author: Davis, J.

text:
    Southward v. Jamison et al.

      Summons issued on petition — Sufficient to sustain judgment on cross-petition, when — Gross-petition involving matter not in original petition — Requires summons to party charged in cross-petition — Mortgage foreclosure — Allegations- necessary by -mortgagor — To bind party assuming and agreeing to pay mortgage debt — Pleadings.

      1. So long as a cross-petition in an action is strictly confined to “matters in question in the petition,” the summons issued on the petition would he sufficient notice to sustain a judgment rendered on the cross-petition; but when the cross-petition sets up matters which are not drawn “in question in the petition,” and seeks affirmative relief against a codefendant, of a nature different from that sought in the petition, a summons to the party.to be charged, issued on the petition, will not confer jurisdiction to render judgment on the cross-petition, especially when the cross-petition is filed after the defendant thereto is in default for answer to the petition, and a summons on the cross-petition in such case is necessary. Brown v. Kuhn et al., 40 Ohio St., 468, explained and qualified.
    2. In an action for foreclosure of a mortgage, in which there are neither the proper averments nor a prayer, upon which to found a personal judgment, it is error to adjudge or decree that a defendant shall pay the whole amount of the debt secured by the mortgage, and to award execution therefor.
    3. In an action to foreclose a mortgage, after the proceeds of the sale of the mortgaged premises have been exhausted, the court cannot award execution or render judgment for any balance due, against a person who has assumed and agreed with the mortgagor to pay the mortgage debt, unless the plaintiff elects to avail himself of the agreement to assume and pay, and alleges the same against the person assuming the mortgage debt, and the latter has been summoned to answer such claim.
    (Decided May 13, 1902.)
    Error to the Circuit Court of Pickaway county.
    The defendant in error, Robert B. Jamison, commenced this action by a petition in the court of common pleas of Pickaway county against the plaintiff in error, John Southward, seeking to subject certain real estate to the payment of a judgment lien. There was a partition suit pending at the time of the levy of the judgment, wherein Annie Dawson was plaintiff and John Southward et al. were defendants. This last named case was consolidated with this action, and such proceedings were had that the court of common pleas found for the defendants. An appeal was taken to the circuit court and on the final hearing in that court findings were made as follows :
    “First — That on November 30, A. D. 1889, the Union Central Life Insurance Company filed its petition and thereby commenced a civil action in the court of common pleas of Delaware county, Ohio, against Mary L. H. Jamison, R. B. Jamison, S. Jennie H. Martz, J. H. Martz, Mary A. Huddle and John Southward; that said action was brought to foreclose a mortgage executed by said Mary L. H. Jamison and R. B. Jamison, her husband; S. Jennie H. Martz and J. H. Martz, her husband; and Mary A. Huddle to the said Union Central Life Insurance Company upon lands in said Delaware county, Ohio; that said mortgage secured a note signed by said Mary L. H. Jami-son and S. Jennie H. Martz and endorsed by R. B. Jamison and J. H. Martz; that said John Southward was made a party defendant in said action and the. only allegation contained in said petition, referring to the said John Southward, is as follows:
    “Plaintiff further says and it charges that said defendant, John • Southward, since the filing of said mortgage herein described, has purchased and is now the owner of said real estate subject to plaintiff’s said mortgage, and asks that he may be notified of the filing, pendency and prayer of this petition and that he may be required to answer the same as to his interest in said real estate.
    “That said petition contained the following prayer :
    “Plaintiff therefore prays judgment against the said defendants, Mary L. H. Jamison and S. Jennie H. Martz, as principals, and said R. B. Jamison and J. H. Martz, as endorsers on said notes for said sum of $7,700 with seven per cent, interest thereon since October 1, 1889, and for the said sum of $140.22, together with eight per cent, interest thereon since first day of October, 1889, and that upon failure to pay the same within a short day to be named by the court, the said mortgage may be foreclosed and the real estate be advertised and sold, and the proceeds of said sale be applied in the payment of plaintiff’s claim and for all proper relief.
    “That said John Southward was then a resident of Madison county, Ohio, and was "duly served with a summons issued in said action, dated November 30, 1889, by the sheriff of said Madison county, Ohio, at his residence in said Madison county; that the said summons was served upon him December 3,1889, and required him to answer said petition on or before December 28, 1889, and that no answer or other pleading was ever filed by him in said case.
    “Second — That on January 25, 1890, the said defendants, Mary L. H. Jamison, R. B. Jamison, S. Jennie H. Martz and J. H. Martz, filed their answer in said case, waiving the issuing and service of process in said case, and admitting the execution of said note and mortgage, and . as a cross-petition therein, they say:
    “That on or about the nineteenth day of April, 1889, they bargained and sold to one John Southward, of Madison county, state of Ohio, the 'said real estate in the plaintiff’s petition described, and for a valuable consideration, executed and delivered to the purchaser, the said defendant, John Southward, a warranty deed for the same, save and except the sum of $4,451.25, and the interest thereon, which sum with said interest, the said John Southward then and there promised and agreed to promptly pay to said plaintiff, the said Union Central Life Insurance Company, as the same became due and the said sum of $140.22, in plaintiff’s petition charged is the interest which said defendant, John Southward, agreed to pay on said first day of October, 1889, but which he has utterly failed and neglected to do. Defendants say that John Southward áccepted said deed from these respondents knowing full well that it contained a warranty against all claims except the said sum of $4,451.25, and the interest thereon, and all taxes falling due after June 20, 1889, of which clause the following is a true copy: “Except as to mortgage indebtedness to the Union Central Life Insurance Company, of ^Cincinnati, Ohio, amounting to the sum of $4,451.25, with interest from this date and taxes falling due after June 20, 1899, which grantee assumes and by acceptance hereof agrees to pay.
    “That he, the said John Southward, took possession of sdid lands and received the wheat crop harvested on said lands in July, 1889, which crop these defendants would have received were it not for said sale of the premises. These defendants further say they have no longer control of said lands or the income and profits derived from the same, and the said defendant, John Southward, utterly failing to pay said interest now past due, they ask that the said premises may be ordered sold on the foreclosure of said mortgage and the proceeds of said sale he applied on the said note in plaintiff’s petition described, and for all further relief.
    “Third — That said defendant, Mary A. Huddle, waived and entered her appearance in said case; that on February 4, 1890, an entry was made in said court in said case as follows:
    “This day came the plaintiff by its attorneys and this cause was heard upon the petition, the answer of Mary L. H. Jamison, R. B. Jamison, S. Jennie H. Martz and J. H. Martz, the proofs and exhibits, and the court finds that each and all of the defendants except John’Southward have waived the issue and service' of process and have entered their appearance herein, and that they have confessed the allegations of the petition to be true; that the defendant, John Southward, hath been duly served with process herein, and that he is in default for answer or demurrer to the petition of the plaintiff, and hath thereby confessed the same to be true, and that there is due the plaintiff on the promissory notes in petition set forth and described, the sum of $8,028 with interest from this date on $7,700 at 7 per cent, per annum, and on $140.22, at eight per cent, per annum, and $187.98, thereof, at six per’ cent, per annum, and that to secure the payment of said notes, the defendants, Mary L. H. Jamison and R. B. Jamison, her husband, S. Jennie H. Martz and J. H. Martz, her husband, and Mary A. Huddle, executed and delivered to the plaintiff their certain mortgage as in the petition described, and on the premises therein described; that the same was duly filed and recorded as in the petition set forth and that the conditions in said mortgage have been broken.
    “That said premises were then ordered tobesoldand the proceeds thereof to be brought into court for distribution, ánd as to the first cause oí action in the petition set forth and as to all other matters and issues this cause is continued.
    “That a sale of said premises was made by the sheriff of Delaware county, Ohio, and on May 10, 1890, the said sale was duly^confirmed by said court, and at the same time the said court made the following entry: On motion of the plaintiff — and this cause coming on to be heard on the first cause of action in the petition set forth and the cross-petition herein filed of Mary L. H. Jamison, E. B. Jamison, S. Jennie H. Martz and J. H. Martz, and upon the proofs and exhibits, and the court finds that said defendant, John Southward, is in default for answer or demurrer thereto, and that the allegations of said cross-petition are thereby confessed by him to be true, and that said defendants, Mary L. H. Jamison, E. B. Jamison, S. Jennie H. Martz and J. H. Martz, conveyed the premises described in the petition to said John Southward in the manner and at the time as set forth in said cross-petition, and that the said John Southward at the time of said conveyance and as part of the consideration therefor agreed with said codefendants to pay to plaintiff the sum of $140.22, being a portion of the coupon note hereon sued on, on the first day of October, 1899, and the further sum of $4,451.25, with interest thereon from the eighteenth day of April, 1889, being part of the sum due on the principal note herein sued on, and also the taxes on the premises falling due after June 20,1889.
    “The court finds that said John Southward has not complied with the terms of said agreement; that he has not paid either of the above mentioned sums either in part or in whole; that the taxes for June, 1890, are not paid, and that there is due said plaintiff from said John Southward in pursuance of said agreement, the sum of $4,787.83, with interest at the rate of seven per cent, per annum from date:
    “Wherefore it is ordered and decreed by the court that the said John Southward pay said sum of $4,787.-83 to the plaintiff and save harmless therefrom said codefendants, Mary L. H. Jamison, R. B. Jamison, S. Jennie H. Martz and J. H. Martz.
    “And the court coming now to distribute the proceeds of said sale amounting to $4,050 it is ordered that the sheriff aforesaid, out of the money in his hands pay:
    “First — To the treasurer of said county the taxes against said premises, to-wit, the sum of $49.14.
    “Second — The costs of this action, taxed at $91.03.
    “Third — To the plaintiff, The Union Central Life Insurance Company, the residue of the money remaining in his hands, to-wit, the sum of $3,909.23, which said sum shall be applied in liquidation of plaintiff’s claim as a payment thereon.
    “And there still remaining due plaintiff from said defendant, John Southward, the sum of $878.60, for which execution is awarded against him, and there also remaining due plaintiff from defendants, Mary L. H. Jamison, R. B. Jamison, S. Jennie H. Martz and J. H. Martz, the sum of $3,390.09, for which, execution is awarded against them, and there further remaining due plaintiff from said last named defendants, jointly, with said John Southward, the above mentioned sum of $878.60, for which execution is awarded against them after the said John Southward has been fully exhausted by legal process as above ordered in the collection of said last named sum.
    “Fourth — That said John Southward had no other or further notice served on him of the filing of the petition or the answer and cross-petition in said action than the service of said original summons in said action as aforesaid, which was served on him December 3, 1889.
    “Fifth — That the foregoing averments are all the averments contained in the record of said cause affecting the said John Southward.
    “Sixth — That said judgment was duly assigned by said Union Central Life Insurance Company to the said plaintiff herein, Robert B. Jamison.
    “Seventh — That on October 6, 1889, an execution was issued out of the said court of common pleas of Delaware county, Ohio, in said case, against said John Southward upon said judgment for said sum of $878.60, and interest thereon from May 10, 1890, at seven per cent, directed to the sheriff of Pickaway county, Ohio, and that said sheriff levied the same upon the undivided one-fourth part of the lands in the plaintiff’s amended petition described, lying in Pick-away county, Ohio, as the property of said John Southward, and that said land was advertised by the said sheriff for sale and before day of sale, said sale was withdrawn on account of litigation pending in this case.
    “That at the time said levy was made there was a suit pending in the court of common pleas of Pick-away county, Ohio, now consolidated with this case, wherein one Anna Dawson was plaintiff and John Southward and others were defendants (numbered 9978 on the docket of said court), to partition the real estate of which Pleasant Southward, the father of said John Southward, died seized; that said Pleasant Southward died May 22, 1892; that said levy was made while said partition suit was pending and before any order of partition was made in said case; that on October 15, 1892, said John Southward and his wife, by quitclaim deed, conveyed all their interest in the lands described in said partition suit to G. W. Southward, and said deed was filed for record with the recorder of Pickaway county, Ohio, on December 19, 1894; that on October 24, 1892, an order of partition was made in said case and same was continued as to all other questions.
    “That on December 10, 1892, the plaintiff herein, R. B. Jamison, was made a party defendant in said partition case and filed an answer and cross-petition therein admitting that the said John Southward was the owner of said undivided one-fourth interest in said lands and setting up that he had obtained the said judgment in the Delaware common pleas; that he had levied upon said John Southward’s undivided interest in said land, and that the same was a valid and subsisting lien thereon, and asking that the same be declared a lien upon it, and that when said premises were sold under the order and proceedings in partition, that the interest of the said John Southward therein might be ordered paid to him to the amount of said judgment, interest and costs, or if there was not enough realized on the sale of said premises out of the interest of the said John Southward to pay said judgment in full, that such unpaid amount be declared a lien upon the portion of said premises set off to said John Southward, and that he have such other and further relief as is equitable.
    “That on said tenth day of December, 1892, the said Granville W. Southward, who was a son of the said John Southward, on his own motion, was made a party defendant to said partition case, and asked leave to file an answer and cross-petition therein instanter, which leave was granted by the court, and the said answer and cross-petition was filed as of that date, setting up his claim to said land.
    “That on December 17, 1892, tbe said R. B. Jamison filed á reply to tbe answer and cross-petition of tbe said Granville W. Southward, taking issue with tbe facts therein set forth: That afterwards, on said December 17, 1892, said Granville W. Southward withdrew bis answer and cross-petition from tbe files of said court, and an order of partition was granted in tbe usual form, decreeing among other things that tbe said John Southward was tbe owner of an undivided one-fourth interest therein.
    “That on November 26,1892, tbe commissioners appointed to make such partition, made their report as folloAvs: ‘Upon actual view of tbe premises, we are of the opinion that tbe said lands cannot be divided Avithout manifest injury; and we do estimate tbe value of tbe same at: First tract, (A.) 30.65 A., appraised at $42.50 per acre. First tract, (B.) 53.4 A., appraised at $46.54 per acre. Second tract, 56.7 acres, appraised at $42.46 per acre. Third tract, A. and B., 44 poles of land and building, $600. Fourth tract, 36 poles of land and building, $1,033. Fifth tract, 36 poles of land and building, $850.’
    “That on December 17, 1892, an order was made in said case in said court as follows: ‘This cause coming on this day for bearing upon tbe return of tbe sheriff and tbe report of tbe commissioners heretofore appointed herein, and on motion to confirm tbe same, and it appearing from said report that said estate could not be divided by metes and bounds without injury to tbe value thereof, and that said commissioners have made and returned their appraisement, tbe court find tbe said return and proceedings in all respects correct and in conformity to law and do therefore approve and confirm the same.’
    “And it being made further to appear to the court that dower has heretofore been assigned to Abigail Southward, widow of said Pleasant Southward, deceased, in land not included in these proceedings, no dower in these premises was assigned her.
    “And it being made to appear to the court that the said parties, both plaintiff and all of the defendants, by agreement have elected to take the said premises at the appraisement, excepting tract No. 1 of said surveyor’s report, which said tract by consent of all the heirs is hereby reduced to $43.50 from the appraisement of $46.54, and the said parties, both plaintiff and defendants, elect to take as follows:
    “Tract No. 1, takén by John Southward at $42.50 as per agreement. Tract No. 2, taken by Annie Dawson at the appraisement. Tract No. 3, taken by Margaret Clarridge at the appraisement. Tract No. 4, taken by Jane Lister at the appraisement. Tract No. 5, taken by Jane Lister at the appraisement. Tract No. 6, taken by Henrietta Hays at the appraisement.
    “And the court further finding that the total property so taken by the parties respectively, amount to the sum of $8,462.60.
    “That the costs, including the sum of $184.28 to Schleyer & Abernethy and to Samuel W. Courtright, the sum of $25, as a counsel fee amounting to the sum of $307.59.
    “That the said John Southward, Margaret Clarridge and Jane Lister are each entitled to one-fourth part of said total sum after deducting the taxes and costs, to-wit, the sum of $2,038.74.
    “That the said Annie Dawson and Henrietta Hays are each entitled to the one-eighth part of said total sum deducting the taxes and costs, to-wit, the sum of $1,019.37.
    “It appearing to the court that the property so elected to be taken by said John Southward, Margaret Clarridge and Annie Dawson after the application of their distributive share of said estate to the payment of the same leaves a .balance to be paid by them respectively as follows: By John Southward, the sum of $230.76; by Margaret Clarridge, the sum of $368.74; by Annie Dawson, the sum of $283.25.
    “And it is further ordered that the parties respectively pay to the sheriff of Pickaway county, Ohio, the said sum in excess of their respective shares of said estate.
    “The court further find that after the application of the amount of property so elected to be taken by the said Jane Lister and Henrietta Hays to their respective shares of said estate, there remain due them respectively the sum of: To Jane Lister, the sum of $405.74; to Henrietta Hays, the sum of $169.37.
    “It is therefore ordered that the said estate so divided and appraised and so taken by said heirs respectively, be and hereby is adjudged and decreed to said heirs upon their complying with the foregoing order; the said sheriff is thereupon directed to make, execute and deliver to each of said heirs respectively, a good and sufficient deed for said premises so elected to be taken by each.
    “And the court coming now to distribute the funds in the hands of said sheriff does hereby order and direct that he pay, first, the costs in this case, amounting to $307.59; second, to Jane Lister, the sum of $405.74; third, to Henrietta Hays, the sum of $169.-37.

      “Eighth — That on December 17, 1892, the sheriff of Pickaway county, Ohio, as directed by said order, executed and delivered to John Southward a deed for the 53 2-5 acre tract of land which is the same land described in the plaintiff’s supplemental answer and cross-petition filed herein, which deed was filed for record with the recorder of Pickaway county, Ohio, December 19, 1894; that on December 17, 1894, the said G-. W. Southward and wife executed and delivered to Jackson Baker, a, deed of general warranty for the same premises, and which deed was filed for record with the recorder of Pickaway county, Ohio, on December 19,1894; that on October 10,1898, John Southward and wife executed and delivered to Jackson Baker, a quitclaim deed for the same premises, and which deed was filed for record with the recorder of Pickaway county, Ohio, on October 12, 1898.
    “From the foregoing facts, the court finds that the said judgment rendered in the court of common pleas of Delaware county, Ohio, in favor of the Union Central Life Insurance Company and against the said John Southward, is not void, but that the same is a valid judgment against said John Southward, and that the levy so made under the execution issued upon said judgment, constitutes a valid lien upon said real estate in said supplemental answer and cross-petition described, and that said plaintiff is entitled to have the same sold in order to pay the amount due him upon his said judgment.
    “To each and all of the foregoing conclusions of law the defendant, John Southward, as well as the defendants, Elizabeth Baker, Orin Baker, Edgar J. Baker, John W. Baker, Lawson Baker, Alton McCafferty, Roy McCafferty, Everett McCafferty and Lawrence McCafferty excepts.”

      The petition in error in this case is to reverse the judgment- of the circuit court rendered upon these findings.

      Mr. Milt Morris, for plaintiff in error.
    There is a well settled rule of law that every party to a litigation or action, in any degree affecting his rights, is entitled to his day in court, and to afford this day in court, the law provides the manner of giving notice of the pendency and purpose of the action which must be strictly followed unless the party enters his appearance and waives the service of this notice, and there was no appearance entered in this case by said John Southward.
    The plaintiff had no right to its judgment against said John Southward upon its petition, because it did not ask for any, nor did it allege facts sufficient to entitle it to any judgment against said John Southward, nor was it entitled to any judgment against Southward upon the averments in the answer and cross-petition filed by said Jamison and others, for the reason that said Southward had no notice of the filing of said answer and cross-petition as we have herein-before stated.
    The Union Central Life Insurance Company had no right to this judgment, and we contend that the same is absolutely void and of no force or effect, and may be so treated wherever it is met. Wood v. Stanberry, 21 Ohio St., 142.
    1. “The jurisdiction of a court or tribunal entering a judgment in any particular case may always be inquired into, when a judgment is made the foundation of an action, in the court of a state in which it was rendered, or of any other state.”

      2. “A personal judgment rendered against one over whom the court has no jurisdiction, is wholly void.” Spier v. Corll, 33 Ohio St., 236.
    We maintain that the record in this case shows that the court of common pleas of Delaware county, Ohio, had no jurisdiction to render a judgment against said John Southward, and that the ^pretended judgment so rendered by it, is void and of no effect. Kingsborough v. Tousley, 56 Ohio St., 450; Greene v. Railway Co., 62 Ohio St., 67; Poe v. Dixon, 60 Ohio St., 124.
    We are aware of the fact that in an action to foreclose a mortgage, the court may award execution for the balance remaining due after exhausting the proceeds of the mortgaged property, although no personal judgment is or prayed for. Giddings v. Barney, 31 Ohio St., 80; Maholm v. Marshall, 29 Ohio St., 611.
    A personal judgment cannot be rendered upon a .cross-petition without a summons issuing thereon when the defendant is in default for answer to the original petition. Thatcher v. Dickinson, 2 Circ. Dec., 82; 3 C. C. R., 144; Bailey v. Young, 11 Circ. Dec., 257; 20 C. C. R., 546.

      Messrs. Abernethy & Folsom, for defendants in error.
    Only one of the many questions which were before the court below is relied upon in this court, viz.: was the finding against John Southward in the Delaware common pleas void, because no summons was issued, and served upon him giving notice of the filing of the cross-petition.
    The question may well be asked at this point, what were the rights of the different parties in the land and the mortgage debt at the time of the bringing of the suit in the Delaware common pleas?
    We believe it will not be disputed that they Avere in a general way as follows:
    1. The plaintiff, mortgagees, had an interest in the mortgage and the premises securing the same.
    2. The defendant, John Southward, being the OAvner of the land, of course, had an interest in it.
    3. He having assumed and agreed to pay a part of the mortgage indebtedness became the principal debtor, and the mortgagors became his sureties.
    4. As such sureties (the cross-petitioners) had a right to ask that they be indemnified against the debt so assumed, and they were also interested in the land, they having a right to have it applied on the debt.
    John Southward was a necessary party to the suit brought by the insurance company to foreclose its mortgage, he being the owner of the land. His co-defendants, the mortgagors, were also necessary and proper parties, they being his sureties on the mortgage debt. Section 5006, Rev. Stat.; Pomeroy on Remedies, Sec. 271; 2 Jones on Mortgages, Sec. 1394; (1) as owner of the land, and (2) as principal in said debt; 2 Jones on Mortgages, Sec. 1406; Bishop v. Douglass, 25 Wis., 696; Green v. Dixon, 9 Wis., 532.
    Under the assumption of, and agreement to pay a part of said mortgage indebtedness, John Southward became the principal debtor; in other words, he stepped into the shoes of the mortgagors, and they became the sureties. Poe v. Dixon, 60 Ohio St., 124. As sureties they had a right to be indemnified against |4,471.25 of the mortgage debt assumed and agreed to be paid by Southward and to insist that the land held by the mortgagees should first be sold and applied thereon.

      The mortgagors had a right, by cross-petition to set up their sale of the premises to John Southward, -his assumption of, and agreement to pay a portion of said mortgage indebtedness; and their prayer that the premises be ordered sold, the proceeds of said sale applied on the mortgage note described in the petition, and for all further relief, was the proper prayer upon which to base the decree.
    A surety may, by action, compel a principal to pay a debt after it is due. Sec. 5845, Rev. Stat. A surety may ask a court of chancery to aid in subjecting the estate of the principal to the payment of the debt without first advancing or paying the money. Stump v. Rogers, 1 Ohio, 533; Hale v. Wetmore, 4 Ohio St., 600; Section 5068, Revised Statutes.
    Under this section it was held in Kimmel v. Pratt, 40 Ohio St., 344, that a plaintiff against whom an answer demanding affirmative relief is filed, is a defendant to the cross-petition. It follows, therefore, under the same section, that if a cross-petition i¡á filed in said case asking affirmative relief against a codefenda.nt, such codefendant becomes a defendant to said cross-petition. 2 Jones on Mortgages, Sec. 1709 (4 ed.), p. 548; Nolen v. Woods, 12 Lea (Tenn.), 615; Larimer v. Clemmer, 31 Ohio St., 499.
    In construing the above section of the statute, and also in commenting upon the case of Maholm v. Marshall, 29 Ohio St., 611, the court say: “We are all of the opinion, that in a suit of this sort, no endorsement of the summons is required, whether a personal judgment and order of sale are demanded, or the prayer is that the amount due be ascertained, and the land sold to satisfy it.” Section 5097, Revised Statutes of Ohio.

      Yet litigants are not confined or limited to the time specified in the above section for filing their pleadings. The court or a judge thereof may, for good cause shown, extend the time for filing any pleading, upon such terms as are just. Section 5098, Rev. Stat.
    The section just quoted does not limit the court as to the time he may allow for filing any pleading. He may give one day, one month or six .months. Hill v. Supervisors, 10 Ohio St., 621.
    There is no doubt that there is a difference between the practice of code states and in states having no code, as to cross-bills or cross-petitions in equity. There is a difference as to what such pleadings may contain, as well as the rule days for the same.
    But whatever it may be in other states, it has been fixed in Ohio, both by statute and the decisions of our highest court.
    Our code authorizes a defendant to file a cross-petition asking for affirmative relief, either legal or equitable against the plaintiff, or a codefendant “touching the matters in question in the petition.” . Section 5074, Rev. Stat.
    The statute makes no difference between plaintiffs and defendants pleading to cross-petitions. Each is given until “the third Saturday after the cross-petition is filed;” not after the return day of the summons, nor after service of summons upon him. This language is significant. It presumes that every plaintiff and every defendant knows when a cross-petition is filed and prepares himself to plead to the same within the time given. Bailey v. Lee, 14 Hun, 524; 1 Bates’ Pl. and Pr., 589; Bates’ Pl. and Pr., 162; Bates’ Pl. and Pr., Sec. 1, p. 170; Draper v. Moore, 2 C. S. C., 167.

      We specially call the attention of the court to the case of Brown v. Kuhn, 40 Ohio St., 468.
    The decree of the court in the Delaware common pleas settling the whole controversy between all the parties, is sustained by the policy of the law in Ohio, and other states. Giddings v. Barney, 31 Ohio St., 80; Maholm v. Marshall, 29 Ohio St., 611; Hamilton v. Jefferson, 13 Ohio, 427; Boswell v. Sharp, 15 Ohio, 447; Myers v. Hewitt, 16 Ohio, 449; Moore v. Starks, 1 Ohio St., 369; Heller v. Meis, 2 C. S. C., 287.
    In some states, the doctrine laid down in the cases above cited has been recognized and finally embodied in the form of statutes. 2 Jones on Mortgages (4 ed.), Sec. 1709; 1 Jones on Mortgages, Sec. 755, p. 6672; Crowell v. Hospital, etc., 27 N. J. Eq., 650; Williard v. Worsham, 76 Va., 392; 1 Jones on Mortgages, Sec. 761a; Booth v. Insurance Co., 43 Mich., 299; Unger v. Smith, 44 Mich., 22; Hicks v. McGarry, 38 Mich., 667; 2 Jones on Mortgages, Sec. 1716, p. 556; 1 Wiltsie on Foreclosure, p. 107, Sec. 95.
    Again, “if the grantee upon purchasing a part of the mortgaged premises, assumes a certain portion of the mortgaged debt, his liability is limited to the sum assumed. If, upon a subsequent foreclosure of the mortgage he purchase the same part of the premises already conveyed to him, the mortgagee can claim of him as a deficiency, only the difference between the sum assumed by him with interest thereon from the date at which this part of the mortgage became primarily his own debt, and the like sum paid by him at the foreclosure sale.77 2 Jones Mortgages, Sec. 1713; Commissioners v. Peter, 32 N. J. Eq., 113; 2 Jones on Mort., Sec. 1711, p. 552; Halsey v. Reed, 9 Pai. Ch., 446; Klapworth v. Dressler, 13 N. J. Eq., 62; Hay v.
      Brambell, 19 N. J. Eq., 563; Stiger v. Mahone, 24 N. J. Eq., 426.
    We especially call the attention of the court to the steps taken in the Delaware county case, as being identical with -those laid down in 2 Jones on Mortgages, Sec. 1709 (bottom p. 548).
   Davis, J.

The contention in this case is concerning the validity of a judgment against the plaintiff in error rendered in Delaware county, and which was made a lien by levy on his lands in Pickaway county. It is asserted that the judgment is void because it was rendered upon a cross-petition of codefendants of the plaintiff in error against him, upon which cross-petition no summons was issued, in an action by a mortgagee of the defendants praying for a judgment against the mortgagors on the mortgage notes, for a foreclosure of the mortgage, for sale of the mortgaged premises and for all proper relief, there being no relief asked for in the petition against the plaintiff in error and there being no averment in the petition on which to found relief.

The only allegation in the petition referring to the plaintiff in error is the following: “Plaintiff further says and it charges that said defendant, John Southward, since the filing of the said mortgage herein described, has purchased and is now the owner of said real estate subject to plaintiff’s said mortgage, and asks that he may be notified of the filing, pendency and prayer of this petition and that he may be required to answer the same as to his interest in said real estate.” Accordingly a summons was issued upon this petition and it was served upon Southward on December 3,1889. The summons required him to answer the petition on or before December 28, 1889, but no answer or other pleading was ever filed by Southward in that case. It is clear that upon this petition there could have been no personal judgment against Southward, either for the whole debt or for a deficiency after sale of the mortgaged premises; for the petition alleged no personal liability on his part. The only allegation against him was that he was a purchaser subject to the mortgage. He may well have been willing to allow his equity of redemption to go in satisfaction of the mortgage debt, and yet may have had a defense against a personal judgment. At any rate a personal judgment against him was not a “matter in question in the petition.”

Sometime after Southward became in default for answer to the petition, his codefendants, the mortgagors, filed an answer admitting the execution of the note and mortgage by them, and by way of cross-petition alleging that Southward, when he purchased the land, assumed and agreed to pay the mortgage indebtedness to the plaintiff in the action. The prayer in the cross-petition' is as follows: “These defendants * * * ask that the said premises may be ordered sold on the foreclosure of said mortgage and the proceeds of said sale be applied on the said note in plaintiff’s petition described, and for all further relief.” It will be noted that in this cross-petition no “relief” is claimed “touching the matters in question in the petition,” except the foreclosure of the mortgage and the application of the proceeds of the sale on the mortgage note, as required by the statute as it then was, and as it remained until April 16, 1900 (Revised Statutes, Sec. 5071; 94 O. L., 281, Sec. 5067). No amendment to the petition was filed, and a prayer for a personal judgment nowhere appears in the case, and no allegation appears upon which such a judgment could be founded, unless the plaintiff, the mortgagee, might lawfully do as it did do, after sale of the mortgaged premises on motion to confirm the sale and distribute the proceeds, have a finding made and judgment rendered against Southward, on the cross-petition of his codefendants. The court after finding that Southward was in default for answer or demurrer to the petition and the cross-petition, “and that the allegations of said cross-petition are thereby confessed by him to be true,” finds and adjudges as follows : “That said John Southward has not complied with the terms of said agreement * * * and that there is due said plaintiff from said John Southward in pursuance of said agreement, the sum of $4,787.83, with interest at the rate of seven per cent, per annum from date. Wherefore it is ordered and decreed by the court that the said John Southward pay said sum of $4,787.83 to the plaintiff,” etc'. This is very clearly a judgment against Southward for the whole debt; and it might very properly have been so, if the plaintiff had pleaded the agreement by Southward to pay the debt and prayed for a judgment thereon, and he had been brought into court to answer such a claim. Poe v. Dixon, 60 Ohio St., 124. But in this case the plaintiff did not make the proper averments to entitle it to a judgment for the money claimed to be due. Southward was called upon to answer that petition and thereafter he was bound to take notice of all proceedings strictly germane thereto, but was not bound to keep watch for entirely new causes of action which might be foisted into the case after he had waived his right to defend against the cause of action to which he was summoned to answer. Hence the judgment rendered against Southward cannot be sustained unless it can be done under the cross-petition, upon which no summons was issued.

After rendering judgment against Southward for the whole debt, as above stated, the court ordered that taxes and costs should be paid and that the residue of the money arising from the sale “be applied in liquidation of plaintiff’s claim as a payment thereon. And there still remaining due plaintiff from said defendant, John Southward, the sum of $878.60 for which execution is awarded against him,” etc. It has been urged in argument that this is merely an order awarding execution for the balance remaining after sale of the mortgaged property and application of the proceeds upon the plaintiff’s claim. This argument does not seem to give due weight to the fact that before awarding execution for the balance, and before applying the proceeds of the sale upon the plaintiff’s claim, the court found the whole debt to be due from Southward to the plaintiff and decreed that he should pay the whole amount and awarded execution therefor. This of itself has been held, in Illinois, to be error. Rooney v. Moulton, 60 Ill. App., 306. Nor does this argument seem to take account of the want of any averment upon which personal liability could be fixed upon Southward for any amount, except as it apears in the cross-petition.

It was pointed out by Granger, C. J., in Brown v. Kuhn, 40 Ohio St., 485, that “the only provision for a summons upon a cross-petition is in Sec. 5074,” now Sec. 5070, Rev. Stat.; but does it follow that no' summons can issue, or that none may be required, in cases other than the one provided for in that section? Is this inquiry justly to be answered by the maxim, eoopressio unius est exclusio alterius? We think not. It is a fundamental doctrine in the law of procedure that a party who is affected by the judgment must have his day in court, which is understood to mean that he shall have due notice of the claim against him which may result in judgment, and that he shall have an opportunity to defend against it. The failure of the legislature to specifically prescribe the issue of summons, cannot deprive a party of his constitutional right to due process of law, and the legislature can not be presumed to have intended to do so. Hence, the question for consideration here is not so much what the statute provides, as whether the constitutional guaranty of due process of law has been violated. 10 Am. & Eng. Ency. Law (2 ed.), 296, and cases there cited. Of course if a party had an opportunity to be heard and neglected to avail himself of it, he cannot complain of any invasion of his constitutional right when there is an ultimate decision which is adverse to him. If in the present case Southward did have due notice of the claim which was ultimately formulated in a. judgment against him he cannot be heard to dispute the judgment; but the whole contention turns on the question whether he did in fact have such notice. So long as a cross-petition is strictly confined to “matters in question in the petition” there can be no doubt that the summons issued on the petition would be sufficient to sustain a judgment on the cross-petition; but when the cross-petition sets up matters which are not drawn in question in the petition, and seeks affirmative relief against a codefendant, of a nature totally different from that sought in the petition, we think that the plainest principles of justice and constitutional law require that the party who is to be bound by the judgment should have notice of the claim made against him, and that in such case a summons issued on the petition does not confer jurisdiction to render judgment on the cross-petition. Besides, since the cross-petition was adopted in the code from equity procedure, if the statute is not explicit as to the procedure, the equity practice, “as modified by the spirit of the code, must be resorted to; and under the chancery practice, when a defendant sought relief against a codefendant as to matters not apparent upon the face of the original bill, he must file his cross bill making parties thereto such of his codefendants and others as was necessary to the relief sought, and process was necessary to bring them in.” Fletcher v. Holmes, 25 Ind., 458; Pattison v. Vaughan, 40 Ind., 253; Bevier v. Kahn, 111 Ind., 209; Edwards v. Woodruff, 90 N. Y., 396. And see Spoors v. Coen, 44 Ohio St., 497, 502, 505, per Minshall, J. The judgment against Southward upon the cross-petition, whether it was upon the election and request of the plaintiff or not, was therefore null and void. Spier v. Corll, 33 Ohio St., 236; and it was competent to attack it in this proceeding. Kingsborough v. Tousley, 56 Ohio St., 450.

In Giddings v. Barney, 31 Ohio St., 80, it was held that a personal judgment cannot be taken against a mortgagor, in an action to foreclose a mortgage, unless the petition contains a prayer for such judgment. We have already emphasized the fact that in this case neither the petition nor the cross-petition contained such a prayer. In the opinion in the case last cited, Boynton, J., said: “We are not, however, to be understood as holding that in equity cases, the court may not give a personal judgment, where equity requires it. McCrory v. Parks, 18 Ohio St., 1; Reed v. Reed, 25 Ohio St., 422. Nor is it intended to deny the power of the court, in an action to foreclose a mortgage, where the court has ac quired jurisdiction of the person of the mortgagor, to award execution for any balance due, after the proceeds of the sale of the mortgaged premises have been exhausted. Hamilton v. Jefferson, 13 Ohio, 427; Myers v. Hewitt, 16 Ohio, 449, 456; Moore v. Starks, 1 Ohio St., 369, 373; Maholm v. Marshall, 29 Ohio St., 611, 615.” We may add to this that judgment for such balance cannot be rendered against a person who has assumed and agreed with the mortgagor to pay the mortgage debt unless the mortgagee. elects to avail himself of the agreement to pay, and the proper averments are made against the person assuming the .mortgage, and the court has acquired jurisdiction over his person. Brewer v. Maurer, 38 Ohio St., 543, 554. In this case, as we have said, these conditions are not found, so that also upon the theory that the judgment in this case was a judgment for the deficiency, the judgment was invalid.

In Brown v. Kuhn et al., 40 Ohio St., 468, one of the points decided is that where a cross-petition in error is properly filed against a party already in court, in the pending case on error, no summons in error should be issued for such party, and with that decision the court is still satisfied; but so far as remarks in the opinion of the court in that case conflict with the views here expressed, they are disapproved.

The judgments of the circuit court and the court of ■common pleas are

Reversed.

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


source: Caselaw Access Project

author: Spear, J.

license: Public Domain

text:
    Brown v. Ginn, Trustee.

      Accounts owned by different holders against same debtor — Assigned to one termed trustee for collection — Such assignee not real party in interest, when — Sections 4993 and 4995, Rev. Stat. — Contingent fee to collector, champertous and invalid, when.

    1. A contract by which several accounts against the same debtor . are assigned by the holders to another termed a trustee for the purpose of having the same prosecuted for collection by suit or otherwise, and the proceeds, after payment of costs and fees of the trustee for prosecuting the action, to be paid to the assignors in proportion as the claim of each may bear to the whole sum recovered, does not constitute such assignee the real party in interest within the purview of Section 4993, Rev. Stat., so as to enable him to maintain an action in his own name upon such accounts. Nor is he a trustee of an express trust within the meaning of Section 4995, Rev. Stat.
    2. A contract assigning several accounts for the purpose of collection which gives to the assignee (an attorney) a contingent fee depending on success, to be deducted from the proceeds of a suit to collect the accounts, which suit is to be prosecuted by him in his own name and at his own risk and cost, and which also deprives the assignors of any right to control or compromise the suit, is against public policy as champertous, and is invalid.
    (Decided May 13, 1902.)
    Error to the Circuit Court of Cuyahoga county.
    The defendant in error commenced an action in the common pleas of Cuyahoga, against the plaintiff in error, to recover upon eight causes of action, the first of which is in words and figures following, to-wit:
    “Now comes the plaintiff herein, Frank H. Ginn, trustee, and for his cause of action against the defendant Marcus M. Brown, says: That there is due him as such trustee, from said defendant, the sum of |100.75 for work and labor performed by Peter J. DeWitt, for and at the request of said defendant, from August 29th to November 21st, 1896, in and about the construction of a dwelling house on Euclid Heights, Cleveland, Ohio, which amount he claims with interest thereon from November 21, 1896.”
    Each of the other seven was like nnto this, save as to the name of the person by whom the work was done, and the amount and date. The total demanded was $921.59 with interest.
    The answer alleged that the plaintiff is not the real party in interest; that he is not the owner of any of the claims set up in the petition, but is merely the attorney who has the several claims for collection, and has no interest in them other than that. Payment of the several claims to the persons named prior to any assignment to plaintiff was also pleaded.
    Plaintiff’s reply denied all of the allegations of the answer.
    To maintain the issues on his part the plaintiff below offered himself as a witness in his own behalf as trustee, and testified as follows:
    “My name is Frank H. Ginn; I am an attorney at law, and am the plaintiff in this action. The signature to this paper which I hold in my .hand, ‘Frank H. Ginn, trustee,’ is my signature, and Joseph O’Keefe, James Corrigan, Herman Roseman, George F. Moore, Frank Lara way, James Hogan, Peter J. DeWitt and Joseph Hedges, whose names appear upon this paper, signed the same in my presence and handed the same to me.”
    Which paper was offered in evidence and is as follows :
    “Agreement made this 30th day of October, 1897, between Frank H. Ginn, trustee, first party, and Joseph Hedges, James Hogan, J. Corrigan, Joseph O’Keefe, George Moore, Peter DeWitt, Hp.rma.-n Rose-man, John D. Smith and Frank Laraway or any of' them that may sign this agreement, second party.
    “Witnesseth: That, whereas, the persons composing second party have claims for work and labor in different amounts, against Marcus M. Brown, and are desirous of having said claims prosecuted for collection against said Marcus M. Brown.
    “Now, therefore, the persons composing second party, or any of them that may sign this agreement, hereby sell and assign to Frank H. Ginn, trustee, for the purposes hereinafter specified, severally their claims against said Marcus M. Brown. In consideration thereof, said Frank H. Ginn, trustee, agrees to prosecute said claim by suit or otherwise, against said Marcus M. Brown, and after deducting costs and attorney’s fees, to account for any sum obtained from said Marcus M. Brown upon said claims to said persons signing this agreement, in proportion as the claim of each may bear to the whole sum recovered from said Brown upon said claims.
    “Witness our hands this 30th day of October, A. D. 1897.
    “Frank H. Ginn, Trustee.
    “Signed:
    “Joseph O’Keefe,
    “James Corrigan,
    “Herman Roseman,
    “G. F. Moore,
    “Frank Lara way,
    “James Hogan,
    “Peter J. De Witt,
    “Joseph Hedges/-’

      And thereupon plaintiff rested his case. Defendant offered evidence tending to prove payment; plaintiff gave in rebuttal evidence to controvert the new matter, and the cause was submitted. The jury thereupon returned a verdict, for the plaintiff for $1,077.28, on which judgment was rendered, which was affirmed by the circuit court. To reverse those judgments the defendant below brings error.

      Mr. Charles B. Pennewell and Mr. W. W. Boynton, attorneys for plaintiff in error, cited and commented upon the following authorities:

      Railway Co. v. Volkert, 58 Ohio St., 362; Reece v. Kyle, 49 Ohio St., 475; Pennsylvania Co. v. Lombardo, 49 Ohio St., 1, 5; Stewart v. Welch, 41 Ohio St., 483; Sec. 4993, Rev. Stat.; Railway Co. v. Strader, 29 Ohio St., 448; 28 Am. & Eng. Enc. Law (1 ed.), 53; 18 Am. & Eng. Enc. Law (1 ed.), 158, and authorities cited; Dodge v. Swazey, 35 Me., 535; Wharton v. King, 69 Ala., 365; Patrick v. Petty, 83 Ala., 420; 18 Am. & Eng. Enc. Law (1 ed.), 154, note; Jones v. Snow, 64 Cal., 456; Sec. 5114, Rev. Stat.; Ralston v. Kohl, 30 Ohio St., 92; Piatt v. Longworth, 27 Ohio St., 159; Tarbox v. State, 38 Ohio St., 581; Benninger v. Hess, 41 Ohio St., 64; Dudley v. Iron Co., 13 Ohio St., 168; Banta v. Martin, 38 Ohio St., 534; 28 Am. & Eng. Ency. Law (Ohio), (1 ed.), 54-60; Moore v. Stadden, Wright (Ohio), 88; Peabody v. Peters, 5 Pick., 1; Fales v. Reynolds, 14 Me., 89 Briggs v. Richmond, 10 Pick., 391; Case v. Boughton, 11 Wend., 106; 18 Am. & Eng. Enc. Law (1 ed.), 155; Strong v. Kennedy, 40 Mich., 327; Cody v. Bemis, 40 Wis., 666; Richabaugh v. Dugan, 7 Pa. St., 394; 6 Enc. Pl. & Pr., 206; Louden v. Birt, 4 Ind., 566; Swett v. Southworth, 125 Mass., 417; Hamilton v. Moore, 4 Watts & Serg. (Pa.), 570; Farmers’ Bank v. Sherman, 33 N. Y., 69-79; 6 Enc. Pl. & Pr., 207; 6 Enc. Pl. and Pr., 209; McLaughlin v. Webster, 141 N. Y., 76.

      Messrs. Blandin, Rice & Ginn, for defendant in error, cited and commented upon the following authorities :

      Key v. Vattier, 1 Ohio, 132; Weekly v. Hall, 13 Ohio, 167; Stewart v. Welch, 41 Ohio St., 483; Reece v. Kyle, 49 Ohio St., 475; Pennsylvania Co. v. Lombardo, 49 Ohio St., 1; Railway Co. v. Volkert, 58 Ohio St., 362; Pomeroy’s Rem. (2 ed.), Secs. 125, 147, 171, 178; Hays v. Gas Light & Coal Co., 29 Ohio St., 330, 331; Hotel Co. v. Wiatt, 1 Circ. Dec., 34; 1 C. C. R., 55; Hotel Co. v. Wiatt, 44 Ohio St., 32; Kinkead’s Code Pl., Sec. 9; Allen v. Brown, 44 N. Y., 228; Wayne v. Miner, 6 Re., 602; 7 Am. L. Rec., 9; Cottle v. Cole, 20 Ia., 481, 482; Knadler v. Sharp, 36 Ia., 232; Bean v. Green, 33 Ohio St., 444.

      Mr. W. W. Boynton, also for plaintiff in error, argued the case orally.
   Spear, J.

The question at the threshold is whether or not the action is maintainable by the plaintiff below in his own name? Our statute, section 4993, provides that “an action must be prosecuted in the name of the real party in interest,” except as provided in the two following sections, and the pertinent provision of the exceptions is that “a trustee of an express trust, a person with whom, or in whose name a contract is made for the benefit of another, or a person expressly authorized by statute, may bring an action without joining with him the person for whose benefit it is prosecuted.” It is not supposed that any other provision of the statute aids the plaintiff below. If he is not the real party in interest' then his right to maintain the action must rest upon one or the other of the two exceptions quoted. It would be difficult to conclude that he is the real party in interest when his relation to the accounts declared on is contrasted with that of the others who claim to have performed the labor and to have earned the sums sued for. Prior to the making of the contract he had no possible interest in the subject-matter. By the contract he acquired an apparent beneficial interest to the extent of his fees for services yet to be rendered, and none other. That is, it was a contingent interest. If the effort to collect fails, he loses compensation for the work done, and the costs made by him, and the other parties to the contract, if bound by the result, lose -their entire claims. If he succeeds he gets only compensation for his professional labor with immunity from costs, and they get the whole of what remains. It may be admitted that the plaintiff is «.party in interest, but it seems hardly reasonable to assume that, in this situation, the plaintiff is the real party in interest, and we are of opinion that he is not. We are aware that the tendency of some courts has been to uphold actions brought upon negotiable instruments, transferred for collection only, on the ground that the plaintiff is the real party-in interest, and that there are some authorities which point to that conclusion. Indeed it may be admitted that the trend in some of the code states is in that direction. But we have found no case which goes to the extent of holding that an assignment of an open account for the mere purpose of collection, one which gives the assignee a contingent interest only, constitutes him the real party in interest within the meaning of the statute.

Can this contract be regarded as one made for the benefit of another? We think not. The language implies that that other must be a third person. Here the contract, by its terms, is for tbe benefit of tbe person who is making it, and indeed it is but justice to say that the learned counsel for tbe defendant in error do not insist that it is such contract.

Is it, then, tbe creation of an express trust within tbe meaning of tbe statute? True tbe language of tbe paper evinces an intention to create a trust. It uses tbe word “trustee.” It points out tbe persons, tbe property and tbe purpose. But wbat warrant is there for saying that this statute can mean that an express trust can be created for tbe purpose only of collecting an account? Tbe controlling rule, given as tbe general rule at tbe beginning of tbe chapter, is that a suit to collect sucb dioses in action must be prosecuted in tbe name of tbe real party in interest. We have found that, as we believe, by no fair test can Ginn be regarded as tbe real party in interest. If this conclusion be right, is it conceivable that, having prescribed this as tbe controlling rule, tbe law-makers would proceed, in a cognate section, to authorize an exception which would practically nullify and take away tbe plain beneficial rule thus established? And of wbat avail would be a requirement sucb as is here provided if its manifest purpose could be defeated by a paper sucb as forms tbe basis of tbe action in tbe case below? We conclude that tbe claim of an express trust cannot in this case be maintained, for it is a settled rule that a valid trust cannot be founded upon a contract in contravention of tbe general policy of tbe law. Hill on Trustees, 45; Lewin on Trusts, 19; Prosser v. Edmonds, 1 Y. & C., 481. And we conclude further, that, in order to constitute tbe party a trustee of an express trust within tbe meaning of section 4995, tbe right and duty to bring an action must be incidental to other powers and duties under tbe assumed trust, and the authority not confined simply to the bringing of an action to collect the subject of the contract which purports to create the trust, and pay the net proceeds over to the assignor. Such a contract is rather one of agency; it is not one which creates an express trust within the meaning of this statute.

It is to be observed, also, that these eight creditors were not joint owners of all the claims, but were several owners, each of his own. Neither had any interest in the claim of any other. Nor were the claims connected with one another. Each rested on its own peculiar facts. The parties could not, therefore, have joined in one action in their own names. Why should they be permitted, by agreeing to create a joint trustee, to collect their several claims in one suit? The transaction bears the appearance of an effort to evade the statute regulating the joinder of causes of action. Possibly, under the condition of the pleadings, this is not a fatal objection, but it is, after all, not without weight.

We have not overlooked the case of White v. Stanley, 29 Ohio St., 423. The material question involved there was the right of the plaintiff to maintain the action in his own name. The syllabus states the case thus: “The debtor of a bank, of which A was cashier, transferred a negotiable note in payment of his indebtedness, to A by special endorsement, and thereupon the bank, to enable A to bring suit thereon, assigned its interest in the note to him. Held, that A might maintain an action in his own name, notwithstanding he may be accountable to the' bank for the proceeds when collected.” The endorsement was in the usual form, and directly to A individually; not as cashier. His legal title did not, therefore, at all depend upon any assignment from the bank; that ceremony was quite beside the question and was wholly unimportant. It is observed by Mcllvaine, J., in the opinion, that “whatever the rule may be in a case where an endorsement of a negotiable instrument is made for the mere purpose of collection, it is quite clear that this is a very different' case.” And manifestly this was correct. It is true that the opinion sustains the right of the plaintiff to maintain the action on the provisions of section 27 of the code, now section 4995. , But it is clear that the conclusion reached and the judgment rendered by the court may rest, beyond any question, upon the provisions of the act of February 20,1820, known as the “Negotiable Instrument Act” (S. & C., 862), now section 3172, Revised Statutes, which in terms gives authority to the endorsee of any such instrument to institute and maintain an action upon it in his own name. See, also Nichols v. Gross, 26 Ohio St., 425.

But there ig another difficulty with the case of the plaintiff below. As before stated, his case rests wholly on the written contract introduced by him in evidence. Prior to its execution he had no connection with the assignors, and had been in no way instrumental in the creation of their claims. That paper contemplates, nay, it provides for, the prosecution for collection of the several claims against Brown. It purports to sell and assign the claims to Ginn. The prosecution was to be in his name, and the suit was so brought. Such prosecution made him liable for the costs. He was, in that situation, bound to pay them, and if he was the owner of the claims no one else was liable in any event. The distinct provision is that the costs and attorney’s fees are to come out of the recovery. That is, the second parties are not to pay them. So that, by the terms of this agreement, the attorney was to prosecute an action in his own name, at his own risk and expense and receive his compensation out of the recovery, thus purchasing disputed claims and stirring up litigation. Again, if this paper affected the object, and was a real transfer of these accounts to the attorney, the several parties of the second part thus parted with all right to control the litigation or to compromise it without the consent of the attorney, and this inability was made doubly so by the fact thakno one of the second parties had any sort of interest in the portion of the demand which rested upon the services of any other. Upon all the authorities such an arrangement is champertous, and will not be maintained by the courts. See Stewart v. Welch, 41 Ohio St., 483; Pennsylvania Co. v. Lombardo, 49 Ohio St., 1, 5; Reece v. Kyle, 49 Ohio St., 475; Railway Co. v. Volkert, 58 Ohio St., 362. So that if the agreement vested in the attorney the legal title to the accounts so as to constitute him the real party in interest, and thus enable him to bring an action in his own name, such action cannot be maintained because against public policy, while, if he is not, within the meaning of section 4993, the real party in interest, the case would fail for that reason.

Other errors are assigned, but they are, in view of the conclusion announced, unimportant.

It follows that the judgments below are erroneous. They will be reversed and the petition of plaintiff below dismissed.

Judgment accordingly.

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


author: Burket, J.

text:
    The New York, Chicago & St. Louis Railroad Company v. Kistler.

      Action to recover for injury by passing train — Statement required in allegation — Rule as to rate of speed for trains, in absence of statute• — Duty of watchfulness required of person approaching tracks — Duty of locomotive engineer approaching road crossing — Bearing of obstructions to view on roadside — Doctrine of imputed negligence — Rule as to negligence of one being negligence of ail.

      1. When, the allegations of a pleading are so indefinite and uncertain that the precise nature of the charge or defense is not apparent, and a motion is made to require such pleading to be made definite and certain, it is error to overrule such motion,
    2. In an action founded upon negligence, the petition should state the acts of commission or omission which the plaintiff claims to have caused the injury; and that statement being made, it is sufficient to aver that such acts were carelessly or negligently done, or omitted.
    3. In the absence of a statute regulating the rate of speed of railroad trains, it is not negligence for a railroad company to run its trains, in the open country, at such rate of speed as those in charge of the same may deem safe 'to the transportation of passengers and property, unless there are facts and circumstances which, when taken in connection with a high rate of speed, would make such speed an element or factor in constituting negligence, and in such cases such facts and circumstances should be pleaded.
    4. As between a person about to cross over a railroad at a crossing, and a train of cars approaching such crossing, the train has the right of way. This is so because the person can stop within a few feet, and the train cannot.
    5. The looking required before going upon a crossing, should usually be just before going upon the track, or so near thereto as to enable the person to get across before a train within the range of his view of the track, going at the usual rate of speed of fast trains, would reach such crossing.
    6. It is the duty of a locomotive engineer to keep a lookout on the track ahead of the train. If while so doing his eye takes in a person approaching the track, he may assume that such person will keep away from the track until the train passes; but when it becomes evident that such person will not keep off the track, it becomes the duty of such engineer to use ordinary care to prevent injury to such person, his first and highest duty, however, being for the safety of the passengers and property in his charge for transportation.
    7. As a railroad company has no control over the trees, weeds, brush, shrubbery and the like, not on its right of way, it is not required to take such things into consideration when approaching a crossing.
    8. While the doctrine of imputed negligence does not prevail in this state, yet where two or more persons take an active part in a joint enterprise, the negligence of each, while so actively engaged, must be regarded as the negligence of all.
    9. Whatever a locomotive engineer, and those with him on the engine, would see while in the proper discharge of their respective duties, they are chargeable with having seen.
    (Decided May 13, 1902.)
    Error to the Circuit Court of Sandusky county.
    On the morning of June 2, 1892, Annie Kistler, defendant in error, and her father were driving west on the county line road between Seneca and Sandusky counties, in a buggy drawn by two quiet farm horses, the side and rear curtains being down, the latter being loose at the bottom. Her father was very deaf, and it was his custom to take one of his children along to hear for him, and he had taken Annie along that morning for that purpose.
    He was aged fifty-seven years, strong and in good health. The county line road crossed over the track of the New York, Chicago & St. Louis Railroad at grade, and at an acute angle, the railroad running a little south of west and the wagon road running east and west.
    As the father and daughter were on the crossing they were struck by a freight train composed of an engine, four cars and a caboose going southwest at a speed of from twenty to forty miles an hour. The father was killed and the daughter badly injured, and this action was brought by her against the railroad f ompany for the recovery of damages.
    At a distance of 216 feet east of the crossing, a road known as the “Ridge Road,” crosses the county line road, and running in a northeast direction, crosses the railroad at a point 346 feet from the crossing of the county line road over the railroad.
    At a distance of eighty-nine rods east of the crossing, is the west line of a tract of fifteen acres of woodland, lying between the county line road and the railroad.
    ■ Just east of the ridge road and partly on the right of way of the railroad and partly on the land adjoining on the south, there stood a wild cherry tree which the evidence tended to show to be eight to twelve inches in diameter, thirty feet high, with a broad bushy top from twenty-five to thirty feet in diameter, and the branches coming within three to eight feet of the ground.
    Along the east side of the ridge road and about twenty feet south of the cherry tree, there was a locust tree about the same size as the cherry, with some sprouts around it from four to twelve feet high.
    There were also some weeds three or four feet high along the ridge road, and along at that place there was a small cut two to three feet deep, and thence to the crossing where the accident occurred, the county road and railroad were on a level. There were no other or further obstructions. She had often passed there and knew the situation.
    The county road was sandy, and it had rained a little the previous night, and the air was clear with a slight breeze from the northeast.

      The father sat on the right side and drove the team, and as they passed the woods he told her that they, were nearing the railroad, and requested her to look and listen for trains, which she did by raising the rear curtain some three times before reaching the ridge road. After passing that road she remembers nothing, but within one hundred feet of the crossing the father was seen to bend forward and look out toward the railroad.
    The team was going on a slow trot until it passed over the ridge road, and then it went faster, one horse trotting and the other galloping till they reached the crossing, but whether the driver was urging them ahead to get over the crossing ahead of the train, or whether he had partly lost control of them, is left in doubt by the evidence.
    There was no slacking of the speed of the train, and the engineer did not see them before the collision, but the evidence tends to prove that the fireman and a brakeman on the engine, and the conductor, brakeman and foreman on the caboose, saw them, when the team was within about one hundred feet of the crossing.
    It is conceded that a whistle for the crossing was given, but she claims that it was not given at the. proper place, and that it was not given until after passing the ridge road, and that it scared the horses and caused them to increase their speed. The evidence as to the signal by whistle is conflicting. The bell seems to have been rung.
    The petition avers that the railroad company negligently and carelessly approached and crossed said highway with said locomotive and train of cars at a high, immoderate and dangerous rate of speed, and negligently and carelessly. omitted to give proper and sufficient signals or warning of the approach of said locomotive and train to said crossing, and of the existence of said crossing, and negligently and carelessly allowed and maintained obstructions to a proper view of its said train, locomotive and railroad and negligently and carelessly operated and handled its said locomotive and train of cars.
    The railroad company filed a motion to compel her to make her petition definite and certain as to the acts of negligence charged, and particularly to state the facts in regard to the defendant negligently and carelessly operating and handling said locomotive and train, and to strike out the words “at a high; immoderate and dangerous rate of speed.”
    The court of common pleas overruled the motion to which the defendant below excepted.
    The answer was a general denial as to the negligence charged, and a plea of contributory negligence on her part. She denied the contributory negligence in her reply.
    She recovered a judgment on the first trial which was reversed by the circuit court, and upon another trial she again recovered a verdict. A motion for a new trial was overruled and judgment entered on the -verdict. Proper exceptions were taken throughout the case. The circuit court affirmed the judgment, and thereupon the railroad company came here seeking to reverse the judgments of the courts below.

      Messrs. C. P. & L. W. Wickham and Mr. John H. Clarke, for plaintiff in error, cited and commented upon the following authorities

      Railway Co. v. Walker, 113 Ind., 196; Railway Co. v. Maurer, 21 Ohio St., 421; Railroad Co. v. Stallmann, 22 Ohio St. 1 : Cordell v. Railway Co., 70 N. Y., 119; Railway Co. v. Rogers, 40 S. W. Rep., 956; Railway Co. v. Hinds, 56 Kan., 758; Dillingham v. Parker, 80 Tex., 572; Railroad Co. v. Houston, 95 U. S., 697; Gilbert v. Railway Co., 97 Fed. Rep., 747; Pennsylvania Co. v. Rathgeb, 32 Ohio St., 66; Railway Co. v. Elliott, 28 Ohio St., 340; Railway Co. v. Whitacre, 35 Ohio St., 627; Harrah v. Jacobs, 1 L. R. A., 152; Railway Co. v. Creek, 49 A. & E., 451; Brickel v. Railway Co., 42 A. & E., 107; Larkin v. Railway Co., 85 Ia., 492; Railway Co. v. Harris, 22 Tex. Civ. App., 16; Railway Co. v. Kistler, 9 Circ. Dec., 277; 16 C. C. R., 316.

      Messrs. Finch & Dewey and Messrs. King & Guerin, for defendant in error, cited and commented upon the following authorities:

      Farmer v. Railway Co., 60 Ohio St., 36; 2 Bates Pl., 615; Davis v. Guarnieri, 45 Ohio St., 470; Hazen v. O’Connor, 8 Circ. Dec., 87; 14 C. C. R., 529; Duffy v. Railway Co., 32 Wis., 269; Nehrbas v. Railway Co., 62 Cal., 320; Improvement Co. v. Stead, 95 U. S., 161; Railway Co. v. Goetz, 79 Ky., 442; 18 Am. & Eng. R. R. Cases, N. 5., 159; Railway Co. v. Rogers, 40 S. W. Rep., 956; Mackay v. Railroad Co., 35 N. Y., 75; Richardson v. Railroad Co., 45 N. Y., 846; Cordell v. Railroad Co., 70 N. Y., 119; Railroad Co. v. Schade, 8 Circ. Dec., 316; 15 C. C. R., 424; Robison v. Gary, 28 Ohio St., 241; Taylor v. DeBus, 31 Ohio St., 471; Railway Co. v. Murphy, 50 Ohio St., 143; Cosgrave v. Railway Co., 87 N. Y., 68; Railway Co. v. Van Horn, 12 Circ. Dec., 106; 21 C. C. R., 337; 2 Shearman & Redfield Neg., Sec. 169; Beisegel v. Railway Co., 34 N. Y., 622; Sackett’s Instructions to Juries (2 ed.), 405; Wharton on Neg., Sec. 386; Artz v. Railway Co., 34 Ia., 153; Railway Co. v. Keeley, 23 Ind., 133; Tabor
      v. Railway Co., 46 Mo., 353; O’Mara v. Railway Co., 38 N. Y., 445; Schweinfurth v. Railway Co., 60 Ohio St., 215; 1 Shearman and Redfield on Neg., Sec. 94; 2 Thomp. on Neg., 1151; Railway Co. v. Anderson, 11 Circ. Dec., 765; 21 C. C. R., 288; Railway v. Harmon, 47 Ill., 298; Railway v. Dickson, 88 Ill., 431; Railway v. Newscome, 60 Ga., 492; Railway v. Killips, 88 Pa. St., 405; Carraher v. Bridge Company, 100 Cal., 177; Railroad v. Stanger, 32 N. E. Rep., 209; 7 Ind. App., 179; Raihoay Co. v. Wright, 43 N. E. Rep., 688; Prescott v. Railway Co., 113 Mass., 370n.; Pollock v. Railway Co., 124 Mass., 158; Railway Co. v. Barnett, 59 Pa. St., 259; Railway Co. v. Stinger, 78 Pa. St., 219; Hart v. Railway Co., 56 Ia., 166; Voak v. Railway Co., 75 N. Y., 320; Railway Co. v. Yundt, 78 Ind., 373; Strong v. Railway Co., 61 Cal., 326; Rupard v. Railway Co., 88 Ky., 280; Favor v. Railroad, 114 Mass., 350; Lonergan v. Railway Co., 87 Ia., 755; Ransom v. Railway Co., 62 Wis., 178; People v. Railroad, 13 N. Y., 78; Wakefield v. Railway Co., 37 Vt., 330; Pollock v. Railway Co., 124 Mass., 158; Norton v. Railway Co., 113 Mass., 366.
   Burket, J.

Section 5088, Revised Statutes, provides that: “When the allegations of a pleading are so indefinite and uncertain that the precise nature of the charge or defense is not apparent, the court may require the pleading to be made definite and certain by amendment.”

This means that the court shall in a proper case require the pleading, to be made definite and certain. It is not a mere matter of discretion. It is a substantial right to a party to have the pleading against him so definite and certain as to enable him to know what he has to meet, and to prepare his evidence accordingly.

The charge of negligence against the company that it “negligently and carelessly approached and crossed said highway with said locomotive and train of cars at a high, immoderate and dangerous rate of speed,” and “negligently and carelessly operated and handled its said locomotive and train of cars,” gave no definite or certain notice to the company as to what acts of commission or omission claimed to be negligent would be attempted to be proved or relied upon at the trial, and therefore the petition should have been required to be made definite and certain by stating the acts of commission and omission claimed to have caused the injury, so as to advise the company as to the facts claimed to have been negligently done or omitted, and to enable it to meet the same. Upon the trial the evidence should be confined to the acts .of negligence so specifically and definitely averred in the petition. This is in accordance with the rule of pleading laid down in Davis v. Guarnieri, 45 Ohio St., 470. It was there held that the fact claimed to have caused the injury being averred, it was sufficient to state that it was negligently done. But to say that the company “negligently and carelessly operated and handled its said locomotive and train of cars,” avers no fact as causing the injury, and does not aver that any fact causing the injury was carelessly done or omitted. It is a general averment at large of negligence, and the court erred in overruling the motion to make definite and certain.

The court also erred in refusing to strike out the words, “at a high, immoderate and dangerous rate of speed.”

As the general assembly has the power to reasonably regulate the speed of trains, not only in cities, but also in the country, and has failed to exercise that power, as to speed in the country, such failure is an implied warrant to railroad companies to run their trains in the open country at such rate of speed as those in charge of the same may deem safe to the transportation of passengers and property, such safety however being the paramount consideration.

As there are road crossings in the country every few miles, it is inconsistent with proper speed of transportation, that trains should slack up for such crossings. Safety is secured to persons at such crossings by the observance of the statutory signals, and such signals being given, the train is not limited as to speed.

It has sometimes been held, and correctly, that a high rate of speed when taken in connection with other facts and the surrounding circumstances, may become an element or factor in constituting negligence; but when such is the case, the facts constituting such surrounding circumstances should be pleaded, so that the court can judge from the pleadings whether the high rate of speed is a proper factor in constituting negligence, because a high rate of speed alone cannot constitute negligence as a matter of law. Elliott on Railroads, in section 1160, skys: “In the absence of any statute or ordinance upon the subject, no rate of speed is negligence per se.” The same doctrine is laid down in section 1873 of Commentaries on the Law of Negligence by Thompson.

The petition shows no fact making this crossing dangerous, or other than the usual country road crossing, and no fact or circumstance, which, when combined with a high rate of speed, would constitute negligence. The court should therefore have stricken out those words as to speed. The case of Railroad Co. v. Lawrence, 13 Ohio St., 66, is instructive as to the question of speed of trains. The injury in the case of Schweinfurth v. Railway Company, 60 Ohio St., 215, occurred at a street crossing in a city where there was an ordinance regulating the rate of speed, and it was there held that under the circumstances of that case, a high rate of speed, contrary to the provisions of the ordinance, might constitute an element in determining the question of negligence; hut at road crossings in the country, where there is no law regulating the rate of speed, the rule does not prevail.

At the close of the evidence and before argument, the court upon request of counsel for plaintiff below, gave to the jury the following charge:

“The jury are instructed that the defendant railroad company had, at the time of the collision complained of, the same right to use that portion of the public highway over which its track passed at the point of collision that the public had. Its rights and those of the plaintiff were mutual, and reciprocal, and the railroad company and the plaintiff were bound to have due regard each for the safety of the other.” This charge was too strongly in her favor. While in law she had the same right to use the crossing that the railroad, company had, the different modes of such use constitute a difference in right. As she could stop with her team within a few feet, and the train could not stop short of many rods, it follows of necessity that when both were approaching the crossing at the same time, the train had the right of way, and it was her duty to stop and let the train pass before attempting to cross. Commentaries on Law of Negligence by Thompson, Section 1611. Continental Improvement Company v. Stead, 95 U. S., 161, 163. Such would be the conduct of all men of ordinary care under such circumstances. To rush ahead and attempt to pass knowing the train to be close at hand, is not the conduct of ordinary prudent persons, but is gross negligence. To drive upon a crossing without first looking for passing trains is also negligence. The looking should usually be just before going upon the crossing, or so near thereto as to enable the person to get across in safety at the speed he is going before a train within the range of his view of the track, going at the usual speed of fast trains, would reach the crossing. There should be such looking before going upon the track, even though there was a looking farther away when no train was seen approaching. A train at the usual speed will go quite a distance, while a team on a walk or trot will go a much shorter distance. The care to be taken in such cases should correspond with the danger.

The court in the special charges given at the request of plaintiff’s counsel, in speaking of the duty of those in charge of the train to use care in discovering the plaintiff as she approached the crossing and using means to prevent injury to her, includes all the trainmen without explaining the duties of any of them, but puts upon all the duty of caring for her so as to prevent injury. Three of the trainmen were in the caboose away from the engine, and without means of immediate communication with the engineer, and yet they are included in the instruction as to trainmen, when they could do nothing to prevent the accident. The engineer also is a trainman, and the charge imposes upon him along with the other trainmen the duty of seeing her danger and being careful to shield her as she approached and drove upon the crossing.

It is the duty of an engineer on a train to keep a lookout on the track ahead of him, and he is not expected to see anything on the sides of the right of way farther than his eye may take in objects within the range of vision while looking ahead along the track. Elliott on Railroads, sections 1159 and 1205. Commentaries on the Law of Negligence by Thompson, section 1592, et seq. In Railroad Company v. Elliott, 4 Ohio St., 474, 476, this court held that “The paramount duty of a conductor of a train is to watch over the safety of the persons and property in his charge.” The same is true of an engineer. His paramount and first duty is to watch over and guard the safety of the persons and property in his charge, and that is most effectually done by keeping a strict lookout ahead along the track, so as to see any obstruction at the earliest moment, and thus be prepared to avert danger to his train. So important is this duty of the engineer to keep a lookout ahead of his train, that in some of the states it is required and regulated by statute. His duty being to look ahead, it cannot be his duty to look at the same time to the sides. If, however, while so looking ahead his eye takes in a person approaching the track at a crossing or elsewhere, he is then bound to use ordinary care to prevent injury, his first care however being for the safety of his passengers and property on board for transportation. He may presume that such person will keep away from the track until the train passes, but when it becomes evident that the person cannot or will not keep away from the track, then he must do all he reasonably can to prevent injury.

Upon the trial of this case it was urged by counsel for plaintiff, that she was discovered by the trainmen in the act of going upon the crossing in time for the engineer to have so slowed down his train after such discovery as to have prevented the injury. The railroad company claimed that she was not seen by the engineer until the collision occurred, and that it did not become evident to the brakeman and fireman on the left hand side of the engine, that she was about to drive upon the crossing, until the very moment of the collision, and that it was then too late to notify the engineer." It was with reference to these different claims that the special charges were given.

It has often been held by courts that when a person suddenly finds himself in a position of imminent peril or danger he cannot be held to a strict account as to the course of conduct to be by him pursued to avoid injury. Railroad Company v. Mowery, 36 Ohio St., 418; Elliott on Railroads, section 1173; Railroad Co. v. Snyder, 55 Ohio St., 342.

While engineers of locomotives ate expected from their training, experience, and the nature of their duties, to be equal to almost any emergency in the management of their trains, yet itmustberemembered in their favor that they have mind and nerves the same as other peoplé, and that when they are suddenly and unexpectedly confronted with imminent peril or danger to themselves or to the persons and property in their charge, by obstructions on the track or about to go thereon, they cannot be held to a strict course of conduct to prevent injury to persons or property not connected with the train, so that the action taken is in good faith, and at the time believed to be the best. When a person or animal is seen approaching the track, and it becomes evident that he or it will not stop but attempt to cross, it is sometimes safer to slow down or stop the train, and sometimes safer to increase the speed and get the train across first. The course to be pursued must be instantly determined by°the engineer at the peril of himself and the persons and property in his charge, and the course selected by him and carried out in good faith in the face of such peril, and in view of the surrounding circumstances, cannot constitute negligence on his part, even though others might be able to suggest and point out afterwards, that a different course would have been less liable to result in injury. As to the persons and property in his charge, the* engineer must use the greatest care, but as to persons and property not connected with the train, he must use only ordinary care. He must therefore be allowed to determine for himself in good faith upon the spur of the moment and in view of the peril before him, the course to be pursued for the safety of the persons and property in his charge, without being called to a very strict account by those to whom he owes only ordinary care.

What was said by this court in Express Co. v. Smith, 33 Ohio St., 511, at page 519, is applicable to such cases: “There is an em post facto wisdom, which, after everything has been done, without success, can suggest that something else should have been attempted, but this is a sagacity much more astute than ordinary human foresight, and can hardly furnish a fair rule by which to determine the propriety of what has been done in good faith, and with judgment exercised under the best light afforded.”

At the request of the plaintiff below, the court also charged the jury in different forms before argument, to the effect that the jury must determine from the evidence under the instruction of the court, whether plaintiff in approaching the crossing used such care as persons of ordinary care and prudence would use under like or similar circumstances. Sometimes the word “evidence” was left out. These charges were all defective at least in this :the question was put as to approaching the crossing, instead of going onto the crossing. She may have been ever so careful in the approach, and yet extremely negligent in driving upon the crossing in the face of a rapidly approaching train. If she was negligent in going upon the crossing in front of a rapidly approaching train, thinking that she could cross in safety, and the engineer after seeing her was negligent in not slowing down or stopping his train, thinking that she would get across in safety, the proximate cause of the injury was the miscalculation and negligence of both, and there could be no recovery, unless the engineer after he saw her and realized her danger, had time to so slow down or stop as to prevent the injury. Or if the fireman and brakeman riding on the left side of the engine saw her, and saw and realized her danger in time to notify the engineer in time to enable him to so slow down or stop the train as to have prevented the injury, and failed to so notify the engineer, such failure would be such negligence as would sustain a recovery; but if, after it became evident to them that she was about to drive upon the crossing, there was not time to notify the engineer, and then time for him to so slow down or stop the train as to prevent the injury, there could be no recovery.

When the fireman and brakeman saw her driving toward the crossing, they had a right to rely that she would use due care and not go upon the crossing, and it was only when it became evident that she was going upon the crossing that the duty devolved upon them to notify the engineer, and if there was then time to save her, she should have been saved; but if it was then too late to save her, the injury was, as to the railroad company, an inevitable accident, and for such there can be no recovery. If on her part it was a race to beat the train over the crossing, the injury was her own fault and there could be no recovery. It is urged that there was a deep ditch on one side of the road and a fence on the other, and that she could not turn her team around. But no effort is shown to turn the team, and besides it is always safer to run into a fence or even a deep ditch than onto a railroad crossing in front of a fast train.

There were no facts or surroundings plead or proven, which, when taken in connection with a high rate of speed, would make such speed an element or factor in negligence, and therefore what was said as to such high rate of speed in the charge was error.

Whatever the engineer and those on the engine with him, would see while in the proper discharge of their duties, they are chargeable with having seen, but they are not required to neglect their duties on the train to look outside of the right of way for approaching persons or animals, not within the range of vision while looking ahead along the track.

After argument the court charged the jury as follows :

“The defendant had the right to run the train at the time and place of this collision at any speed consistent with the safety which was necessary in the conduct of its business in the usual and ordinary manner, taking into consideration, however, all the circumstances surrounding that crossing, affecting the traveling public and having a due regard for the safety of the public using the crossing.”

From what has already been said as to the speed of trains, it will readily be seen that the latter part of this charge, all after the word “manner,” is erroneous.

The court also charged the jury that if trees, shrubbery or weeds presented an obstruction to view, it required care and caution on part of plaintiff and defendant according to their respective rights as explained by the court. The inclusion of the defendant in this charge was error. The trees, shrubbery and weeds outside of the right of way, imposed no care or caution upon the company in running its train.

The court also charged the jury as follows:

“While it is true that the railroad company is not responsible for weeds or bushes growing outside of its right of way, even though they obstruct a view by travelers upon the highway, yet, if you find from the evidence such weeds or bushes to have existed in such manner in this case, it is a circumstance which the jury should consider in determining whether or not the railway company was guilty of negligence in approaching this crossing of the county line at the rate of speed at which it approached the same with its train upon this occasion.”

This charge was clearly error, because the weeds and brush in question were not a circumstance to be considered by the jury in determining the question of negligence.

The court also in charging as to the duty of the company and its servants after seeing her danger, included the trainmen. This was too broad, as it included those in the caboose who could do nothing to avert the injury.

The court also charged the jury that the question of negligence was wholly for the jury to determine from the evidence. He should have added “under the instructions of the court.”

The court also charged the jury that the negligence, if any, of the father was not imputable to the daughter. While it is true that the doctrine of imputed negligence does not prevail in this state, that doctrine was not applicable to the facts as claimed to be by the defendant in this case, and as the evidence tended to prove. The father being nearly deaf, took the daughter along to hear for him, and as they came to the west side of the piece of woods, he told her to look and listen for trains, and she did so by raising the rear curtain and looking in the direction of the railroad.

If it be true that she was to do the listening, and also to assist in the looking while he was doing the driving, they were engaged in a joint enterprise, and each would in such case be chargeable with the negligence of the other.

It has often been held that the negligence of a servant is imputable to the master, because he is the superior. Street Ry. Co. v. Wright, 54 Ohio St., 181. On principal and sound reason the rule should be applied to those who take an active part in a joint enterprise.

As to the wild cherry tree standing in the south line of the railroad right of way east of the ridge road, it is difficult to see how it could be an obstruction to her view of the train at the time of going upon the track, because the train was then far west of the cherry tree, and the tree was behind the train. The time to look and listen for the last time is shortly before going upon the track as before explained, and as the train was near enough to catch her before getting over the crossing at a fast trot or gallop,' the train must have been far past the cherry tree when she should have looked the last time. If she saw the cherry tree as she drove by it, or knew of its being there, it only imposed upon her greater care and caution if she regarded it as an obstruction to her view. Penn. Co. v. Morel, 40 Ohio St., 338.

Judgment reversed.

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