author: Wright, J.

text:
    Winters & Son v. The Franklin Bank of Cincinnati.
    1. Notes secured by the same mortgage, when transferred to different holders, are to be paid in the order of their maturity, unless a different intention is expressed by the parties.
    2. If facts or circumstances exist to make the order of priority other than the order of maturity, such facts or circumstances must be shown by the party claiming to vary this order.
    Error to the District Court of Miami county.
    Question on distribution of proceeds of mortgage sale. Lawton & Co. gave a series of notes, to the order of John Bains, secured by mortgage, and these notes were transferred to various creditors of Lawton & Co., whose assignee proceeded to foreclose. This was the original action of Matthias H. Jones, assignee of Lawton, Barnet & Co., against sundry defendants. A sale of the mortgaged premises and first distribution was had, about which no question arises. A fund then remained in the hands of the assignee, Jones, which is claimed by Winters & Son and the Franklin Bank, respectively. These parties come in as defendants, Winters & Son filing answer and cross-petition, and the Franklin Bank filing a reply, from which we gather these facts. Three of the mortgage notes by Lawton, Bar-net & Co. were delivered to Adolph Wood & Co. The first of the three is out of the case. Of the other two, the first was payable thirty months after date, the second forty-two months after date. On the 28th September, 1870, Adolph Wood & Co. assigned the first note to the Franklin Bank, and, on the 21st October, 1870, assigned the second to Winters & Son. The condition of the mortgage to John Bains was as follows:
    “ Provided always, and these presents are upon this condition, that if said Lawton, Barnet & Co., shall pay or cause to be paid unto Young & Baehus, three notes for $1,509.20 each, due in eighteen, thirty, and forty-two months respectively, and also pay unto Milmine & Bodman three notes for $2,067.99 each, due also in eighteen, thirty, and forty-two months respectively, and shall also pay unto Adolph Wood & Co. their three notes for $3,500 each, also due in eighteen? thirty, and forty-two months respectively, all of which notes are dated June 1, 1869, and bear interest from date, and made to said parties named, and upon all which nine notes the said John Bains is indorser and security for the said Lawton, Barnet & Co., and shall save the said John Bains harmless and free from any cost, damage, or loss arising from his indorsement of said notes, said notes being all made by said tíawton, Barnet & Co., to said parties, then these presents shall be void, otherwise to be and remain in full force. This mortgage is taken and held by John Bains for his own security, and as trustee for said named creditors of Lawton, Barnet & Go.”

    The fund to be distributed was not sufficient to pay both these notes, and the Franklin Bank claimed that its note should be paid in full. Winters & Son claimed that the fund should be distributed pro rata, and the court of common pleas so held. The district court, however, reversed this judgment, holding that the note of the Franklin Bank be first paid. Whereupon Winters & Son filed their petition in error.

      Gunckel & Rowe., for plaintiff in error:
    The rule in 13 Ohio, 240, that notes secured by the same mortgage should be paid in the order of their maturity is contrary to the principles of equity and equality and that case should be overruled. The following authorities holding the contrary doctrine we claim to be the better law Johnson v. Candage, 31 Maine, 28; Johnson v. Brown, 11 Foster (N. H.) 405 ; Page v. Pierce, 26 N. H. 317; Belding v. Manly, 21 Ver. 551; Keys v. Wood, 21 Ver. 331; Waterman v. Hunt, 2 R. I. 298; Betz v. Heefner, 1 Penn, 280; Donley v. Hays, 17 Serg. & Rawle, 400; Hancock’s Appeal, 34 Penn. St. 155; Stevenson v. Black, Sax. Ch. Rep., 338; Chew’s Adm’x v. Buchanan, 30 Md. 367; Phelan v. Olney, 6 Cal. 478; Stratton v. Wiggins, 23 Cal. 16; Toby v. Ewing, 1 Hump. (Tenn.) 537; Cooper v. Ulman, Walk’s Ch. 251; Bank of England v. Tarleton, 23 Miss. 173 ; Pugh v. Holt, 27 Miss. 461; 7 B. Mon. 209 ; 6 B. Mon. 236.

      King, Thompson $ Longworth, for defendant in error :
    The general rule in this state is that promissory notes falling due at different times, secured by mortgage, on sale of the mortgage premises, are to be paid in the order in which they become due. Bank v. Covert, 13 Ohio, 240; Bushfield v. Meyer, 10 Ohio St. 334,; Kyle v. Thompson, 11 Ohio St. 616 ; Swartz v. Leist, 13 Ohio St. 419. And see, Bank v. Tweedy, 8 Blackf. 447 ; Wood v. Trosk, 7 Wis. 566 ; Hurd v. Mooers, 11 Iowa, 211; Thompsons. Fields, 38 Mo. 320; 7 Ind. 140; 14 Ind. 439 ; 9 Wis. 57; 13 Iowa, 274; 22 Iowa. 448.
   Wright, J.

The Franklin bank holds a mortgage note, payable thirty months after date. Winters holds one payable forty-two months after date. The property mortgaged being insufficient to pay both, shall the bank be first paid, or the proceeds be distributed pro rata ?

On this question there is a conflict of decision. The authorities cited by counsel for plaintiff in error show the difference of holdings in the various states. We do not, however, enter into a discussion of this contrariety of opinion, as we deem the matter to have been settled by our Supreme Court.

In the Bank of the United States v. Covert, 13 Ohio, 240, Lane, C. J., stated the rule as follows: “ When a mortgage is given to secure money payable by installments, it obviously should be applied first to pay the installments first due, fob the obligation to pay the first may be enforced against the property, before any default in the later payments.”

Thif* decision was made in 1844, and for many years has been the understood rule of law, upon which our people have acted, and in view of which financial transactions have long been and are now had. To overrule now would unsettle commercial ideas to an extent not to be desired. "We do not consider that Swartz v. Leist, 13 Ohio St., overrules Bank v. Covert. In the syllabus of Swartz v. Leist, the language is used “ that if several promissory notes are jointly secured by mortgage, the assignee of one of these notes, so secured, becomes equitably entitled to a pro rata participation in the benefit of the security.” But in that case there was no question as to priority of right as between notes differing in date' of maturity. A note was given to a mortgagee, who assigned it, and then canceled the mortgage. The property having been sold, the point was, could the note be enforced against an innocent purchaser of the laud ?

We understand, then, the rule to be that the note first due is entitled first to be paid, unless a different intention has been expressed by the parties. People’s Savings Bank of Evansville v. Tierney, Supreme Court of Indiana, September 25,1878, not yet reported. But it is claimed that special circumstances take this case out of the general rule. It is argued that in Bank v. Covert, the condition of the mortgage was to pay “ according to the tenor and effect ” of the notes; and in other cases it was to pay the notes “ as they became due.” In this mortgage the condition is to “ pay the said notes and save the said John Bains harmless and free from any cost, damage, or loss arising from his indorsement of said notes.” We can not see any difference,- in legal effect, between this condition and the others mentioned. The ouly way in which John Bains could be saved harmless was by paying the notes “ as they became due.” If they were not so paid, he would inevitably be put to the cost, damage, or loss necessary in enforcing their payment.

Nor does the phrase in the condition of defeasance— “this mortgage is taken and held by John Bains for his own security, and as trustee for said creditors of Lawton, Barnet & Co.” — alter the case. If John Bains is security, as he was, in the notes which lie had indorsed, it can make no difference to him what the order of distribution was, so that all the proceeds went to creditors. Whether these proceeds went all to A., or half to A. and half to B., the amount for which he would be ultimately liable must be still the same.

And although he was trustee, he was trustee for the parties according to their legal rights.

Judgment of the district court is affirmed.


source: Caselaw Access Project

author: Johnson, Chief Judge.

license: Public Domain

text:
    Endel v. Leibrock.
    1. A writ of attachment under the code, without the requisite affidavit, is void.
    2. The seizure of property of a non-resident debtor, upon whom service of summons can not be made on such void writ, does not give the court such jurisdiction over the defendant or his property as will authorize a service by publication, or a judgment in the action.
    3. The affidavit required by section 192 of the code forms no part of the pleadings in the case, and should not be incorporated in the petition, but if the omission of a separate affidavit can be cured by a showing in the petition, it should contain all the requisites of an independent affi- • davit and be duly verified.

      4. “Whore the petition, treated as an affidavit for an attachment, does not show that the claim sued on is just, nor state the amount the affiant believes he ought to recover, and is verified upon belief merely, it is insufficient to cure the omission of a separate affidavit.
    6. In an action for money only, where an attachment is sued out and levied on lands of a debtor, a mortgagee of the land seized in attachment is not a proper party to the action.
    6. In such a case the attaching creditor can not have relief in equity to satisfy his claim until after he has obtained a judgment and exhausted his remedy at law.
    7. To bar the equity of redemption of a non-resident mortgagor, upon whom service of summons can not be made, such mortgagor should be constructively served, as required by the code, and a judgment of foreclosure and sale, without such service, is no bar to an action to redeem.
    Error. Reserved in the District Court of Seneca county.

      The above plaintiffs, as heirs of their father, Henry Endel, Sen., brought their action, to redeem a mortage on an in-lot in the city of Tiffin, wlrch had been sold under certain legal proceedings and order of sale made against their father. The petition alleges that these proceedings were ineffectual to bar the equity of redemption.
    Lcibrock is in possession, and claims title by virtue of a sheriff’s deed made upon a sale under said proceedings. To impeach the validity of that title, it is averred that, in 1859, their father, Henry, and mother, the defendant, Christina, were residents of Seneca county, and, on the 28th of March of that year, to secure a debt to one Nighswander, made to him a mortgage on this lot, which was duly recorded, and which, by transfer, became the property of John Lauer, December 28,1863; that their father had, in 1859, left his place of residence, and had been absent and unheard of for more than ton years after 1863, and was, in fact dead, having died seized of this equity of redemption; that, on the 28th of February, 1865, one David Biehler commenced proceedings in attachment in the. court of common pleas, against said Henry, as a non-resident of the state, to collect an alleged debt of some $300, under which this lot was seized upon the writ of attachment; that, before service was completed, Lauer, as assignee of the mortgage, appeared and filed his answer and cross-petition, setting up his mortgage, claiming priority over the attachment, and asking for a foreclosure and sale.
    Such proceedings were had that the court, on the 19th of May, 1865, rendered a judgment in favor of Biehler, on his attachment, for the amount claimed to be due, found amount due on the mortgage, and its priority, and ordered a sale to pay both claims. Upon this judgment, the lot was sold to Mary Zimmer, the sale confirmed, and a sheriff’s deed made to her. The money realized ($600), after payment of costs, was applied to pay off the mortgage, and the balance on Biehler’s judgment. In January, 1868, Zimmer conveyed to defendant, Leibrock. The possession has been in Zimmer and Leibroek, since the sheriff’s deed, January, 1868.
    It is averred that these legal proceedings are no bar to plaintiffs’ right to redeem, because neither their father nor mother were parties thereto, by service, actual or constructive, or otherwise.
    The prayer is for an account of rents and profits, and for redemption. The mother, Christina Endel, a defendant, by answer, asks for like relief on the same ground.
    Jacob Leibroek, principal defendant, sets up these legal proceedings, and his title under the sheriff’s deed, and insists that the equity of redemption is barred.
    Upon a trial in the common pleas, judgment was rendered against plaintiffs, and, upon the overruling of their motion for a new trial, a bill of exceptions was taken.
    Upon this trial, the plaintiffs, to maintain the issue on their behalf, after evidence raising the presumption that their father was dead at the commencement of this action, also put in evidence the complete record of the legal proceedings under which Leibroek claims, and rested. No other evidence was offered in the case.
    As the case turns upon the legal effect of these proceedings, a statement of them at some length is necessary.
    On the 8th of February, 1865, David Biehler commenced an action against Henry Endel and John Lauer. His petition contains two causes of action — one on a note for $160, and one on an account for $101.25, which he says are due. After stating these, the petition concludes :
    “ The plaintiff further says that the said Henry Endel is a non-resident of the State of Ohio, and a resident of the State of California; that the said Henry Endel is the owner in fee simple of the east half of in-lot numbered 600, in the second ward of the city of Tiffin, Seneca county, Ohio, and that one John Lauer claims some interest in and to said premises above described; that a service of summons can not be had upon the defendant, Henry Endel, in this state. The plaintiff therefore prays judgment against the defendant, Henry Endel, for the said sum of three hundred and three dollars and seventeen cents, together with interest thereon, from and after the 8th day of February, a. d.. 1865. W. R. & H. Noble, Attorneys for Plaintiffs.”

    The verification reads thus:

      “ The State of Ohio, Seneca county, ss.: David Biehler being duly sworn, according to law, says that he is the plaintiff in this action; that he believes the statements and allegations of the foregoing petition to be true.
    “David Bieeler.
    “ Sworn to before me, by David Biehler, and subscribed in my presence, this 8th day of February, a. d; 1865.
    •“W. M. Dildine, Clerk.”

    After giving copies of the note and account sued on,, there is a precipe which reads:
    “ Clerk will issue summons and order of attachment, in this action, against the defendant, Henry Endel, indorse’ amount claimed, $303.17, also summons for John Lauer,. returnable according to law, directed to the sheriff of Seneca, county, Ohio. H. Noble.”
    Summons was served on Lauer, hut is lost, and forms no’ part of the record. No summons appears to have been issued to Endel. On the same day, February 8, 1865, a writ of attachment was issued, in regular form, against the lands and goods of Endel, to satisfy Biehler’s claim. This writ recites: “ Whereas, David Biehler has this day, on the necessary affidavit being filed, obtained an order of attachment against Henry Endel ” — but no affidavit, other than the verification to the petition, appears of record.
    The writ was returned the next day, showing that this lot had been seized, inventoried, and appraised, as required by law. April 4,1865, Lauer filed his answer and cross-petition, in which he joins Christina Endel, wife of Henry, who was not made a party in the original action. He sets up the note and mortgage made by Henry and Christina, of which he was the owner by assignment, on this in-lot, and prays that said Henry and Christina be made parties to this answer and cross-petition, and for a judgment of foreclosure and sale. Copies of note and mortgage are filed, and the following verification:
    “ The State of Ohio, Seneca county, ss.: H. Noble, attorney for John Lauer, being duly sworn, according to law, says that he is one of the attorneys of record of the said John Lauer in this .action; that this claim is founded upon a written instrument for .the payment of money only; that such written instrument is now in his possession, as such attorney, for collection; that the said defendants, Henry Endel and Christina Endel, his wife, are non-residents of this state, and that no service of a summons can be served on either of them in this state, and that he believes the statements of the foregoing answer to be true. H. Noble.

      “ Sworn to by H. Noble, before me, and subscribed by him in my presence, this 4th day of April, a. d. 1865.
    “ "W. M. Dildine, Clerk.”

    No other affidavit was filed to authorize service by publication.
    And afterward, to wit: on the 19th day of May a. d. 1865, proof of publication of notice was filed in the clerk’s office of said court, which reads as follows, to wit:
    “ Notice — Henry Endel and Christina Endel, now residents •of the State of Ohio, will take notice, that David Biehler •did, on the 8th day of February, A. d. 1865, file his petition, in the Court of Common Pleas of Ohio, against said Henry Endel and one John Lauer, praying for a judgment against •said Henry Endel, for the sum of three hundred and three and seventeen one-hundreths dollars, on a book account, and rate with interest thereon, from the 8th day of February, 1865. And that on the Ath day of April, a. d. 1865, the said John Lauer filed his answer and cross-petition therein, •claiming that said Henry Endel and Christina Endel gave a mortgage to one John Nighswander, on the east half of in-lot numbered six hundred, in the second ward of Tiffin city, Ohio, to secure the payment of $328.92, according to & certain note in said mortgage referred to, and that said note and mortgage has been duly assigned by said John H. Nighswander, and now are owned and held by the said John Lauer, and praying that the said Henry Endel may pay ■said sum, now claimed to be due, with ten per cent, interest thereon, from the 2d day of July, a. d. 1868, or that said premises be sold to pay said claims, and that the said Henry Endel and Christina Endel, be required to answer said plaintiff’s petition, and to answer and cross-petition, of the said John Lauer, before the third Saturday after the 25th •day of April, a. d. 1865. By W. P. & PI. Noble.
    “ The State of Ohio, Seneea county, ss. John M. Meyers, being duly sworn according to law, says, that I am the publisher of the Seneca Advertiser, a newspaper printed, and in general circulation in said county of Seneca ; and that a •copy of the annexed notice was published in said paper, on <the 1th day of March a. d. 1865, and continued for six con-secutive weeks thereafter. John M. Meyers.
    “ Sworn to before me, and subscribed in my presence, this :8th day of May, a. d. 1865. W. M. Dildine, Clerk.”

    On the same day judgment was rendered on the cross-petition for a foreclosure of the mortgage, and on the plaintiff’s claim in attachment, and in default of payment the lot was ordered sold.
    The journal entry recites: “ This day came the plaintiff, ¡'by his attorneys, and made proof that he caused a notice, containing a summary statement of the object and prayer •of said petition, notifying the said defendant, that he was required to answer the said petition, on the-day of -, a. d. 1865, to be published six consecutive weeks in the Seneca Advertiser, a newspaper printed in said county ■of Seneca, and that the first of said publications being on the 7th day of March, a. d. 1865, and neither of said parties requiring a jury, this cause .came on to be beard, upon the petitiou of the plaintiff’, and the answer and cross-petition of John Lauer, proofs, exhibits, and testimony, and was argued by counsel on consideration whereof, and the court being fully advised in the premises, do find, that,” setc.

      Hall § Pittenger and McCauley $ Pennington, for plaintiffs in error:
    This order of attachment was issued without any affidavit whatever, as required by section 192 of the code.
    There are some things stated in the latter part of the second cause of action in the case of Biehler v. Endel, that' would have been proper parts of an affidavit for an attachment, but “ a defective affidavit can not be sustained by averment in the petition.” Harrison v. King, 9 Ohio St. 388.
    Taking all the averments in the petition, they are not sufficient to authorize the issuing of an order of attachment. If the petition contained a statement of all the-facts for an attachment as required by section 192 of the code, still there is no authority for issuing the order. Such statements in the petition would be mere surplusage. The-code requires certain distinct matters to be stated by affidavit to authorize an attachment. These matters are to be plainly stated for the inspection of the clerk, and upon which he issues the order. They are different from the allegations-of the pleading. The statements and legal effect of pleadings are matters addressed to the court; the statements-of such affidavit have no legal effect except as they state-the plain facts required by the statute.
    The verification of this petition contains no statement beyond what is necessary for a mere verification, and this-is sworn to only as a matter of belief.
    The clerk therefore issued this order of attachment without any authority whatever.
    But the irregularities of the case did not stop here. After the service of the order of attachment, the plaintiff proceeded to publish notice to the defendant to complete the-jurisdiction over his person. Before this publication could be legally made, an affidavit, as required by section 71 of the code, should have been filed. This affidavit is-wholly wanting. Here again it will be seen that some parts of what such an affidavit should contain are stated in the verification to the answer of th.e defendant. Lauer;: •and it will be noticed that this verification is made April 4, 1865, about three weeks after the notice was first published. •
    .The notice to the defendants, published as stated, is wholly insufficient to give the court jurisdiction over them, •or the property sought to be appropriated.
    Section 72 of the code requires that the notice must contain a summary statement of the object and prayer of the ■petition, mention the court wherein it is filed, and notify the person or persons thus to be served, when they are required to answer.
    This notice, if everything prior to it were regular, is not •sufficient to bring the defendants before the court, and a judgment resting on it for jurisdiction over the person is simply void. Moore v. Starks, 1 Ohio St. 369 ; Calkins v. . Johnson, 20 Ohio St. 539; Adams v. Jeffries, 12 Ohio St. 253.
    The notice also fails to give a description of the prop- • erty attached, or to state that an order of attachment was issued in the case.
    The notice should have stated that an order of attachment had issued, and give a description of the property seized under it. Clarke v. Southgate, 2 Western Law Gazette, 44; Moses v. McKim., 2 Western Law Monthly, 15.
    There is yet another feature of the case that ought not to be overlooked, for if the judgment recovered by the the plaintiff should be void, the decree obtained by the defendant, Lauer, might possibly be valid, and that alone might sustain the sale made under the decree taken in the .■case.
    In the first place, Lauer w7as not properly made a defendant. He held a mortgage on the lot attached. The attachment, if valid, created a lien, and after judgment in the case in which the attachment was issued, a bill by the plaintiff against the owner of the lot, and Lauer, a lien-'holder would have been proper to marshal liens. But in this case Lauer was improperly made a party, and had no night to a decree on cross-petition. Code, § 84.

      But a decree taken by Lauer under these circumstances1 would probably be merely erroneous, and not void.
    But his decree' is void for wan* of notice to the defendant, Endel. The failure to mention the court wherein the cross-petition is filed, follows into the part of the notice given by Lauer. The notice says that “ John Lauer filed his answer and cross-petition therein.”
    And if the proceedings by which jurisdiction over either the person of Endel, or the land attached, were so defective-as that he did not have his day in court, both judgment and-decree are void. Calkins v. Johnson, 20 Ohio St. 539.

      Gr. JE. Seney, for Leibroek, one of the defendants in error :
    If the proceedings under which the sale was made are-invalid and make no title to the purchaser, then, we insist that Leibroek, in equity, is subrogated to the rights of the-creditor against the debtor, and has an equitable lien upon the premises as against the plaintiffs, for the sum ($600) for which the premises were sold. 2 S. & C. 1149.

      We insist, further, that the plaintiffs must do equity if they would have equity. Upon this maxim, they can have no relief before paying, or offering to pay, the $600, or showing this sum satisfied by rents and profits.
    Standing, then, as do both parties, in a court of equity, we, upon our part, ask that that which is equitable, and-that only, be done. The equity of the plaintiffs in these-premises, if any they have, is a mere right to redeem. Our equity, represented as it is, by the mortgage, and the debt for which the attachment issued, in dollars and cents, exceeds $1,300. We submit, therefore, that until this sum is satisfied, the plaintiffs have no right to our humble home. Nothing short of satisfying the whole debt meets the demands of the law. Satisfaction of a part is not a satisfaction of the whole. Satisfaction of the mortgage debt, even by rents and profits, is no satisfaction of the debt the attachment represents, nor is it a satisfaction of the sum' ($600) we paid for the property.

      The title to these premises is not to be defeated by offensive technicalities. The case, we must bear in mind, is in equity. Equitable relief, and none other, is sought. Dealing in equities, equitable considerations control. The proceedings supporting this title are in attachment and foreclosure. Their construction must be liberal — liberal to the utmost — liberal to an extent not forbidden by positive law. "We concede their irregularity. Possibly they are erroneous. Surely they are not void. The jurisdiction of the court was, as we think, full and complete. Upon the other-side, it is claimed that jurisdiction is wanting, for the reason that the order of attachment was issued without the affidavit required by section 192 of the code. Was this the fact, it would not, in our judgment, make the proceedings void. Jurisdiction in the action is not dependent upon the-affidavit which is required for an order of attachment.. The attachment is not the action, but a proceeding ancillary to the action. If there is jurisdiction in the action,, there is jurisdiction also in the ancillary proceeding. So that, the want'of an affidavit required by a proceeding ancillary to the action, can not defeat jurisdiction, properly acquired, in the action. Assuming then, for the present, that the court had jurisdiction in the action, by proper service upon the defendant, the issuing of the order of attachment without the affidavit required by section 192 of the code, is a mere irregularity, or error, for which the proceeding, in this particular, might be reversed. If the defendant was properly served in the action, in legal judgment, he was present in court when these proceedings were had. Being thus present, his failure to object to the final judgment, if not to what preceded it, waived that which is now urged against the proceeding.
    All that section 192 of the code requires to be stated in an affidavit for an order of attachment, appears in the petition filed in the case. This petition, it will be seen, is verified by the oath of the plaintiff. So that, the facts authorizing an order of attachment to issue, were stated by the plaintiff, upon his oath, and in that which is of record in the case. It would have been better practice if these facts had been stated in a separate and distinctpaper. This irregularity, great as it may be, does not vitiate the proceedings and make this title, otherwise perfect, worthless. The same irregularity appears in the case of Harrison v. King, 9 Ohio St. 388. In this case, the court say the affidavit and order of attachment constitute no part of the pleadings in the action, and the grounds for an attachment should not be stated in the petition. The case, it will be observed, was before the court upon error to an order refusing to discharge an attachment, The irregularity referred to, was not made a question in the case. The court spoke of it as incorrect practice. In Crawford v. Sutterfield, 27 Ohio St. 421, the court say it is not good pleading to copy a written instrument into the pleading, and upon a motion for that purpose the pleading would be reformed. But when it has been done without objection, and- the petition shows facts sufficient to make an action, the judgment will not be reversed. These adjudications show, as we think, the unimportance of the objection urged against the jurisdiction of the court, in the case made by the proceedings we are considering.
    But it is urged that the proceedings are void because service by publication of notice was not made in the manner and form prescribed by section 71 of the code. This section requires an affidavit to be filed that service of a summons can not be made within the state, and that the case is one in which service may be had by publication of notice. The petition, it will be noticed, contains all that section 71 requires to be stated in the affidavit, and is, as we have already said, verified by the oath of the plaintiff in the action. The facts which authorized the publication of notice, we repeat, were sworn to, and the filing of the petition made them of record in the case. Had they been stated in an affidavit, instead of a pleading, the proceeding, according to the law of the other side, would be free from objection. This irregularity has the same dimensions as the one first considered. Upon the strength of the two cases cited,
      Harrison v. King, 9 Ohio St. 888, and Crawford v. Butterfield, 27 Ohio St. 421, it is of no moment. We submit, therefore, that the maintenance of the title, made by the proceedings we are considering, is a matter of the first importance. It ought not to perish if that which even savors of law will save it. The petition contains all that sections '71 and 192 of the code require to be stated in the respective .affidavits for which these sections provide, and is verified by an oath. The petition and the oath are matters of record. Give the petition, then, the force and effect of an .affidavit for an order of attachment, and also of an affidavit authorizing the publication of notice.
    There is another ground upon which jurisdiction in this proceeding is assailed. The plaintiff's-say the published notice falls short of what is required by section 72 of the code. This section provides that the notice shall contain .a summary statement of the object and prayer of the petition, mention the court wherein it is filed and notify the person when he is required to answer. The purpose of a notice is the same as that of a summons. The summons notifies the defendant that he has been sued and the same thing, precisely, is done by the notice. The summons is served by delivering a copy to the defendant, or by leaving one at his place of residence. The notice is served by publishing it in a newspaper. When the summons is served, or the notice published, the defendant is in court. Service of the summons by copy at the defendant’s residence is constructive, yet it gives jurisdiction over the person. Service by publication of notice is constructive, and gives jurisdiction in the pending proceeding. We submit, therefore, that the notice and the summons are, in effect, one and the same.
    We submit, therefore, that the provisions of section 72 that the notice contain a summary statement of the object and prayer of the petitiou, and state the time for answer, is merely directory, and that neither statement is essential to jurisdiction.
    The notice in the case before us, is all that is required by the law applicable to the the case. Under it, the court had jurisdiction in the proceedings as a foreclosure, if not in attachment. As a proceeding foreclosing a mortgage, we urge that the notice is sufficient.
    It contains, as we think, a summary statement of the object and prayer of the cross-petition, mentions the court wherein it is filed, and states the time when answer is required. The plaintiffs say that Lauer was not a proper partyr Whether in such an action, founded as it is upon a debt, a mortgagee of the debtor may intrude, or be summoned, and foreclose his mortgage, is a matter we need not discuss. Sufficient is it to say, that the irregularity, if such it would be, would not make Iroid a sale, made under the proceedings, after its confirmation, and when the purchaser is in possession under his deed.
   Johnson, Chief Judge.

The plaintiffs allege that these proceedings were no bar to their right to redeem.

It is an elementary principle that no man’s rights should be adjudged until he has had his day in court.

When judgment is authorized by statute, upon constructive service, the statutory method of acquiring jurisdictions should be substantially followed, or the person is not bound.. This substitute for personal service arises out of the necessity of the case, and should be complied with to give-jurisdiction over the property seized.

From this record it appears, that on the 8th day of February, 1865, Biehler, as an attaching creditor, commenced an action against Henry Endel, father of plaintiffs, then living, in which Lauer, his mortgagee, was also coupled as a defendant. Two causes of action are stated in the petition against Endel alone, one upon a note made in California, bearing a special rate of interest, for $160, and the other on an open account.

In addition to the averments proper to state these causes-of action, the petition also alleges that Endel is a non-resident of Ohio, upon whom service can not be made in this-state ; that he owned the lot in controversy in the county,, and that the defendant Lauer had some interest in it.

These averments were properly no part of the petition. It is verified upon belief merely.

There are numerous errors and 'irregularities in this re cord, for which it would be reversed, but we will only notice those which we regard as affecting the jurisdiction of the court, to make a valid sale of the property.

There was no personal service, nor was there any foundation laid for constructive service.

In an attachment proceeding, which is ancillary to the-action, where personal service can not be made, service by publication can not be made, unless an attachment is lawfully issued and property taken under it, or reached by garnishee process, which the court may act on, and no attachment can issue without the requisite affidavit.

Section 192 of the civil code requires, that before the writ issue, an affidavit must be filed, showing the nature of the-plaintiff’s claim, that it is just, the amount affiant believes he should recover, and the existence of some one, at least,, of the specified grounds for an attachment.

No affidavit was filed, and unless the petition can be looked to, and found to supply this important omission, the writ was void, and no -jurisdiction was acquired by a seizure of the land under it, and if no valid seizure was made, no service by publication could be made.

In Harrison v. King, 9 Ohio St. 388, it was held that the-affidavit and order of attachment formed no part of the-pleadings, and that the grounds for an attachment should not he stated in the petition. "We may assume, however, as was.held in 17 B. Mon. 321, that if the petition contains all the showing necessary in an affidavit, and is properly verified, the omission would be cured, without so deciding, as an examination of the record shows it is fatally defective, as an affidavit for an attachment. The petition, or rather the surplus allegations thereof, do not purport to follow the requirements of section 192 of the code.

There is no statement that the claims sued on are just— .-a very essential feature of an affidavit — nor of the amount affiant believes he ought to recover. The allegation in the petition, of the amounts due on the note and account, sworn to on belief only, is not a showing that the claims .are just. The petition only shows that he believes there is so much due on, the note and account, but whether they are just claims in his favor, which he truthfully believes he .should recover, is not shown. Dunlevy v. Swartz, 17 Ohio St. 640; Garner v. White, 23 Ohio St. 192.

Without noticing the other defects apparent on the record, such as the omission of an affidavit for publication, •as required by section 71 of the code, or that the notice .published was defective, in not stating the court in which the case was pending, and in not stating a summary of the •object of the petition, and in being misleading as to the nature of the causes of action and amount sued for, we think the fact that there was not the requisite affidavits to authorize the issuing of the attachment, renders all subsequent proceedings under it void.

It only remains to inquire if the court acquired juris■diction to make this sale, under the cross-petition of John Lauer, who was joined as a defendant.

He was served, and filed a cross-petition, setting up a mortgage made by Henry Endel, the condition of which 'had been broken, and asking for a foreclosure. He was in no sense a proper party to the causes of action stated in the petition. They were for a money judgment against Endel alone. Until judgment was rendered thereon against Endel, and levied on the land mortgaged to him, or sought to be sold upon final judgment in attachment, the controversy could not affect his interests in the land, and he had no interest in the action itself. The petition averred that Lauer had some interest in the property that was afterward attached, as the reason for making him a defendant.

By section 84 of the code, “ any defendant, who is properly made a defendant, may claim, in his answer, relief touching the matters in question in the petition, against the plaintiff, or against other defendants in the same action.”

In Harrison v. King, 9 Ohio State, 383, and in Ward v. Howard, 12 Ohio St. 158, the principle is settled that other attaching creditors can not become defendants in a prior-attachment, for the purpose of asserting their claims against the property, as they are not proper parties.

Eor the reasons assigned in these eases, the mortgagee is not a proper party defendant, in an attachment of the; property subject to his mortgage. As was then said, his. interest is connected with the special proceedings in attachment, and not with the matters stated in the petition. Hillier v. Stewart et al., 26 Ohio St. 652, is also in point, and decisive.

Again, it is a fundamental rule in equity that it will not entertain a bill for relief, in an action at law, until the legal remedy is exhausted. Biehler’s action was one at law. Until after judgment at law, and a failure to make the-money under his attachment, or upon execution, he had no right to compel the mortgagee to foreclose his mortgage, so that he might reach the mortgagor’s equity of redemption.

But, assuming that we are in error in this, and that Lauer, as mortgagee, could be made a party, and his-mortgage foreclosed in the attachment suit, still the proceedings on this cross-petition were fatally defective. As. the court acquired no jurisdiction over the property, by by the attachment, none could be acquired under the cross-petition, unless the proper steps were taken, as in an independent action to foreclose his mortgage. Service by publication was a condition precedent to foreclosure, the mortgagor not being before the court already. His cross-petition was not filed until April 4, 1865. The notice was first published March 7,1865, and for six consecutive weeks thereafter, so that four of those publications were prior to the commencement of his cross-action, and Endel was notified to answer in three weeks (April 25) after it was filed.

The statute authorizing constructive service is in derogation of common right, and should be pursued substantially,.

No service could be complete, until six consecutive publications, and a judgment of foreclosure, before such service, where there was no personal service, rendered the order of foreclosure and sale unauthorized, and ineffectual to bar the equity of redemption.

Some question has been made as to the right of Leibrock, who holds under the sheriff’s deed, made under these proceedings, which we have held are no bar to plaintiffs’ right to redeem, to be subrogated to .the mortgagee, and the attaching creditor, for the amount of purchase-money paid -at the sheriff’s sale, which was applied to the satisfaction •of the mortgage and the claims of the attaching creditor.

His right to be subrogated to the mortgagee is conceded ■by plaintiffs, to the extent of the amount due thereon. As '■to this there is no controversy.

The act for the protection of purchasers at judicial sales ■(2 S. & C. 1149), provides, that in case of any sale of property on execution, the title of the purchaser shall be invalid by reason of a defect in the proceedings, the purchaser may, in equity, be subrogated to the right of the •creditor, against the debtor, to the extent that the money •paid and applied to the debtor’s benefit, and to the same extent shall have a lien on the property sold, as against all persons except bona fide purchasers, without notice. By .section 2 of that act, this right extends to all sales by order -of court, sales by executors, administrators, and guardians, and to sales for taxes.

Speaking for myself, I think this provision includes the •case before us, and that Leibrock is entitled- to be subrogated to Biehler to the amount that the purchase money went to pay a debt owing to him by Endel, but as it is perhaps premature to decide this question, it has not been passed upon.

Judgment reversed and cause remanded.


author: Ashburn, J.

text:
    Goodall v. Crofton.
    1. On the petition of a landowner, complaining that certain steam power and machinery operated by another on adjoining land, is a nuisance, an injunction should not be granted unless a clear case of nuisance and irreparable injury be made out.
    2. When a party, who complains that a business, lawful per se, is a nuisance, and affects his property injuriously by reason of the manner in which it is conducted, has an adequate remedy in an action for damages, he must establish his right to relief at law, before equity will interfere by injunction.
    Error, to the Superior Court of Cincinnati.
    This was a proceeding to enjoin an alleged nuisance.
    The pleadings and testimony disclose that, in 1862, plaintiff below, Crofton, owned 'and possessed, by leasehold, lots Nos. 19 and 20, fronting forty-four feet on Genesee street, in the city of Cincinnati, upon which he caused to be erected, in that year, three brick dwelling-houses, to rent, and was still the owner in 1874 when this action was commenced. At and prior to 1862, the defendant below owned a lot adjoining the lots of Crofton, on the east side thereof, which he had occupied for a number of years as a stone and marble yard. ' In 1863, Goodall erected on this lot a two story frame house for the purpose of carrying on his business, in which, the petition charges, he saws and dresses marble and freestone for sale, using steam power for the purpose of dressing them and to malee them salable. It is averred that to the engine is attached various machinery, moved by belting and gearing, in such manner as to cause a jarring or vibration of the adjoining premises of plaintiff, causing the walls of plaintiff’s houses to crack; also causing a great noise, so offensive that, with the vibration and shaking of plaintiff’s buildings, the rents for the same are greatly diminished, causing tenants to quit the eastern building belonging to plaintiff. The petition avers that defendant’s engine and machinery, used as it is with-steam power, is an injury and a nuisance, and prays for a. judgment abating the alleged nuisance.
    Defendant answers, and admits that he is the owner of the lot adjoining on the east side of the plaintiff’s lot, and he admits that he occupies the same as a stone yard, and. also in part as a building, in which he saws and dresses-stone for sale; and he admits that he has erected a steam-engine on his lot, which he is using and propelling with steam power for the sawing of stone and marble and for-dressing the same in various ways, to make them salable, and that to said engine is attached various machinery which, is moved by belting and gearing; but defendent denies, all and singular, the other allegations in said petition contained.
    On the hearing the following decree was made:
    The court therefore adjudges and decrees, that defendant, be perpetually enjoined from conducting said business, and. he is hereby prohibited from permitting said business to-be conducted so as to cause or occasion any perceptible-trembling, oscillation, or vibration of the plaintiff’s said buildings, or so as to disturb the enjoyment of the occupants-of said buildings.
    And the court further order, that the defendant be allowed the period of sixty days for the purpose of complying with this decree.
    On the trial, Ellen O’Dowd was a witness in behalf of plaintiff. And thereupon, the plaintiff, by his counsel,, asked the witness the following' question : State whether your boarders have made any complaints of the shaking of the building by the machinery of the defendant, and if sor what objection did they make ? To which question the defendant objected, and the objection was by the court overruled ; to which overruling of said objection, and the admission of the answer thereto, the said defendant then and there excepted.
    On the overruling of the motion for a new trial a bill of exceptions, bringing all the testimony on the record, was filed in the ease. A petition in error was prosecuted to the general term, when the judgment at special term was, in all things, affirmed. The proceedings here are to obtain a reversal of these judgments.
    Plaintiff in error assigns for error three grounds:
    1. That the court erred in admitting incompetent and irrelevant testimony.
    2. That the findings of the court were contrary to the-evidence.
    3. That the judgment and decree were contrary to the law of the land.

      Forrest, Gramer, and Mayer, for plaintiff in error:
    I. As to what is a nuisance, see Columbus Gas Light Coke Co. v. Freeland, 12 Ohio St. 397-9.
    II. A court of equity will not enjoin a nuisance until the complainant has established his right at law. Story’s Eq- § 5925b.; 5 Law Times, N. S. 338 ; Dunning v. Aurora, 40 Ills. 480 ; Eastman v. Amosheag, etc., Co, 47 N. H. 71; Heiskell v. Gross, 3 Brews. 430.
    The defendant is not personally injured or annoyed, and, therefore, an injunction should not be granted. McCord v. Iker, 12 Ohio, 388; 24 Mich. 508 ; 34 Iowa, 268.
    Even though a useful employment may produce discomfort or injury to those near to it, it does not follow that it should be restrained, because an injunction is a matter of grace, not of right.

      Gilbert v. Showerman, 23 Mich. 448; Campbell v. Seaman, 22 N. Y. 235 ; 70 Penn. St. 102 ; 116 E. C. L. 608 ; 7 P. F. Smith, 287.
    If a greater injury would be done by enjoining than by leaving the parties to their remedy at law, then an injunction should be refused. Richard’s Appeal, 57 Penn. St. 105; Hiltio v. Granville, 1 Craig’s Ph. Ch. 292; Grey v. The Ohio & Penn. R. R. Co., 1 Grant, 412; Duncan v. Hayes, 22 N. J. Eq. 25.
    The defendant in error only complains of loss of rents and damages to Ms buildings, not of any personal discomfort and annoyance; therefore, he does not suffer any injuries which can not be compensated in money as damages, and that the plaintiff is amply able to respond is not denied. It is a well settled rule that a nuisance will only be restrained in ease of absolute necessity. Harrison v. Brooks, 20 Ga. 537 ; Attorney-General v. Nichol, 16 Ves. 338; Duncan v. Hayes, 22 N. J. Eq. 25 ; Hough v. Doyleston, 4 Brews. (Penn.) 333.

      Fox Bird, for defendant in error:
    We claim it is well settled, that where any business is carried on by power of steam, and in carrying on the busi-' ness the owners of adjoining property are injured in their buildings, whether by cracking the walls, by rendering the buildings untenable or less convenient, by reducing their renting value or otherwise, the carrying on such business is a nuisance. McKeon v. See, 4 Robertson, 449; affirmed in 51 New York, 300.
    If the injury is a continual one the remedy is by injunction. 51 New York, 307. The same principle is recognized and established in 3 Sandford, Superior Court, 126-281; 4 Denio. 311; Catlin v. Valentine, 9 Paige, 575; 4 E. S. C. L. and Equity, 15; Duncan v. Hayes, 22 N. J. 25; 7 C. E. Greene; 5 C. E. Greene, 201; Campbell v. Seaman, 2 Thompson & Cook, 233; 113 E. C. Law, 65 and 80, over ruling 93 E. C. Law of Hale v. Barlow.

    The jurisdiction of the court of equity over cases of private nuisance is now well established, and in a p>roper case for equitable interference it will assume and take jurisdiction, and give the party all the relief to which he is entitled, even to the settlement of damages. Wood on Nuisance, §§ 778, 794. Equity jurisdiction is concurrent with a coui’t of law, § 785, 2 Black, U. S. 551.
   Ashburn, J.

It would be almost impossible to enumerate the cases in which courts of equity, in this and other countries, have interfered or refused to interfere in cases of al’leged nuisance, public and private. It will suffice to say, the result of all these cases seems to be, that when the right is clearly made out, and the nuisance established, a court of equity, in case of private nuisance, will interfere to prevent that which violates the rights of another in his property in an essential degree.

In this state, however, we understand the rule to be, that a court of equity will only interfere to restrain an alleged nuisance, when the mischief to the plaintiff’s property, or rights in his property, are irreparable, and there is no adequate remedy at law to make reparation. Although the restraint of an established nuisance “ is an admitted ground •of equity jurisdiction,” that branch of the law “will carefully abstain from interference where the injury will support an action at law, unless the pai’ty seeking such aid brings himself within the clearest principles of equitable relief.” McCord v. Iker, 12 Ohio, 388. To the end that right may be done and injury prevented, coui’ts having jurisdiction in equity will determine each case, as it arises, upon its own facts and circumstances. When, from the .nature of the case, and the right claimed to be infringed, no adequate remedy can be had in the courts of law, equity will entertain the action, where, the thing sought to be prohibited is not a nuisance per se, but may, under some circumstances, prove so, the court will not interfere without a previous trial at law. 1 Grant’s Cases, 412; 19 Eng; L. & E. 639.

We think the plaintiff below, upon the showing madq in his petition, and by his proofs, has an adequate remedy at law. There is no complaint that the alleged nuisance, in any degree, interferes with his health or that of his •family; that it works a personal inconvenience or discomfort. He complains, in his petition, that by reason of the ■offensive noise, together'with the vibration and shaking of his buildings by the alleged nuisance, his rents were reduced ; that the steam power, with the gearing and machinery attached, by jarring and shaking his buildings, has; caused the walls thereof to crack; that the vibration and jarring of the eastern building alarmed the tenants and' caused them to leave, so that that building can not be-rented for the same sum of money as the adjoining buildings, though of the same size and finish.

Plaintiff’s right to invoke the interference of equity is; not clear on the face of his petition. Injury to his building, of the nature alleged, and loss of rents, could be compensated in damages by a jury. He alleges no injury arising from the offensive noises made by the defendant’s-machinery save as it .affects the rental value of his property. Where an assessment of damages will compensate for the loss suffered from a nuisance, equity will not interfere; and, as a general rule, that mischief or damage-which is susceptible of compensation in damages is not irreparable.

We have carefully considered the evidence in the case, and when applied to the pleadings and issues we have no doubt' but that the injury sustained by the plaintiffs, by reason-of-the alleged nuisance, could be compensated in an action for damages. Where a party has a plain and adequate remedy at law, and his right, as in this case, does not appear perfectly clear for equitable jurisdiction, the party will be required to first establish his right at law. Richard’s Appeal, 57 Penn. St. 105.

There is another ground upon which, the party should be required to establish his right at law before resorting to-equity. Plaintiff admits the business carried on by defendant, of which he complains is not a nuisance per se. Plaintiff stood by and saw defendant erect his business-house, place his steam power and other machinery therein,, knowing the use to which it was to be applied, and for seven or more years, without objection, saw the business carried on during the same hours and to the same degree. This delay and apparent acquiescence will not, perhaps,, jeopardize his legal rights, but are circumstances justifying the chancellor in sending plaintiff to a court of law, to-establish his right and seek compensation, before equity will interfere by injunction. Weller v. Smeaton, Cox’s Cases in Eq. 102 ; Reed et al. v. Gifford, 6 Johns. Ch. 19.

A court of chancery may interfere by injunction when the injury is conceded or is clearly established, yet the ■power should always be exercised cautiously and be sparingly used. Where the business complained of is lawful, and conducted in the most approved and orderly manner, in a place where there are in operation numerous establishments of kindred description, contributing to the needs of the community, and where the destruction of a business would occasion more injury to the defendant than advantage to the plaintiff, the chancellor will exercise the high prerogative of injunction with great care and caution.

In this case the decree of the court is distinctively se■vere on defendant. In the light of the testimony it amounts to prohibition. It orders that defendant “ is hereby prohibited from permitting said business to be conducted so as to cause or occasion any perceptible trembling, oscillation, or vibration of the plaintiff’s said buildings.” This is to b,e done in sixty days. If the testimony can be credited, this decree would operate to the total destruction of defendant’s business, working apparently a far greater injury to him than advantage to plaintiff. This, too, when plaintiff for the alleged injury has an ample remedy at law. The principle, if such exists, that will support this decree to the full extent would cause every heavy laden wagon passing ■over Genesee street to do so at the peril of an injunction. The case of Gilbert v. Showerman, 23 Mich. 448, is in principle similar to this. Applying substantially a remark of Cooley, J., in that case to this, we can not shut our eyes to the obvious truth that if the running of defendant’s engine and machinery, in the manner it appears to have been carried on, can be enjoined, almost any manufactory in any of our towns and cities may be enjoined upon similar reasons.

We think the testimony admitted over the objection of ■defendant below was incompetent. As a question of law, its importance does not require further consideration.

Judgment reversed.


author: Scott, J.

text:
    The Phœnix Life Insurance Company v. Saettel.
    1. A person not a citizen of the state in a court whereof he is sued, car not, under the 12th section of the judiciary act of congress of 1789, remove the suit to a circuit court of the United States, by reason of the-citizenship of the parties, unless his petition for removal shows that the plaintiff was, at the time of the commencement of the suit, a citizen of' • such state.
    2. Facts which are affirmatively shown by the record need not be averred. in such petition for removal.
    8. The act of congress of March 8, 1875 (18 U. S. Stat. at Large, 470), so far as citizenship is concerned, makes the right of removal to depend on the parties being citizens of different states at the time of the application for removal.
    4. Under the act last named, the application for removal may be made by either party, at or before the term of court at which, under the laws of the state and the rules of practice, the cause would first regularly stand for trial, on its merits, upon issues which have been joined between the parties by their pleadings.
    Error to the Superior Court of Montgomery county.

      McKemy § Andrews, for plaintiff in error.

      Houck § McMahon, for defendant in error.
   Scott, J.

Defendant in error brought an action in the-court below, which holds monthly terms, seeking to recoveiof the plaintiff in error the sum of $951, with interest, which she claimed to be due her on a policy of insurance-issued to her by the plaintiff in error on the life of her husband. The suit was commenced July 28,1873. Summons was on that day issued and served on an agent of the company, but plaintiff in error made no appearance to the action, by answer or otherwise, till February 16, 1874. The-case had, in the meantime, been continued at each of the intervening monthly terms, but at whose instance the record does not disclose. At the last-named date, the insurance company appeared and filed an application for the removal of the case to the Circuit Court of the United States for the Southern District of Ohio. This application was based on the foreign citizenship of the plaintiff in error, and was made under the third subdivision of section 689 of the judiciary act of congress, passed September 24, 1789, as amended in 1866 and 1877 (Rev. Stat. at Large, 113). Under this act the party desiring to remove could make his application for such removal at any time before the trial or final hearing of the cause in the state court.

This application was not acted on by the court below till the 15th of June, 1874, when it was overruled, and this action of the court is here assigned for error.

But as that application did not allege that the plaintiff below was a citizen of Ohio at the commencement of her action, and as that fact did not otherwise appear from the record, there was no error in overruling the application. Ins. Co. v. Pechner, 95 U. S. (5 Otto) 183.

The case was thereupon continued from term to term, and no pleading was filed by the defendant below, till the 26th of May, 1875, when the defendant below filed a second application for removal, and, on the 31st day of the same month, the following journal entry was made :

“ It appearing to the court that the defendant has filed herein its petition or application to remove this cause to the Circuit Court of the United States, ■ within and for the southern district of Ohio, for trial, and it further appearing that said defendants have filed in this court a bond for such removal, which is approved by the court. Thereupon this cause came on to be heard upon said application to remove, and was argued by counsel, and the court, being fully advised in the premises, overrules said application, to which ruling the defendant, by its counsel excepts. The defendants have leave to answer by May 31, 1875.”

The application thus overruled was in the following terms :

“ The defendant, the Phcenix Mutual Life Insurance Company, of Hartford, Connecticut, represents that the plaintiff is a citizen of the State of Ohio, and that the defendant herein is a corporation, organized under the laws of the State of Connecticut. That its principal place of business is in the city of Hartford, in said state, and that its president, secretary, and all other directors and managing officers, are residents and citizens of the State of Connecticut aforesaid, and all the stockholders of said company are citizens of others of the United States than the State of Ohio.

“ Wherefore, the said defendant, now entering its appearance in this court, for the purposes of this petition, and no other, prays that the court may order the removal of this cause, for trial, from this court into the Circuit Court of the United States, within and for the southern district of Ohio.”

A reversal of the judgment subsequently rendered in the ease against the plaintiff in error, by the court below, is asked, on the ground of error in overruling this second application for removal.

Counsel for defendant in error suggest that the application is defective in not alleging that the amount in controversy exceeded $500. But this fact was clearly shown by the petition of plaintiff below, then on file, which, as we think, rendered such allegation unnecessary.

It is also claimed that the application is defective in not stating the citizenship of the parties at the time of the commencement of the action. But this application was made in May, 1875, when the statute governing the subject was the act of congress of March 3, 1875 (18 U. S. Stat. at Large, 470). So far as citizenship is concerned, that act makes the right of removal to depend wholly upon the status of the parties at the time of the application. The language of so much of it as bears on the present case is as follows:

“ Sec. 2. Any suit of a civil nature, at law or in equity, now pending, or hereafter brought in any state court, where the matter in dispute exceeds, exclusive of costs, the sum of $500, and ... in which there shall be a controversy between citizens of different states, . . . either party may remove said suit,” etc.

So far as relates to the status of the parties, this section •only requires that a suit be fending in a state court, in which there shall be a controversy between citizens of different states; and the right of removal is not made to depend on their citizenship at the commencement of the action.

Finally, it is objected to the regularity of the second application for removal, that it was not made and filed within •the time prescribed by the act of 1875.

The third section of that act requires that the application be made and filed in the state court “ before or at the term at which said cause could be first tried, and before the trial thereof.” Here the question arises, what is the term at which a cause can be first tried?” The meaning ■of this expression is perhaps not so clear as to be free from •doubt. Does it mean the first term at which, under the laws of the state and the rules of practice, the cause would first regularly stand for trial, on its merits, upon issues which have been joined between the parties by their pleadings, or, the term at which the cause would first have thus stood for trial, if neither party had been guilty of any •default in pleading? We are not aware that any authoritative construction has yet been given to this clause by the ¡Supreme Court of the United States. But the question of its proper construction has more than once arisen in the circuit courts of the United States, as well as in state courts of high respectability. Thus, it arose in the fourth •circuit, in the case of Gurnee v. The County of Brunswick, tried at Richmond, in 1876, Chief Justice Waite, presiding. In discussing the question the Chief Justice said: “The right of removal is a statutory right. To support- the juris■diction of this court, therefore, the plaintiff must bring himself strictly within the provisions of the statute. The law requires that the petition for removal shall be filed in the state court ‘ before or at the term at which said cause could first be tried, and before the trial thereof.’ A cause can ■not be tried until in some form an issue has been made up for trial.- The pleadings or statements necessary to make ■the issue are regulated by the practice in the court where the trial is to be had. As soon as the issue is made up the cause is ready for trial. The parties and the court may not be ready, but the cause is. • The first term, therefore, at which a cause can be tried is the first term at which there is an issue for trial. An application for removal, to be in time, must be made before or at this term.” 1 Hughes’ Circuit Court, 270.

The same construction .was given to this clause by Judge Drummond of the seventh circuit, in Scott v. Clinton & Springfield R. R. Co., 6 Bissel, 529. In that case, it is true, it was not found necessary to decide “ whether the parties seeking a removal could be guilty of such laches as to prevent it, although an issue had not been made up, and the cause might not be ripe for hearing.” But, as the statute-of 1875 gives the right of removal to each of the parties alike, we should find it difficult to hold that “ the term at which the cause could first be tried,” means one thing as to a plaintiff, and a different thing as to a defendant.

So, in Warner v. Penn. R. R. Co., 18 N. Y. Superior-Court Rep. (6 Hun.), 197, it was held, that the statute requires the application for removal to be made “ before or at the-first court having authority to try the cause, after issue has-been joined, or, in cases pending and at issue when the law went into effect, at the first court afterward held for which it could be noticed for trial.”

A majority of the court approve and are disposed to follow these authorities, especially as they have found no reported case in which the clause in question has been construed otherwise.

It follows that as the second application for removal was-made to the court below, before any issue was joined between the parties by the pleadings, it was made before the term at which the cause could first be tried, within the meaning of the statute.

"We think the court erred in overruling this application and proceeding to trial and judgment in the case. The judgment below will therefore be reversed, and the cause remanded, with instructions to order its removal to the proper district court.

Judgment accordingly.


text:
    The Ætna Insurance Co. v. Reed.
    1. One seeking to be relieved from a contract, on tbe ground of alleged' false representations, must show that there were, in fact, false representations of a material fact, upon which he relied, and upon which, from the circumstances of the case, he had a right to rely, and, in doing,so, was mislead to his injury.
    2. An action will lie for a false representation of a material fact, whether-the party making it knew it to be false or not, if he had no reason to. believe it to be true, when made, and it was done with the intention, of inducing the person to whom made to act upon it, and the latter does so, sustaining a damage in consequence.
    3. Where an agent of an insurance company makes representations to one having a claim for a loss against the company, the parties standing in antagonistic relations to each other, that the latter had no claim or riglits that he could enforce by legal proceedings, such representations are only opinion — representations upon which he had no right to rely; and if he does so rely, it must be at his own risk, because the truth ov . falsehood of such representations could be ascertained by ordinary diligence.
    4. The charge to a jury should not only be correct, but be so distinctly-adapted to the case made by the proofs, and so explicit, as not to be misconstrued or misunderstood by the jury, in the application of the law to the facts proven. 'Where, however, the charge, for want of such certainty and explicitness, is calculated to confuse and mislead the jury, that is error for which a judgment may be reversed.
    5. Where, in a charge in relation to false representations, upon which a complaining party has a right to rely, the court enumerates, as a ground for false representations, upon which the plaintiff might rely, a matter which should not be considered by the jury in- that relation, and, but for such misdirection, the jury might have arrived at a different conclusion, such a charge is erroneous, because misleading.
    6. A charge, requested by defendant, consisted of two legal propositions— one sound, and the other unsound. A modification to the request, by the court, when applied to tbe sound proposition, rendered it unsound,, and, when applied alone to the unsound one, cured the defect in it, and, when applied to the request generally, rendered the whole uncertain» and ambiguous: Held, Brror. Charges that are uncertain and ambiguous are misleading.

      Error to the District Court of Paulding county.
    Uriah W. Reed, defendant in error, plaintiff below, filed his petition in the Court of Common Pleas of Paulding ■county, against the .Etna Insurance Company, defendant below, plaintiff in error, to recover for a loss by fire, on two policies of insurance, delivered to him by plaintiff in error, •on a stock of goods. One policy was issued in June, and the other, styled an addenda, in November, 1872 — each for one year. The first covered a valuation of $1,750, and the second, on an increased stock, a valuation of $1,000. In February, 1873, the entire stock of- goods insured, together with the building in which the goods were stored, was destroyed by fire.
    The plaintiff in error refusing to pay the insurance, Reed ■commenced this action, to recover for the loss. The policies are made a part of the petition. Reed alleged performance of all the conditions of the policies, except such parts thereof as the insurance company had waived; that he gave due notice of his loss, and made proof thereof, as required by the policies, except so much thereof as was waived by the duly authorized agent of defendant; that, on the 21st day of February, 1873, he made demand of the defendant for $2,750, the amount of his insurance, covered by the policies, which it refused to pay.
    The policies are, in form and legal effect, substantially .alike, each containing many conditions that, if not complied with by the insured, are calculated to work a forfeiture of the policy. On some of the conditions in the policies, questions are raised in the case; but, as they are not specially considered in the opinion, a statement of facts out of which they arise need not be made.
    The answer sets forth a number of defenses, only one of wnich is material to the question considered at large by the •court. It is as follows:
    “ Tenth defense. — The defendant, for further answer to petition of plaintiff, says that, before the commencement of ■this suit, and after said alleged cause of action set forth in plaintiff’s petition had accrued, to wit, on the 21st day of February, a. d. 1873, desiring to avoid litigation and trouble, and for no other reason or consideration, this defendant paid to plaintiff, who accepted and received the same, the sum of $100, in full satisfaction and discharge of all claim or claims for damage and loss resulting to him by reason of the issuing of said policy of insurance and addenda thereto, and the burning of said stock of goods, as set forth in plaintiff’s petition. And the said plaintiff then and there executed and delivered to defendant his certain release in wi’iting of that date, duly signed and sealed by him, which said release was, and is, in words and figures as’follows, to wit:
    “ $100. Paulding Center, Ohio, February 21, 1873.

      “ Received of kEtna Insurance Company, of Hartford,. Connecticut, the sum of $100, in full of all claims and demands on said company, for loss or damage which occurred on the 10th day of February, 1873, to property insured by said company, under policy No. 113,120, issued at the general agency, at Cincinnati, Ohio; and the said company, in consideration thereof, is hereby forever released and discharged from all further claim by reason of said accident’ and loss or damage to said property.
    “ Witness my hand and seal.
    “ Witness: (Signed.) U. W. Reed. [l. s.]
    “ Geo. W. Potter, Edward F. Rice.”
    On this defense, plaintiff' took issue by reply, as follows :• “ In reply to the tenth defense of said answer, as his first-cause of reply thereto, the plaintiff admits the signing and sealing of the alleged release, set forth therein, and alleges that such signing and sealing was procured through the fraud and deceit of defendant’s agent, in this:
    “ That said agent, fraudulently and falsely, and with intent to deceive the plaintiff, and induce him to release the defendant from its obligations to him, by reason of his said loss, represented to the plaintiff that said policy and addenda were of no binding force, and not obligatory upon the defendant by reason of plaintiff’s said loss, well knownng, at the time, his said statements to be false, and intending thereby falsely to deceive the plaintiff, and induce him, without any just or adequate consideration therefor, to can•cel said policy and addenda, and release-the defendant from all liability thereon. That this plaintiff, being ignorant in the premises, and relying, and having a right to rely, upon said statements, Avas thereby, deceived, and induced to ¡■sign and seal said alleged release.”
    The defendant requested the court to give certain charges to the jury. Some the court gave in the form requested, •others were given with modifications. The defendant ex-cepted at the time to the several modifications and charges as modified. The fifth request was as follows:
    “ There is no fraud, in ordinary cases, in refusing to pay •or settle without litigation; and if the adjuster disputed the claim, and told the plaintiff that he (Reed) could not recover against the insurance company, defendant in this ■case, and gave it as his opinion that he (the plaintiff) had ■■no legal rights, as against the company, on which he could recover, and the plaintiff had the same means of knowledge ■with the adjuster, and he believed the agent of the company, and relied upon the representations thus made by the agent of the company, and then and there made a hasty settlement with the agent of the company, and although-made under threat that no payment Avould ever be made without long and costly litigation, is not fraud of such a •character as would avoid a settlement thus made, although the amount received by Reed was but nominal. Reed was ’bound by his own interest to inform himself of his rights, before acting, and to stand upon those rights, and if he ■failed to do so, and settled at a much smaller sum than he was entitled to, he himself is responsible for his loss, and •can not recover an additional sum over and above the sum ■.already received. It makes no difference that the payment ■was made by draft on the company; if Reed took the draft, ■and never presented it for payment, it is his fault, and not 'the fault of the defendant, that the draft is not paid.”
    This request was given -with this modification:

      “ Yet, if the adjuster, the defendant's agent, intending thereby to deceive and defraud the plaintiff' in making such settlement, then and there, and for that purpose, stated to the plaintiff that, from his (the said adjuster’s) knowledge of the law, and the material facts of the case as they then were, and in fact existed, the plaintiff could not recover for any of the loss or damage which resulted to his property on account of its destruction by said fire, and that the plaintiff was then and there ignorant of the true state of the facts of the' case, and the law applicable thereto, and, from his situation and circumstances at the time, he then and there had a reasonable right to rely upon such statements and representations of said agent, and did then and there rely upon them, and was thereby deceived, and settled his claim, and that he would not have settled such claim, or made said compromise, if said statements had not been made to him by said agent, in procuring such settlement, the same would, at law, render said settlement voidable, and the same would not, therefore, now be a bar to the pi’esent action.”
    The eighth, as follows : “ A misrepresentation of the law in the case or of the legal right of the plaintiff to recover against the defendant, made by the agent of the defendant to plaiutiff, is no fraud, and if you fiud that a settlement was made between plaintiff and defendant, of the plaintiff’s loss and damage, as alleged in the answer of the defendant, such misrepresentations of the law in the case, or of the legal right of the plaintiff to recover, would not avoid or set aside the settlement so made.
    “ Statements are only fraudulently made, when they are untrue, and when the party making them knew them to be untrue at the time he made them, and so knowing them to be untrue made such statements with intent to deceive the party to whom they were spoken or made.”
    It was given with this modification : “Unless intentionally made by Rice for the purpose of deceiving Reed, and thereby procuring from him, and at his (Reed’s) expense, a more favorable settlement for defendant than he otherwise-would have made, or defendants were legally entitled to.”
    The verdict being for plaintiff, defendant made a motion for a new trial, which was overruled, and a judgment en~ entered upon the verdict. A bill of exceptions, embodying all the testimony, the special instructions requested by defendant, and the modifications thereto of the court, was made part of the record. On a petition in error, in the district court, it was adjudged there was no error in the-record made by the court of common pleas. A petition in error is prosecuted in the Supreme Court, praying for a reversal of the judgments of the lower courts.
    The assignment of errors material here are:
    1. That the court of common pleas erred in refusing to-give the instructions as the .¿Etna Insurance Company requested.
    2. That court erred in modifying the instructions which the .¿Etna Insurance Company requested.
    3. The court erred in overruling the motion for a new trial.
    4. The district court erred in affirming the judgment of the court of common pleas.

      B. D. Marshall, for plaintiff in error.

      Selwin N. Owen and Henry Newbegin, for defendant in error.
   Ashburn, J.

After a careful examination and consideration of the questions made in the progress of the trial, and assigned for error, a majority of the court are of opinion no error in the proceeding intervened to the substantial prejudice of the plaintiff in error. A majority of the court are of opinion that, in the fifth and eighth special charges, as requested by plaintiff in error and as modified by the court, there was error.

No question made in the case, except such as arise upon the aforesaid instructions, and incident thereto, will be considered at length in the opinion.

To a proper understanding of the questions for consideration on the requests to charge, and the modifications thereto, we must understand the relation of the parties to the facts, and their knowledge in regard to them at and just before the time the release was executed. Touching these relations, the facts and situation of the acting parties, Reed, the plaintiff, and Rice, the agent, do not substantially disagree.

It should be stated the policies contained a warranty that no incendiary danger was either threatened or apprehended, and against keeping gunpowder by the insured:

After the loss Reed, and Rice the company’s adjuster, met in St. Andrews, where the loss occurred. They discussed the matter without apparent reserve. The adjuster obtaining from Reed and other sources what information he could in regard to the fire and the loss. On February 21, 1873, they went to Paulding. There Reed’s statement in writing under oath was taken, he making answers to all questions asked and upon which the company desired, from him, information. Upon its completion, Rice told Reed he had been very fair in his answers to questions, but that, according to the policies and his examination, he had,, no claim on the AEtna Insurance Company ; that his loss wras a dead loss to him. Rice gave as his reasons that the company did not insure against incendiary dangers, and- they had been informed the fire was the work of an incendiary, and that Reed had kept gunpowder contrary to the policy. He read to Reed some decisions from Littleton’s Digest to. show him he had no legal claim against the company. The points of two decisions were read — one" that the warranty must be true, and that the application must be like the policy. Rice read to him “ those decisions in favor of the company to let him see if he had a claim or not, and to enable him to judge on both sides of the question, and Rice says I told him that if he brought suit we should ask for a removal into the federal court, and that eventually we should, beat him.” . . “I read the decisions for the purpose of getting him to sign the release.” . . “I told him that in my judgment he had no claim; that he might go out and see an attorney who would differ with me, and that to buy the peace of the company I would rather give him a hundred dollars than to have trouble. I told him this as an inducement for him to sign the release.” The draft is a conditional draft. Reed did not give up the policy. The draft is as follows :

“ $100. Paulding, Ohio, February 21, 1873.

“At sight, pay to the order of Uriah W. Reed, one hundred dollars, and charge to account of loss under general agency policy, 113,120. This draft to be paid only when accompanied by the policy.

“ E. F. Rice, Special Agent.

“ To Branch Office, 171 Vine street, .¿Etna Insurance Company, Cincinnati, Ohio.”

Reed testified that “ Rice said that if I went to law they would beat me in any court, but that it would not be tried here. He said I might go and see some attorney about it, and that they would tell me that I could get the money, and in order to get a fee the attorney would commence suit. That I had no recourses on the company, but as it would cost the company something to run it through the court, they would pay me back my premiums. He told me that he would give me back my premiums with good interest; would give me one hundred dollars. I told him if I could not recover, as according to his statement I could not, then there was no use in my seeing an attorney.

“ He told me that I had better take a hundred dollars, and said I could get nothing by law, and referred me to the decisions. I have no recollection of what the books were that he read to me; in fact I had forgotten all about it until he spoke about it at the last term of court. At that time I was very much excited, thinking I was ruined and had lost everything. Taking his word for the matter, and believing what he said to me, I scarcely remember what he read to me. I believed his statements in the matter, and acted on them, and signed that release. I do n’t remember that Mr. Rice told me wliat the papers were, nor whether ■ he did say anything. Do n’t know how many papers I : signed. This release was to be left at Mr. Potter’s until I - should bring over the policy, which T was to bring back in ■ a few days, and when I should bring back the policy I was ■ to get a release or copy and a draft, and give up the policy. I was to get the draft cash ed at Mr. Potter’s. 11 eft the release . lying on the table when I left there. I kept the draft; I - never gave it up to the company; I never gave any authority to give it up to the company ; never received any ■ money for signing the release.

“After going home from Paulding, I concluded to see an ■ attorney before bringing back my policy to Mr. Potter, to : ascertain whether or not my case was really lost. I went to Mr. Newbegin and gave to him my policy.

The personal relation of the parties was not one calculated to beget confidence or reliance, but the contrary. . Rice was acting avowedly as the agent of a party whose ■ interests were averse to Reed, and common intelligence would have caused Reed to know he was not .acting as his friend or advising his interests. Presumptively he would not be likely to stand in a relation different from other •. persons representing adverse interests. From the time the ■ within statement was completed, Rice acted in a hostile' rather than a friendly spirit, and with a strong assertion- ¡ of opinion claimed the loss was a dead loss to Reed, and ■ thus endeavored to induce Reed to think he could do no ' better than take his offer of one hundred dollars. It was not done with the thought on either side that he was a friendly adviser, but rather as one driving the best bargain he could for his employer. In this Reed could scarcely be deceived. All this time Reed was apparently as fully conversant with the facts of the case as Rice, and at liberty to ascertain the law of his case if he desired to do so. It . was even suggested to him to do so with the probable re suit.

The issue made on the tenth defense, and upon which the court was requested to give the law, was in reference • to a state of facts upon which plaintiff below claimed he had been induced by fraudulent representations made by the company’s agent upon which he had a right to rely, and did rely, to make a settlement and release his rights under the policies. The instruction to be given was to be the law in relation to the state of facts before stated. The rule of the law is, that where fraud enters into a transaction to the injury of the party upon whom it operates, it will be his excuse for avoiding the apparent obligations of the contract. But it is not every erroneous representation that will avoid a contract. To have that effect it must be as to a fact material in the transaction, not mere opinion. It must be a representation of a material matter upon which the party, whom it affects injuriously, had a right to rely and did rely. If the representation be mere matter of opinion, or of a fact equally within the knowledge of both parties, or one upon which the party had no right to rely, the representations, though acted on, will not vitiate the transaction.

This is always the ease where the parties are mutually cognizant of the facts acted on, or stand on an equal footing in relation to them, and there exists no fiduciary relation between them. The law will not lend its aid to help one thus situated and advised, if he voluntarily neglects to protect himself by the exercise of his common sense. See the following cases, more or less strongly maintaining these principles: Foley v. Cowgul, 5 Blackf. 18; Galling v. Newall, 9 Ind. 572; Bigelow on Fraud, 18, 66; Mayhew v. Phœnix Ins. Co., 23 Mich. 105; Moore v. Turberville, 2 Bibb, 602; Saunders v. Halterman, 2 Iredell, 32; Farrar v. Alston, 1 Dev. 69; Fulton v. Hood., 34 Penn. St. 365 ; Anderson v. Burnett, 5 How. (Miss.) 165; Salem India Rubber Co. v. Adams, 23 Pick. 256; Hall v. Thompson, 1 S. & M. 443; 1 Story’s Equity, § 207 (10 ed.); 1 Story on Contracts, § 636 (5 ed.)

With this understanding of the facts and the general principle applicable to such state of facts, we will consider the requests and their modifications.

The legal principle embodied in the modification to the fifth request is antagonistic to the principle of that request and destructive of it. Of this the jury were not instructed. Both were given to the jury. This left the state of the law before the jury in au uncertain condition, and one well calculated to confuse and mislead.

Again, if the jury understood the modification to be destructive of the fifth charge as requested, the words “ and' the law applicable thereto” should have been stricken out, and the converse of the proposition in the modification given to the jury. This to the end that if the jury should find that Reed was as well informed in relation to the facts on which he acted as the adjuster, he was not in a condition to claim the right to rely upon the representations of the adjuster. As the modification was given, the jury were' liable to be misled by a consideration of a matter not properly for their consideration on the state of facts in the case.

Again, by the modification the jury was instructed to consider as an element of fraud in the transaction Reed’s-ignorance of the law of his case, and his right to rely upon the representations of defendant’s agent in regard to his legal rights. In this the modification was misleading, for the reason that it was not a correct statement of the law on the question. The agent’s opinion as to Reed’s legal rights, however strongly stated, was not a misrepresentation of a fact for the consideration of the jury. In Upton) Assignee, v. Tribelcock, 1 Otto, Hunt, J., on page 50, says, “ That a misrepresentation or misunderstanding of the law will not vitiate a contract when there is no misunderstanding of the facts, is well settled.”

In the case of Fish v. Clelland, 83 Ill. 243, this principle is clearly stated in his opinion by Justice Beckwith as follows : “A representation of what the law will or will not permit to be done is one on which the party to whom it is made has no right to rely; and if he does so rely, it is his folly, and he can not ask the law to relieve him from the consequences. The truth or falsehood of such a representation can be tested by ordinary vigilance and attention. It is an opinion in regard to the law, and is always understood as such.” See 5 Hill, 303.

The law is presumed to be equally within the knowledge of all parties.

Applying this doctrine practically, the representations of Rice to Reed as to the law of the case was but an opinion as to his legal, rights, and, though erroneous, should not have been treated and submitted, as it was in the modification, to the jury as an element of fraudulent representations upon which Reed had a right to rely. It was not ■a fact in the case for the consideration of the jury, and the court should have so told them.

The modification to defendant’s eighth request is claimed ■to be erroneous.

,This modification, if applied to the-second clause alone of the request, and that clause is applied to a misrepresentation of facts only, would not be objectionable. In that case, the modification would so amend the second clause as to make it a true declaration of the law. “ If the party made the representation not knowing whether it was true or false, he can not be considered as innocent; since.a positive assertion of a fact is, by plain implication, an assertion ■of knowledge concerning the fact. Hence, if a party have ,no knowledge, he has asserted for true what he knew’to be false.” Bigelow on Fraud, 61; Stone v. Covill, 29 Mich. 359, and cases cited; Woodruff v. Garner, 27 Ind. 4; Fisher v. Millen, 103 Mass. 503 ; Taylor v. Ashton, 11 M. & W. 400; Foardy. McComb, 12 Bush, 723 ; 1 Story’s Equity Juris. § 193 ; Nugent v. C., H. & I. Street R. R. Co., 2 Dis. 302.

This modification, however, if applied only to the first clause of the request, in which the court is asked to charge on the effect of misrepresentations as to plaintiff’s legal rights, is unsoimd. We have already seen that misrepresentations, touching a party’s legal rights, will generally afford no sufficient reason on which to avoid a contract. Such representations, however erroneous and strongly asserted, are to be treated, when made to a party free to inform himself of his legal rights, as mere statements of opinion. The exceptions to the operation of this rule are cases in which some fiduciary relation is found to exist, or such circumstances as show a confidential relation which gives the injured party good right to rely upon such representations, and he does so to his injury. When this modification is applied to the whole request, the same trouble remains. As it' is left uncertain whether the fraudulent statements alluded to by the court, and to which the modification was to apply, was of facts, of law, or both, the instruction as given was calculated to mislead. It is obnoxious to the rule, that, “ the charge ought not only to be correct, but be so adapted to the case and so explicit as not to be misunderstood or misconstrued by the jury.” Graham & Waterman on New Trials, 774; L. M. R. R. Co. v. Witmore, 19 Ohio St. 111.

Judgment reversed and cause remanded to the court of common pleas for new trial.