author: Johnson, J.

text:
    Ellard, Executor, v. Perris, Executor and Trustee, et al.

      Wills — Gift to legatee by testator — Subsequent to date of will— Presumption of intended ademption by testator — Where legateé is child of testator — Or one standing in loco parentis to testator —Legacy to one other than child — Intention of ademption— Must be clearly shown by will or extrinsic evidence.

    1. Whether a gift made to a legatee by a testator subsequently to the date of the will is to be taken as an ademption of the legacy depends on the intention of the testator,
    2. Where the subsequent gift is made to a child, or one to whom the testator stands in loco parentis, and the gift is of the same character or for the same purpose as the legacy, it will be presumed to be an ademption of the legacy pro tanto in the absence of an expressed intention to the contrary shown by the will or by extrinsic evidence.
    3. Where the legacy is to a person other than a child of the testator, or to a person other than one to whom he stands in loco parentis, unless the gift is for the same specific purpose for which the legacy was intended, there is no presumption of such intention, but it must be clearly shown, either from the will itself or by extrinsic evidence, that the ademption was intended by the testator.
    (No. 14535 —
    Decided March 9, 1915.)
    Error to the Court of Appeals of Hamilton county.
    Aaron A. Ferris, executor and trustee under the will of Elizabeth Zinn, filed his petition in the common pleas court asking the direction of the court as to whether the sum of $2,000 which was paid out by the deceased under circumstances set out in the petition should be treated by him as a gift to Vir-

      ginia G. Ellard, the sister of the decedent, or as an advancement to be charged against her interest in the estate. The petition alleged that in making distribution of the estate the executor proposed and sought to charge against the interest of Virginia G. Ellard the amount stated, with interest from the date of the probating of the will, the interest of Mrs. Ellard as legatee being one-fifth; that the executor based his action in so charging that amount against the share of Mrs. Ellard upon a certain receipt executed and delivered by her to the testatrix in her lifetime; that a copy of the receipt is as follows:
    “Cincinnati, May 23, 1907.
    “Received of my sister, Elizabeth Zinn, her draft for $2,000 on account of my future interest in her estate-
    “Virginia G. Ellard.”
    The petition avers that Mrs. Ellard objected to the proposed action of the executor and claimed that the $2,000 was paid over to her voluntarily by the testatrix as a gift and that the testatrix did not intend that the amount should ever be charged against the interest of Mrs. Ellard in her estate; that Mrs. Zinn fully intended that the $2,000 should be an absolute gift and not chargeable against the interest of Mrs. Ellard; that some of the legatees in the said will objected to the allowance by the executor of said $2,000 to Mrs. Ellard as a gift as claimed by her and insist that he charge the same against her interest as an advancement. The petition sets forth the proportions of the estate to which the different parties were entitled by the terms of the will and a copy of the will is attached to the petition.
    Mrs. Ellard, who was then living, filed her answer, in which she avers that some time prior to May 23, 1907, the testatrix agreed to give Mary E. Hoffman, a daughter of the defendant and a niece of the testatrix, the sum of $2,000 as a present to enable said Mary E. Hoffman to purchase a house when she should find one which would suit her, it being understood and agreed that the defendant, Mrs. Ellard, and her husband, parents of Mrs. Hoffman, would furnish the balance of the money required to make the purchase; that Mrs. Hoffman resided, at the time the agreement was made, with her husband in the state of Massachusetts; that prior to the date named and after the agreement was made Mrs. Hoffman found such a house, which she agreed to purchase for the sum of $6,500, of which Mrs. Zinn was advised; that thereafter and prior to May 23, 1907, in consideration of her promise, Mrs. Zinn delivered to the defendant, Mrs. Ellard, a draft for the sum of $2,000, payable to the order of the defendant in trust for said Mary E. Hoffman, which Mrs. Zinn requested the defendant to endorse and forward and deliver to said Mary E. Hoffman; that the defendant, in compliance with that request, did, prior to the day named, endorse, forward and deliver the draft to Mrs. Hoffman as requested, and that the defendant and her husband gave the said Mary E. Hoffman the balance, to-wit, the sum of $4,500; that thereafter Mrs. Hoffman completed the purchase of the property, paying therefor the sum of $6,500, using the $2,000 so given to her by Mrs. Zinn for that purpose; that thereafter, on May 23, 1907, this defendant was requested to give a receipt to the said Elizabeth Zinn for the $2,000 so received and that the receipt set forth in the petition was given by her in compliance with that request and for no other purpose; that this defendant received no part of said $2,000 herself and received no benefit whatever from the gift made by the testatrix to Mrs. Hoffman; that the testatrix by her last will, which was duly probated, disposed of all the real and personal property of which she died seized. The answer prayed for the payment to her of the sum of $2,000 retained by the plaintiff.
    Answers were filed by other defendants asserting that the $2,000 referred to was an advancement to Mrs. Ellard, and this was the issue in the case.
    The court of common pleas found the issues in favor of Mrs. Ellard; that the $2,000 could not be charged against her interest in the estate and directed the executor to proceed accordingly. The case was appealed to the circuit court, and its successor, the court of appeals, found upon the issues in favor of Mr. Ferris, the executor and trustee under the will of Mrs. Zinn. Mrs. Ellard having died in the meantime, the suit was revived in the name of her executor, George B. Ellard, plaintiff in error herein. This proceeding is brought to reverse the judgment of the court of appeals.

      Messrs. Healy, Ferris & McAvoy, for plaintiff in error.

      Mr. Rufus B. Smith; Messrs. Bruce & Bruce; Mr. A. A. Ferris and Mr. John J. Weitzel, for defendants in error.
   Johnson, J.

The dispute in the courts below was confined practically to questions of law. The testimony offered by each party on the trial related to phases of the controversy which were different from those to which the testimony of the other related. There is, therefore, no material conflict in the evidence.

In 1905 Mrs. Zinn, the testatrix, was an old lady of considerable wealth without lineal descendants. Her husband had died in 1880 and her only son in 1902. While visiting her niece, Mrs. Hoffman, in Massachusetts in August, 1905, she promised to give her $2,000 to assist her in the purchase of a house. Mrs. Hoffman was the daughter of Mrs. Virginia Ellard, who was Mrs. Zinn’s sister. Mrs. Zinn at other times referred to and repeated her promise to give her niece the amount named for the purpose stated. In April, 1907, she wrote her niece inquiring about the house-hunting and stated in the letter “I will keep my word when you decide what you want.” In the following month Mrs. Hoffman notified her aunt that she had arranged to buy a house. Thereupon Mrs. Zinn went to the office of Mr. A. A. Ferris, who had been for many years her attorney and counsel, having charge of her large estate and making monthly reports to her. Mr. Ferris testified that she said she wanted to help Mrs. Hoffman through Mrs. Ellard to buy a house, and wanted to get $2,000 for that purpose. After stating that it could be borrowed, Mr. Ferris suggested that there should be some evidence of it, and Mrs. Zinn said, “Put it in a note.” Mr. Ferris afterward prepared a note, enclosed it with a draft for the amount, and forwarded it to Mrs. Zinn at her residence, with the suggestion that Mrs. Ellard should sign the note. Within a day or so Mrs. Zinn endorsed and gave the draft to Mrs. Ellard at her house and said, “I have fulfilled my promise, here is the two thousand dollars for Mamie,” and then said that Mr. Ferris had suggested that Mrs. Ellard should sign the note. This Mrs. Ellard refused to do and it was not signed. She left Mrs. Zinn’s house with the draft, stating to Mrs. Zinn, “I will mail this to Mamie on the first mail,” to which Mrs. Zinn made no objection. The draft was mailed the next day. Mrs. Zinn called on Mr. Ferris, told him what had occurred and that she had finally delivered the draft. Mr. Ferris again remarked that there should be some acknowledgement from Mrs. Ellard for the $2,000. After some further talk Mrs. Zinn, at Mr. Ferris’ suggestion, directed him to stop payment of the draft, which he did. He then wrote a letter to Mrs. Ellard in which he assured her that there was no intention to sue on the note when due and stated that he had stopped payment of the draft and enclosed a blank receipt, saying, “You can, if you please, fill it out yourself, giving the form of it, it being only necessary that you should express in some words that you.have received the $2,000.00.” Mrs. Ellard then herself wrote the receipt, a copy of which is above set out in the statement of the case, and it was sent to Mr. Ferris. As to this Mr. Ferris testified: “The next morning I called up Mrs. Zinn, and I don’t think I read the receipt over to her, but I told her the receipt was in my possession and that it covered the ground.” So far as shown, Mrs. Zinn never saw the receipt and never knew its terms. Subsequently Mrs. Zinn expressed her satisfaction that she had assisted her niece in the purchase of the house, and on September 21, several months after-wards, she wrote to her brother a letter in which she stated “I gave Mamie $2000, two thousand dollars, towards the payment of her house lately.”

The will of Mrs. Zinn was made in August, 1906, the draft for the $2,000 was delivered May 21, 1907, and she died in February, 1908.

In support of the judgment of the court of appeals it is contended that the real issue is whether parol evidence can be admitted to vary the terms of what defendant in error claims is a written contract ; that is to say, the paper signed by Mrs. Ellard after the time the draft for $2,000 was delivered to her.

It is insisted that the cases of Jackson v. Ely, Exr., 57 Ohio St., 450, and Cassilly v. Cassilly, 57 Ohio St., 582, rule the question as to the admissibility of the testimony referred to.

In Jackson v. Ely, Exr., Mrs. Jackson signed the following paper:

“$15.50 Wooster, Ohio, May 13, 1890.

“This is to certify that I have this day settled with John Ely, and he has paid me all he owed me, up to this date, and I have no claims or demands against him of any kind whatsoever.”

The court held that this instrument was not merely a receipt but an agreement that the parties had come to a settlement. There had been mutual obligations between them and the court points out that a “settlement” is a contract between two parties by means of which they ascertain the state of the accounts between them. Full consideration had passed from each side.

In Cassilly v. Cassilly, Mrs. Cassilly signed a paper in which she contracted to transfer to her son all interest that she had in the estate of her deceased brother. The court held that the paper embodied a contract which could not be contradicted by parol evidence. In both of the cases referred to there were valuable considerations moving from and to each of the parties. They had reduced their contracts with reference to the matters to writing, and when the court concluded that the instruments were not merely receipts but embodied contracts it followed that parol evidence was not admissible to vary their terms.

As to the paper involved in this case the parties did not sustain towards each other any contractual relationship whatever. Before the paper was signed Mrs. Zinn was not obligated to give Mrs. Ellard any interest in her estate whatever, and after the paper was signed Mrs. Zinn could have refused to give Mrs. Ellard any portion of her estate or could have given her all of her estate. On the other hand, Mrs. Ellard did not assign or release anything that she had. Nemo est haeres viventis. There is not present any of the grounds upon which the rule which excludes parol evidence with reference to written instruments is based. The evidence offered was admissible to explain the circumstances under which the paper referred to was made and delivered, as well as to show the intention of the testatrix in making the gift.

Although the paper signed by Mrs. Ellard is not a legal contract, release or assignment, still it might well be held to work an estoppel against her if the circumstances under which the money was paid, and the paper signed and delivered, were such as to furnish the basis for the application of that doctrine. This was the holding in Rosenthal v. Mayhugh, 33 Ohio St., 155, cited by the defendant in error and referred to later in this opinion. But in that case there was a'complete finding of facts from which, as shown later on herein, the court found all the elements of estoppel. Evidence was received showing all of the circumstances connected with the transaction. But it is averred in the answer of Ferris, trustee, that the $2,000 was advanced to Mrs. Ellard and received by her with the intention and for the purpose of satisfying and adeeming the bequest to Mrs. Ellard in the will of Mrs. Zinn to the extent of the sum so advanced. .

An advancement is a gift in praesenti of money or property to a child by a parent to enable the donee to anticipate his inheritance pro tanto, and applies to cases of intestacy. Ademption is the extinction or withholding of a legacy in consequence of some act of the testator. A gift will be taken as an ademption only when made to a child or one to whom the testator stands in loco parentis. The rule seems to be universal, as shown by the cases cited in the briefs, that the matter of an ademption depends wholly on the intention of the testator; that where a legacy is given by the testator to a child, or to one to whom he stands in loco parentis, a subsequent payment made to the child raises the presumption of an intention on the part of the testator to adeem the legacy in whole or in part, but that in case of a legacy to a person other than the child of the testator, or to one to whom he does not stand in loco parentis, a subsequent gift to the legatee raises no presumption of an intention of the testator to satisfy the legacy unless the gift is for the same specific purpose for which the legacy was designed, or is in terms made a substitute therefor, but it must be made to appear clearly, either from the will or by extrinsic evidence, that such satisfaction was intended. 40 Cyc., 1916.

The doctrine of ademption is applied on the same principle as that of advancements in cases of intestacy, and is founded on the presumption that a parent intends that all of the natural objects of his bounty shall share equally in his estate, and that where he makes a gift to a child or to one to whom he stands in loco parentis of property ór money which he has devised or bequeathed to such child or person he intends to adeem, “to take away” the legacy in whole or in proportion to the value of the gift. The relationship creates the presumed intention, but it does not arise in the case of one not sustaining that relationship, although the actual intention may always be shown by evidence.

In this case the question whether the gift was an ademption depends solely on the intention of Mrs. Zinn, the testatrix. That is the important- — the decisive — question in the case. It is wholly immaterial what the intention of the legatee was in the receiving of the gift to be delivered to her daughter, unless the circumstances surrounding the making of the gift would tend to establish that the testatrix shared the intention of the legatee. As shown, the rule is that it must be made to appear that the testatrix herself intended that the gift of the $2,000 was an ademption of the legacy contained in the will for Mrs. Ellard.

As already indicated, there is no dispute in the testimony as to any material fact. The dispute relates to the conclusion to be drawn from undisputed evidence.

The evidence, oral and written, that Mrs. Zinn intended to give the $2,000 to Mrs. Hoffman, the niece, as an unqualified gift, and that she after-wards and always regarded it in that light, is clear and undisputed. It is also clear that while she acquiesced fully in the suggestion of her attorney, which was entirely proper and creditable to him, that she request some sort of written acknowledgment from Mrs. Ellard when the draft was delivered to her for transmission to her daughter, she did not see the receipt tha.t was signed by Mrs. Ellard, did not know its terms, took no interest in it after it was signed and never did anything or said anything that would indicate that she intended that the $2,000 which she declared she had given her niece should be charged against the legacy which she had made to her sister by her will.

Inasmuch as the legatee was not a child and was not one to whom she stood in loco parentis, and inasmuch as the rule is clear that in such circumstances it must be made to clearly appear that the testatrix intended that the gift of $2,000 should operate as such ademption, we are constrained to hold that it cannot be so treated.

' Cases are cited in support of the judgment below in which receipts signed by children were delivered to a testator in his lifetime which purported to be releases in full or in part of the child’s interest in the estate and in which it was held that the amounts received should be charged against the interest of the legatee. These authorities are not in conflict with the principles which we regard as controlling the case we have in hand.

In Glasscock v. Layle et al., 21 Ky. Law Rep., 860, 53 S. W. Rep., 270, cited by defendants in error, money was paid to a son by his mother’s agent. The son executed and delivered to the agent the following receipt:

“Williamstown, July 27, 1889.
“Received of N. Webster four hundred dollars as my interest in my mother’s estate.
“N. B. Layle.”

It was contended that the $400 was an ademption of the devise to Layle in the will of his mother. Evidence was admitted showing the circumstances under which the money was paid, and the court say: “The testimony of Webster is to the effect that he made the payment at the request of the mother, and it was in full satisfaction of his (Layle’s) interest in her estate. It also appears that Webster at that time had charge of and control of the funds .of the testatrix, and was attending to her business. This testimony of Webster is not contradicted by any witness. * * * The only question presented for decision is whether the $400 was an ademption of the devise to N. B. Layle in the will of his mother. It seems to us that the evidence sustains the contention of appellees as to this question.” See also Low v. Low, 77 Me., 37; Norfleet et al., Exrs., v. Collicott et al, 90 Miss., 221, 43 So. Rep., 616; Vreeland v. Vreeland et ah, 65 N. J. Eq., 668, 56 Atl. Rep., 1089.

In those cases the taking of the receipt, or the contract, by the testator, whether it merely acknowledged the gift or purported to state a contract dependent upon.it, was clear evidence of the intention of the testator himself that the amount stated in the paper to have been received should be deducted from the legacy. The very fact that the testator demanded and accepted such a paper would be conclusive evidence of such intention on his part.

It is remarked in Needles, Exr., v. Needles et al., 7 Ohio St., 432, that where two children contract with each other in regard to their expectancy from their ancestor, they stand upon equal footing, and although such contract cannot operate by way of assignment or release, yet where a valuable consideration has been paid it may operate by way of estoppel or be enforced in equity.

The above remark by the court in the Needles case is referred to in Rosenthal v. Mayhugh, 33 Ohio St., 155, 168, which is cited by defendants in error here. In that case a husband had left his family and place of residence and went to parts unknown and was not heard of for a period of more than seven years. He left his family without other means of support than the house and lot where he resided. His wife joined with the children, in order to induce a sale of the real estate for their mutual benefit, - in representing- that he was dead, and thereby effected the sale of the real estate and joined them in a conveyance in fee with covenants of general warranty. It was held that although the husband was still living, and although such conveyance did not operate as a release of her inchoate dower, yet by reason of the facts found by the court she was barred by way of equitable estoppel from treating her contract as a nullity and from asserting her right to have dower assigned upon the actual death of her husband. That case presented all the elements required for the application of the doctrine of equitable estoppel. The consideration money was paid by the purchaser relying on the representations of the widow and children.

In this case, as we have seen, Mrs. Zinn did not give the $2,000 to Mrs. Hoffman on account of any representations that were made by Mrs. Ellard, or because of anything that was stated by her in the receipt. The case lacks the essential elements which must be present before the application of the doctrine of estoppel can be insisted upon.

The judgment of the court of appeals will be reversed and the cause remanded with instructions to render judgment in favor of the plaintiff in error as prayed.

Judgment reversed.

Nichols, C. J., Donahue, Wanamaker and Matthias, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    The Village of Elmwood Place v. Schanzle, a Taxpayer.

      Municipal ordinances — Publication in one newspaper sufficient, when Section 4227 et seq., General Code.

    In a municipality in which there is only one newspaper published and of general circulation, the publication in that paper of ordinances of a general nature, in the manner and for the period required by Section 4227 et seq., General Code, is a compliance with the requirements of those sections.
    (No. 14836 —
    Decided March 9, 1915.)
    Certified by the Court of Appeals of Hamilton county.
    The facts are stated in the opinion.

      Mr. Charles S. Bell and Messrs. Peck, Shaffer & Peck, for plaintiff in error.

      Mr. Frederick E. Niederhelmah, for defendant m error.
   Johnson, J.

The defendant in error brought a proceeding in the common pleas of Hamilton county to enjoin the village of Elmwood Place from issuing $10,000 of refunding bonds which are described in the petition. The injunction was sought on the ground that the ordinance authorizing the issuance of the bonds had been published in but one newspaper.

It is averred in the petition that while the newspaper in which the publication was made is the only newspaper of which the whole or any part is printed in the village, and the only one which is first put into circulation in the village, or first issued in the village to be delivered or sent by mail, or otherwise, to its subscribers, or first offered for public sale within the village, yet there are more than two newspapers of opposite politics printed and first put into circulation therein which are published outside of the village.

A demurrer to the petition was overruled and final judgment entered by the court of common pleas. The court of appeals reversed this judgment and included in its entry an order that the cause be certified to this court for review and final determination, because the judgment upon which it had agreed was contrary to the judgment pronounced upon the same question by the court of appeals of the fifth appellate district.

The question presented is, What method, if any, is provided by existing law for the publication of ordinances of a general nature of a village in which there is printed only one newspaper, but in which two or more papers of opposite politics, published outside of the village, are generally circulated?

The statutory requirements touching the subject are included in Section 4227 et seq., General Code. Pertinent parts are as follows: In Section 4227 “Ordinances of a general nature, or providing for improvements shall be published as hereinafter provided before going into operation,” and Section 4228, ‘/Ordinances and resolutions requiring publication shall be published in two newspapers of opposite politics, published and of general circulation in such municipality, if such there be.” Section 4229 provides the number of times ordinances, resolutions, etc., “shall be published in two newspapers of opposite politics of general circulation therein, if there are such in the municipality,” and Section 4232 provides that “in municipal corporations in which no newspaper is published, it shall be sufficient publication of ordinances * * * to post up copies thereof at not less than five of the most public places in the corporation, to be determined by the council, for a period of not less than fifteen days prior to the taking effect thereof.”

It will be observed that the existing statutes contain no express provision on the subject with reference to a municipality in which but one newspaper is published. This situation developed in the codification adopted in 1910. Prior to the codification what is now Section 4227 was contained in Section 1695, Revised Statutes. In the latter section it is provided “Ordinances of a general nature, or providing for improvements shall be published in some newspaper of general circulation in the corporation.” In the codification the words “some newspaper” are omitted and the words “shall be published as hereinafter provided” are substituted.

It is contended substantially by the plaintiff in error that it is unreasonable to presume that the legislature intended to require publication of ordinances in villages in which two papers are published, and in villages in which no paper is published, but intended not to require publication in villages in which only one paper is published. It is therefore insisted that the codified statute should receive the same construction as that necessarily given to the original.

It is well settled that where the general statutes of the state are revised and consolidated there is a strong presumption that the same construction which the statute had had before revision should be applied to the enactment in the revised form, although the language may have been changed. In such case a court is only warranted in holding the construction to be changed when the intent of the legislature to make such change is clear and manifest. State, ex rel., v. Commissioners of Shelby County, 36 Ohio St., 326; German-American Ins. Co. v. McBee et al., 85 Ohio St., 161, 173.

It is equally well settled that where the words of a statute are plain, explicit and unequivocal and express clearly and distinctly the sense of the lawmaking body, there is no occasion to resort to other means of interpretation. In such a situation the question is not, what did the general assembly intend to enact, but what is the meaning of that which it did enact? D. T. Woodbury & Co. v. Berry, 18 Ohio St., 456; Slingluff et al. v. Weaver et al., 66 Ohio St., 621; Hough v. The Dayton Mfg. Co. et al., 66 Ohio St., 427.

Can it be said that it is clear and manifest that in the adoption of the General Code the general assembly intended to so change the statute then in force as to leave no provision for the publication of ordinances in a village in which only one newspaper is printed ? Or can it be said that the words in the codified section are so free from ambiguity and doubt and express so clearly and distinctly the meaning of what the general assembly did enact that there is no occasion to resort to other means of interpretation? We think not. As already remarked, Section 1695, Revised Statutes, directed that the ordinance should be published in some newspaper of general circulation in the corporation. The act of October 22, 1902 (96 O. L., 60), Section 124, provided that Section 1695 should remain in full force and in addition thereto that such ordinances “shall be published in two newspapers of opposite politics, published and of general circulation in such municipality, if such there be.” The same section also provided that except as otherwise provided in the act the ordinances required to be published should be published in two newspapers of opposite politics of general circulation therein, if there be such in the municipality.

The history of legislation on the subject involved in this controversy is such as to clearly indicate that the settled policy of the state is to require that ordinances of a general nature shall be published. Publication is the object to be attained, the essential requirement. As part of the plan to attain the purpose, the publication is required to be made in two newspapers of opposite politics published in the municipality “if such there be.” It is to be presumed that the legislature contemplated that if there were such papers of opposite politics the information contained in the publication would be fairly distributed among the people of the community.

It is provided by Section 4229 that except as otherwise provided in this title, ordinances, resolutions, etc., “shall be published in two newspapers of opposite politics of general circulation therein, if there are such in the municipality ” for the periods stated. There is in this provision no express requirement that such newspapers shall be published within the municipality. When considered, however, in pari materia with Section 4228, and in view of the fact that before the codification these two sections were included in the same section of the Revised Statutes, it would seem to be clear that the newspapers referred to in Section 4229 are the same as those referred to in Section 4228, viz., newspapers published within the' municipality. Moreover, Section 6255, General Code, seems to require this construction. That section provides that for sufficient publication of a notice or advertisement required by law to be published for a definite period, at least one side of the newspaper in which such publication is made shall be printed in the county or municipal corporation in which such notice or advertisement is required to be published. This view is confirmed by the fact that by Section 4232 it is provided that in municipal corporations in which no newspaper is published, it shall be sufficient publication to post up copies.

It is contended by the defendant in error that under the present law there is but one way in which to publish ordinances in a municipality where there is but one newspaper published and of general circulation, and that is that the ordinance shall be posted as required by Section 4232, General Code. We cannot assent to this contention. The language in that section is: “In municipal corporations in which no newspaper is published, it shall be sufficient to post up copies.”

From the face of the petition in this case it appears that there is a newspaper published in the village. Therefore, the condition which the statute provides must exist before “it shall be sufficient to post up copies” does not exist in this case. The natural inference from that plain provision would be that in a villag'e in which a newspaper is published the publication would be required to be made in that paper if it was the only one.

Considering all the sections referred to together, in the light of the settled policy of the state, as indicated by the history of legislation oh this subject, we are convinced that the general assembly did not intend by the codification to provide that in a village in which only one newspaper is published and of general circulation no publication of its ordinances would be required and did not do soand we are constrained to hold that, in view of the absence of clear and unambiguous language to the contrary, the sections of the General Code referred to should receive thé same construction required to be given to the sections of the Revised Statutes, from which the former were taken, and that the publication shown by the petition to have been made in the paper which was the only newspaper published and of general circulation in the village was sufficient.

The court of appeals correctly held, that the demurrer to the petition should have been sustained by the court of common pleas and judgment entered for the defendant.

The judgment of the court of appeals will be affirmed.

Judgment affirmed.

Nichols, C. J., Wanamaker, Newman, Jones and Matthias, JJ., concur.


author: By the Court.

text:
    Angeloff v. The State of Ohio.

      Criminal law — Rape—Variance between indictment and proof— Different transactions — Election by state — Date of offense— Evidence of act — Intercourse with others — Venereal disease— Physical examination of accused.

    (No. 14497 —
    Decided November 17, 1914.)
    Error to the Court of Appeals of Lucas county.

      Mr. L. H. Wilkinson} for plaintiff in error.

      Mr. Charles M. Milroy, prosecuting attorney, and Mr. A. F. Connolly, assistant prosecuting attorney, for defendant in error.
   By the Court.

The fact that the witnesses offered by the state in a criminal prosecution differ as to the date of the commission of the offense charged' in the indictment, does not constitute a variance between the allegations of the indictment and the proofs, but if it appears from the whole evidence that the witnesses for the state are testifying to different transactions, the state, at the close of its evidence, may be required to elect as to which transaction it will rely upon for conviction.

Where in the trial of an accused upon an indictment charging rape, as of the date of October 9, 1912, the prosecuting witness, a girl about ten years of age, testified, in May of the following year, that she thought the act was committed in August of the preceding year, but could not say what time in August it was committed, and other facts and circumstances were offered in evidence by the state tending to show that the act was probably committed at a later date, a verdict of guilty is sustained by the evidence, whether the jury believes the prosecuting witness was correct or mistaken in her testimony as to the date of the offense, provided, however, it clearly appears from the evidence that it is one and the same act charged in the indictment to have been committed on or about the 9th day of October.

In a prosecution for rape, where the state has given evidence tending to prove that the prosecuting witness had contracted a venereal disease from the defendant by reason of his alleged forcible sexual intercourse with her, evidence that she had sexual intercourse with others than the defendant about the time of the alleged rape is admissible to show that the prosecuting witness might have contracted the disease from some person other than the defendant, but evidence that she tried to have sexual intercourse with other men or boys during that period is inadmissible for any purpose.

Where a defendant while confined in jail submits without objection to a physical examination of his person, with knowledge that such examination is for the purpose of proving or disproving his guilt of the crime charged, evidence of the result of such examination may be admitted in evidence upon the trial. (Lindsey v. The State, 4 C. C, N. S., 409; affirmed, 69 Ohio St., 215.)

Judgment affirmed.

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


text:
    No. 14738.
    The Hocking Valley Railway Co. v. The Public Utilities Commission of Ohio et al.
    Decided September 15, 1914.
    Error to the Public Utilities Commission.'

      Messrs. Wilson & Rector, for plaintiff in error.

      Mr. Timothy S. Hogan, attorney general; Mr. Joseph McGhee; Mr. Clarence D. Laylin; Mr. E. E. Eubanks -and Mr. A. E. Jacobs, for defendants in error.
   Application for stay of execution. Application denied.


text:
    No. 13781.
    Niklas v. The Reuhl Moulding and Manufacturing Co. et al.
    Decided September 29, 1914.
    Error to Circuit Court of Hamilton county.

      Messrs. Healy, Ferris & McAvoy; Mr. Frank J. Dorger and Mr. Denis F. Cash, for plaintiff in error.

      Messrs. Cramer & Headley, for defendants in error.
   Judgment affirmed.

Nichols, C. J., Johnson, Newman and Wilkin, JJ., concur. Wan am aker, J., dissents.


text:
    No. 13819.
    Sellew et al. v. The Vine Street Congregational Church.
    Decided September 29? 1914.
    Error to Circuit Court of Hamilton county.

      Messrs. Fulton & Woost; Mr. George Leonard and Mr. Charles A. Groom, for plaintiffs in error.

      Mr. Wallace Burch; Mr. Simeon M. Johnson; Mr. Charles B. Wilby; Mr. Edward F. Alexander and Mr. Charles W. Baker, for defendant in error.
   Judgment affirmed.

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


text:
    No. 13894.
    The Board of Education of the Phillipsburg Village School District v. Koch.
    Decided September 29, 1914.
    Error to Circuit Court of Montgomery county.

      Mr. R. C. Patterson, prosecuting attorney; Mr. C. R. Gilmore, assistant prosecuting attorney; Messrs. Mc-Kemy & Cline and Mr. Carl W. Lenz, for plaintiff in error.

      Mr. Charles H. Kumler, for defendant in error.
   Judgment affirmed.

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


text:
    No. 14184.
    The Toledo & Indiana Railroad Co. v. Taylor et al.
    Decided September 29, 1914.
    Error to Court of Appeals of Lucas county.

      Messrs. King, Tracy, Chapman & Welles, for plaintiff in error.

      Messrs. Smith & Beckwith and Messrs. King, Tracy, Chapman & Welles, for defendants in error.
   Judgment affirmed.

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


text:
    No. 14401.
    In re Liquidation of the Metropolitan Bank & Trust Co.
    Decided September 29, 1914.
    Error to Court of Appeals of Hamilton county.

      Mr. Timothy S. Hogan, attorney general; Mr. Robert Black and Mr. Frank Davis, Jr., for plaintiff in error.

      Mr. Ferdinand Jelke, Jr.; Mr. James R. Clark and Mr. Landon L. Forschheimer, for defendant in error.
   Judgment affirmed.

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


text:
    No. 13907.
    Baer v. Rees.
    Decided October 7, 1914.
    Error to Circuit Court of Franklin county.

      Messrs. Wilson & Rector, for plaintiff in error.

      Mr. Thos. M. Sherman, for defendant in error.
   Judgment affirmed.

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


text:
    No. 13913.
    The Toledo & Ohio Central Railway Co. v. Alford.
    Decided October 7, 1914.
    Error to Circuit Court of Wyandot county.

      Messrs. Finley & Gallinger and Messrs. Doyle & Lewis, for plaintiff in error.

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

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


text:
    No. 13918.
    American Assurance Co. v. Early.
    Decided October 7, 1914.
    Error to Circuit Court of Cuyahoga county.

      Messrs. Stearns, Chamberlain & Royon, for plaintiff in error.

      Messrs. Wing, Myler & Turney, for defendant in error.
   Judgment affirmed.

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


text:
    No. 13914.
    Russell, Receiver, v. Hattery et al.
    Decided October 13, 1914.
    Error to Circuit Court of Stark county.

      Mr. D. P. Reinoehl, for plaintiff in error.

      Mr. R. W. McCaughey and Messrs. Webber & Turner, for defendants in error.
   Judgment affirmed.

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


text:
    No. 13922.
    Ohio Valley Electric Ry. Co. v. Buedel.
    Decided October 13, 1914.
    Error to Circuit Court of Lawrence county.

      Messrs. Johnson & Jones, for plaintiff in error.

      Mr. Osbert E. Irish and Messrs. Riley & Roberts, for defendant in error.
   Judgment affirmed.

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


text:
    No. 13932.
    Peter v. Parkinson, Treas.
    Decided October 13, 1914.
    Error to Circuit Court of Holmes county.

      Mr. W. S. Hanna and Mr. W. F. Garver, for plaintiff in error.

      Mr. C. J. Fisher; Mr. David T. Simpson and Mr. W. Stilwell, for defendant in error.
   Judgment affirmed.

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


text:
    No. 13949.
    The Columbus Gas and Fuel Co. v. The Knox County Oil and Gas Co.
    Decided October 13, 1914.
    Error to Circuit Court of Knox county.

      Mr. Frederick N. Sinks and Messrs. H. H. & R. M. Greer, for plaintiff in error.

      Mr. F. O. Levering, for defendant in error.
   Judgment affirmed.

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


text:
    No. 14191.
    Bush v. Cole et al.
    Decided October 13, 1914.
    Error to Court of Appeals of Ashtabula county.

      Mr. Walter C. Ong and 'Mr. Charles L. Lawyer, for plaintiff in error.

      Mr. H. E. Starkey and Messrs. Munsell & Hall, for defendants in error.
   Judgment affirmed.

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


text:
    No. 13933.
    Bittner v. The Title, Guarantee & Surety Co.
    Decided October 20, 1914.
    Error to Circuit Court of Erie county.

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

      Mr. John Ray and Mr. Robt. M. Morgan, for defendant in error.
   Judgment of the circuit court reversed and that of the common pleas affirmed.

Journal entry: It appearing from the record in this cause, that the plaintiff in error, C. C. Bittner, was guilty of no fraud or concealment in procuring the bond sued upon, and that the same was not obtained by him in consideration of compounding a felony, it is ordered and adjudged by this court that the judgment of the circuit court be, and the same hereby is, reversed and the judgment of the common pleas court affirmed. — Reporter.

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


text:
    No. 13946.
    Wheeling Traction Co. v. Shepherd, Admx.
    Decided October 20, 1914.
    Error to Circuit Court of Belmont county.

      Mr. Gordon D. Kinder and Messrs. Kennon & Kennon, for plaintiff in error.

      Mr. Hunter S. Armstrong and Mr. Fred Spriggs, for defendant in error.
   Judgment affirmed.

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


text:
    No. 13953.
    The Youngstown & Sharon Street Railway Co. v. Krimmel.
    Decided October 20, 1914.
    Error to Circuit Court of Ma-honing county.

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

      Mr. Samuel M. Thompson; Mr. Thomas McNamara, Jr., and Mr. Charles Koonce, Jr., for defendant in error.
   Judgment affirmed.

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


text:
    No. 13957.
    Searles et al. v. Cowdrick.
    Decided October 20, 1914.
    Error to Circuit Court of Lucas county.

      Messrs. Ray & Cordill, for plaintiffs in error.

      Messrs. Marshall ■& Fraser, for defendant in error.
   Judgment affirmed.

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


text:
    No. 13958.
    Searles et al. v. Cowdrick.
    Decided October 20, 1914.
    Error to Circuit Court of Lucas county.

      Messrs. Ray & Cordill, for plaintiffs in error.

      Messrs. Marshall & Fraser, for defendant in error.
   Judgment affirmed.

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


text:
    No. 13959.
    Rigby v. The W. H. Palmer Co.
    Decided October 20, 1914.
    Error to Circuit Court of Mahoning county.

      Messrs. Hine, Kennedy & Manchester, for plaintiff in error.

      Mr. Samuel M. Thompson and Mr. Charles Koonce, Jr.,- for defendant in error.
   Judgment of the circuit court reversed and that of the common pleas affirmed.

Journal entry: It appearing from the record that the written acceptance sued upon is not an unconditional acceptance but is subject to the conditions written in the order itself, and that the written order was not an unconditional order for the payment of money within the meaning of Section 8231, General Code, it is ordered and adjudged by this court that the judgment of the circuit court of Mahoning county is hereby reversed, and the judgment of the common pleas affirmed. — Reporter.

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


text:
    No. 13962.
    Brown et al. v. Gantz.
    Decided October 20, 1914.
    Error to Circuit Court of Miami county.

      Messrs. Kerr & Kerr, for plaintiffs in error.

      Mr. Losh O. Harbaugh, for defendant in error.
   Judgment affirmed.

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


text:
    No. 13956.
    Kime v. Kime.
    Decided October 27, 1914.
    Error to Circuit Court of Summit county.

      Messrs. Holloway & Chamberlin, for plaintiff in error.

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

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


text:
    No. 13960.
    The Ohio Culvert Pipe Co. v. Agnew et al., County Commissioners.
    Decided October 27, 1914.
    Error to Circuit Court of Ma-honing county.

      Mr. Willis Bacon and Mr. M. C. McNab, for plaintiff in error.

      Mr. R. A. Beard and Mr. A. M. Henderson, prosecuting attorneys, for defendants in error.
   Judgment affirmed.

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


text:
    No. 13966.
    Ilgenfritz v. Millham.
    Decided October 27, 1914.
    Error to Circuit Court of Ma-honing county.

      Messrs. W. S. Anderson & Son and Mr. U. C. DeFord, for plaintiff in error.

      Mr. Ensign N. Brown and Messrs. Hine, Kennedy & Manchester, for defendant in error.
   Judgment affirmed.

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


text:
    No. 13970.
    Rathbun v. Unser.
    Decided October 27, 1914.
    Error to Circuit Court of Erie county.

      Messrs. King & Ramsey, for plaintiff in error.

      Messrs. Guerin & Ritter, for defendant in error.
   Judgment affirmed on grounds stated in journal entry.

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

This court finds that by reason of the stipulation of the parties made in the circuit court as to the evidence offered and introduced by the parties in the court below, the judgment of the circuit court as to costs in said case was correct.

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


text:
    No. 13971.
    French v. Winslow.
    Decided October 27, 1914.
    Error to Circuit Court of Lucas county.

      Messrs. Smith & Baker, for plaintiff in error.

      Mr. Richard W. Kirkley and Mr. Frank H. Geer, for defendant in error.
   Judgment affirmed.

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


text:
    No. 13987.
    In re Estate of Jennings: Grindle v. The American Missionary Association et al.
    Decided October 27, 1914.
    Error to Circuit Court of Ashland county.

      Messrs. Mykrantz & Patterson, for plaintiff in error.

      Messrs. Ford, Snyder & Tilden, for defendants in error.
   Judgment of the circuit court reversed and that of the common pleas affirmed.

Journal entry: It appearing from .the record that the plaintiff in error offered some evidence in support of the legal presumption that these notes were given for a valuable consideration, to-wit: “for services I rendered to him, taking care of him through a good many sicknesses” (page 32, printed record), the judgment of the common pleas court is not, therefore, contrary to law. It is, therefore, ordered and adjudged by this court that the judgment of the circuit court be, and the same hereby is, reversed. And this court coming now to render the judgment that the circuit court should have rendered, it is further ordered and adjudged that the judgment of the common pleas court in this action be, and the same hereby is, affirmed. — Reporter.

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


text:
    No. 13925.
    Snyder v. The Hurdley Pierce Anderson Co.
    Decided November 10, 1914.
    Error to Circuit Court of Summit county.

      Messrs. Boylan & Brouse, for plaintiff in error.

      Messrs. Wilcox, Burch & Adams, for defendant in error.
   Judgment affirmed.

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

Wanamaker, J., not participating.


text:
    No. 13974.
    Holub v. The Kirk Company.
    Decided November 10, 1914.
    Error to Circuit Court of Summit county.

      Messrs. Holloway & Chamberlin, for plaintiff in error.

      Messrs. Slabaugh, Seiberling & Huber, for defendant in error.
   Judgment affirmed.

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

Wanamaker, J., not participating.


text:
    No. 13976.
    Ferris v. Edmondson et al., Commissioners.
    Decided November 10, 1914.
    Error to Circuit Court of Hamilton county.

      Mr. Charles B. Wilby, for plaintiff in error.

      Mr. Thomas L. Pogue, prosecuting attorney; Mr. John V. Campbell and Mr. Charles A. Groom, assistant prosecuting attorneys, for defendants in error.
   Judgment affirmed.

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


text:
    No. 13981.
    Lawrence v. Taylor, Admr., et al.
    Decided November 10, 1914.
    Error to Circuit Court of Cuyahoga county.

      Messrs. Stearns, Chamberlain & Royon, for plaintiff in error.

      Mr. Walter C. Ong and Messrs. Squire, Sanders & Dempsey, for defendants in error.
    Judgment affirmed.
    Nichols, C. J., Johnson, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 13991.
    Mosser v. Beer, Exr.
    Decided November 10, 1914.
    Error to Circuit Court of Ashland county.

      Messrs. Semple & Sherick and Messrs. Mykrantz & Patterson, for plaintiff in error.

      Mr. W. S. Kerr and Mr. R. M. Campbell, for defendant in error.
   Judgment of the circuit court reversed and that of the common pleas affirmed.

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


text:
    No. 13950.
    Arter et al. v. Ulery et al.
    Decided November 17, 1914.
    Error to Circuit Court of Columbiana county.

      Messrs. Metzger & Smith and Mr. E. H. Moore, for plaintiffs in error.

      Mr. John McVicker; Mr. C. S. Speaker and Mr. Judson Harmon, for defendants in error.
   Judgment affirmed.

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


text:
    No. 13989.
    Toledo, St. Louis & Western Railroad Co. v. Shoemaker.
    Decided November 17, 1914.
    Error to Circuit Court of Van Wert county.

      Mr. Clarence Brown; Mr. Charles A. Schmettau; Mr. Raymond T. Garrison and Mr. Clark Good, for plaintiff in error.

      Messrs. Lindemann & Lindemann and Mr. H. L. Conn, for defendant in error.
   Judgment affirmed.

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


text:
    No. 13990.
    Weber et al. v. Lockwood et al.
    Decided November 17, 1914.
    Error to Circuit Court of Cuyahoga county.

      Messrs. Wing, Myler & Turney and Mr. Don R. Sipe, for plaintiffs in error.

      Messrs. Carpenter, Young & Stocker, for defendants in error.
   Judgment affirmed.

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


text:
    No. 13993.
    The First National Bank of Defiance v. Kehnast et al.
    Decided November 17, 1914.
    Error to Circuit Court of Defiance county.

      Messrs. H. & R. Newbegin and Mr. Julian H. Tyler, for plaintiff in error.

      Messrs. Harris & Shaw and Messrs. Marshall & Fraser, for defendants in error.
   Judgment affirmed.

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


text:
    No. 13999.
    The Scioto Valley Traction Co. v. Maxwell, Admr.
    Decided November 17, 1914.
    Error to Circuit Court of Ross county.

      Messrs. Daugherty, Todd & Rarey, for plaintiff in error.

      Mr. F. N. R. Redfern and Mr. Luther B. Yaple, for defendant in error.
   Judgment affirmed.

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


text:
    No. 14004.
    Coil et al. v. Baughn et al., Exrs., et al.
    Decided November 17, 1914.
    Error to Circuit Court of Fayette county.

      Mr. John Logan, for plaintiffs in error.

      Mr. Frank A. Chaffin and Mr. Humphrey Jones, for defendants in error.
   Judgment affirmed.

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


text:
    No. 14005.
    The Board of Education of the School District of the City of Cincinnati v. Mueller, Doing Business as Standard Marble Works.
    Decided November 17, 1914.
    Error to Circuit Court of Hamilton county.

      Mr. Alfred Bettman and Mr. Walter M. Schoenle, city solicitors; Mr. Stanley W. Merrell and Mr. Constant Soitthivorth, assistant city solicitors, for plaintiff in error.

      Messrs. Kramer & Bettman, for defendant in error.
   Judgment affirmed.

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


text:
    No. 14013.
    Norris, Exr., et al. v. Hull.
    Decided November 17, 1914.
    Error to Circuit Court of Licking county.

      Mr. Carl Norpell and Messrs. Jones & Jones, for plaintiffs in error.

      Mr. B. F. McDonald and Mr. Charles H. Kibler, for defendant in error.
   Judgment affirmed.

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


text:
    No. 14015.
    Bockhoff v. Schenck et al.
    Decided November 17, 1914.
    Error to Circuit Court of Montgomery county.

      Messrs. Lentz, Sigler & Deulinger and Mr. D. B. VanPelt, for plaintiff in error.

      Mr. Lee Warren James, for defendants in error.
   Judgment affirmed.

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


text:
    No. 14475.
    Caris, Admr., v. Barry et al.
    Decided November 17, 1914.
    Error to Court of Appeals of Morrow county.

      Mr. C. H. Wood and Mr. J. C. Williamson, for plaintiff in error.

      Mr. J. W. Barry, for defendants in error.
   Judgment affirmed.

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


text:
    No. 14506.
    Whysall v. West.
    Decided November 17, 1914.
    Error to Court of Appeals of Marion county.

      Messrs. Finley & Gallinger; Messrs. Scofield & Durfee and Messrs. McBride

      & Wolfe, for plaintiff in error.

      Messrs. Mouser & Moloney and Mr. Harry F. West, for defendant in error.
   Judgment affirmed.

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


text:
    No. 14559.
    Laszczoski, by etc., v. The Baltimore & Ohio Railroad Co.
    Decided November 17, 1914.
    Error to Court of Appeals of Richland county.

      Messrs. Johnson & Johnson and Messrs. Brucker,. Voegele & Henkel, for plaintiff in error.

      Mr. F. A. Durban; Mr. R. J. King and Messrs. McBride & Wolfe, for defendant in error.
   Judgment affirmed.

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


text:
    No. 13995.
    American Assurance Co. v. Dickson.
    Decided November 24, 1914.
    Journal entry: It appearing from the record that the defendant in error was necessarily and continuously totally disabled and prevented from performing any and every duty pertaining to any business or occupation, and strictly necessarily and continuously confined within the house except when ordered and directed by the legally qualified physician regularly and personally attending him to go out into the open air as a part of the treatment prescribed by said physician for the cure of' the defendant in error, and for no other purpose, it is, therefore, ordered and adjudged that the judgment of the circuit court be, and the same hereby is, affirmed. — Reporter.

      Error to Circuit Court of Hamilton county.

      Messrs. Burch, Peters & Connolly and Messrs. Vorys, Sater, Seymour & Pease, for plaintiff in error.

      Mr. Millard Tyree, for defendant in error.
   Judgment affirmed.

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


text:
    No. 14002.
    Mohn v. Heisey & Co.
    Decided November 24, 1914.
    Error to Circuit Court of Ashland county.

      Mr. C. H. Workman and Mr. J. F. Henderson, for plaintiff in error.

      Mr. S. M. Douglass, for defendant in error.
   Judgment affirmed.

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


text:
    No. 14008.
    Steele v. Garn et al.
    Decided November 24, 1914.
    Error to Circuit Court of Wayne county.

      Mr. A. D. Metz, for plaintiff in error.

      Mr. Joseph Gallagher and Mr. Joseph O. Fritz, for defendants in error.
   Judgment of the circuit court reversed and judgment for plaintiff in error. Grounds stated in journal entry.

It is ordered and adjudged by this court, that the judgment of the said circuit court be, and the same hereby is, reversed for the reason that said circuit court erred in overruling the motion of the plaintiff to dismiss the appeal on the grounds set forth in said motion. And coming now to render the judgment which the said circuit court should have rendered, it is hereby ordered and adjudged that the said appeal from the court of common pleas to the circuit court be, and the same is hereby, dismissed, and this cause is remanded to the court of common pleas with instructions to carry its former judgment into execution.

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


text:
    No. 14022.
    Cole v. Collins et al.
    Decided November 24, 1914.
    Error to Circuit Court of Portage county.

      Messrs. Webb & Webb and Mr. I. T. Siddall, for plaintiff in error.

      Mr. A. S. Cole and Mr. W. J. Beckley, for defendants in error.
   Judgment affirmed.

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


text:
    No. 14024.
    The Northern Ohio Traction & Light Co. v. The City of Akron.
    Decided November 24, 1914.
    Error to Circuit Court of Summit county.

      Messrs. 'Rowley, Mather & Eagle-son, for plaintiff in error.

      Mr. Jonathan Taylor, city solicitor, for defendant in error.
   Judgment affirmed.

Journal entry: It appearing from the record in this case that the question as to the amount of the fair and reasonable proportion of the cost of the construction of the improvement that the plaintiff in error should pay was properly and fairly submitted to the jury in this case, regardless of the amount named in the ordinance passed by the city council of the City of Akron, Ohio, and that the jury by its verdict fixed and determined that amount independent of the amount fixed in the ordinance, it is hereby ordered and adjudged that the judgment of the circuit court be, and the same hereby is, affirmed. ■— Reporter.

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


text:
    No. 14031.
    Hopkins v. Meyer et al.
    Decided November 24, 1914.
    Error to Circuit Court of Montgomery county.

      Mr. Albert J. Dwyer, for plaintiff-in error.

      Mr. D. B. VanPelt; Mr. R. R. Nevin and Mr. O. C. Sipe, for defendants in error.
   Judgment affirmed.

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


text:
    No. 14032.
    Papner, Admr., v. Harmon, Receiver.
    Decided November 24, 1914.
    Journal entry: It is ordered and adjudged by this court, that the judgment of the said circuit court be, and the same hereby is, reversed; for the reason that the said circuit court erred in entering final judgment in the cause. But this court finds that the said circuit court, having found that the verdict was not sustained by sufficient evidence, correctly reversed the judgment of the court of common pleas. Coming now to render the judgment which the circuit court should have rendered, it is hereby ordered and adjudged that the judgment of the court of common pleas be, and the same is hereby, reversed, and the cause remanded to the court of common pleas for further proceedings according to law. — Reporter.

      Error to Circuit Court of Hamilton county.

      Mr. Otto Pfleger and Mr. Marston Allen, for plaintiff in error.

      Messrs. Harmon, Colston, Goldsmith & Hoadly, for defendant in error.
   Final judgment of the circuit court reversed; its judgment of reversal affirmed and cause remanded to court of common pleas for new trial.

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


text:
    No. 14033.
    Smith et al., Township Trustees, v. Palm, Exr., et al.
    Decided November 24, 1914.
    Error to Circuit Court of Huron county.

      Mr. Don J. Young and Mr. J. R. McKnight, for plaintiffs in error.

      Mr. W. Severance; Mr. B. F. Long and Mr. Harlon L. Stewart, for defendants in error.
   Judgment affirmed.

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


text:
    No. 14038.
    Hallett et al. v. The Belmont Heights Land Co.
    Decided November 24, 1914.
    Error to Circuit Court of Trumbull county.

      Mr. M. C. McNab and Mr. T. I. Gillmer, for plaintiffs in error.

      Messrs. Hine, Kennedy & Manchester,
      for defendant in error.
   Judgment affirmed.

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


text:
    No. 14040.
    Washington Fire Insurance Co. v. Adams.
    Decided November 24, 1914.
    Error to Circuit Court of Franklin county.

      Messrs. Pummill & McKnight and Mr. O. H. Mosier, for plaintiff in error.

      Messrs. Webber, McCoy, Jones & Schoedinger, for defendant in error.
   Judgment' affirmed.

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


text:
    No. 14047.
    Crawford et al. v. Stratton et al.
    Decided November 24, 1914.
    Error to Circuit Court of Jefferson county.

      Mr. P. P. Lewis and Messrs. Mansfield & Merryman, for plaintiffs in error.

      Mr. E. E. Erskine; Mr. P. P. Lewis and Messrs. Mansfield & Merryman, for defendants in error.
   Judgment affirmed.

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


text:
    No. 14088.
    The Maxwell Rolf Stone Co. v. Whigam.
    Decided November 24, 1914.
    Error to Circuit Court of Cuyahoga county.

      Mr. W. J. Patterson, for plaintiff in error.

      Mr. Walter C. Ong and Mr. Albert A. Thayer, for defendant in error.
   Judgment affirmed.

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


text:
    No. 14523.
    The Peoples Savings Bank Co. v. Stringer et al.
    Decided November 24, 1914.
    Error to Court of Appeals of Jefferson county.

      Mr. Ralph B. Cohen, for plaintiff in error.

      Mr. R. G. Richards and Mr. F. R. Sedgwick, for defendants in error.
   Judgment affirmed.

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


text:
    No. 13562.
    Klein v. Goldstein.
    Decided December 1, 1914.
    Error to Circuit Court of Hamilton county.

      Messrs. Worthington & Strong; Mr. Frank Seinsheimer and Messrs. Kramer & Bettman, for plaintiff in error.

      Mr. Henry Bentley and Mr. Horace A. Reeve, for defendant in error.
   Judgment affirmed.

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


text:
    No. 13707.
    Champney et al. v. Braun.
    Decided December 1, 1914.
    Error to Circuit Court of Lorain county.

      Mr. Q. A. Gilmore; Messrs. Squire, Sanders & Dempsey; Mr. H. G. Redington; Mr. H. M. Redington and Mr. H. J. Crawford, for plaintiffs in error.

      Mr. A. R. Webber and Mr. C. A. Metcalf, for defendant in error.
   On rehearing.

Judgment reversed. See journal entry.

It is ordered and adjudged by this court that the judgment hereinbefore entered affirming the judgment of the circuit court of Lorain county be and the same is hereby opened up, set aside and held for naught.

And this court being fully advised in the premises, it is ordered and adjudged that the judgment of the circuit court affirming the judgment of the common pleas court against Harry R. Edwards, J. W. Roof, and Julia Schnuerer and Minni P. Schnuerer, as Executrices, and Charles L. Schnuerer as Executor of the Last Will and Testament of Louis Schnuerer, Deceased, be and the same hereby is reversed.

And this court coming now to render the judgment that should have been rendered in said cause by said court, the judgment of the common pleas, court of Lorain county against these plaintiffs in error is reversed, set aside and held for naught for error of the common pleas court in overruling the motion of said plaintiffs in error to direct a verdict at the close of said plaintiffs evidence and at the conclusion of all the evidence, and this action against said defendants is hereby dismissed.

It is further ordered and adjudged that the judgment of the circuit court affirming the judgment of the common pleas court against the plaintiff in error Arthur R. Champney, be and the same hereby is reversed.

And the court coming now to render the judgment that the circuit court should have rendered in this behalf, it is ordered and adjudged that the judgment of the common pleas court against Arthur R. Champney and in favor of the defendant in error Lenora Braun, be and the same is hereby, reversed for error of the court in the limitation of the cross-examination of Lenora Braun, for the admission in evidence of her belief as to the value of the trade mark and formula of the Liquid Force in the absence of evidence that defendant Arthur R. Champney had represented to her that it was of a certain value, and that she relied upon such representations; and for error in admission of the receiver’s account in evidence, and said cause as to Arthur R. Champney is remanded to the common pleas court of Lorain county for further proceedings and trial according to law.

Nichols, C. J., Shauck, Donahue and Wil- . kin, JJ., concur.


text:
    No. 13928.
    Haviland, Executrix, v. Fleming et al.
    Decided December 1, 1914.
    Error to Circuit Court of Franklin county.

      Messrs. DeWitt. & Hubbard and Mr. C. C. Williams, for plaintiff in error.

      Mr. M. E. Thrailkill; Mr. W. T. S. O’Harra; Mr. John J. Stoddart; Mr. John Stoddart, Jr.; Mr. William K. Williams and Mr. Jerry Dennis, for defendants in error.
   Judgment affirmed.

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


text:
    No. 13943.
    Klein v. Goldstein.
    Decided December 1, 1914.
    Error to Circuit Court of Hamilton county.

      Messrs. Worthington & Strong; Mr. Frank Seinsheimer and Messrs. Kramer & Bettman, for plaintiff in error.

      Mr. Henry Bentley and Mr. Horace A. Reeve, for defendant in error.
   Judgment reversed. See journal entry.

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

And this court coming now to render the judgment that said circuit court should have rendered, it is hereby ordered and adjudged that the judgment of the superior court be, and the same hereby is, reversed for error of the trial court in refusing to give in charge to the jury defendant’s written requests Nos. 7 and 8, and for error of the court in its charge to the jury in omitting to state that the negligence of the plaintiff, if the jury should find her guilty of negligence contributing to her own injury, would require the jury to return a verdict in favor of the defendant.

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


text:
    No. 14034.
    Padgett et al. v. Greer et al., Admrs.
    Decided December 1, 1914.
    Error to Circuit Court of Knox county.

      Messrs. Pugh & Pugh, for plaintiffs in error.

      Mr. F. V. Ovoen; Messrs. Waight & Moore and Messrs. Greer & Greer, for defendants in error.
   Judgment affirmed.

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


text:
    No. 14062.
    Wiener et al. v. Gross.
    Decided December 1, 1914.
    Error to Court of Appeals of Cuyahoga county.

      Messrs. Allen, Waters, Young & Andress and Messrs. Kline, Clevenger, Buss & Holliday, for plaintiffs in error.

      Messrs. White, Johnson, Cannon & Neff, for defendant in error.
   Judgment affirmed.

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


text:
    No. 14063.
    Illinois Surety Co. v. The Cincinnati and Suburban Bell Telephone Co.
    Decided December 1, 1914.
    Error to Court of Appeals of Hamilton county.

      Mr. David H. Scott and Messrs. Hopkins, Peffers & Hopkins, for plaintiff in error.

      Messrs. Peck, Shaffer & Peck, for defendant in error.
   Judgment affirmed.

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


text:
    No. 14068.
    Boling v. Boling.
    Decided December 1, 1914.
    Error to Circuit Court of Hamilton county.

      Messrs. Gusweiler & Klein, for plaintiff in error.

      Mr. Joseph W. Conroy, for defendant in error.
   Judgment reversed.

See journal entry.

It is ordered and adjudged by this court, that the judgment of the said circuit court be, and the same hereby is, reversed;jthis court being of the opinion that the insolvency court having granted a decree of divorce on the petition of plaintiff in error and having overruled the motion of defendant in error to set aside said decree, neither the insolvency court nor the circuit court had jurisdiction to entertain an application thereafter filed in that case by defendant in error for alimony.

It is therefore ordered that the motion of defendant in error for alimony be dismissed.

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


text:
    No. 14079.
    Addison v. Hampton.
    Decided December 1, 1914.
    Error to Circuit Court of Franklin county.

      Mr. Thomas H. Clark; Mr. Arlington C. Harvey and Mr. Louis G. Addison, for plaintiff in error.

      Messrs. Sheets & West, for defendant in error.
   Judgment affirmed.

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


text:
    No. 14081.
    The Fourth National Bank of Cadiz, Ohio, v. Warnick et al.
    Decided December 1, 1914.
    Error to Circuit Court of Harrison county.

      Mr. Albert O. Barnes and Mr. B. W. Rowland, for plaintiff in error.

      Mr. W. W. Cowan; Messrs. Hollingsworth & Moore; Mr. R. H. Minteer; Mr. A. O. Barnes; Mr. E. S. MeNamee; Mr. Frank B. Grove and Mr. C. W. Pettay, for defendants in error.
   Judgment affirmed.

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


text:
    No. 14092.
    Pierson et al., etc., v. Fourman et al.
    Decided December 1, 1914.
    Error to Circuit Court of Darke county.

      Mr. O. R. Krickenberger, for plaintiffs in error.

      Mr. Geo. W. Man-nix, Jr.; Mr. D. W. Bowman and Messrs. McMahon & McMahon, for defendants in error.
   Judgment affirmed.

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


text:
    No. 14101.
    Storey v. Storey.
    Decided December 1, 1914.
    Error to Circuit Court of Lucas county.

      Messrs. Calkins & Storey, for plaintiff in error.

      Messrs. Smith, Beckwith & Ohlinger, for defendant in error.
   Judgment affirmed.

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


text:
    No. 14106.
    Federal Union Surety Co. v. The State of Ohio.
    Decided December 1, 1914.
    Reporter’s Note. On July 2, 1915, the following entry was made in the foregoing case:
    Error to Circuit Court of Franklin county.

      Messrs. Bennett & Westfall and Mr. William T. Speary for plaintiff in error.

      Mr. Timothy S. Hogan, attorney general; Mr. Frank Davis, Jr., and Mr. Chas. C. Marshall, for defendant in error.
   Judgment affirmed.

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

This day this cause came on to be heard upon the application and motion of the plaintiff in error, Federal Union Surety Company, to modify the judgment heretofore rendered in this court affirming the judgment of the circuit court of Franklin county, Ohio, theretofore rendered in this cause, and the same was heard upoñ the admitted facts and statements, and arguments of counsel. And the court upon consideration thereof cloth find that the bond executed by the plaintiff in error upon which this action was based, provided that in case of default thereof the State of Ohio should be entitled to recover thereon the amount of the principal sum, together with interest at the rate of two and one-half per centum per annum.

The court doth further find that said circuit court in rendering judgment in favor of the State of Ohio and against said Federal Union Surety Company in said cause, computed the interest on the principal amount of the default, as set forth in plaintiff’s petition below, at the rate of six per centum per annum, from May 16th, 1908, to December 30th, 1912, the date of the rendition of said judgment by the circuit court of Franklin county, Ohio, to-wit, two years and 183 days, when the same should have been computed at the rate of two and one-half per centum per annum.

The court doth further find that in making the computation of interest in the method aforesaid, the circuit court in and for Franklin county, Ohio, gave judgment in favor of the State of Ohio against said Federal Union Surety Company, plaintiff in error herein, at said date, to-wit, December 30th, 1912, in the amount of $14,122.25, when according to law and the evidence the amount of said judgment at said date, so given in favor of said State of Ohio against said Federal Union Surety Company should have been for $11,755.58.

The court doth further find that said amount of - $11,755.58 should bear interest at the rate of two and one-half per centum per annum to the 5th day of April, 1915, or two years, three months and five days, at the rate of two and one-half per centum per annum, and that the amount thereof, to-wit, $12,420.91, should after said 5th day of April, 1915, until paid, bear interest at the rate of six per centum per annum.

It is therefore ordered and adjudged that the judgment of this court in this cause, heretofore rendered on the 1st day of December, A. D. 1914, affirming the judgment of the circuit court of Franklin county, Ohio, in all respects as rendered by that court, be, and the same hereby is modified in this respect, to-wit: That said defendant in error, the State of Ohio, may have and there hereby is awarded to it, judgment against said plaintiff in error, Federal Union Surety Company, as of date of December 30th, 1912, in the sum of $11,755.58, together with interest thereon at the rate of two and one-half per centum per annum, from said 30th day of December, 1912, to the 4th day of April, 1915, with the amount thereof, to-wit, $12,420.91, to bear interest at the rate of six per centum per annum until paid, and in all other respects, not inconsistent herewith, the judgment of said circuit court of Franklin county, Ohio, be affirmed.


text:
    No. 14492.
    Bevan v. The Board of Foreign Missions of the Presbyterian Church in the United States of America.
    Decided December 1, 1914.
    Journal entry: It is ordered and adjudged by this court, that the judgment of the said court of appeals be, and the same hereby is, affirmed; for the reason that the record discloses that one of the grounds upon which the court of appeals reversed the judgment of the court of common pleas was that the verdict of the jury is clearly and manifestly against the weight of the evidence, and a reversal of the judgment of the court of appeals would involve the consideration by this court of the weight of all the evidence in the case. — Reporter.
    Error to Court of Appeals of Delaware county.

      Messrs. Marriott, Freshwater & Wick-ham and Messrs. Pugh & Pugh, for plaintiff in error.

      Messrs. Overturf, Hough & Jones and Messrs. Waight & Moore, for defendant in error.
   Judgment affirmed on the ground that the reversal of the court of appeals involved a consideration of the weight of all the evidence.

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


text:
    No. 14099.
    The Kerlin Brothers Co. v. Norton et al.
    Decided December 8, 1914.
    Error to Court of Appeals of Hardin county.

      Mr. Julian H. Tyler; Messrs. H. & R. Newbegin; Messrs. Dore & Dore and Messrs. Johnson & Johnson, for plaintiff in error.

      Messrs. Mykrantz ¡S’ Patter

      son; Mr. C. W. Faulkner; Messrs. Smick & Hoge; Mr. James Ray Stillings; Mr. George E. Crane; Mr. J. C. Dugan; Mr. A. M. Tidd; Messrs. Arnold & Game and Messrs. Williams, Williams, Taylor & Nash, for defendants in error.
   Judgment affirmed.

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


text:
    No. 14102.
    Errett v. The Cleveland, Cincinnati, Chicago & St. Louis Railway Co.
    Decided December 8, 1914.
    Error to Court of Appeals of Crawford county.

      Mr. L. C. Feighner; Mr. W. C. Beer and Mr. Anson Wickham, for plaintiff in error.

      Messrs. Cummings, McBride & Wolfe and Mr. H. R. Schuler, for defendant in error.
   Judgment affirmed.

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


text:
    No. 14103.
    Weldon v. The Columbus, Delaware & Marion Ry. Co. et al.
    Decided December 8, 1914.
    Error to Circuit Court of Franklin county.

      Messrs. Kohn, Sloss, Bingham & Spindle and Messrs. Vorys, Safer, Seymour & Pease, for plaintiff in error.

      Messrs. Gottschall & Turner; Messrs. Williams, Williams, Taylor & Nash and Mr. T. J. Keating, for defendants in error.
   Judgment affirmed.

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


text:
    No. 14109.
    Ludwig et al. v. Wallace et al.
    Decided December 8, 1914.
    Error to Circuit Court of Wood county.

      Mr. Edzvard M. Fries, for plaintiffs in error.

      Mr. N. R. Harrington, for defendants in error.
   Judgment of the circuit court reversed and that of the common pleas affirmed.

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


text:
    No.- 14112.
    The State, ex rel. Katz, v. Allen, Auditor, et al.
    Decided December 8, 1914.
    Error to Court of Appeals of Marion county.

      Messrs. DeGolley & DeGolley and Mr. J. W. Jacoby, for plaintiff in error.

      Mr. Homer E. Johnson, prosecuting attorney; Mr. Charles L. Justice and Mr. John A. Clark, for defendants in error.
   Judgment of the court of appeals reversed and that of the common pleas affirmed.

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


text:
    No. 14551.
    Metzger v. Ashley et al.
    Decided December 8, 1914.
    Error to Court of Appeals of Lucas county.

      Mr. Earle Peters and Mr. C. S. Northup, for plaintiff in error. Mr. Eugene Rheinfrank, for defendants in error.
   Judgment affirmed.

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


text:
    No. 14571.
    Albrink et al., Commissioners, v. The Columbus, Findlay & Northern Railway Co.
    Decided December 8, 1914.
    Error to Court of Appeals of Henry county.

      Mr. R. W. Cahill, prosecuting attorney, for plaintiffs in error.

      Mr. FI. F. Burket; Mr. W. W. Campbell and Mr. M. R. Waite, for defendant in error.
   Judgment affirmed.

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


text:
    No. 14579.
    Royer, Admr., v. Wittenmire et al.
    Decided December 8, 1914.
    Error to Court of Appeals of Ashland county.

      Mr. A. H. Still-well; Mr. R. L. Adair and Mr. F. S. Monnett, for plaintiff in error.

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

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


text:
    No. 14595.
    The United Telephone Co. v. The Logan County Farmers Telephone Co. et al.
    Decided December 8, 1914.
    Error to Court of Appeals of Logan county.

      Messrs. Howenstine & Huston, for plaintiff in error.

      Messrs. West & Chamberlin, for defendants in error.
   Judgment affirmed.

See journal entry.

It appearing that this cause was submitted to the court of appeals on the pleadings and the evidence including an agreed statement of facts and that no bill of exceptions was taken on the hearing of said cause nor was the agreed statement of facts brought into the record in accordance with the rule announced in Goyert v. Eicher, 70 Ohio St., 30, and that the facts presumably established to the satisfaction of the court of appeals in support of its judgment are not in this court for review, it is ordered and adjudged that the judgment of the court of appeals be and the same is hereby affirmed.

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


text:
    No. 13627.
    Merkel et al. v. Reed et al.
    Decided December 15, 1914.
    Error to Circuit Court of Wayne county.

      Mr. Samuel B. Eason and Mr. L. D. Cornell, for plaintiffs in error.

      Mr. Hiram B. Swartz and Mr. H. R. Smith, for defendants in error.
   Judgment affirmed.

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


text:
    No. 13967.
    The Baltimore & Ohio Southwestern Rd. Co. v. Austin, Admr.
    Decided December 15, 1914.
    Error to Circuit Court of Clinton county.
    Mr. Edward Barton; Mr. John P. Phillips and Messrs. Smith & Clevinger, for plaintiff in error.

      Mr. Eldon L. Hayes; Mr. Melville Hayes and Mr. J. C. Martin, for defendant in error.
   Judgment affirmed.

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


text:
    No. 14094.
    Chapman v. Townsend et al.
    Decided December 15, 1914.
    Journal entry: It is ordered and adjudged by this court, that the judgment of the said court of appeals be, and the same hereby is, reversed: and this cause is remanded to the said court of appeals with instructions to enter judgment in favor of the plaintiff in error, Caroline S. Chapman and the cross-petitioners in error, the Citizens Savings & Trust Company, Nathan E. Chapman and the Guardian Savings & Trust Company, executor of the last will and testament of Harry E. Chapman, deceased, and for further proceedings according to law. — Reporter.
    Error to Court of Appeals of Cuyahoga county.

      Messrs. M. B. & H. H. Johnson and Mr. Charles Higley, for plaintiff in error.

      Messrs. A. A. & A. H. Bemis; Mr. W. J. O’Neill; Mr. C. R. Megerlh; Messrs. M. B. & H. H. Johnson; Mr. Charles Higley and Messrs. Smith, Taft & Arter, for defendants in error.
   Judgment reversed.

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


text:
    No. 14108.
    The A. G. Blair Mining Co. v. Friedl, Admr.
    Decided December 15, 1914.
    Error to Court of Appeals of Lucas county. Mr. Julian H. Tyler; Messrs. Mulholland & Hartmann and Mr. Frank H. Geer, for plaintiff in error.

      Mr. G. M. Skiles; Mr. E. C. Chapman; Mr. H, J, Nord
      and Mr. C. M. Milroy, for defendant in error.
   Judgment of the court of appeals reversed and that of the common pleas affirmed.

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


text:
    No. 14118.
    Nickoson v. The Cleveland, Cincinnati, Chicago & St. Louis Ry. Co.
    Decided December 15, 1914.
    Error to Circuit Court of Hamilton county.

      Mr. L. F. Ratterm'an and Mr. M. F. Roebling, for plaintiff in error.

      Messrs. F[armón, Colston, Goldsmith & Hoadly, for de-. fendant in error.
   Judgment affirmed.

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


text:
    No. 14119.
    Straus et al., Partners, v. Stern et al.
    Decided December 15, 1914.
    Journal entry: It appearing from the record that the defendant in error Matilda Stern has not fully complied with the terms of her contract with plaintiffs in error, dated February 26, 1909, deposited with the deed and escrow memorandum with the Northern National Bank, and it further appearing that said plaintiffs in error have not waived performance on the part of defendant in error in any particular therein named, and have in nowise interfered with or prevented said defendant in error Matilda Stern from complying therewith, and have not refused nor has their grantee refused to permit an action to quiet title to these premises to be brought in the name of either of said parties, if the same should become necessary, and for these reasons the court finds that this action was prematurely brought in the common pleas court of Lucas county, and the court of appeals erred in affirming the judgment of that court.

      Error to Court of Appeals of Lucas county.

      Mr. S. C. Hub-bell and Messrs. Doyle & Lewis, for plaintiffs in error.

      Messrs. Kohn, Northup & Morgan, for defendants in error.
   Judgment reversed. Petition dismissed without prejudice.

It is, therefore, considered and adjudged by this court that the judgment of the court of appeals be, and the same hereby is, reversed.

And coming now to render the judgment that the court of appeals should have rendered, the judgment of the common pleas court in this action is hereby reversed, set aside and held for naught, and said action is dismissed without prejudice to a new action when defendant in error Matilda Stern shall have complied with the terms of said contract, or the same shall become impossible of performance by reason of the default, hindrance or refusal of the plaintiffs in error or their assignees or grantees to permit suit to be brought in the name of the real party in interest to quiet the title thereto. — Reporter.

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


text:
    No. 14122.
    Krozser v. A. Verhovay Betegsegelyzo Egylet.
    Decided December 15, 1914.
    Error to Court of Appeals of Cuyahoga county.

      Mr. Hugo E. Varga; Mr. Theo. L. Strimple and Mr. D. B. Stone, for plaintiff in error.

      Mr. M. B. Putney and Mr. D. M. Bader, for defendant in error.
   Judgment affirmed.

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


text:
    No. 14135.
    Wiborg v. The Cincinnati Horse & Mule Exchange Co.
    Decided December 15, 1914.
    Error to Circuit Court of Hamilton county.

      Mr. P. Lincoln Mitchell, for plaintiff in error.

      Mr. Edwards Ritchie and'Mr. Ben B. Nelson, for defendant in error.
   Judgment affirmed.

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


text:
    No. 14140.
    The Baker Motor Vehicle Co. v. Price et al.
    Decided December 15, 1914.
    Error to Circuit Court of Cuyahoga county.

      Messrs. M. B. & H. H. Johnson, for plaintiff in error.

      Messrs. Tolies, Hogsett, Ginn & Morley, for defendants in error.
   Judgment affirmed.

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


text:
    No. 14142.
    Brogan v. The Cincinnati Traction Co.
    Decided December 15, 1914.
    Error to Court of Appeals of Hamilton county.

      Messrs.

      Kramer & Bettman; Mr. John D. Ellis and Mr. Gilbert Bettman, for plaintiff in error.

      Mr. Miller Outcalt, for defendant in error.
   Judgment of the court of appeals reversed and that of the superior court affirmed.

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


text:
    No. 14145.
    The Upson-Walton Co. v. The United States Fidelity & Guaranty Co.
    Decided December 15, 1914.
    Error to Court of Appeals of Cuyahoga county.

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

      Messrs. Stearns, Chamberlain & Royon, for defendant in error.
   Judgment affirmed.

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


text:
    No. 14146.
    Morrison v. Harding.
    Decided December 15, 1914.
    Error to Court of Appeals of Marion county.

      Messrs. Carhart & Warner, for plaintiff in error.

      Messrs. Mouser & Moloney, for defendant in error.
   Judgment affirmed.

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


text:
    No. 14148.
    Torrence, Exr., v. Clegg.
    Decided December 15, 1914.
    Error to Circuit Court of Montgomery county.

      Mr. Benj. F. McCann, for plaintiff in error.

      Mr. Roy G. Fitzgerald, for defendant in error.
   Judgment affirmed.

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


text:
    No. 14154.
    Davidson v. Farrow.
    Decided December 15, 1914.
    Error to Court of Appeals of Cuyahoga county.

      Messrs. Goulder, Day, White & Garry and Mr. Luther Day, for plaintiff in error.

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

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


text:
    No. 14190.
    The George Worthington Co. v. United States Fidelity & Guaranty Co.
    Decided December 15, 1914.
    Error to Court of Appeals of Cuyahoga county.

      Messrs. Thompson, Hiñe & Flory, for plaintiff in error.

      Messrs. Stearns, Chamberlain & Royon, for defendant in error.
   Judgment affirmed.

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


text:
    No. 14597.
    Rudy v. Shanahan.
    Decided December 15, 1914.
    Error to Court of Appeals of Allen county.

      Mr. W. P. Anderson, for plaintiff in error.

      Messrs. MacKenzie & Weadock, for defendant in error.
   Judgment affirmed.

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


text:
    No. 14631.
    City of Cincinnati et al. v. Dickerson.
    Decided December 15, 1914.
    Error to Court of Appeals of Hamilton county.

      Mr. Walter M. Schoenle, city solicitor, and Mr. Frank K. Bowman, assistant city solicitor, for plaintiffs in error.

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

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


text:
    No. 14641.
    Eaton, Doing Business as The Bucyrus Implement Co., et al. v. Orewiler & Armstrong.
    Decided December 15, 1914.
    Error to Court of Appeals of Crawford county.

      Mr. J. Walter Wright and Mr. W. J. Schwenck, for plaintiffs in error. Mr. O. W. Kennedy and Messrs. Leuthold & McCarron, for defendant in error.
   Judgment affirmed.

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


text:
    No. 14659.
    Gregg v. Keener et al.
    Decided December 15, 1914.
    Error to Court of Appeals of Licking county.

      Messrs. Kibler & Kibler, for plaintiff in error.

      Mr. A. A. Stasel, for defendants in error.
   Judgment affirmed.

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


text:
    No. 14696.
    Snyder et al. v. Deeds et al.
    Decided December 15, 1914.
    Error to Court of Appeals of Montgomery county.

      Messrs. Hoyt, Dustin, Kelley, McKeehcm & Andrews; Mr. J. E. Bowman; Mr. Paul J. Bickel; Mr. Augustus N. Summers; Mr. George A. Beard; Mr. Chas. C. Hall, prosecuting attorney; Mr. Frank J. Doorley, city solicitor; Mr. G. T. Thomas, city solicitor; Mr. P. R. Taylor, city solicitor; Mr. J. Guy O’Donnell, prosecuting attorney; Mr. F. B. Long, prosecuting attorney; Mr. E. K. Campbell, city solicitor; Mr. A. J. Miller; Mr. Horace W. Stafford; Mr. Robert Black; Mr. F. B. McConnell; Mr. Dow Aiken and Mr. J. A. Kerr, for plaintiffs in error. Messrs. Brown & Frank; Mr. John A. McMahon and Messrs. Galvin & Galvin, for defendants in error.
   Judgment reversed.

Grounds stated in journal entry.

This court finds that the provisions of the statute, known as the Conservancy Act of Ohio, involved in this case, which confer jurisdiction,, power and authority on the courts of common pleas of any county of this state to establish conservancy districts when the conditions stated in the act are found to exist, as well as the provisions of said act which provide for the organization and membership of such court in case of a district lying in more than one county, are valid and not repugnant to any provision of the constitution'. And the court having considered Section 79 of said act which declares it to be an emergency law necessary for the immediate preservation of the public health and safety finds that the reasons given in said section for such declaration are valid reasons authorizing such declaration within the provisions of Section Id, Article II of the Constitution. The court further finds that the portion of the sixth section of said act which provides for appeal from an order refusing to establish such district to the court of appeals of- said county, upon giving bond as provided therein, is void because repugnant to Section 6, Article IV, of the Constitution, and the court of appeals erred in overruling the motions of appellees to dismiss the appeal therein, and in retaining said cause for review of the judgment of the court of common pleas for errors apparent on the record and in reversing said judgment.

It is, therefore, ordered and adjudged that the judgment of said court of appeals be, and the same is hereby, reversed, set aside and held for naught, and coming now to render the judgment that the court of appeals should have rendered, it is ordered and adjudged that the motions to dismiss the' appeal be, and the same hereby are, sustained. •

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


text:
    No. 14105.
    Atwell et al. v. The Citizens Savings & Trust Co., Trustee, et al.
    Decided January 12, 1915.
    Error to Court of Appeals of Cuyahoga county.

      Messrs. Tolles, Hogsett, Ginn & Morley, for plaintiffs in error. Messrs. Squire, Sanders & Dempsey and Mr. Robert F. Denison
      for defendants in error.
   Judgment affirmed.

Johnson, Donahue, Newman, Jones and Matthias, JJ., concur.


text:
    No. 14113.
    Fox v. Jewell.
    Decided January 12, 1915.
    Error to Circuit Court of Hamilton county.

      Messrs. Paxton, Warrington & Season-good, for plaintiff in error.

      Messrs. Peck, Shaffer & Peck and Mr. Edwards Ritchie, for defendant in error.
   Judgment affirmed.

See journal entry. The court finds that the trial court erred in giving the following in its charge to the jury: “You have the right to disregard any evidence that you choose and consider that only which appeals to your sense of justice and fairness,” but the court further finds upon consideration of the entire charge and of the whole record that such error was not prejudicial to the rights of plaintiff in error and that substantial justice was done in the judgments of the courts below.

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

Nichols, C. J., Johnson, Donahue, Wanamaker, Jones and Matthias, JJ., concur.


text:
    No. 14156.
    The National Bank of Commerce of Toledo, Ohio, v. Burnor.
    Decided January 12, 1915.
    Error to Court of Appeals of Lucas county.

      Messrs. Smith & Beckwith, for ' plaintiff in error.

      Messrs. Smith & Baker, for defendant in error.
   Judgment affirmed.

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


text:
    No. 14167.

    Schmidt v. City of Cleveland.
    Decided January 12, 1915.
    Error to Court of Appeals of Cuyahoga county.

      Messrs. Clum & Marty, for plaintiff in error.

      Mr. E. K. Wilcox, city solicitor, and Mr. Jos. C. Hostetler, assistant city solicitor, for defendant in error.
   Judgment affirmed on authority of The Kinnear Manufacturing Co. et al. v. Beatty, 65 Ohio St., 264.

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


text:
    No. 14168.
    Fieser et al. v. The Ohio Mining & Manufacturing Co.
    Decided January 12, 1915.
    Error to Court of Appeals of Franklin county.

      Mr. Louis G. Addison, for plaintiffs in error.

      Messrs. Henderson, Livesay & Burr, for defendant in error.
   Judgment affirmed.

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


text:
    No. 14549.
    State of Ohio v. Cox et al.
    Decided January 12, 1915.
    Exceptions to Common Pleas Court of Hamilton county.

      Mr. Timothy S. Hogan, attorney general; Mr. Thomas L. Pogue, prosecuting attorney; Mr. Carl M. Jacobs, assistant prosecuting attorney, and Mr. Joseph McGhee, for plaintiff in error.

      Mr. James B. Swing; Mr. Miller Outcalt; Mr. W. C. Shepherd; Mr. Gilbert Bettman and Mr. Alfred C. Cassatt, for defendants in. error.
   Exceptions dismissed.

Bill not having been filed within time required by statute.

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


text:
    No. 14126.
    The Buckeye Window Glass Co. v. Souder.
    Decided January 19, 1915.
    Error to Court of Appeals of Franklin county.

      Messrs. Sheets & West, for plaintiff in error.

      Messrs. Wilson & Rector and Messrs. Neal & Sapp, for defendant in error.
   Judgment affirmed.

Donahue, Wanamaker, Newman, Jones and Matthias, JJ., concur. Nichols, C. J., dissents.


text:
    No. 14153.
    The National Cash Register Co. v. Magee.
    Decided January 19, 1915.
    Error to Circuit Court of Montgomery county.

      Mr. Lee Warren James and Messrs. Thomas & Bronson, for plaintiff in error.

      Messrs. Mattern & Brumbaugh, for defendant in error.
   Judgment affirmed.

See journal entry.

It is ordered and adjudged by this court, that the judgment of the said Circuit Court be, and the same is hereby, affirmed; on the grounds stated in the journal entry of the circuit court, to-wit: that the court of common pleas erred in giving to the jury before argument at the request of counsel for the defendant in error special request No. 3 which is set out in that entry.

Nichols, C. J., Johnson, Wanamaker, Jones and Matti-iias, JJ., concur.


text:
    No. 14175.
    Pisak v. The New York, Chicago & St. Louis Rd. Co.
    Decided January 19, 1915.
    Error to Court of Appeals of Cuyahoga county.

      Mr. Herman J. Nord and Mr. C. W. Dille, for plaintiff in error.

      Mr. T. S. Dunlap and Mr. John H. Clarke, for defendant in error.
   Judgment affirmed.

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