author: MinshaXjL, J.

text:
    Spoors v. Coen.

      Fraudulent conveyance — Sale of lands to pay debts of deceased grantor— Jurisdiction of probate court — Sections 6139 and 6140 of the Revised Statutes— Void judgment — Collateral impeachment.

    1. Lands that have been conveyed to defraud creditors, and that, by section 6139 of the Revised Statutes, are made assets for the payment of the debts of the deceased grantor, can not be ordered sold for such purpose, until the conveyance has been set aside, in a proceeding commenced for that purpose in the court oí common pleas, no such jurisdiction having been conferred upon the pi-obate court.
    2. When lands have been so conveyed, the possession of the lands after the death of the grantor, by his administrator, avails nothing in a proceeding begun in the probate court for their sale to pay debts, unless such possession had been acquired by a reconveyance from the fraudulent grantee, or those claiming under him, or in an action instituted for that purpose in the court of common pleas, as provided in section 6140 of the Revised Statutes.
    3. An order made by the probate court for the sale of such lands, upon a judgment of its own, setting aside the conveyance as null and void, is of no validity whatever, and may be impeached in a collateral proceeding to recover the land.
    4. The judgment of a court upon a subject of litigation within its jurisdiction, but not brought before it by any statement or claim of the parties, is null and void, and may be collaterally impeached.
    Reserved in the District Court of Wood county.

      The action below was a suit by the plaintiff, Rhoda Spoors, against the defendant 'to recover the possession of a certain tract of land, some two acres and a fraction, described in the petition. She derived title from her husband, John Spoors, who, on the 4th of March, 1879, conveyed all his real estate to his son, Jerome, who, on the same day with his wife, conveyed the land in question to the plaintiff.
    John Spoors having died, a petition was filed September 26, 1879, in the probate court of the county to sell lands to pay debts; and, under an order of sale made therein, the lands sought to be recovered were sold to the defendant and a deed made by the administrator on August 9, 1880.
    The court of common pleas rendered judgment in favor of the defendant, and the plaintiff prosecuted proceedings in error in the district court, where the cause was reserved for decision in this court, upon the question, whether the defendant, Coen, acquired a title to the lands, claimed by the plaintiff, under the proceedings had in the probate court, and the deed made by the administrator in pursuance thereof.
    The proceedings are set forth in a bill of exceptions taken at the trial in the common pleas, and the only controversy is as to the jurisdiction of the court to order the sale of the lands.
    The petition of the administrator set forth the indebtedness of the estate and the amount of the personal property ; that it was insufficient to pay the debts, and that a a short time previous to his death, and up to the 4th of March, 1879, the decedent was the owner of certain real estate situate in the county, describing it, and then averred “that on the 4th day of March, A. d. 1879, the said John Spoors, decedent, being then very aged and infirm and feeble in body and mind, and being deeply involved in debt, did by his deed of that date, convey to the defend-ant, Jerome Spoors, all the above described real estate; that the consideration expressed in said deed of conveyance for and of said real estate was six thousand ($6,000) dollars; that the defendant, Rhoda Spoors, then the wife and now the widow of decedent, joined in said deed of conveyance; . . . that said conveyance of said land by said decedent to said defendant, Jerome Spoors, was in fact made without any other or further consideration than the promise of said defendant, Jerome Spoors (who is the son of said decedent); that he would pay the debts of said decedent, and that he would keep and maintain the said decedent and his wife (now his widow) during their natural lives; that the promise of said Jerome Spoors to pay the debts of said decedent, and to keep and maintain said decedent and his.wife (now his widow) during their said lives, was the whole consideration for said land paid and to be paid by said grantee, Jerome Spoors, to said decedent; that said Jerome Spoors has not paid the debts of said decedent, nor any part thereof, nor did the said Jerome Spoors keep and maintain said John Spoors, decedent, and his wife during the life-time of said decedent, nor has he kept and maintained said Rhoda Spool’s, widow of said decedent, since the death of said decedent, nor does he now keep and maintain her; . . . that the petitioner has been and is now in the exclusive possession of said premises, herein described, since the death of said John Spoors, and the appointment of the petitioner as administratar of said estate; that said decedent died leaving Rhoda Spoors, his widow, who is entitled to dower in said premises, and the following named persons his heirs at law having the next estate of inheritance in said premises as follows: ” naming them.
    The only prayer for relief against the widow was, “ that the dower of the said Rhoda Spoors may be set off and assigned to her.”
    It also contained a prayer for an order to sell the land, being something over a hundred acres, for the purpose of the proceeding.
    An appearance was entered, and an answer filed for the widow by the attorney, who acted for the administrator, in these words:
    “And now comes Rhoda Spoors, and in answer to the petition of the plaintiff herein, says that she desires to inform the court that she waives the assignment by the court to her of her dower estate in the land of her late husband, John Spoors, and elects to take her dower in said estate in money, and prays the court to protect her interest in said estate.”
    On December 9, 1879, the cause came on for hearing, and Jerome Spoors admitting the averments as to himself to be true, the court found that it was necessary to sell the lands to pay the debts of the estate, and “ that the deed from the decedent to the said Jerome Spoors is null and void, and passed no title to said Jerome Spoors in said lands described therein and in the petition herein,” and further found “that the conveyance by defendant, Jerome Spoors, to the widow, Rhoda Spoors, of two acres of land, being part of the lands of said decedent not included in the 100 acres hereinbefore described, is null and void, and said Rhoda Spoors did not take any title to said two acres thereby,” and ordered the land to be appraised and sold “ free from the dower estate of said widow Spoors .therin.”
    The petition contains no allusion to any conveyance having been made to the widow of a part of the land, and no relief was asked as to her, other than as before stated. The land was appraised and sold by the administrator, under the order, to Coen; the sale was confirmed by the court, and a deed made to Coen.

      John W. Canary, for plaintiff in error.

      Cook $• Troup, for defeadant in error, Coen.
   MinshaXjL, J.

There are, as we think, two sufficient reasons for holding that, upon the case as reserved to this court, judgment should be rendered for the plaintiff. 1. The probate court is not clothed with the jurisdiction it assumed to exercise in setting aside the conveyance to Rhoda Spoors. 2. But if it were, no such jurisdiction had been invoked by the administrator in his petition as against her.

The probate court had no jurisdiction, for, although it is provided in section 6189, Revised Statutes, that the petition to sell lands to pay the debts of the estate “ shall include all the deceased may have conveyed with intent to defraud creditors,” yet it is provided- in section 6140, Revised Statutes, that “ where such land is included in the application before a recovery of the possession thereof, the action shall be in the court of common pleas.”

The reason of this provision doubtless arose from a persuasion in the minds of the legislature that a recovery of such lands involved an exercise of jurisdiction that should only be conferred on the court of conlmon pleas, they being courts of general jurisdiction in matters of law and equity, and therefore more competent, from the character of' their judges, constantly employed in the exercise of such jurisdiction, to hear and determine such matters. And so, to avoid a multiplicity of suits, it is provided that an action to set dside a conveyance of lands, that had been made by a decedent to defraud creditors, may oe united with a proceeding for an order of sale to pay debts, by resorting, in the first instance, to the court of common pleas.

In this case the pleader seems to have assumed that he had avoided this objection to the jurisdiction of the court, by the averment, “ that the petitioner has been and is now in the exclusive possession of said premises.” But mere possession, however exclusive, by the administrator, does not confer jurisdiction upon the probate court to order a sale to pay debts, unless the possession had been recovered in an action against the grantee, or those claiming under him, for the purpose of having the conveyance set aside as fraudulent against creditors. Until the conveyance has been set aside by the judgment of a competent court, or a reconveyance made by the party holding the title, an order for the sale of such lands to pay the debts of the decedent can not be made in the common please or probate court. This is in harmony with what has been the settled policy of our state in the matter of judicial sales, which has always been to so offer the land as to transfer it to the purchaser with a good title, that an advantageous sale may be made, instead of offering it as a lawsuit for what can be obtained from those who may feel disposed to invest in litigation. Hence, possession not acquired as the fruits-of a judgment in a suit to recover the land, avails nothing, where the proceeding for an order of sale'is begun in the probate court, instead of the common pleas.

But, had the probate court the same jurisdiction in such matters as the common pleas, it would avail nothing in this case, for the reason that no such jurisdiction was invoked by the petition of the administrator as against Rhoda Spoors. There ife no averment in the petition that any land had been fraudulently conveyed, mediately or immediately, to her. The only averment as to her is, that she is entitled to dower in the lands, for which an order of sale is asked; and the only relief asked as to her is that her dower may be set off and assigned therein. And, in the answer filed for her by the attorney of the administrator, she simply waives an assignment of dower in the lands and elects to take the same in money.

It. is by no means intended to question or impair the principle that wlien jurisdiction has been obtained over the subject-matter of a cause, by a court competent to exercise it, its judgment, however eri’oneous, can not be questioned ixx a collateral proceeding. A judgment so rendex’ed can only be set aside or questioned in a direct proceeding instituted for that purpose. This is familiar law. Freeman on Judg., § 135.

But a judgment rendered by a coux’t of competent jurisdiction in a case brought before it, however erroneously the jurisdiction may have been exeroised, is one thing, and a judgment entered by a coux’t of like jurisdiction in a case not before it, is another and a different thing. In the one case its judgment may be erroneous, in the other it is void. To bring a cause before a court, competent to adjudicate it, it is not only necessary that the parties should be in jus vocatio, cited or summoned in the manner required by the law of procedui’e, but a ease must also be made, or stated, affecting the party against whom relief is asked. The power to hear and determine a cause is defined to be jurisdiction. Freeman on Judg., § 118. And, to use the language of Ranney, J., in Sheldon v. Newton, 3 Ohio St. 494, “it is coram jadice whenever a case is presented that brings this power into action.” “But,” he adds, “before this power can be affirmed to exist, it must be made to appear that the law has given the tribunal capacity to entertain the complaint against the person or thing sought to be charged or affected; that such complaint has actually been preferred; and that such person or thing has been properly brought before the tribunal to answer the charge therein contained.” The italics are our own, to call attention to the clause applicable to the question in the case before us.

It is hot necessary that the statement of the claim should be so perfect in form and substance, as to be free from objection on demurrer, to confer jurisdiction upon the court to hear and determine it. Buchanan v. Roy, 2 Ohio St. 251. If the case presented invoked the jurisdiction of the court, and could have been perfected by amendment, the judgment of the court thereon could not be treated as a nullity. But, in order that a party may be permitted to amend, there must be something to amend by. Shamokin Bank v. Street, 16 Ohio St. 10. So, unless a case is presented that could be amended, there is no case upon which a judgment can be rendered; A judgment rendered where no case has been stated is as much a judgment upon a case coram non judice, whatever may be the jurisdiction of the court rendering it, as a judgment upon a case, however perfectly stated, before a court not clothed with jurisdiction to hear and determine it.

If there were a note secured by mortgage, and suit were brought upon the note for a money judgment only, it would hardly be claimed that a judgment of foreclosure would be of any validity, even as against the mortgagor. And yet the case presented in this record is not distinguishable in principle from the case just supposed.

In Strobe v. Downer, 13 Wis. 11, Downer had purchased lands at a sale made in a foreclosure proceeding, on which Strobe, by assignment, from one "Weirner, held a prior mortgage. The bill contained an averment that Weirner had, or claimed, some interest in the property, and he was made a party, but he did not answer. The judgment in forelosure purported to bar him of all right in the premises. In a suit brought to foreclose the mortgage by Strobe, the court treated the question as if Weirner had remained the owner of it, and held that the purchaser under the decree made in the former proceeding took nothing as against Weirner or his assignee. The court said: “ It was stated in the complaint that he claimed'an interest (in the land), and there was no allegation against its validity which called on him to defend ;” and that without any allegation in the complaint contesting his title, he had a right to assume that the proceeding would be conducted upon the theory that his lien was paramount to that of the plaintiff, and that his rights were not to be affected by the proceeding. The case of Lewis v. Smith, 9 N. Y. 502, was cited and approved, where it was held that the widow was not divested of dower in the lands of her deceased husband, by a decree to that effect, in a proceeding, to which she was made a party, for the foreclosure of a mortgage she had not signed. The bill contained the general allegation that she claimed some interest in the premises, subsequent to the mortgagor, or otherwise. Her husband had devised her all his real estate for life with remainder over, but whether the devise was in lieu of dower or not was not stated. The court held in a suit for that purpose that she was entitled to dower in the land, and that she was not barred by the decree in the former suit. Commenting on the averments of the bill, Denio, J., said: “As a devisee of the mortgaged premises and an executrix of the mortgagor, the plaintiff was a necessary party to the bill; but in her character of his widow, entitled to dower by virtue of her coverture before the mortgage was given, she had nothing to do with the foreclosure. Having no defense to make to her interest as devisee of the equity of redemption, and being unable to resist the claim to a decree against her for any ultimate deficiency, she had no motive for answering the bill. It made no claim and- prayed for no relief which she could defend against.” Edwards, J., also commented upon the fact that the “ complaint in the foreclosure suit made no allusion to the claim of dower.” See also the case of Williamson v. Probasco, 4 Halst. Chan. 571.

Considered on reason and authority, the right» of the plaintiff to recover upon the case as reserved seems clear. There is no allusion in the petition of the administrator to any lands having been conveyed to her fraudulently or otherwise, no prayer for any relief against her, except as to her dower in the lands; and it follows that the judgment of the court, that the conveyance that had been made to her of two ¿eres and a fraction, was null and void, was itself null and void, as, if for no other reason, a judgment upon a matter not before it. Its jurisdiction as to this, if it had any in such cases, had not been invoked. It follows that the sale and deed of the lands of the plaintiff, made under its order, conferred no title on the purchaser, and that judgment should be.rendered for the plaintiff as she has prayed in her petition.

Judgment accordingly.


source: Caselaw Access Project

author: Spear, J.

license: Public Domain

text:
    Chase v. City of Cleveland.

      Municipal corporations — Negligence—Icy sidewalk — Liability—Pleading.
    In a suit against a municipal corporation to recover for injuries occasioned by falling upon a slippery sidewalk, allegations in the petition which aver that the defendant is a city of the first class; that the street where the accident occurred, is a public highway within the corporate limits; that upon a sidewalk in front of property of a private owner, the city negligently suffered ice and frozen snow to accumulate, and for a number of days to be beaten smooth and slippery, and for that reason dangerous to those passing along it, and to so remain for some days, of which condition the city had or might have informed itself in time to have made the sidewalk safe before the accident, are not sufficient to show negligence.
    Error to the Court of Common Pleas of Cuyahoga county. Reserved in the District Court.
    The plaintiff commenced her action by filing in the court of common pleas of Cuyahoga county a petition which is, in substance, as follows :
    At all the times hereinafter mentioned the defendant was, from thence hitherto has been, and still 3s, a municipal coi’poration, being a city of the first cl,ass, and as such corporation it had and has custody, care, and supervision of all the public streets and highways within the corporate limits of said city, and was and is bound to keep the same free from obstruction and danger, and safe for persons passing along the same. On the 3d day of January, 1878, Wood street was a street and public highway within said corporate limits, and it was then and there the duty of defendant to keep said street and the sidewalks thereon, and forming part thereof, safe and free from the accumulation of ice or snow which might become dangerous to persons passiug along the same, to acquaint itself with any dangerous obstruction or acccumulation of ice or snow casually occurring, and to forthwith remove the same upon obtaining such knowledge. Yet defendant disregarded its said duty in the premises, and did not keep said sidewalk' free from accumulation of snow and ice dangerous for such persons, and either failing to acquaint itself with the existence of such dangerous accumulation of ice and snow, else knowing thereof did not remove such dangerous accumulations upon said sidewalks upon having notice thereof. On said 3d day of January, 1878, and for a number of days next preceding, defendant had carelessly and negligently suffered ice and frozen snow to accumulate on the sidewalk on the west side of Wood street between Rockwell and St. Clair streets, in front of land then occupied by G. H. Adams, so as to become dangerous for persons passing along the same, said ice and snow having been beaten smooth and slippery, so that children had made a slide there, which had been there for some days previous. Of all which defendant had or might have informed itself in time enough to have made said sidewalk safe before the occurrence of the accident hereinafter mentioned. On said 3d day of January, there had been a light fall of snow, so as to cover and conceal said slide and slippery and dangerous condition of said ice and snow and sidewalk from persons passing along the same. As plaintiff was passing along said sidewalk, in the usual way, using all due care, and ignorant of its slippery and dangerous condition, she fell and was injured, etc., which accident and damages were caused wholly by defendant’s negligence. A prayer for judgment follows.
    To this petition a demurrer was filed by defendant, which was sustained, a,nd judgment rendered against plaintiff. Upon error prosecuted to the district court the cause was ordered reserved to this court. ,

      Mix, Roble Sf White, for plaintiff in error.
    The petition alleges facts from which notice to the city is a legal inference. Constructive notice was sufficient, and the facts alleged amount to constructive notice. 2 Thomp. Neg. 762-4; Whart. Neg., sec. 963, n. 2; 2 Dill. Mun. Corp., secs. 1025, 1026; Chicago v. Fowler, 60 Ill. 322; Reed v. Northfield, 13 Pick. 94, 98; s. c., 23 Am. Dec. 662; Howe v. Plainfield, 41 N. H. 135; Aurora v. Hillman, 90 Ill. 61, 64; Evers v. Hudson River Bridge Co., 18 Hun, 144; Blakeley v. Troy, 18 Hun, 167; Todd v. Troy, 61 N. Y. 506; Twogood v. Mayor, etc., 102 N. Y. 216; Baltimore v. Mariott, 9 Md. 160, 177.
    We do not claim that the city is bound at all events to keep its streets safe from slipperiness. We do not claim that it is bound to use extraordinary efforts to this end. But we do insist that it is bound to use reasonable diligence to keep the streets reasonably safe from dangers to persons using due care, from whatever cause such dangers arise. That the defect arises from natural causes does not exempt the city from liability; nor does the intervention of a wrong-doer. Palmer v. Portsmouth, 43 N. H. 265, 268; Chamberlain v. Enfield, 43 N. H. 356; 2 Thomp. Neg. 787, 788; 2 Dill. Mun. Corp., sec. 1024. Indeed, the question of the cause of the defect seems immaterial. As soon as the defect exists, and the city has real or constructive notice, a duty arises, on the part of the city, to use reasonable care and diligence to remove the defect or guard against injury therefrom.
    The whole chain of authority that the city is not liable for slippery sidewalks rests on Massachusetts decisions. To evade the supposed effects, of a statute, the courts of that state indulged in some judicial legislation. The courts of some of the other states, influenced by this authority, and without examining the reasoning, have adopted the result. But whenever the question has been examined, on principle, the ruling has been in our favor.
    The Massachusetts decisions are nob applicable to this state, because (1) they rest on doctrines as to the liability of New England towns which are not in force as to municipalities in Ohio; (2) they depend on a Massachusetts statute which has no counterpart in Ohio; and (3) these decisions overruled four earlier decisions of that state and have led to such evils and to so much contest by the bar of that state that, after much conflict of decision, the supreme judicial court has nearly refined away the rule. .The following are the cases referred to: Stanton v. Springfield, 12 Allen, 566; Loker v. Brookline, 13 Pick. 343, 346; Springer v. Bowdoinham, 7 Greenl. *441; Hall v. Lowell, 10 Cush. 260; Billings v. Worcester, 102 Mass. 329; Horton v. Ipswich, 12 Cush. 488; Kirby v. Boylston Market Ass., 14 Gray, 249, 252; s. c., 74 Am. Dec. 682; Shea v. Lowell, 8 Allen, 136; Wilson v. Charleston, 8 Allen, 137; Payne v. Lowell, 10 Allen, 147; Johnson v. Lowell, 12 Allen, 572; Hutchins v. Boston, 12 Allen, 571; Nason v. Boston, 14 Allen, 508; Luther v. Worcester, 97 Mass. 268, 271; Stone v. Hubbardston, 100 Mass. 49, 56; Morse v. Boston, 109 Mass. 446; McAuley v. Boston, 113 Mass. 503; Spellman v. Chicopee, 131 Mass. 443; Street v. Holyoke, 105 Mass. 82; Pinkham, v. Topsfield, 104 Mass. 78; Gerald v. Boston, 108 Mass. 580; Fitzgerald v. Woburn, 109 Mass. 204; Gilbert v. Roxbury, 100 Mass. 185; Williams v. Lawrence, 113 Mass. 506; Cromarty v. Boston, 127 Mass. 329. And see Frost v. Portland, 11 Me. 273; French v. Brunswick, 21 Me. 29; s. c., 38 Am. Dec. 250; Merrill v. Hampden, 26 Me. 234; Tripp v. Lyman, 37 Me. 250.
    Here we have decisions that it is right to nonsuit plaintiff if a sidewalk is sufficiently level for ordinary purposes, Johnson v. Lowell; if no unusual slope, Stone v. Hubbardston; if the slope is one inch in eight, Gilberts. Boxbury, And that the lesser slopes — or one inch in forty-eight, Billings v. Worcester; one in eighteen, Luther v. Worcester; one in sixteen, Hutchins v. Boston, Fitzgerald v. Woburn—so increase the danger that it must be submitted to a jury. The city, as matter of law, is not liable if the ice has a slope of one inch in eight, Gilbert v. Roxbury; and is liable if it has the less slope of one inch in ten, Gerald v. Boston. The city is not liable unless the ice is so thick as to be an obstruction by height, Stanton v. Springfield; is not liable, although there is a ridge of ice, if plaintiff slips because of the slipperincss, and does not stumble, Morse v. Boston and McAuley v. Boston. A depression filled with smooth ice, level with the rest of the sidewalk, is not a defect; but the depression is a defect because it is filled with smooth ice. Spellman v. Chicopee.

    "We find fifteen cases as to icy sidewalks reaching the court of last resort of a single state, from Stanton v. Springfield to Williams v. Lawrence, in eight years, indicating wide-spread aud strenuous dissatisfaction upon the parj; of the bar with the doctrine there established.
    But this whole slippery slope distinction seems to be absurd. To say that level ice, as a matter of law, is not dangerous, is to make a presumption of law contrary to fact. If inclined slipperiness is a defect and level slipperiness is not a defect, it is clearly immaterial whether the slipperiness is caused, by ice, grease, or glass. The slipperiness is the danger, the danger is the defect. Whether the danger is actionable or non-actionable must depend on the degree and nature of the danger, not on the material giving rise to the'danger.
    So other courts, attempting to follow the Massachusettdecisions, have held municipalities not to be liable for level slippery sidewalks. Mauch Chunk v. Kline, 100 Pa. St. 119; Cook v. Milwaukee, 24 Wis. 270, 274; Quincy v. Barker, 81 Ill. 300; Broburg v. Des Moines, 63 Iowa, 523; Vandyke v. Cincinnati, 1 Dis. 532; McKellar v. Detroit, 57 Mich. 435; Smyth v. Bangor, 72 Me. 249, 251. Other cases hold the municipality for various degrees of incline. Perkins v. Fond du Lac, 34 Wis. 435; McLaughlin v. Corry, 77 Pa. St. 109.
    In the following cases, where the Massachusetts doctrine of a distinction between a dangerous slipperiness caused by level, and one originating from sloping ice, was not recognized, recoveries were sustained for.damages from falling on icy, slippery sidewalks. Cloughessey v. Waterbury, 51 Conn. 405-420; Hubbard v. Concord, 35 N. H. 52; s. c., 69 Am. Dec. 520; Darling v. Westmoreland, 52 N. H. 401; Clark v. Chicago, 4 Biss. 486; Mosey v. Troy, 61 Barb. 580; Todd v. Troy, 61 N. Y. 506; Baltimore v. Marriott, 9 Md. 160; Providence v. Clapp, 17 How. (U. S.) 161; Johnson v. Haverhill, 35 N. H. 74; Congdon v. Norwich, 37 Conn. 414; Burr v. Plymouth, 48 Conn. 460; Landolt v. Norwich, 37 Conn. 615; Dooley v. Meriden, 44 Conn. 117; Evans v. Utica, 69 N. Y. 166; Twogood v. Mayor, etc., 102 N. Y. 216; Darling v. New York, 18 Hun, 340; Thomas v. Mayor, 28 Hun, 110; Kenny v. Cohoes, 16 N. Y. Week. Dig. 206; Rich v. Mayor, 17 N. Y. Week. Dig. 140; Chapmnn v. Silver Creek, 20 N. Y. Week. Dig. 253. And see Evers v. Hudson River Bridge Co., 18 Hun, 144; Blakeley v. Troy, 18 Hun, 167.
    These courts, deciding the law as we claim it to be, are of high standing. Each gives the question thorough examination on principle, in most instances considering the reasoning and results of the leading decisions on the other side They are in harmony with all the analogies of the law, treat all defects alike, allow for varying circumstances, are reasonable, and keep distinct the province of the judge and jury. The doctrine they uphold has not and will not lead any court into the quagmires of doubt and inconsistency in which flounder opposing courts.

      Allen T. Brinsmade, city solicitor, for defendant in error,
    contended that the provision of the statute conferring upon the council the care, supervision, and control of public highways and streets, and.requiring them to be kept open and in repair and free from nuisance, imposes ho liability upon municipalities for damages arising from injuries caused by mere slipperiness of the walks occasioned by ice and snow, and not accumulated to such an extent as to cause an obstruction, and cited: McKeller v. Detroit, 57 Mich. 435; Stanton v. Springfield, 12 Allen, 566; Chicago v. McGiven, 78 Ill. 347; Landolt v. Norwich, 37 Conn. 615; Smyth v. Bangor, 72 Me. 249; Stone v. Hubbardston, 100 Mass. 49; Quincy v. Barker, 81 Ill. 300; Cook v. Milwaukee, 24 Wis. 270; Vandyke v. Cincinnati, 1 Dis. 532; Nason v. Boston, 14 Allen, 508; Broburg v. Des Moines, 63 Iowa, 523; McLaughlin v. Corry, 77 Pa. St. 109; Mauch Chunk v. Kline, 100 Pa. St. 119; Clark v. Chicago, 4 Biss. 488; Grossenbach v. Milwaukee, 65 Wis. 31; Hubbard v. Concord, 35 N. H. 52; s. c., 69 Am. Dec. 520.
    The law exacts of municipalities only that which is practicable aud reasonable in regard to keeping the streets open and in repair, and free from nuisance. The duty of the municipality must be interpreted upon a reasonable basis, with reference to the actual condition of affairs; and things impracticable are not required from the city authorities.
    It is well settled that the city should not be held liable unless it had notice of the defective condition of the sidewalk, or unless it had notice of such facts and circumstances as would, by the exercise of reasonable diligence, lead a prudent person to such knowledge. Chicago v. Murphy, 84 Ill. 224. There is no positive averment in the petition that the city had notice of the obstruction complained of.
   Spear, J.

It will be noticed that there is no allegation in this petition that the walk was itself defective. No improper construction is charged, nor is it alleged that the walk was in such condition as to be peculiarly liable to cause the formation of ice; nor was the ice rough or uneven. The place where the accident occurred does not even appear to have been upon a slope or incline. So far as the charge of negligence on the part of the defendant is concerned the gravamen of the complaint is : 1. The defendant is a city of the first class ; 2. Wood street is a street within the corporate limits; 8. For a number of days next preceding the accident the city had carelessly and negligently suffered ice and frozen snow to accumulate on the sidewalk in front of the property of a private owner, so as to become dangerous for persons passing along, the same, having been beaten smooth and slippery, so that children had made a slide there, which had been there for some days previous, of all which defendant had or might have informed itself in time to have made the walk safe before the occurrence. Putting this charge in fewer words, it appears that the defendant is a-city of the first class. Wood street is one of the public highways. On a sidewalk of this street, in front of private property, the city suffered ice and frozen snow to accumulate, and for a number of days to be beaten smooth and slippery, and for that reason to become and remain dangerous. Of this condition of the walk the city might have informed itself in time enough to have make it safe before the an cident.

Is this a sufficient charge of negligence ? To show neg ligence it must be made to appear (1) that the city had no tice, actual or constructive, of the dangerous condition of the walk in time to remedy it, and (2) that, having mch notice, it was the city’s duty to remedy it.

As to the first: For all that appears Wood street may be a street lying on the outer limits of the corporation. It may be a street but little improved, but little used, and but little frequented by the general public. If, therefore, as to every part of every public highway within the municipality it was the duty of the city to take unusual means and use extraordinary care to keep itself advised of the condition of the walks, then such duty attached to this part of Wood street; otherwise not. We say extraordinary care, because the allegation that the city “had or might have informed itself,” etc., means only that it might have informed itself, which is another form of saying that it was possible to have obtained the information. The terms “ a number of days ” and “ some days ” may mean two days or more. Neither necessarily indicates a greater number than two. Now, as to the most public and frequented streets, it may be that the allegation that the accumulations were there a number of days, or some days, is sufficient to cause notice to the city to be presumed, but this would not necessarily be so as to out-of-the-way streets and those remote from business centers.. It would be improbable that any city official who owed any duty in that regard would pass in the time stated under such circumstances as to make it incumbent oh him to observe the condition of the walk, or that the proper city authorities would be informed of its condition from other sources. The allegations referred to are, therefore, clearly insufficient to show notice to the city. So that the plaintiff is remitted, as to this essential element, to the allegation that it was possible for the city to have obtained the information. We do not understand that a city is bound at all hazards to have knowledge of defects in sidewalks. Municipal corporations are not insurers of the safety of their public ways, or of the lives and limbs of pedestrians. The law provides that such corporations shall have the care, supervision, and conti’ol of the ■streets, and shall cause them to be kept open and in repair, and free from nuisance. • This requires a reasonable vigilance, in view of all the surroundings, and does not exact that which is impracticable. When the authorities have done that which is reasonable in this regard they have discharged the entire obligation imposed by the law. They are not bound to use all possible vigilance in’ inspection or in obtaining information.

This view, if correct, disposes of the case; but, waiving this, is the petition free from infirmity in other respects ? The city is bound to exercise due care to keep the streets and walks reasonably and relatively safe, but can not be required to make all streets and walks absolutely safe or equally so. The complaint is that the walk was dangerous by reason of accumulations of ice and frozen snow, which rendered it slippery. The result was due in part to the elements and in part to the beating down of the ice and snow, especially by children sliding on it. If, then, the city of Cleveland, as to all the sidewalks within the corporarate limits, is liable for accidents which occur by reason of slippery sidewalks, of the condition of which it has notice, then, were notice shown here, it would be liable to the plaintiff in this case. It is insisted that there is such liability. If this be the law, an onerous burden is cast upon many of our municipal corporations. In all northern cities and towns storms of snow and sleet, producing ice and resulting, in slippery walks, are of frequent and constant recurrence during the winter season, and accidents of the character complained of are also frequent. Such dangers are apt to exist in many places at the same ‘time, and at points widely separated from one another. They appear at many points to-day, disappear to-morrow, and like dangers appear at other places the next day. They are affected by changes of weather, which are likely to occur at any time, and frequently many times within a few hours. It is not unreasonable to assume that there were hundreds of similar dangerous places in the city of Cleveland at the time of the accident to plaintiff.'' To effectually provide against dangers from this source would require a large special force involving euormous expense; for, to make the protection effective, constant activity and vigilance would be required as well in the ascertainment of tbe dangers as in their removal upon being known. Such duties do not naturally fall within the province of the police force, as that force is not a city agency for any such purpose. It would be possible to employ and pay a special force, but it does not follow that it would be reasonable to require it. '

Regarding the removal of dangers, as well as regarding watchfulness in ascertaining their existence, the municipality is bound to exercise only ordinary care; to take such measures as are reasonably to be required and adequate, in view of the ordinary exigencies. The condition of the walk in this case is not complained of as a defect in the sidewalk, but rather an accumulation on- it which created a nuisance. This was transient in its character, and not such as to ordinarily require the interference of the city authorities for its abatement. Those 'authorities are. empowered to clear the streets from snow and filth, and, by ordinance, to require property owners to keep the walks cleared from snow and ice, but ordinarily liability does not attach for a failure to do so. Slipperiness may arise from a variety of causes. A thin film of mud on the walk will often produce it, and yet liability would hardly be claimed to arise from such cause. It is not clear, on principle, that an exception should necessarily be made in regard to slipperiness from accumulations of ice.

¥e have considered the numerous authorities referred to by counsel in the able and elaborate printed brief, and have read the argument with much pleasure. It invites to an extended discussion of the subject anda review of the'authoriities. "We doubt whether good would result from extended discussion, or from an attempt to weigh the arguments in the conflicting decisions of other states, or even from a lengthy review of those decisions, and hence do not enter upon either, but are content to rest this branch of the case, as to the duty of the city regarding removal of ice from the sidewalks within the municipality, on the ground tersely put in substance by counsel for defendant, that the law exacts of municipalities only that which is practicable and reasonable in regard to keeping streets open, in repair, and free from nuisance ; that the duty of the municipality, under the statute, must-be interpreted upon a reasonable basis in reference to the actual condition of affairs; that impracticable things are not required, and that to hold the city liable, under the allegations of this petition, would be to require that which is impracticable, and to impose an onerous and unreasonable burden upon it.

Whether or not a case might be made, growing out of a peculiar situation of a walk at a greatly frequented place upon one of the most public streets wherein the city might be held for damages arising from slipperiness of ice alone, we need not here consider. Such a ease has not been made.

The petition does not state a cause of action, and the judgment of the court of common pleas is affirmed.


author: Follett, J.

text:
    Holbrook v. Ives.

      Mechanic’s lien — Death of owner — Bight of material-man to continue work and perfect lien — Priority over judgment.

    1. By virtue of the provisions of section 3205, Revised Statutes, when the progress or completion of the work on any house is suspended by the decease of its owner, a material-man,” who had a contract with such owner to furnish material for such house, and who has not consented to such suspension, may proceed with such work in accordance with the terms of the original plan; and, on completion thereof, he may perfect a mechanic's lien on the property for the work so done, and for the material so furnished.
    2. Such lien is superior to that of a levy upon the property, made, after such decease, by a judgment creditor of the devisee of such decedent, though such levy was made before such work was done.
    Error to the District Court of Hamilton county.

      On the first trial of the case in the superior court, the court found and held for Holbrook, which judgment the district court reversed as to the lien for $1,018.68, and it remanded the case for further proceedings.
    On the next trial of the case, the court found the facts, from which findings the following facts are taken :
    Maria Plant died April 27,1882, leaving a will, by which she provided for the payment of her debts and the expense of administering her estate, and she gave all the rest and residue of her property to Thomas Plant, her husband; and she appointed J. E. Baldwin executor of her will.
    She left no personal property, but died seized of a certain leasehold estate described in the petition. One Marsh, the owner of the fee of the lot, had obtained a judgment against her on the 27th day of January, 1880, which was wholly unsatisfied at the time of her death.
    At the time of her death there was standing on the west half of said lot a frame building, which had been erected by her. Shortly prior to her death she had commenced the erection of a house on the east half of the lot, which, at the time of her death, was somewhat less than half completed. This leasehold estate, at the time of her death, was -worth some $2,500; but on account of the unfinished and unsalable condition of the east house, it was not likely to bring so much at public sale.

      “Fifth. Prior to March 7, 1882, Maria Plant had contracted with the defendant, S. S. Holbrook, a dealer in lumber and building material, to furnish and deliver certain lumber and material in his line, necessary to build the east house, the same to be delivered from time to time, as required by her husband, Thomas Plant. Thomas Plant was and is a carpenter and builder by trade, and was superintending and building the east house, and had designed the plan for the same, which plan had been adopted and approved by Maria Plant, but the same was not reduced to writing, or placed on paper, except a slight sketch of front elevation, not offered in testimony.

      “Sixth. Holbrook commenced to deliver lumber under the contract, about March 7, 1882, and prior to Maria Plant’s death had delivered, in pursuance of the contract, lumber and material amounting to $419.12, which was used in erecting the east house; from and after the death of Maria Plant, all work and progress on the east house was suspended on account of her death.

      “Seventh. Holbrook, on the 29th day of May, 1882, filed in due form, and obtained a valid mechanic’s lien on the leasehold, to secure the payment of the sum of $419.12 and interest, as set forth in the first count of his answer and cross-petition herein.

      “Eighth. There were some $2,000 of liens on the leasehold, prior to the lien of Holbrook for the said sum of $419.12. Said east house, at the time of Maria Plant’s death, was in an unsalable condition, by reason of its being only partly completed. It was also, for the same reason, unprotected from the weather,'subject to be drenched, inside as well as outside, at each rain storm, and subject to rapid depreciation in value by the elements, unless speedily finished.

      “Ninth. Holbrook had no actual knowledge, until after Maria Plant’s death, of any liens on said leasehold prior to his lien for the sum of $419.12, but having learned of the existence of the prior liens — prior to July 1,1882 — he had good reason to believe that, if the leasehold should be sold at public auction with the east house, in its then unfinished and unsalable condition, it would not bring enough to pay the prior liens upon it, and pay in addition his claim for $419.12.

      “Eleventh. No work was done, nor was any progress made on the east house from the death of Maria Plant until July 1, 1882. Thomas Plant had in the meantime declared to Holbrook that he was unable to finish the house himself, for want of means, and thereupon, on July 1, 1882, Holbrook, as such material-man, caused the work on the east house to be recommenced, and then and thereafter, as the same was needed, furnished and delivered all the remaining lumber and building material in his line necessary to compíete the east house according to its original plan and design ; which lumber and. material, so furnished and delivered, was used in the completion of the east house, and amounted in the aggregate to the sum of $268.52.
    “Holbrook also employed and paid Thomas Plant to superintend the completion of the east house according to the original plan, and to do the remaining carpenter work thereon; and employed and paid other mechanics, and paid for other material not in his line necessary to the completion of the east house. So that Holbrook paid out in cash for the completion of the east house the sum of $755.16, in addition to the amount of material in his own line, furnished as above shown, making altogether the sum of $1,018.68 paid out and expended by Holbrook in completing the east house. S. S. Holbrook fully completed the house on the 22d day of December, 1882, according to the plan.
    “ Twelfth. Thereupon Holbrook made an affidavit containing an itemized account of the amount and value of the lumber and material as furnished by him, and of the items of cash paid out by him in so completing the house, and a description of the leasehold, all in due form of law, for the purpose of obtaining a mechanic’s lien, under the laws of Ohio; and on the 5th day of April, 1883, duly filed the same with the recorder of Hamilton county; and the same was thereupon duly recorded. This was so done by Holbrook, for the purpose and with the intent of obtaining, having, and securing a lien on the leasehold, to secure to himself the payment of the sum of $1,018.68 and interest, under the provisions of section 3205 of the Revised Stat-. utes of Ohio.
    “ Thirteenth. J. E. Baldwin was duly qualified, and is still acting as executor of the will, and was at the same time the attorney for the plaintiff herein.
    “Fourteenth. About the time Holbrook commenced to finish the east house, he agreed with J. E. Baldwin that he would keep a correct account of all the items of labor, cash, and material used in finishing the same; that he would finish the same as economically as possible, and that, in taking his lien for the costs and expenses of completing the house, he would charge only for actual cash paid out and the regular market prices for material furnished by him. Baldwin also prepared a written agreement, which was signed by Baldwin as executor, by Holbrook, and by the creditors of Thomas and .Maria Plant, except A. Ives & Sons, prior to July 1,1882, providing for the completion of the house upon the terms above mentioned. Said written agreement could not be found, and the paper is not in evidence, but the foregoing is the substance of the same as determined by parol testimony.
    “ Holbrook fulfilled his agreement in that respect in good faith, and his bill, $1,018.68, for the completion of the house, is a just and reasonable bill.
    “ In consideration of the above agreement on Holbrook’s part, J. F. Faldwin, as attorney for plaintiff, agreed not to cause the leasehold to be sold to satisfy plaintiff’s judgment herein until Holbrook should have reasonable time to complete the east house.

      “Fifteenth. Thomas Plant, and many of the unsecured creditors of Maria Plant and of Thomas Plant, advised J. F. Baldwin that in their judgment the leasehold would realize more for the unsecured creditors, if, before selling the same, he would allow Holbrook time to complete the east house, and to have his lien on the leasehold for the cost of completion, than it would realize for them if he should expose the leasehold to sale at once, with the east house in its unfinished condition, which advice was also embodied in the written agreement; but the defendants, A. Ives & Sons, were not consulted, and expressed no opinion on the question.

      “Sixteenth. At the time of Maria Plant’s death, the defendants, A. Ives & Sons, held a valid judgment of the court of common pleas of Hamilton ■ county, against Thomas Plant, for the sum of $511.58, and interest at eight per cent from May 5, 1876.
    “On the 16th day of May, 1882, defendants, A. Ives & Sons, by virtue of the judgment, caused execution to be duly levied on the interest of said Thomas Plant in said leasehold estate.
    “Seventeenth. On the 23d day of May, 1883, the leasehold estate was sold by order of this court, to satisfy plaintiff’s judgment herein, rendered January 27, 1880, for the sum of $4,100, and S. S. Holbrook became the purchaser thereof at said sale. ■
    “ The proceeds of the sale have been distributed by order of court as follows :
    1 Costs of this action, $89.54.
    2. Taxes, $110.39.
    3. Plaintiff’s judgment for money loaned, $1,482.49.
    4. Plaintiff’s judgment for rent, $152.61.
    5. Rents accrued since said judgment, $230.44.
    6. Holbrook’s first mechanic’s lien, $451.60.
    7. Paid to the executor, $535.83.
    “Leaving a balance undistributed of $1,047.10, which is the amount claimed by Holbrook for completing the east house, in the second cause of action set forth in his cross-petition herein, and interest thereon, to the date of said order of distribution.
    “Eighteenth. Maria Plant was owing debts at the time of her death, secured and unsecured, in the aggregate upward of $3,400. She left no property other than the leasehold estate above mentioned, some of which debts and claims are contested by A. Ives & Sons.

      “Nineteenth. And at request of counsel for A. Ives & Sons, the court finds the following: Prior to Maria Plant’s death, Baldwin had loaned to his client, the plaintiff', B. K. Marsh, the sum of $600, with the verbal agreement that he should retain the same out of the money collected by him on plaintiff’s judgment herein, pirovided Marsh should not sooner repay Baldwin said sum.
    “About September, 1882, Baldwin advanced to Marsh the balance then due him on said judgment, after deducting the sum of $600 and interest, and thereupon became the equitable owner of said judgment. About June 6, 1881, Baldwin purchased from Marsh the fee of said lot, subject to said lease, and paid therefor the amount of purchase-money, named in the privilege purchase contained in the lease, and all ground rents accrued under the lease up to date of purchase. And on distribution herein, the several sums ordered paid to plaintiff were in fact paid to Baldwin in his own right.
    “And as conclusions oof law, resulting from the above stated facts — protesting against but following the decision of the district court, reversing, in part, a former judgment herein — the court find that S. S. Holbrook did not obtain a lien on the leasehold to secure the payment of said sum of $1,018.68 and interest, as alleged in said second count in his answer and cross-petition, and that he was not entitled to a lien thereon for the material furnished by him, and the cash expended after Maria Plant’s death in completing said east house, and is not entitled to have said sum of $1,047.10 paid over to him on distribution.
    “It is therefore ordered that Herman Merrell, master commissioner, pay over the balance in his hands, amounting to $1,047.10, to J. F. Baldwin, as executor of Maria Plant, to be accounted for by him, according to law and the will of the testatrix, and that defendant, S. S. Holbrook, pay the costs herein.
    “ To all of which conclusions of law and judgment, defendant, S. ¡3. Holbrook, by his counsel, excepts.”
    On proceedings in error the district court affirmed the judgment of the superior court, and S. S. Holbrook now seeks a reversal of those judgments.

      Archer § McNeil and J. F. Baldwin, for plaintiff in error.

      Ferris $ Wilder, for defendants in error.
   Follett, J.

Is Holbrook, as a “ material-man,” protected by section 3205 of the Revised Statutes ?

That section provides that: “ If the progress or completion of the work on any property designated in this chapter, be suspended by the default or decease of its owner, without consent of such head or sub-contractor, or material-man, he or they, or any of them, may proceed with the work, in accordance, however, with the terms of the original plan or contract, and on completion thereof, have either or all the remedies provided by this chapter.”

The terms of this section are plain and need no construction.

If the work be suspended by the decease of the owner of the property, and such suspension is without the cohsent of the head contractor, or of the sub-contractor, or of the material-man, he or they, or any of them, not consenting to the suspension, may proceed with the work in accordance with the original plan or contract. And on the completion thereof, such person or persons may have either or all the remedies provided in that chapter, including the benefits of a mechanic’s lien.

The facts found in this case are: That Maria Plant owned the leasehold estate and the buildings thereon; that “ shortly prior to her death she had commenced the erection of a house on the east half of the lot, which, at the time of her death, was somewhat less than half completed;” that she had “ adopted and approved ” a plan for the house, which plan Thomas Plant had designed'; that she had contracted with. Holbrook to furnish and deliver certain lumber and material, in his line, necessary to build the house, and to deliver the same, from time to time, as required by Thomas Plant, the husband; that prior to her death a part of the material was furnished by Holbrook in accordance with their contract; and that the progress of the work was suspended by the decease of Maria Plant, the owner, without the consent of Holbrook, the material-man.

Thus every required precedent condition was fulfilled; and Holbrook, the material-man, did proceed with the work, in accordance with the terms of the original plan, and did complete the house.

It is claimed that Holbrook’s 'contract with the owner deceased did not provide for the completion of the house by him. The language of his contract alone did not so provide; but his contract was made under the provisions of section 3205 of the Revised Statutes, and the clear provisions of that statute became a part of the contract; and these provisions were of full force on the suspension of the progress of the work by the decease of Maria Plant.

“ The laws which subsist at the time and place of the making of a contract, and where it is to be performed, enter into and form a part of the contract, and this is so, whether such laws effect its validity, construction, discharge, or enforcement.” Roberts v. Cocke, 28 Gratt. (Va.) 207.

“ It is also settled that the laws which subsist at the time and place of the making of a contract, and where it is to be performed, enter into and form a part of it, as if they were expressly referred to or incorporated in its terms.” Mr. Justice Swayne in Von Hoffman v. City of Quincy, 4 Wall. 550.

It is also claimed that a mechanic’s lien is án entirety, and that Holbrook could not have two such liens in this case.

If we concede the former claim, the latter one would not. follow. Duringthe life-time of Maria PI ant, Holbrook could only furnish materials for the house; and, upon her death, for such materials furnished he could perfect his lien therefor as he did ; and when her decease changed the obligations of the contract in its practical effect, Holbrook did proceed with the work both as a material-man and as a workman. This he had a right to do, by virtue of his contract and the provisions of the statute. Eor all he thus furnished and performed he could perfect his second mechanic’s lien, unless in some way he was prevented.

Hid the levy of A. Ives & Sons prevent or postpone Holbrook’s second mechanic’s lien ?

This levy was for a.judgment debt due A. Ives & Sons from Thomas Plant, the devisee of Maria Plant. Thomas Plant took the property subject to the debts of Maria Plant, and also subject to her contracts respecting this property— including her contract with Holbrook, by virtue of which he obtained his second lien. The levy was only upon the property interest therein devised to Thomas Plant, and it is subject to this lien of Holbrook. A. Ives & Sons could not obtain a better right or title than Thomas Plant possessed. The facts found, as to what agreements were made by Holbrook after the decease of Maria Plant, are important only as showing the utmost good faith on the part of Holbrook in his completion of the house under his optional contract to complete it; and, doubtless, such agreements were not necessary to enable Holbrook to secure his rights; but such agreements could not destroy his rights under the statutes.

The facts found show there is no equity in the claim of the defendants in error.

This expenditure of $1,018.68 seems to have increased the salable value of the property at. least $1,600, a profit of $581.32, which mayinure to the benefit of the defendants in error. And they need not have done otherwise than stand by and see this expenditure of money, as their levy did not prevent or destroy the rights of Holbrook.

The facts of this case show clearly the importance of such a statutory provision, and its great value to material-men, to contractors, and to such workmen.

The court erred in its conclusions of law, and there was error in affirming the judgment.

The judgments below are reversed, and. judgment is rendered for 8. 8. Holbrook.


author: Owen, C. J.

text:
    Railway Company v. Thurstin.

      Error — Findings of fact by trial court— Whether order of dismissal reviewable — Section 6710, Revised Statutes.

    A motion to dismiss a petition in error upon the alleged ground that summons in error was not served nor appearance entered within two years after the rendition of the judgment below, was heard in the circuit court upon evidence and sustained. No bill of exceptions was taken, but the court stated upon the record the facts found from the evidence, and upon which the dismissal was ordered. Upon this record the plaintiff in error seeks a reversal in this court of the order of dismissal. Held :
    1. Section 6710, Revised Statutes, does not authorize a finding of facts in such a proceeding.
    2. The order of dismissal is not reviewable upon such record, and a motion to dismiss the petition in error is well taken.
    Motion to dismiss petition in error to the Circuit Court of Lneas county.
    The defendant in error recovered a judgment against the plaintiff in error, The Columbus, Hocking Yalley and Toledo Railway Company, in the court of common pleas of Lucas county.
    To reverse this judgment the latter filed its petition in error in the district court.
    After the lapse of two years the defendant in error moved the circuit court to strike the petition in error from the files and the case from the docket, for the reason that no service of summons had been made nor appearance entered within two years from the rendition of the judgment.
    The motion was heard by the circuit court on affidavits and oral testimony.
    The court granted the motion. The petition in error in this court is to reverse the judgment of the circuit court rendered upon this motion.
    Certain facts which the court found from the evidence are recited in the record, and the contention of the plaintiff in error is that these facts did not warrant the action of the court upon the motion to dismiss. No bill of exceptions was taken showing the evidence upon which the court made its findings of facts. The circuit court did not pass upon the merits of the ease as exhibited by the record of the court of common pleas, and no part of that record is in this court.
    The questions now before this court for consideration arise upon the motion of the defendant in error to dismiss the proceeeding in error for the alleged reason that the court has no jurisdiction of the subject-matter.

      The foregoing statement embraces as much as is necessary to present the question considered and disposed of by this court.

      James A. Wilcox and Doyle & Scott, for plaintiff in error.
    . Joshua B. Seney, for defendant in error.
   Owen, C. J.

The solution of the question at bar rests upon the construction of section 6710, Revised Statutes, as amended May 4,1885 (82 Ohio L. 230), which provides, among other things, that: “ • • • the supreme court shall notin any civil cause or proceeding, except when its jurisdiction is original, be required to determine as to the weight of the evidence; and on application of any party excepting to a ruling or decision of the circuit court, during the trial, or on motion for a new trial, such court shall find from the evidence, and state on the record, the facts upou which the alleged error arises or which may be material in determining whether error has intervened or not.”

It is maintained by the defendant in error that this court has no power to entertain this proceeding in error upon the finding of facts set forth in the record, in the absence of a bill of exceptions containing all the evidence upou which the circuit court disposed of the motion to dismiss. On the other hand, the plaintiff in error maintains that a bill of exceptions would have been an idle form, as the weight of evidence cannot be reviewed by this court upon such bill; and that the only means of bringing such question before this court for review is by a finding of facts under section 6710, Revised Statutes. Conceding that a bill of exceptions would not require this court to review a judgment or order below upon the weight of the evidence, the fact remains that if such judgment or order be against the facts established by the uncontradicted evidence presented by the bill of exceptions, there would be power to review and reverse such judgment as a question of law.

The question before us must turn upon the construction of so much of section 6710 as provides that “ on application of any party excepting to a ruling or decision of the circuit court during the trial . . . such court shall find from, the evidence, and state on the record, the facts upon which the alleged error arises,” etc.

Was the hearing of the motion to dismiss in the court below such proceeding as may be termed a “trial ? ” We are in full accord with counsel for plaintiff in error when they say in argument: “ The word trial in this section is of course used in the sense of the general definition given to it by the Revised Statutes, section 5127, which declares that ‘ a trial is a judicial examination of the issues, whether of law or fact, in an action or proceeding.’ ”

What are “issues,” as that word is here employed? The court is unanimously of the opinion that this question is satisfactorily and conclusively answered by the four succeeding sections, in the light of which it seems reasonable to construe this word issues.” They are here given in full.

“ Sec. 5128. Issues arise on the pleadings where a fact, or conclusion of law, is maintained by one party and controverted by the other. They are of two kinds. 1. Of law. 2. Of fact.

“Sec. 5129. An issue of fact arises : 1. Upon a material allegation in the petition denied by the answer. 2. Upon a set-off, counterclaim, or new matter, presented in the answer and denied by the reply. 3. Upon material new matter in the l’eply, which shall be considered as controverted by the opposite party without further pleading.

“ Sec. 5130. Issues of law must be tried by the court, unless referred as hereinafter provided; and issues of fact arising in actions for the recovery of money only, or specific real or personal property, shall be tried by a jury, unless a jury trial be waived, or a reference be ordered as hereinafter provided.

“ Sec. 5131. All other issues of fact shall be tried by the court, subject to its power to order any issue to be tried by a jury, or referred.”

It seems clear that the issues here referred to are those which arise upon the pleadings and do not relate to controversies involved in summary proceedings like the one now under consideration, although the pendency of the action in which it is involved depends upon the disposition of it by the court.

This view seems to be strenghtened by the construction given by this court to section 7356, Revised Statutes, in Wagner v. State, 42 Ohio St. 537. This section relates to the review of criminal proceedings, and concludes with the provision : “But in the supreme court only errors of law occurring at the trial, or appearing in the pleadings or judgment, can be reviewed.”

In that case it was held that: “‘Trial,’ in the sense of this limitation, has reference to a trial upon a plea in bar, and does not extend to a hearing on a motion to quash, or trial upon a plea in abatement; it commences, at least, when the jury is sworn, and embraces questions as to the admissibility of evidence, refusals to charge, and the charge given, and the like; and it ends with the rendition of the verdict.”

The construction already indicated is supported by the provision of section 6710, that “ on application of any party excepting to'a ruling or decision of the circuit court during the trial,” the court shall state its findings of fact, etc. This seems to contemplate an exception to some ruling of the court during the course of the hearing, rather than an exception to the final judgment or order of the court by which the controversy is determined.

A legislative provision should quite clearly indicate that such was the purpose of its enactment, to authorize the construction that upon each summary proceeding arising upon motion, and not involving the merits of the action, the court is required to make and state a finding of the facts upon which the disposition of such motion is made to rest.

There was no authority in the circuit court, derived from ■section 6710, to make a finding of facts upon which, in the absence of a bill of exceptions, the action of that court can be reviewed in this.

The finding of facts is improperly in the record. Lockhart v. Brown, 31 Ohio St. 431. As the only exception taken in the circuit court by the plaintiff in error was to the action of the court in dismissing the proceeding in error, and as that action is not reviewable, upon the record before us, the motion of the defendant in error is well taken, is allowed, and the

Petition in error dismissed,.


author: By the Court.

text:
    Cassidy v. Hynton.

      Will — Construction—Widow and children — Trust.
    Error to the District Court of Cuyahoga county.
    The question in this case is as to the sufficiency of plaintiffs’ amended petition. Without copying the pleading at length, its substance may be stated. On the 21st day of September, 1865, John Hynton, a resident of Cuyahoga county, was the owner of a parcel of 184 acres of land in that county, worth $10,000, and 147 acres in Summit county, worth $9,000; also stock, farming utensils, and money at' interest of the value of $5,000. Elizabeth Hynton, the defendant, was then his wife, and they then had four children living, viz: Mary, aged about 21 years; Catharine, about 18; John, 16; and Elizabeth, 13 years. On that day John Hynton made a will, which is as follows :
    “ Enow all men by these presents: That I, John Hynton, of the township of Independence, county of Cuyahoga, and state of Ohio, being of sound mind and memory, and not under any restraint, do hereby declare and establish this my last will and testament.
    “ I bequeath to my beloved wife, Elizabeth, all my property, real and personal, to be solely under her care and management, in trust for the benefit of mine and her children.
    “ She may distribute it at any time and in any manner that she may think proper.”
    Elizabeth Cassidy and Catharine Walsh, plaintiffs, and Mary Doubler and John Hynton, defendants, are the children named above.
    On the 25th of September, 1865, the testator died, leaving the wife and children, named, all of whom still survive. The will having been duly proven, the widow appeared in probate court and elected to take under the will. She was at the same time appointed administratrix with the will annexed, and gave bond as such in the sum of $1,000. No inventory of personal property was taken, nor appraisal had, nor report of any sale. On the 19th of October, 1866, she filed in probate court a sworn statement, alleging the payment of all debts, which the court received as a final settlement. No other settlement was ever made.
    Immediately after the death of John Hynton she took possession of all the property, and took, received, and kept all the rents, income, and profits, and has continued to do so except as hereinafter stated, and claims all as her owu absolutely. November 18, 1870, she sold and converted into money about five thousand dollars’ worth of the personal property, and with the proceeds, and with income and proceeds of about eight acres of timber land sold, purchased 95-3-3 acres of land worth $6,197.10, which sum she paid for it. She has distributed out of the estate to said Elizabeth, $530; to said Catharine, $500; and to said Mary, $2,000. To said John she conveyed, without consideration in money or otherwise, 114j^j- acres of the real estate, and John conveyed it to the defendant, Richey, who still occupies it. The land was worth $6,322.80. Afterward, without valuable consideration, she conveyed to said John another tract of land worth $6,175. The total value of all the property left by the testator was about $24,000. The debts, funeral expenses, and cost of administration did not exceed $1,000. ■

      The said Elizabeth Hynton claims to be sole devisee and legatee of all the property; denies that she holds any part thereof in trust; refuses to give bond for the proper discharge of the trust; has not accounted in any way for her management of the trust property,, and still refuses to account. At the time of said conveyance to said John, and by him to said Richey, both of them well knew all the terms and provisions of the will, and that said lands were held by said widow in trust only.-
    Plaintiffs pray a construction of the will; that the defendant be ordered to render full account; that she be required to give bond; that proper order be made regarding the lands conveyed to John and the lands by him conveyed to Richey, for order that will secure preservation and ultimate distribution in equal shares of the trust property, and for full relief.
    The petition was filed May 26, 1877. At the September term, 1881, of the common pleas, the case was heard and a decree rendered for the plaintiffs, from which the defendant, Elizabeth Hynton, appealed to the district court. In that court a demurrer to the petition was filed, which, on hearing, was sustained, and judgment for defendant entered. To procure a reversal of that judgment the error proceeding is prosecuted here.

      Caskey § Calhoun, for plaintiffs in error.

      Cadioell # Cadwell, for defendant in error.
   By the Court.

The disposition of the demurrer to the petition depends upon the construction to be given to the will of John Hynton. It is the duty of the court to ascertain the intent of the testator. If the plaintiffs were entitled to any relief under the allegations of the petition, then the demurrer should have beeu overruled ; if not, it was properly sustained. The counsel for plaintiffs in error claim that under the provisions of the will, Elizabeth Hynton, in her own right, took no interest in her husband’s estate; that under the law she was entitled to dower in the lands, to a year’s support, and to a distributive share of the personalty, but as to all the remainder of the estate, she took it as a devisee in trust for the equal and impartial benefit of all the children of herself and her husband, John Hynton. The position of counsel for defendant in error, Elizabeth Hynton, if we understand them correctly, is that under the will she took the entire estate in trust for the children, but that the trust was wholly unlimited aud unrestrained, and gave her unquestioned discretion as to what she should give each child, and when; that it can not now be important whether she took an estate for life or in fee, for in either case there is no relief for the plaintiff so long as the mother lives, and that the court has no power over the trust.

It is not proposed to enter upon length}’ discussion to demonstrate what the testator meant by his will. Instruments of this character are so unlike in their terms, and the circumstances surrounding testators so unlike in their facts, that the decision of one case is not apt to aid in the determination of subsequent cases. It will suffice if we indicate the view this court takes of the rights of the parties to this litigation. We are not able to agree wholly with the construction given the will by the counsel of either of the parties. The will gives the property to the wife for the benefit of the children. She is to have the sole care and management of it, aud may distribute it at any time and in any manner that she may think proper. This implies that she is to take the entire legal estate; otherwise the distribution could not be effectually made. The property described being the property then in existence, with no mention made of increase or profits, and being placed under her sole care aud management, with power to make the distribution at any time she may deem proper, it follows that she may have the use of the property herself, and may delay the distribution during her life, providing she takes any beneficial interest under the will at all. The property was devised for the benefit of all the children. The will does not say in trust for such of the children as the mother may select, but “ in trust for the benefit of mine and her children.” This language, in the absence of words indicating a different meaning, must be held to give them a joint interest in it. Standing alone, the words used would accomplish this result without questiou. Should the clause ' giving power to distribute “ in any manner she may think proper” necessarily be held to diminish or limit the equitable estate given the children ? We think not. The words used are reconcilable with the idea that the testator’s purpose was to give to the wife power to advance to each child, from time to time, from his or her equal share, such sum as might, in the mother’s judgment, be beneficial. To one she might advance means for obtaining an education, to another the means to start in business, and so forth. To construe the will as giving the wife unlimited power of distribution, as to the quantity of the estate each child should have, would be to construe the term “ in any manner ” as if it read “ in any proportion,” which would allow the mother to give to three of the children one dollar each» and all the remainder to the fourth. There is no warrant for such construction.

The cases of Collins v. Carlisle, 7 B. Monroe, 13; Hoey v. Kenny, 25 Barbour, 396, and Freedly’s Appeal, 60 Pa. St. 344, cited by counsel, have been examined. Whatever similarity is presented by these cases to the case at bar is apparent rather than real. They do not control this case, though the doctrine of the first named case, as regards the estate of the widow, applies here. The question is not what was the purpose of some other testator in using language similar, but under different circumstances, at the time of making the will, or of one using identical language, but with it incorporating other language modifying the preceding, and serving to explain his intent, but what was the purpose of this testator in using the language of this will under the circumstances in which it was made?

It is reasonable to infer that the testator intended to dispose of his whole estate, and to provide for all those entitled to his bounty. His “ beloved wife ” was in his mind at the time the will was drawn, as well as their children. Why assume that he intended to provide for them and'not for'her? We think the will should receive such construction as will make provision for all. By electing to take under the will she accepted the benefit conferred by it, and at the same time signified her intention to assume the trust imposed. What was that? Can it be reasonably supposed that this husband intended' to impose upon the wife the burden of a strict, technical trust, thus making her liable, not only for what she should actually make the property earn, but for what she might, with due care, have made it earn ? We think not. Yet, if the construction plaintiffs’ insist upon is correct, that result follows. She is entitled to the use of the property for her own benefit, and is legally responsible only for the original amount, the principal.

The allegations of the petition show that Mrs. Hymton has disregarded the duties imposed by the trust; that she treats not only the rents, income, and profits as her own, but all of the property as well, and claims it as belonging to her absolutely; that she has conveyed away a large portion of it to a son, the defendant, John Hynton, and he has conveyed a portion of that so acquired to the defendant, Richey, and that she is in other ways disposing of the property, and putting it beyond her power to carry out the purpose of this will. Why should these plaintiffs be required to sit by and see their estate thus wasted, and yet be powerless to prevent it ? Such conduct as is here charged is a direct repudiation of the trust, and a court of equity has abundant jurisdiction to enforce the trust by compelling the trusjeeto present a statement in the nature of an inventory showing what property she took, and its value, as by an appraisal, and what has become of it, and to give bond in an adequate sum for the proper discharge of the duties of the trust; and, in the event of neglect or refusal, to appoint a trustee to recover and take charge of the property in the interest of the cestui que trustent, accounting to the widow for the net rents and profits ; also, if John has received more than his proportion, to make such order as will eventually compel a return of the excess.

The case is not governed by section 6202, Revised Statutes, nor are the plaintiffs to be impeded in the lawful pursuit of their rights becausé they ask a construction of the will.

It follows that the judgment of the district court sustaining the demurrer to the petition and rendering judgment for defendants was erroneous.

Judgment reversed, and cause remanded to the circuit court of Cujmhoga county with directions to overrule the demurrer, and for furtlier proceedings.

Minshall, J. dissents.


author: Minshall, J.

text:
    Heck v. The State.

      Constitutional law — Section 6946, Revised Statutes — Sale of liquors within two miles of fair.

    •The clause, “ whoever sells intoxicating liquors within two miles of the place where an agricultural fair is being held . . . shall be fined,” etc., contained in section 6946 of the Revised Statutes, as amended May 2, 1885 (82 Ohio L. 222), includes sales made by one whose place of business is permanently located within such distance, is not in conflict with any provision of the constitution, and is a valid law.

      T. D. Helea and J. T. O’Donnell, for plaintiff in error.

      J. F. Wilkin, prosecuting attorney, and J. A. Kohler, attorney-general, for the state.
   Minshall, J.

The plaintiff' in error was indicted at the October term, 1885, of the court of common pleas of Tuscarawas^ county, under section 6946 of the Revised Statutes, as ameuded May 2,1885. The indictment charged that on September 30,1885, he unlawfully sold intoxicating liquors to one C. in the eounty, within two miles- of the place where an agricultural fair, naming it, was then and there being held. It was disclosed by the evidence at the trial, upon a plea of not guilty, that he was then, and since 1883 had been, the owner and keeper of a saloon, located in a brick building in the village of Urichsvillc, in which he carried on the business of selling intoxicating liquors, and that at the time named, he then and there sold such liqnors to the person named in the indictment, the same being, as charged, within two miles of where the said fair was then being held.

The jury, under the charge of the court, returned a verdict of guilty. A motion for a new trial was made and overruled, and sentence pronounced by the court. A bill of exceptions was taken setting forth the evidence, the charge of the court and- its refusal to charge as requested.

The-question presented by the record is, as to whether, upon the evidence, the accused is guilty of an offense within the terms of the statute, and, if so, then whether the statute is a valid one.

It is claimed that the clause in section 6946 of the Revised Statutes, as amended May 2, 1885. (82 Ohio L. 222), to wit: “Whoever sells intoxicating liquors within two miles of the place where any agricultural fair is being held . . . shall be fined,” etc., is simply a revision of section 3 of the act of 1856, that punished the sale of such liquor at some temporary place, as a booth, tent, or wagon, within the distance above stated of the place where such fair was being held, and that it can'.not be construed to include what was not an offense under the provisions of that act.

Where the language used in a revised statute is of such doubtful import as to call for a construction, it is both reasonable and usual to refer to the statute or statutes from which the revision has been made. But where the language is plain, and leads to no absurd or improbable results, there is no room for construction, and it is the duty of the courts to give it the effect required by the plain and ordinary signification of the words used, whatever may have been the language of the prior statute, or the construction placed upon it. State ex rel. Pugh v. Brewster, 44 Ohio St. 249; The United States v. Bowen, 100 U. S. 508; Allen v. Russell, 39 Ohio St. 336; Rich v. Keyser, 54 Pa. St. 86. If the plain language of a revised statute is to he departed from, whenever the language of the prior one may require it, then it may be asked, what is gained by a revision? .The definition of crimes must, in such cases, be sought, not in the statutes as they are found to exist, but in the language of those that have been repealed. The more rational rule must be, as we think, to resort to the prior statute for the purpose of removing doubts, not for the purpose of raising them.

The language employed in the clause in question is free from any ambiguity. It embraces the sale of intoxicating ■liquors at any place within two miles of the place where an agricultural fair is being held. There is nothing in the nature of the subject that would lead the mind to suppose that any discrimination was intended. The sale of intoxicating liquors, within the distance named of a fair, would be a source of the same inconvenience and aunoyance to the people attending it, whether sold at a permanent place, or at a temporary one.

But it is also claimed that the law is retroactive, and so in conflict with section 28, article 2, of the constitution. The power of the general assembly to provide against evils resulting from the traffic in liquor is conferred in terms by section 9, article 15 (sched. section 18). So that every per-sou in the state, engaged in the traffic, holds his property, employed in such business, subject to the legitimate exercise of this power by the legislature. 'Laws have been passed prohibiting the sale on election days, upon the Sabbath, and, also, to be drank upon the premises where sold. No one questions the validity of these laws, and yet they are but similar instances of the power exercised by the legislature in the enactment of this law.

It is also argued that the law is not uniform in its operation, because it applies to the liquor dealer whose place of business is just within, and does not apply to the one that is just without the prescribed limit, and is, therefore, in conflict with section 26, article 2, of the constitution. Is this tenable ? Laws made applicable to cities and villager of a certain grade aud class have been sustained time and again by the court, although they do not apply to those of another grade and class A law is general and uniform that applies to all persons and things coming within its provisions throughout the state. Its uniformity consists in the fact that no person or thing, of the description of any person or thing affected by it, is exempt from its operation.

The language of this law is general, and applies with uniformity to every person engaged in th.e business of selling intoxicating liquors within two miles of any place where an agricultural fair is being held.. We see no error in the record.

Judgment affirmed.

Eollett, J., dissents.