorporated as such, formed for the purpose of carrying on trade or business, or holding property within the state of Ohio,•within the purview of the act of February 27, 1846 (2 S. & C. 1138), upon which service can only he made by copy left at the usual place of doing business of such company or firm, within the county where the .suit is brought.

Hence it is claimed that the service in this case, by delivering to defendants in person a true and certified copy, was not a compliance with the second section of that statute, and therefore the judgment was void.

On the other hand it is claimed: 1st. That defendants were served personally, and therefore had aci/ual notice of the pendency of the áction and were bound to appear : 2d. That the entering of bail for stay ,of execution was an ' appearance in the case, and a waiver of any defect in the service of summons.

The name, A. Hochheimer & Son,” together with the plural form of the promise in the note, and in the return of the officer, as to service on defendants,” suggests an association of two or more persons under that name or style, but there is nothing that will warrant the assumption which forms the basis of the argument made by defendants, that the persons so associated are an unincorporated company or partnership, formed for the purpose of carrying on trade or business, or holding property in Ohio, which brings the case within the purview of section 1 of the act of 1846. For aught that appears of record, or in the agreed facts, it may iave been a partnership of another state, or a foreign or domestic corporation doing business under that name. Names are arbitrary. Slocum v. Lord, 17 Ohio, 607.

In Haskins v. Alcott, 13 Ohio St. 210, it was held that this act of 1816 was applicable only to unincorporated companies, formed for and doing business, or holding property in. this state, and that the omission of a plaintiff suing in the firm name, to bring itself within the purview of that statute, can betaken advantage of by demurrer, under the second subdivision of section 87 of the code.

It was also held, that when a plaintiff firm obtained á judgment against a defendant firm, without proper averments that the former was an unincorporated Ohio company, within the-terms of that act, and afterwards brought suit in the firm name without such averments, under section 1 of the act, to-charge the individual members of the defendant firm with the-judgment, it was too late to raise the objection, and that the-court will presume that the original judgment was properly rendered.

If, therefore, there has been a proper service in this case, or a waiver of such service, the principles of the case just cited lead us to the conclusion that, after judgment, and upon.error,, we must presume that the judgment-before t the justice was-properly rendered. And this is true if we assume that the-defendants were an unincorporated Ohio company or firm.

If defendants were, in fact, an Ohio company or firm, then,, as it was sued in the firm name, service must be made on it by copy, at the usual place of business within the county, and personal service on the partners would not be a good service under this statute. But whether, in case of an actual service-on all the partners, followed by a judgment against the firm as such, the judgment would be reversed on error, we need not-inquire, as the view we take of this case leads us to the conclusion that whatever defect- there was in the service, was-cured by giving the undertaking for a stay of execution. .

The record shows that “A. Hochlieimer & Son” were served “ by delivering to them in person, a true and certified copy,”' &c.

It further appears, that within the time given by the statute,. tlie justice accepted and approved an undertaking for stay,, signed by two persons as sureties for defendants.

Tlie statute (IS. & C. 797, § 156) gave to defendants a right to stay this judgment by giving this undertaking.

The justice had no right to take and approve this undertaking, except at the instance of defendants, and we cannot, assume that it was done without their procurement, especially after they had enjoyed all the benefits of the stay, and were-only moved to action by an execution issued after the stay had expired. On the contrary, we must presume that the justice-only did his duty, and that this undertaking for stay was taken and approved by the justice, at the instance and request of' defendants.

Whether we regard this as a case of a defective service with or without actual notice, or as a ease of total want of service-required by statute, we think this appearance in the case cures such defect or want of service, and gives tlie court jurisdiction of the person.

Fee v. Big Sand Iron Co., 13 Ohio St. 563, was the case of a defective service of summons on a corporation. After-judgment by default the defendant, appeared and entered notice of appeal upon the record, but no appeal was • perfected. Afterwards defendant prosecuted error to reverse the judgment for want of proper service. It was held, that after giving-notice of appeal, defendant could not, on error, allege want of jurisdiction of the court rendering the judgment over his-person.

So, where, after judgment, the defendant files a motion to vacate the judgment for want of jurisdiction over his person, and then consents to the dismissal of such motion, he will not be allowed, on error, to allege a want of jurisdiction over his-person. Marsden v. Soper, 11 Ohio St. 503.

Neither should these defendants, after causing an undertaking for stay of execution on this judgment to be entered, as we must presume they did, assign, as error, a want of jurisdiction over them.

By giving this undertaking, they obtained an extension of time in which to pay the judgment.

Its condition is, that defendants will pay, and in default of .such payment the sureties will pay, when the stay expires.

We conclude therefore, that after giving this undertaking, the defendants cannot on error allege a want of jurisdiction ■over them.

We are referred to Russell v. Giles, 31 Ohio St. 293, where it is held that the giving of bail for stay of execution does not operate as a release of errors in the judgment, nor as a waiver of the right to prosecute proceedings in error for its reversal.

That was a case where the error contained of was not to the jurisdiction of the person, but that the court erred in including in the judgment the costs made by the adversary party. It was an error affecting the amount of judgment against defendant, which was unauthorized by law; and it was held that giving an undertaking for stay of execution, by defendant, did not waive his right to prosecute proceedings in error and have this judgment reversed. It was accordingly reversed on the ground that the judgment for defendant’s costs was not warranted by statute.

To extend the general language of that case, beyond the class of errors to which it belongs, and to apply it to the casé .at bar, would make it conflict with the well-considered cases of Fee v. Big Sand Iron Co. and Marsden v. Soper, supra, as well as others. A clear distinction exists between errors .arising from want of jurisdiction of the person, and what amounts to a waiver of service of summons by act of the party when the court has jurisdiction over the subject-matter, .and errors growing out' of want of power in the court over the ■subject-matter.

In the former class of cases, the party may, by his own act, give the court jurisdiction over his person, while in the latter he cannot by his appearance as an adversary party clothe the ■court with power over the subject-matter, or errors of law over the same.

Thus distinguished and limited, the case of Russell v. Giles is in harmony with reason and authority.

The judgment of the district court is reversed .and that of the common pleas affirmed.


author: White, J.

text:
    The Lake Shore & Michigan Southern Railway Co. v. Peter Lavalley.
    1. In an action brought by an employee of a railroad company against it, to recover for injury sustained while in the discharge of his duty, the negligence charged was the moving of a car under which the plaintiff was working, without notice or warning. The proof showed that the negligence in not giving notice or warning of the moving of the car was attributable to the foreman under whose control the plaintiff was working and not to those engaged in moving the car.

      Held, that the case was not one of a failure of proof under section 133 of the Code, but, at most, of variance under sections 131 and 133.
    3. It is the duty of a railroad company to make such regulations or provision for the safety of its employees as will afford them reasonable protection against the dangers incident to the performance .of their respective duties.
    3. A foreman was put in charge of a set of hands, whose business it was to repair freight cars while standing on the track, in the yard of the company in which trains were accustomed to be made up; it was also the duty of the foreman to participate with the hands in doing the work. While the foreman and a hand were engaged in repairing a caT, and the latter was at work under the car by the order of the foreman, he was injured by the striking of the car on which he was working by another car moving on the same track. Held:

    1. That tbe hand was the subordinate of the foreman, in respect to the work in-which he was engaged at the time he was injured.
    3. That it was the duty of the foreman, in putting the hand to work under the car, to use reasonable care to protect him, while thus engaged, from the danger arising from the switching of cars and the making up of trains on the same track ; and for an injury resulting from the want of such care, the company is liable.
    Error to the District Court of Lucas. County.
    The cause of action against the defendant below, as alleged by tbe plaintiff below in his petition, is in substance this :—
    That the plaintiff, an employee of the defendant, in the performalice of bis duty and in pursuance of the order of liis ■superiors in such service, was under a car making certain repairs ; that it was the duty of defendant, by its agents, to prevent a starting or moving of said car and otherwise to protect plaintiff from danger while so working under said car; • and that defendant negligently and wrongfully, by its agents and servants, without any notice or warning to plaintiff, put •and continued said car in motion, whereby plaintiff received the injuries complained of.
    The answer in substance denies each of these allegations.
    The facts of the case, as shown by the testimony set out in the bill of exceptions, are, in substance, as follows:
    Lavalley bad 'been employed for nearly three years as a repairer, on. the track, of crippled freight cars, at the stock yards of the Lake Shore & Michigan Southern Railway Company, on the east side of the Maumee river, and about three weeks before be was hurt was transferred to the freight yards ■at the Air Line Junction, on the west side of the river, to do the same kind of work there. This work consisted of an ex-.animation of all freight cars on their arrival, and to repair those he found needing such repairs as could he made on the tracks in the yard. The repair gang consisted of Fox, the foreman, Lavalley and Clark, repairers, and two other men ■called oilers. It was customary for these men, including Fox, to go out separately and examine the cars in the trains on their .■arrival. If they found a car needing such repairs as they could make alone, they repaired it; but if they could not make the repairs alone any two of them would go and do the work together. Engines and train men were at work about these yards at all times, engaged in switching cars and making up trains; and in the prosecution of their work it was also customary for these repair men, when alone, and they liad to be under a car, to look out for themselves that the car would not be moved; but when two were together it was exjiected that the one not under the car would watch for the other, and this would be the case whether Fox and one of his men, or two of ■■tlic men, worked together. At this time the only means the men engaged in switching about the yards had of knowing that a car repairer was at work in any particular locality was by these men telling them when and where they were going to repair a car.
    Afterwards signal flags were used to designate cars that were ■being repaired.
    On the day Lavalley was injured Fox directed Lavalley to pick out a bolt and go with him 'to repair a car he had found there needing a bolt which would require two men to put in. Fox also picked out another bolt and wrent with Lavalley to a crippled box freight car. The two worked together in taking •out a broken bolt and replacing a new bolt through the floor ■and in the draw part of the car. While Fox was under the •car screwing on the nut he directed Lavalley to take the other bolt and go to another box car, which lie pointed out near by, and commence the work of driving out a similar broken bolt and putting in the new one. Lavalley did so, and went under the car for the purpose of driving the old bolt out through the sill and floor of the car. Fox then came over and jumped into this car to assist in completing the work, but not finding the new bolt to be put back asked Lavalley to hand it to him. Lavalley came out from under the car, picked up the new bolt, took oft' the nut, handed the bolt to Fox, and then returned to his place upder the car to screw on the nut after Fox had ■driven the new bolt down. While Fox was driving the bolt •down and Lavalley was putting on the nut, a pony engine, engaged in making up a train, set some cars in motion on this track in such a manner as to cause this car to be moved about half its length, and thereby inflict upon Lavalley the injury ■complained of.
    Neither Fox nor any of his men had any control over the men engaged in making up trains ; nor was there any negligence chargeable to the latter in respect to causing the injury in question.
    The trial resulted in a verdict and judgment for the plaintiff below.
    On error, the judgment was affirmed by the district court; ■and the present proceeding in error is prosecuted by the company to obtain a reversal of the judgment.

      JR. da JE. T. Waite and James JMJason, for plaintiff in error :
    We insist that the allegation of the claim, to which the proof was directed, being unproven, not in some particular or particulars only, but in its general scope and meaning, it is not to be deemed a case of variance within sections 5294 and 5295 of the revised statutes, but a failure of proof. Section 5296 of revised statutes (§ 133, also §§ 131 and 132 of code; S. & C. 989). Dean v. Yates, 22 Ohio St. 388, par. 2, page 396 ; also, Hill v. Supervisor, &c., 10 Ohio St. 621, and Thatcher v. Heisey, 21 Ohio St. 668.
    It is a rule of law now well established in Ohio, that where one servant of a rhilway company is injured in consequence of the neglect of another servant, between whom, for the time being, no relation of subordinate and superior’, in connection ■with the particular act of negligence complained of, exists, the injured party has no right of action against the company. Little Miami R. R. Co. v. Stevens, 20 Ohio, 415; C. C. & C. R. R. Co. v. Keary, 3 Ohio St. 201; Mad River & L. E. R. R. Co. v. Barber, 5 Ohio St. 541; Whaalan, v. Mad River & L. E. R. R. Co., 8 Ohio St. 249 ; Manville v. C. & T. R. R. Co., 11 Ohio St. 417; Pittsburg, F. W. & G. Ry. Co. v. Devinney, 17 Ohio St. 197.
    And the question in this issue is whether there existed, at the time this injury was received, such a relation of subordinate and superior between the laborer, Lavalley, and the foreman, Fox, as would render the company liable to Lavalley for the consequences of the asserted negligence of Fox in not keeping a more strict lookout and warning Lavalley in time of the approaching danger.
    In this case the testimony shows that Fox was the superior of Lavalley in all matters connected with the order and manner in which the work upon the car should be conducted, but in the matter of keeping watch and lookout for danger that no relation of superior and subordinate existed. Lavalley did not depend upon Fox to look out because he was the foreman, but simply because he was his fbllow-laborer in the prosecution of the work about which they were both engaged. It was not the duty of Fox to keep this lookout because he was the foreman, bnt simply because of that duty wbicb one fellow-laborer owes to another. It is unquestioned but that it would have been just as much the duty of Lavalley to have kept watch while Fox was under the car as for Fox to have done so while Lavalley was there. This was a reciprocal duty the one owed to the other as co-laborers, and not because of any superior relation of the one over the other.

      Lee de Brown, for defendant in error :
    The negligence of Fox produced the injury. Shearman & Redfield on Negligence, § 10; 8 Bosw. 345; 2 E. D. Smith, 413.
    The superior cannot, at one and the same time, be the superior and the common fellow-servant. Railroad v. Stevens, 20 Ohio, 415; Railroad v. Devinney, 17 Ohio St. 210; Berea Stone Co. v. Kraft, 31 Ohio St. 293; Railway Co. v. Lewis, 33 Ohio St. 200; 53 N. Y. 549.
   White, J.

The first ground of error relied on is that there was a failure of proof on the part of the plaintiff, under section 133 of the code, and not a variance between the allegations in the petition and the proof, as defined by sections -131 and 132. We regard the case as raising a question of variance merely, within the meaning of the last two sections.

The petition charged that the plaintiff, by the order of his superior, was under a car making repairs; that it was the duty of the defendant, by its agents, to prevent the moving of the car, and otherwise to protect the plaintiff from danger while so working under said car; and that the defendant negligently and wrongfully, by its servants and agents, without any notice to the plaintiff, j>ut the car in motion, whereby the plaintiff was injured.

The negligence charged consisted in the failure to notify the plaintiff of the approaching danger, and in the moving of the car without such notice. Both are alleged to have been operative in causing the injury. It is not definitely stated on what servant the duty rested of giving the plaintiff notice; but, if the purposes of the defense required this to be more specifically ¡stated, application should have been made to the court to com- ] el the plaintiff to make the petition definite and certain in this respect. As the case is presented, we think it comes within the principle laid down on the subject of variance, in Huffman, v. Gordon, 15 Ohio St. 212, 216.

The next ground of error is that the relation of superior and subordinate existing between the foreman, Fox, and the plaintiff below, Lavalley, was not such as would make the company liable for the negligence of Fox in causing the injury in question.

The claim on behalf of the company is that Fox was the superior of Lavalley in all matters connected with the order and manner in which the work upon the cars should be conducted, but in the matter of keeping watch and lookout for danger that no relation of superior and subordinate existed; that in this respect they were merely fellow-servants engaged in a common service, neither having any control or authority over the other.

"We do not concur in this view. It was the duty of the company to make such provision or regulations for the safety of its employees as would afford them reasonable projection from the dangers incident to the performance of their respective duties. ■

In the present case Lavalley, the plaintiff below, was one of a set of hands whose business it was to repair freight cars while standing on the track. The place in which the repairing was required to be done was in the freight yard of the company, in which the freight trains were accustomed to be made up, and where there was a constant switching of cars from one track to another. The services, therefore, required of these hands were peculiarly dangerous; and it was the duty of the company to make reasonable regulations or provision to protect them from the dangers to which they were exposed from moving trains and cars, while engaged in the discharge of their duties.

The hands, under the regulations of the company, were put in the charge of Fox, who, in directing their operations, was ¿lie representative of the company. No other provision or regulation seems to have been made for their government or protection. By setting Lavalley to work under the car, where, by the exercise of reasonable care, he could not discover an approaching train or car in time to save himself from injury, it was the duty of Fox to see that reasonable precautions were taken to guard him against such danger; and for the injury resulting from such neglect the company is liable. Fie might have watched, himself, or, if his services were required in the •car, he might have required one of the other hands to watch; but he did neither, nor did he adopt any other precautions. -

It is said by counsel that if the company is liable to Lavalley, it would likewise have beén liable to Fox, if he had been injured under like circumstances. Such' conclusion is not warranted. Fox had authority to direct what precautions should be taken to guard against danger. He could have required one of the hands to watch while he was engaged in the work. La-valley had no such authority. If Fox had chosen to expose himself to the danger, and had neglected to exercise the authority with which he was invested to protect himself from injury, the fault would have been his own.

Judgment affirmed.


author: Okey, J.

text:
    Board of Education v. McLandsborough.
    Where public money in custody of a public officer of this state, and with the disbursement of which money he is charged by law, is stolen or otherwise lost without his fault, and the legislature pass an act exon- . eratingsuch officer and his sureties from the payment of such money, and direct that a tax be levied in the territory upon which the loss must fall to meet the deficit, such act is not forbidden by the constitution, state or federal.
    Error to the Court of Common Pleas of Harrison County. Reserved in the District Court.
    John McLandsborough, on May 21, 1877, brought suit in •the court of common pleas of Harrison county, averring that lie was then a citizen of said county, and a resident land-owner and taxpayer in Scio special school district in North township in said county ; that Joseph MeElveen, about March 29,1877, was the duly elected and qualified treasurer of said school district, and had given bond with sureties for the performance of his duties as such treasurer, and then had in his possession as such treasurer, belonging - to said school district, $525.00, school funds which had been assessed and collected from the taxpayers of such district, including said McLandsborough, for school purposes; that said MeElveen claims to have been robbed of said funds, on or about March 29, 1877; that said McElveen’s term as such officer expired in April, 1877, and his successor has been elected and qualified; that it was the duty of said MeElveen to pay over to his successor said sum of money, and upon his refusing to do so, his sureties became liable to pay the same, except $36 thereof; that MeElveen and his sureties desire to have the property of said school district again - assessed to raise said deficit, so that they may be released from their obligation; that the board of education is about to have a meeting for the purpose of assessing and certifying a tax upon the property of said district to make up said sum, which tax is to be levied and collected this year, and in part from said McLandsborough’s property, and to release MeElveen and his sureties from their liabilities, and they have fixed May 23,1877, as the day upon which to perform said illegal act; that the act will be unconstitutional, oppressive, and will produce irreparable injury to the rights of said McLandsborough, unless restrained. McLandsborough therefore asked that the said board of education be enjoined and restrained from making or certifying such levy of tax, or releasing said MeElveen and his sureties.
    On June 2, 1877, the board of education of said district filed an answer, of which the following is, substantially, a copy:
    1. Now comes E. S. ’Woodborne, Wm. Herron and John "Voorhees, who compose the said board of education of Scio special school district, and for answer, say they deny that they have done of contemplate doing any illegal or unconstitutional act in regard to levying taxes, as claimed in the petition, and say all the taxes they have levied or contemplate levying, as said board of education, for this year, are necessary and proper for carrying on the schools of said district, and they deny plaintiff’s right to have an injunction issued against them, as prayed for in the petition.
    2. They further say, regarding the contemplated releasing of the said J oseph McElveen and his sureties from liability on said McElvcen’s bond as treasurer of said school district, that it is true they contemplate such action, but not in an illegal or unconstitutional manner. In justification of their said proposed action they say that the general assembly of the state of ■Ohio, on April 24, 1877, passed a law providing, among other things, that the board of education of said special school district are hereby authorized to settle with said treasurer, and release him and his sureties on his official bond as treasurer of said special school district, from the payment of said sum of $525, as aforesaid ; and that said treasurer and his sureties shall not hereafter be held liable for the payment of said money; provided that before such release shall be had, the board of education shall submit the question to the qualified electors of •said school district, at a special election, of which ten days’ notice shall be given by posting up written or printed notices •in five of the most public places in said district, and that a majority voting shall favor the release, the election to be held ¡and conducted by the board of education. Said defendants say said law was passed with special reference to the contemplated release of said Joseph McElveen and his sureties as aforesaid, ■and they further say that they duly gave the required notice of said election, and on May 19, 1877, submitted the said question, as provided in said law, to the qualified voters of said district, a majority of whom then and there voted in favor of releasing said McElveen and his sureties from further liability for or on account of said bond, and in favor of a tax to supply the deficiency in the school funds of said district, made by reason thereof. Said defendants therefore say their action and •their contemplated action in reference to releasing said Joseph McElveen and his sureties, as aforesaid, is in accordance with. the laws of the state of Ohio; and they deny plaintiff’s right to-en join them from thus acting, and they asked to be dismissed with their costs, and for such other order as may be proper.
    ■ The act of the legislature, above referred to, is as follows:
    “ An act for the relief of Joseph Mcllveen, treasurer of Scio special school district, North township, Harrison county,. Ohio, and his sureties.
    “ Whereas, Joseph Mcllveen, treasurer of said Scio special school district, was, on the evening of the twenty-ninth day of March, a. d., 1877, assaulted by two unknown men, knocked down and robbed, on the railroad track, between his residence and the village of Scio, Harrison county, Ohio, whither he was going for the purpose of paying out money to teachers and others, of the sum of live hundred and twenty-five dollars of the public money belonging to said special school district, in the hands of said treasurer; and,
    “ Whereas, said robbery was not due to any fault or negligence on the part of said Joseph Mcllveen ; and,
    “ Whereas, said Joseph Mcllveen is wholly unable to pay said amount, and has no property out of which any part thereof can be made ; therefore,
    “ Section 1. Be it enacted by the general assembly of the-state of Ohio, that the board of education of said Scio special school district are hereby authorized to assess a tax upon all. the taxable property of said special school district, in addition to the tax now authorized by law, sufficient to raise the sum of five hundred and twenty-five dollars, for the purpose of supplying the deficiency in said school fund.
    “ Sec. 2. The board of education of said special school district are hereby authorized to settle with said treasurer, and release him and his sureties on his official bond as treasurer of said special school district, from the payment of said sum of' five hundred and twenty-five dollars, stolen as aforesaid; and that said treasurer and. his sureties shall not hereafter be held liable for the payment of said money : provided, that before such release shall be had-, the board of education shall submit the question to the qualified electors of said school district, at & special election, of which ten days’ notice shall be given, by posting np written or printed notices in five of the most public places in said district, and that a majority voting shall favor the release, the election to be held and conducted by the board of education.
    “ Sec. 3. This act shall take effect and be in force from and. after its passage.”
    The following journal entry is a part of the record.
    “And afterward, to wit, July 7; 1877, being term time, this cause came on to be heard upon plaintiff’s demurrers to the-second defense in said answer .as alleged; which, was argued by counsel; on consideration whereof the court sustain said demurrer, to which the defendant excepts; and on motion of plaintiff it is ordered and adjudged by the court that said defendant be, and it is hereby enjoined and restrained from releasing or talcing any steps to release said McElveen or his sureties from their obligation under said bond, to which defendant excepts, and said exception is here noted. It is thereupon considered by the court that said plaintiff recover of said defendant his costs herein expended, and that defendant pay its own costs.”
    The board of education prosecuted error to the district court, which court reserved the cause to this court for decision.

      Gurmingham d) Hollingsworth, for plaintiff in error.

      J. M. Estep, for defendant in error.
   Okey, J.

In State v. Harper (6 Ohio St. 607), it was settled, that the felonious taking and carrying away the public moneys in the custody of a county treasurer, without any fault or negligence on his part, does not discharge him and his sureties, and cannot be set’up as a defense to an action on his official bond. The bond involved in the consideration of this case is not different in legal effect from the bond in Harper’s case. In Harper’s case, however, the question presented in this case was in no way _ involved, that is, whether, where such an officer has lost public funds without any fault on his part, it is within the power of the general assembly to provide that the loss thus sustained shall be made to rest on the- people to whom the money belonged, and not on an unfortunate but blameless officer.

That the taxing power is a legislative power admits of no doubt. Lima v. McBride, 34 Ohio St. 338-350. And any limit to this power must be found in the constitution itself. Without undertaking to enumerate or define those limitations, we are clear that the act in question in this case does not fall within any of them, nor does the act violate a provision common to both state and federal constitutions against impairing the obligations of contracts. Bonds like this, where the deficit is of the same character as in this case, are prosecuted in the name of the state (Hunter v. Mercer Co., 10 Ohio St. 515), and the legislature undoubtedly has authority to release obligations which could only be thus prosecuted. Indeed, it is difficult to fix any limit to the power of the general assembly in this respect, where the funds so lost were raised by taxation, which, as we have said, is clearly a legislative power.

Counsel have cited no case in which such power, under a constitution like ours, has been denied, and we have found no such case. People v. Supervisor, 16 Mich. 254, and Bristol v. Johnson, 34 Mich. 123, were placed entirely on a provision in the constitution of that state which is not contained in our constitution, and which provision, it was held, forbids such release by the legislature. And the rule referred to in the beginning of this opinion as to civil actions against the officer, where the funds in his hands have been lost without his fault, is stated by Judge Dillon in the same way, but he adds that such officer will not be liable if he has been “ relieved from this responsibility by statute.” 1 Dillon on Mun. Corp. 296.

Judgment reversed.


author: Boynton, J.

text:
    Youngs v. Heffner.
    1. The statute of limitations does not run in favor of a tenant in common in the occupancy of the premises, against his co-tenant, until some overt act of an unequivocal character, clearly indicating an assertion of ownership of the entire premises, to the exclusion of the right of the co-tenant.
    A The legal presumption of death which arises from the absence of one from his home for the period of seven years, and who in the meantime is not heard of, is but prima facie evidence of the fact, and may be rebutted by counter-proof.
    •3. The plaintiff, the owner in fee simple of two undivided sevenths of a farm, liad been absent and unheard of for nearly thirty years, when proceedings for the partition of said farm were instituted by persons who would have been his heirs, had he been then deceased. Under these proceedings, the premises not being divisible without manifest injury to the value thereof, were sold by order of the court, and bid off by defendant H., owner of the remaining five-sevenths thereof, and who after said purchase made valuable improvements thereon.

      field, 1st. ThatH. by such purchase acquired no title to the interest of the plaintiff in said land.
    ‘3d. That in the partition of said premises the defendant H. is entitled to the benefit of such improvements, and, in making partition, respect should be had thereto.
    Appeal. Reserved in the District Court of Miami County.
    The original action was brought by the plaintiff, James H. Youngs against Henry Heffner et al. in partition. ITe asserted ■title to two undivided sevenths of the premises described. The •defendant set up title acquired by purchase and adverse enjoyment to the interest claimed by the plaintiff, alleged actual possession in himself, and prayed to have his title quieted. 'The reply admitted possession in the defendant, but denied the remaining allegations of, the answer. In the common pleas the plaintiff had judgment, from which the defendant, Heffner, appealed to the district court, where the cause was reserved for decision here on the following agreed statement of facts:
    “James II. Youngs, in 1825, inherited from his father, Samuel Youngs, the undivided one-seventh part of the land in his petition described, being one hundred and forty acres in Bethel township, Miami county, Ohio.
    “ In the year 1833, he purchased of his sister, Sarah Ann Bennett, her one-seventh part of said land, and at about the •■same time his brother, Barton Youngs, purchased four-sevenths pails of the same land from Joseph, William, David and Lavinia Youngs, the remaining heirs. Barton and James IT. thus-became the sole owners of said one hundred and forty acres, in the proportions of five-sevenths owned by Barton, and two-sevenths by James H., they holding it as tenants in common,, and being in possession thereof.
    “In 1835 James H. went to Texas, leaving his brother Barton in possession of the whole one hundred and forty acres, under an arrangement by which Barton, as tenant of James H., controlled and farmed his share of said land.
    “In 1854 Barton Youngs died, leaving his family in possession of said land, and they, or some of them, retained their interest in the same and possession thereof until 1863, at which time Henry Heffner, the defendant, became the owner of the part belonging to Barton Youngs’ heirs, and went into-possession of the whole tract. Thereupon, in December, 1863, Joseph and William Youngs, brothers of James H. (this-plaintiff), filed their petition in the court of common ¡deas of Miami county, Ohio, wherein they represented that James BL had been absent and unheard from for about thirty years, and as heirs-at-law of James Harvey Youngs they were entitled to-the one-fifth of two-sevenths of said land, and that his-other-brothers and sisters, with the heirs of Barton Youngs, and Henry Heffner (this defendant)., were entitled to the residue of said land in the several proportions in said petition named, and that they were all tenants in common in said land, and for that reason they pray partition of the same.
    “ In accordance with the prayer of this petition and on the-issue joined, partition was ordered, and neither party electing-to take the same at the appraisement, such further proceedings-were had that a sale was ordered by the court, and the premises were by the sheriff sold to defendant Heffner in August,. 1865, for the sum of $5,320. . Said Heffner subsequently sold, one-seventh to Henry Roof, his co-defendant.
    “James Harvey Youngs, the plaintiff, did not return to-Ohio until June, 1875, and had been absent and unheard of by his friends and family in Ohio for near thirty years before the filing of the petition for partition by Joseph P. and William Youngs, as set forth in said petition,’and until he returned about June 11, 1875, to Ohio. He never at any time parted, with his title to his said land by sale or conveyance, and in noway, manner or form ever consented to the sale of said land (unless the sale and proceedings on partition aforesaid divested him of his interest), and has never received nor has any one for him received any consideration therefor or in any way accepted or received any benefits from said sale. We further agree that defendant Heffner has made valuable improvements on said land to the value of fifteen hundred dollars since his purchase.

      “ It is further expressly agreed by and between the parties-plaintiff and defendants that this cause is submitted upon this statement of facts, with the understanding and consent of all parties that a final disposition of the case shall be made upon the pleadings in the case and this agreed statement of facts.”

      H. H. <& E. S. Williams, for plaintiff in error :
    I. As to the bar of the statute of limitations, see 4 Ohio St. 542; 17 Ohio St. 132; 22 Ohio St. 32; 1 S. & C. Stats. 893; 27 Ind. 78; 10 Ohio, 503; 6 Wheat. 481; 13 Ohio, 196; 10 Ohio, 513; 20 Ohio, 260; 13 Ohio, 430-453; 10 Ohio, 24;. 7 Johns. Ch. 120 ; 11 Wheat. 361; 1 Ohio St. 478 ; 10 Ohio St. 198 ; 28 Ohio St. 568.
    2. As to the title acquired by purchaser at partition sale, see 2 Ohio St. 338; 14 Ohio St. 328; 27 Ohio St. 111 ; 13 Mass. 213; 5 Strobh. S. C. 74; 15 Ohio St. 337; 31 Barb. 304; 13 Ohio, 545; 7 Ohio, 2d pt. 132; 14 Ohio, 506; 2 Ohio St. 208; 6 Ohio, 269; 9 Ohio, 120 ; 13 Ohio, 551; 19 Ohio, 218 ; 13 Mass. 213.

      II. 6r. Sellers and G. Morris, for defendant in error :
    1. As to bar, see Badger v. Badger, 2 Wall. 94; Piall v. Vattier, 1 McLean, 160; 2 Jacob & Walker, 1, 138-152; 1 Brown, 557; 9 Pet. 405; 2 Sch. & Lef. 637; 3 Brown Ch. 640 ; 7 Johns. Ch. 93; 6 Wharton, 481; 9 Id. 489 ; 6 Pet. 61; 5 Ohio St. 122.
    2. As to presumption of death, see 1 Ohio St. 107; 10 Ohio St. 96; 2 Stark. Ev. 457; 6 East, 85; 2 Campbell, 113; Barn. & Ald. 386.

      3. As to title acquired by purchaser at partition sale, see 3 Ohio, 326; 10 Ohio, 256 ; 1 Metc. 207; 2 Evans’ Pothier, 301; 1 Pick. 435 ; 3 Johns. 157; 2 H. B. 414; 6 Mass. 277.
    It seems to us that it is clear that the court in the partition •suit had jurisdiction of the subject-matter, the land; that the estate, under the sale, passed to the purchaser by operation of law. Sheldon v. Newton, 3 Ohio St. 494; Ewing v. Higby, 7 Ohio, pt. 1, 198 ; Robb v. Irwin, 15 Ohio, 689 ; Snudy v. Lowe, 18 Ohio, 368; Benson v. Celluy, 8 Ohio St. 604.
    It may be claimed, however, that the maxim, eaveat emjotor, applies to judicial sales, on the authority of Vattier v. Lytle, 6 Ohio, 478; McLouth v. Rathbone, 19 Ohio, 21; Corwin Lessees v. Benham, 20 Ohio St. 36. This, we apprehend, is true, when properly applied, that the purchaser takes the property subject to every lien, either by judgment or levy, that •could be asserted against the creditors before whose judgment the land is sold. It can have no application in cases where the allegations, of petition are such as to require proof thereof, as jurisdictional facts.
   Boynton, J.

We think the plaintiff is entitled to judgment. The premises were occupied by Barton Youngs from 1835 until his death, which occurred in 1854. From 1854 until 1863 the premises remained in the occupancy of the family and heirs of Barton, who, while he lived, occupied the undivided interest of the plaintiff as his tenant. From the death •of Barton until the defendant, Heffner, took possession in 1863, there was no adverse enjoyment by any one. The brothers and sisters of the plaintiff, under whom the defendant claims, were not in possession. It does not appear that Barton ever •claimed to have acquired any title to the plaintiff’s interest in the. premises by adverse enjoyment. The occupancy by one tenant of the common premises, however long continued, is no •evidence of the .ouster of a co-tenant. To constitute disseizin, there must be an overt and notorious act of an unequivocal ■character, clearly indicating an assertion of ownership of the •entire premises, to the denial and exclusion of the right of the •co-tenant. Freeman on Co-tenancy & Par. § 230, et seq. Nothmg of the kind appealing in respect to the possession of Barton or his heirs, the statute of limitations did not commence to run against the plaintiff’s title until 1803, from which time until the commencement of the proceedings below, but twelve years elapsed. The plaintiff’s right in the premises, therefore, was not affected by the running of the statute.

Nor was his title at all affected by the proceedings in partition, instituted by his brothers Joseph and William in 1863. Heffner acquired no further or greater interest in the property alleged to have been purchased at the partition sale, than he would have acquired by a conveyance from the plaintiff’s brothers and sisters, who, it was supposed, had succeeded to the ownership of the premises as his heirs. A proceeding in partition, in its effect, dissolves or severs the tenancy in common, and locates the rights or interests of the parties, respectively, in distinct parts of the premises, and extinguishes their title in all others. Tabler v. Wiseman, 2 Ohio St. 208. But it creates no new title, and operates only on the title or rights of the parties brought before the court.

The plaintiff was not, and from the nature of the case could not have been, a party to the proceedings for partition instituted by two of his brothers in 1863, as those proceedings and the lights therein asserted, were founded, and for their validity depended, on the assumption of his death. The alleged title or interest of his brothers and sister, which was purchased by the defendant Heffner, rested wholly on the presumption that the plaintiff was déad, such presumption being founded on the fact that the plaintiff had been absent and unheard of, for the period of seven years. Whether or not, the circumstances under which the plaintiff left his home, and remained away, as disclosed in the agreed statement of facts, were such as to authorize the presumption of his death at the expiration of seven yearn, we need not inquire, as the presumption, whenever it arises from any length of time, is but prima facie, and is wholly rebutted whenever it is made to appear that the person whose death is thus presumed, is still living. Such presumption may always be shown to be ill-founded by counter evidence (Loring v. Steineman, 2 Metc. 211; 2 Best on Ev. § 408, et seq.); or by a conflicting presumption. King v. Twining, 2 Barn. & Ald. 386.

It necessarily follows that tire sale under the proceedings in partition iu 1863, as respects the plaintiff’s right or title in the land, was void. His brothers and sisters were not his heirs, •and in no event could have been, until his death. Nemo est Aceres woentis.

The principle asserted by counsel for the defendant, that a judgment of a domestic court of record, of competent jurisdiction, is conclusive of the facts or question therein determined, between the parties and their privies, until reversed or vacated, is a correct rule of law, but entirely misapplied when used to estop one from disputing the validity of the judgment, 'who was wholly a stranger to the cause or proceeding in which the judgment was rendered, and whose rights are sought to be •concluded thereby.

So, too, the principle, that courts of equity will not favor •stale demands, would seem to be misapplied, when invoked against a party possessed of the legal title, and who is only asserting his legal rights. Larrowe V. Beam, 10 Ohio, 498; Williams v. Lambe, 3 Bro. Ch. C. 264; Collins v. Archer, 1 Russ. & Mylne, 284; Snelgrove v. Snelgrove, 4 Dess. 288; 1 Story Eq. Jur. § 64, c, note; Bispham’s Eq. §§ 39, 40.

• The improvements made by the defendant Heffner, since going into possession, should be taken into account in the partition to be made of the premises. The plaintiff should derive no benefit therefrom. To the extent that they enhance the present value of the premises, Heffner should be allowed therefor in the j>artition to be made.

Judgment accordingly.