author: Crew, J.

text:
    Goodlove v. The State of Ohio.

      Allegations in an indictment — What is essential to the charge— Indictment charges accused as killing “one alias another” in names — Evidence against “another” will not sustain verdict against accused "one," when — Criminal law.

    1. An allegation in an indictment descriptive of that which is essential to the charge therein made is a material allegation and cannot be rejected as surplusage.
    2. Where an indictment charges 'the accused with having assaulted and killed one “Percy Stuckey alias Frank McCormick,” evidence that the defendant assaulted and killed a person commonly known as Frank McCormick will not sustain a verdict of guilty against the defendant unless it also be shown that the Frank McCormick assaulted and killed and Percy Stuckey were one and the same person.
    (No. 12255
    Decided June 28, 1910.)
    Error to thé Circuit Court of Wyandot county.
    . The facts of this case are sufficiently stated in the .opinion.

      Messrs. Sheets & West and Messrs. Meek & Stalter; for plaintiff in error.
    The indictment, as it ' stands, charges two offenses, one assault with intent to kill, the other shooting with intent to kill. But it does not charge homicide. The trial judge, however, construed the indictment as though it charged murder in the second degree. Upon what theory he arrived at this conclusion we cannot comprehend, and he did not undertake to enlighten us. In submitting the case to the jury the court submitted the question as to whether the accused was guilty of murder in the second degree and all the lesser offenses; and in that we confidently claim there was fatal error.
    If permitted to draw inferences, we might probably infer that the prosecuting attorney intended to draw an indictment for murder in the first degree, and that the grand jury intended to return such an indictment. But in criminal cases inferences are not permitted. That proposition is elementary. State v. Graham, 22 So. Rep., 807; 1 Bishop Crim. Procedure (4 ed.), Sections 518, 519; Fouts v. State, 8 Ohio St., 98; Hagan v. State, 10 Ohio St., 459; Drake v. State, 19 Ohio St., 211; Knight v. State, 54 Ohio St., 365; Jones v. State, 21 Tex. App., 349; State v. Daugherty, 30 Tex., 360; Littell v. State, 133 Ind., 577; State v. Hagan, 164 Mo., 654.; State v. Rector, 126 Mo., 328; State v. Keerl, 29 Mont., 508; Edmonson v. State, 41 Tex., 496; State v. Hutchinson, 26 Tex., 111; Cook v. State, 72 Miss., 517; State v. Halder, 13 Am. Dec., 378; Jester v. State, 9 S. W. Rep., 616; Parker v. State, 114 Ala., 690; Griffith v. State,
      90 Ala., 583; State v. Caspary, 11 Rich. L. (S. Car.), 356.
    We wish to add also that the statutes of all these states with reference to variance, surplusage, formal defects, etc., are substantially the same as those of the state of Ohio.
    It is- charged in the indictment that the name of the person killed was Percy Stuckey, alias Frank McCormick. That means, of course, that the name of the person killed was Percy Stuckey, and that Frank McCormick was not his name but an alias under which he may have gone at some time in his life. The evidence in -the case shows that it was Frank McCormick who was killed, and not Percy Stuckey. We do not think it will be seriously controverted that the name of the person assaulted, as charged in the indictment, must correspond with the proof; otherwise the defendant is entitled to an acquittal. The reason for this rule is entirely plain. For should an accused be charged with killing John Brown and it appeared in evidence it was James Brown instead of John Brown that he killed, an acquittal would not be a bar to a prosecution for the killing of James Brown. If convicted and sent to the penitentiary, after serving his term he could be brought back and tried for the killing of James Brown. Section 10, Bill of Rights; 2 Bishop Crim. Procedure (4 ed.), Section 65; 1 Elliott on Evidence, Section 200; 4 Elliott on Evidence, Section 2714; Price v. State, 19 Ohio, 423; 1 Bishop Crim. Procedure (4 ed.), Section 683; 1 Archbold Cr. Pr. & PI. (8 ed.), 241; Griffin v. State, 14 Ohio St., 55; Moore v. State, 12 Ohio St., 387; Sykes v. People, 132 Ill., 32; McGary v. People, 45 N. Y., 153; Johnson v. State, 111 Ala., 66; State v. Gaffery, 12 La. An., 265; Rex v. Deeley, 1 Moody, 303; Hensley v. Commonwealth, 1 Bush, 11; State v. Taylor, 15 Kans., 420; Lewis v. State, 90 Ga., 95; People v. Hughes, 41 Cal., 234; Owens v. State, 20 S. W. Rep., 558; Humbard v. State, 21 Tex. App., 200.
    If it be claimed that failure to prove that the name “Frank McCormick” was an alias, and that Percy Stuckey was the true name of the deceased js merely a variance and is cured by the provisions of Section 7216, Revised Statutes, we will answer that in this case it is not a variance; it is a failure of proof, a total failure of proof.
    The purpose of Section 7216, Revised Statutes, is merely to cure any slight variance between the p'roof and the indictment; not to enable the state to charge a defendant with the homicide of one person, and then prove at the trial the homicide of another person. If such were the construction it would be clearly unconstitutional as it would be in conflict with Article I, Section 10, constitution.
    The. supreme court of Ohio has had occasion. to construe the provisions of Section 7216, to which we beg to call the court’s attention. Mead v. State, 26 Ohio St., 505; Pratt v. State, 35 Ohio St., 514; Barber v. State, 39 Ohio St., 660; State v. Johnson, 58 Ohio St., 417.

      Mr. H. H. Newell, prosecuting attorney, and Mr.- D. C. Parker, for defendant in error.
    It is claimed by the accused that this indictment does not charge murder in the first degree, murder in the second degree, neither does the same charge manslaughter, and if it charges anything, according to the motion of the accused, it charges shooting with intent to kill or wound.
    And as we take it the law is that where one is indicted for murder in the first degree, under the section, it necessarily follows that the indictment includes all of the other degrees of murder down to assault.
    Section 7215, Revised Statutes, provides, among other things, that certain matters may be left out of an indictment and still the same shall be a good indictment. Section 7217 provides what is necessary to set forth in an indictment for manslaughter.
    But we fail to find any rule laid down by the statutes defining what formal language shall be placed in . an indictment for murder' in the first degree.
    There is no question but that this indictment fully complies with the statute charging malice, deliberation and premeditation. The fault found with it by the accused is that it does not disclose the manner and means by which the crime was committed.
    The facts of the indictment are sufficient to notify the defendant fully what he would be expected to meet at his trial.
    We find no authority in Ohio from our reports, and there is but little light thrown on this kind of an indictment, but in looking over the textbooks we think there is law to fully maintain the allegations of this indictment. Wharton on Homicide, 837, 850-856; 21 Cyc., 846; McDonnall v.
      People, 168 Ill., 93; Jones v. State, 35 Ind., 122; Territory v. Godas, 8 Mont., 347; Caldwell v. State, 28 Tex. App., 566; Adams v. State, 28 Fla., 511; State v. Florenza, 28 La. An., 945; Veatch v. State, 56 Ind., 584; Washington v. Yandell, 34 Wash., 409; State v. Cronin, 20 Wash., 512; Green v. State, 154 Ind., 655; State v. Silk, 145 Mo., 240; State v. Freeman, 1 Spears, 65; State v. Vaughn, 26 Mo., 29
    On this question as to the sufficiency of the indictment we also call the attention of the court to Lamberton v. State, 11 Ohio, 282; Rufer v. State, 25 Ohio St., 464; DuBrul v. State, 80 Ohio St., 52.
    We are satisfied that the indictment in the case at bar charges murder in the first degree.
    Further it is claimed by the accused that the indictment is defective because that while it charges an assault upon one Percy Stuckey alias Frank McCormick, the name Percy Stuckey nowhere again appears in the indictment, but the deceased is constant^ referred to as the said Frank McCormick.
    In the case at bar it is abundantly proven that the man killed was known to the accused as Frank McCormick, and it is clear that the indictment does apprise him of the fact that he is charged with killing Frank McCormick.
    The trial court in this case made no such finding of material variance under Section 7216, Revised Statutes, as would be prejudicial to the accused. Nor can we conceive of any possible prejudice that could afise to the accused from such variance, unless it be on the question as to former jeopardy in case of a future indictment and hearing. Mead v. State, 26 Ohio St., 505; Commonwealth v. Hunt, 4 Pick, 252; Walter v. People, 32 N. Y., 147; Commonwealth v. Randall, 4 Gray, 36; Rye v. State, 8 Tex. App, 163; State v. Craighead, 32 Mo, 561; Commonwealth v. Desmarteau, 16 Gray, 1; Pyke v. State, 47 Fla, 93, 36 So. Rep, 577; People v. Woods, 65 Cal, 121, 3 Pac. Rep., 466; People v. Lake, 110 N. Y., 61, 17 N. E. Rep., 146; 6 Am. St., 344; Morsee v. State, 83 S. W. Rep, 1117; Kennedy v. People, 39 N. Y., 245.
   Crew, J.

At the October term, 1908, of the court of common pleas of Wyandot county, the. grand jury of said county found and presented against James F. Goodlove, the plaintiff in error herein, a certain indictment of which the following is a copy:

“The State of Ohio, Wyandot County, ss.:
“In the court of common pleas, Wyandot county, Ohio, of the term of October, in the year of our Lord one thousand nine hundred.and eight.
“The jurors of the grand jury of the county of Wyandot and state of Ohio, then and there duly impaneled, sworn and charged to inquire of and present all offenses whatever committed within the limits of said county, on their said oaths, in the name and by the authority of the state of Ohio, do find and present that James F. Goodlove, late of said county, on the 6th day of August, in the year of our Lord one thousand nine hundred and eight, at the county of Wyandot aforesaid in and upon one Percy Stuckey, alias Frank McCormick, then and there being, did unlawfully, purposely, and of deliberate and premeditated malice, make an assault, in a menacing manner, with intent, him, the said Frank McCormick, unlawfully, purposely, and of deliberate and premeditated malice, to kill and murder; and that the said James F. Goodlove, a certain pistol then and there charged with gunpowder and leaden bullets, which said pistol he, the said James F. Goodlove, then and there in his right hand had and held, then and there, unlawfully, purposely, and of deliberate and premeditated malice, did discharge and shoot off to, against and upon the said Frank McCormick, with the intent aforesaid, and that the said James F. Good-love, with the leaden bullets aforesaid, out of the pistol aforesaid, by force of the gunpowder aforesaid, by the said James F. Goodlove then and there discharged and shot off as aforesaid, him, the said Frank McCormick in and upon the upper right side of the back of him, the said Frank McCormick, then and there unlawfully, purposely, and of deliberate and premeditated malice did strike, penetrate, and wound, with the intent aforesaid, so as aforesaid discharged, and shot out of the pistol aforesaid, by the said James F. Goodlove, in and upon the upper right side of the back of him, the said Frank McCormick, one mortal wound of the depth of four inches and of the breadth of half an inch, of which mortal wound he, the said Frank McCormick, then and there died: and so. the jurors aforesaid, upon their oaths and affirmations aforesaid, do say. that the raid James F. Goodlove him, the said Frank I.':cC:;r-mick in .the manner and by the names aforesaid, unlawfully, purposely, and of deliberate and premeditated malice, did kill and murder contrary to the statutes in such cases made and provided, and against the peace and dignity of the state of Ohio.
“H. H. Newell,
“Prosecuting Attorney, Wyandot county, Ohio.” .

The defendant, James F. Goodlove, being duly arraigned upon this indictment pleaded thereto not guilty. Thereafter and during said October term, 1908, the defendant was put upon trial upon said indictment and by the verdict of the jury was convicted of the crime of manslaughter. A motion for new trial was made and overruled and thereupon the defendant was sentenced by the court to imprisonment in the Ohio penitentiary at hard labor for the period of fifteen years. This judgment of the court of common pleas was affirmed hy the circuit court. To obtain a reversal of the judgments below James F. Goodlove now prosecutes error in this court. While the petition of plaintiff in error in this case contains numerous assignments of errors alleged to have occurred on the trial of this cause in the court of common pleas the only one of these assignments material to be noticed or considered in this opinion is the alleged error of the trial court in overruling the motion of defendant, made at the close of all the evidence, to direct the jury to return a verdict of not guilty, for if this claim of error be resolved in favor of the accused, as upon this record we are of opinion it must be, it is necessarily fatal and the. other errors assigned become wholly imm'aterial. That in every indictment for injury to the person the law imperatively requires that the name of the injured party shall, if known, be stated, is too well settled to admit of controversy, and it follows therefrom as d logical and necessary sequence that the name of the person injured, if known, being indispensable matter of allegation is essential matter of proof and when stated must be proved as laid unless such proof is excused by statute. The indictment in the present case charged the accused, James F. Goodlove, with having assaulted and killed one “Percy Stuckey, alias Frank McCormick.” Plehce, under the charge so made the name of the party assaulted becomes and ¡ is essential matter'of description and identification, and to warrant conviction upon such charge it was incumbent upon the prosecution to establish by the evidence beyond a reasonable doubt that the person assaulted and killed was in fact Percy Stuckey. This indictment1 does not charge, nor was it intended thereby to charge, that James F. Good-love assaulted and killed both Percy Stuckey and Frank’ McCormick, but the charge is that he assaulted and killed one Percy Stuckey, called, or otherwise known as Frank McCormick. The names therein mentioned were intended to be and are, but different designations or descriptions of the same person, namely, Percy Stuckey, and the rule being well settled that no allegation in an indictment descriptive of that which is essential to the charge can be disregarded or rejected, the crime thus charged in this indictment is not made out or established by proof only that the accused assaulted and killed one Frank McCormick, there being no evidence whatever to show that said Frank McCormick and Percy Stuckey were one and the same person. In the case now before us not only is there a total absence of evidence that Percy Stuckey and Frank McCormick were one and the same person, but there is not in this case from beginning to end a scintilla of evidence even tending to show, or that would suggest, that any such person as Percy Stuckey ever had an existence. There was, therefore, in this case a total failure of proof as to an essential allegation and material part of the offense charged in the indictment, and such defect not being one of mere variance that is excused” or rendered harmless'by the curative provisions of Section 7216, Revised Statutes, it was and is necessarily fatal and the motion to direct a verdict in this case should have been sustained. The conclusion reached by us finds abundant support in the reasoning of the authorities cited in the briefs of counsel.

Judgments of the circuit court and of the court of common pleas reversed, and plaintiff in error discharged.

Summers, C. J., Davis, Shauck and Price, JJ., concur.


source: Caselaw Access Project

author: Summers, C. J.

license: Public Domain

text:
    The State, ex rel. Harness, v. Roney.

      Presumption statute takes effect — At time it so declares — Court may not substitute different time, when — Construction of statutes— Sections of Paine law (99 O. L., 562) — Meaning of words “from and after" a date named — Officer removed must have notice of removal — Appointment of chief of police by mayor — Interpretation of municipal lazo.

    1. The presumption is that the legislature intends a statute to take effect at the time it declares the statute shall be in effect, and a court may not by construction substitute a different time merely to correct defective legislation. The province of construction is to ascertain and give effect to the intention of the legislature, , but its intention must be derived from the legislation and may not be invented by the court. To supply the intention and then give, the statute effect according to such intention would not be construction but legislation.
    2. The sections of the so-called Paine law (99 O. L.. S62), went into effect as therein provided, respectively “On August 1, 1909,” and “from and after January 1, 1910.”
    3. A statute, declared to take effect from and after a date named, takes effect on the day after the day of the date named.
    4. Between July 31, 1909, and January 2, 1910, the exercise of the power of appointment and of removal of the chief of police of a city' was at the pleasure of the may'or, excepting that the appointee must be an elector of the city.
    5. When an officer is removable at pleasure his removal may be effected, so far as his title to the office or the power of amotion is concerned, by a declaration of removal, but it is not complete, respecting responsibility for his official acts, until he has notice or knowledge of his removal.
    6. On December 4, 1909, the mayor appointed T-T. as chief of police of the city of Marietta to fill a vacancy. On January 1, 1910, the succeeding mayor declared H. removed and appointed R. as chief of police. PI. received notice of his removal on January 2, and R. duly qualified and entered upon the office on January 3. In a suit in quo warranto by' T-T. to oust R., held, that the petition should be dismissed.
    (No. 12249
    Decided June 28, 1910.)

      Error to the Circuit Court of Washington county.
    The facts are stated in the opinion.

      Mr. A. D. Follett and Messrs. Brenan & Middleswart, for plaintiff in error.

      Mr. W. E. Sykes; Mr. W. FI. Leeper and Messrs. Strecker & Williamson, for defendant in error.

      Mr. U. G. Denman, attorney general, and Mr. C. D. Laylin, of counsel, by consent of the court filed a brief, in behalf of the plaintiff in error, involving a similar state of facts in another case pending in this court.
   Summers, C. J.

In December, 1909, death caused a vacancy in the office of chief of police of the city of Marietta. On December 4 of that year the mayor filled the vacancy b)r the appointment of the relator who duly qualified and entered upon the duties of the office. On January 1, 1910, a new mayor entered upon the duties of that office, and as such mayor issued a written notice to the relator that his services as chief of police terminated on that day, and that he had appointed James A. Roney,’the defendant, as chief of police. This notice was not delivered to the relator until the morning' of January 2. On January 3 the defendant qualified as chief of police and since then has been acting as such. The relator refused to surrender the office and brought suit in quo warranto in the circuit court to oust the defendant. The defendant answered that the relator was not eligible to the office at the time of his appointment, because he was not then a member of the police force or on the classified list of that department of the city government; that the relator at the time of his appointment, and for a year. prior thereto, was not a resident of the city; that on the date. of the relator’s appointment a rule, adopted by the board of public safety, was in force, whereby, when an. appointment was made by the mayor to fill a \mcancy in the police department, the .appointment was on probation for a period of thirty days from- and after the date of such appointment, and that the mayor of the city, by and with the consent of the director of safety, had discharged and removed from office the relator within thirty days from his said appointment. The general demurrer to the answer was overruled and the relator then filed a reply in which he averred that in 1903 he had taken the required examination and had been a member of the classified service of the police department, and had served on the police force until he had in the same year resigned to go into business. A general demurrer to the reply was sustained, and, the relator not desiring to plead further, the petition was dismissed.

The municipal code of 1902 provided for the government of municipalities by a mayor and an elected board of public service and an appointed board . of public safety. The board of public service had charge of the streets, water-works, workhouse and charitable institutions, and the board of public safety, together with the mayor, had charge of the police and fire departments, and the appointees and employes in the police and in the fire departments were under civil service rules administered by the board of public safety. In 1908 the so-called Paine law was passed (99 O. L'., 562). It amended more than twenty sections of the municipal code, but the changes effected may be summarized as follows: The boards of public service and of public safety were abolished and in their stead was substituted a director of public service and a director of public safety, appointed by the mayor. The building inspector’s office was transferred from the mayor’s control to the department of public safety, and the workhouse and charitable institutions from the department of public service to the department of public safety. The mayor and the two directors constitute a board of control, and contracts in excess of five hundred dollars are subject to its approval. The civil service is extended and its administration transferred from the department of public safety to three civil service commissioners appointed by the presidents of the board of education, of the sinking fund commission and of the city council

The Paine bill provided that its civil service provisions should take effect from and after June 1, 1908, and the other provisions from and after January 1, 1910. The Paine law provides that the act shall take effect and be in full force on and after August 1, 1909, excepting that the civil service provisions shall be in full force and effect from and after January 1, 1910, and that all elected officers shall serve out their term. In the unreported, case, The State, ex rel. Noble, Auditor, v. Slabaugh, 81 Ohio St., 550, where the question was whether a director of public safety could administer that department before January 1, 1910, the - contention being that inasmuch as contracts in excess of five hundred dollars were subject to the approval of a board of control that could not come into existence until January 1, 1910, and inasmuch as until then there would not be a civil service commission to administer that system, the legislature, notwithstanding it expressly so declared, could not have intended the act to become effective on August 1, 1909, it was held that the act went into effect on August 1, 1909, as therein expressly provided.

The presumption is that the legislature intended the act to take effect at the time it declared the act should be in effect, and the court may not by construction substitute a different time merely to correct defective legislation. The province of construction is to ascertain and give effect to the intention of the legislature, but this intent must be derived from the legislation and may not be invented by the court. To supply the intention ^j.id then give the statute effect according to such intention would not be construction but legislation. Slingluff v. Weaver, 66 Ohio St., 621; 2 Lewis’ Sutherland Statutory Construction (2 ed.), Section 366.

We are now, as we then were, unable to find anything in the act to indicate that the legislature intended the provisions to become effective at a time other than that declared. The different dates could not have resulted from inadvertence. The bill provided that the civil service provisions should go into effect first, while the act postpones them to the other provisions. It was in the power of the legislature to abolish civil service and we are unable to say it did not intend to suspend it. The fact that the act provides that the section creating the office of director of public safety shall go into effect on August 1, 1909, and makes his contracts in excess of five hundred dollars subject to the approval of a board of control that will not exist prior to January 1, 1910, may indicate an oversight, but not an intention to postpone the time the act is declared to take effect.

The question then is as to the rights of the parties under the code, giving the amendment effect at the time prescribed by the act. Section 129 gives the mayor power to appoint and to remove the heads of the .sub-departments of the department of public safety. By Section 147 the police department is a sub-department of the department of public safety, and by Section 148 the chief of police is the head of that sub-department. The power in the mayor to appoint and to remove is a continuing- power, and, no term of appointment of the chief of police being fixed, the chief of police holds his office at the pleasure of the mayor and in the absence of statutory regulation may be summarily removed by the mayor. Section 149 of the municipal code of 1902 was not repealed and that section provides that the chief of .police shall be appointed from the classified list of such department. Section 166 of that code provided that appointments by the mayor should be on probation for such length of time as should be fixed by the rules of the board of public safety. Section 1536-996, Revised Statutes (Bates’ 6 ed.), provides that each officer of the corporation, or any department or board thereof, shall be an elector within the corporation. And Section 186 of the municipal code of 1902 provides that an)'- person in the department of public safety who shall be removed by the mayor shall have the right to appeal to the board of public safety. Section 162 as amended by the Paine law provides that the chief of police shall be dismissed only as provided in Section 152, and that the appeal therein provided to the board of public safety shall be made to the civil service commission as therein provided and under such rules as the commission may adopt.

As already stated, the repeal of the sections providing for a board of public safety was in effect on August 1, 1909, so that there was. no classified list from which to appoint a chief of police; and Section 162 providing that the chief of police shall be dismissed only as provided in Section 152 did not take effect until from and after January 1, 1910, and Section 186 does not apply to the chief of police because as to him special provision is made, so that on August 1, 1909, and from then until from and after January 1, 1910, the only limitation or regulation of the mayor’s power of appointment and removal of a chief of police was that the appointee must be an elector of the city. This raises the questions, when did Section 162 take effect, and was the relator removed before the. section took effect? The act declares that Section 162 shall take effect and be in force from and after January 1, 1910. The terms of office of mayors expired on December 31, 1909, and new terms commenced and new mayors came into office on January 1, 1910, but there is nothing in that fact or in the act to show that the legislature intended the act to take effect on that date, or that its- selection of a date was not purely arbitrary, so that the question is, what is meant by the words from and after January 1, 1910? The word “from” is a word of exclusion, and .excluding January 1, the section was in effect on January 2. In some cases a distinction is made between computations of time from an act done and those from the date or day of the date, including the day of the act done in the former and excluding the day of the date in the latter. 1 Lewis' Sutherland Statutory Construction (2 ed.), Section 185. In Minnesota the day of the passage is excluded where the act provides it shall take effect “from and after its passage.” Parkinson v. Brandenburg, 35 Minn., 294. And in Wisconsin where an act takes effect from and after its passage and publication the day of publication is excluded. O’Connor v. Fond du Lac, 109 Wis., 253. In this state the distinction referred to in Sutherland seems to be made. A law made to take effect from and after its passage is in effect on the day of its passage (The State, ex rel., v. O’Brien et al., 47 Ohio St., 464), while in computing time under a statute making an act unlawful from a day named to another day named, the first is excluded and the last included. The State of Ohio v. Elson, 77 Ohio St., 489. But whether or not the day of an act done should be included, there can be no doubt that the day-named from which the act is to be in effect should be excluded, and that the section was not in effect until January 2, 1910.

This brings us to the question whether the removal of the relator was valid, Section 162 having g'one into effect after the mayor declared the relator removed but before notice to the relator of the removal. The removal without notice and without a hearing, being authorized at the time the power was exercised, was accomplished, although it was not complete until notice to the relator. It was held in Fits’s Case, Cro. Eliz., 12, that a sheriff is not discharged from his office until the new patent is shown to him, and in Boucher v. Wiseman, Cro. Eliz., 440, that the office of sheriff continues until he has regular notice of his discharge. These cases- and others are reviewed by Allen, J., in Holley v. Mayor, etc., of New York City, 59 N. Y., 166, and he then says: “Public policy and justice to the superseded official may require that he shall not be treated as a trespasser, and that his acts shall be valid until he has notice that his authority has been revoked, but further than this, no case has, as yet gone, so far as reported decisions have come under my notice.” In The State, ex rel. Kuhlman, v. Rost, 47 La. An., 53-60, it is said by Nicholls, C. J.: “If the governor had the power to remove him, there was no necessity for official notification to him of the removal to bring it about. The removal of itself operated a divestiture of the office, at least for the purposes of this suit. Had intermediate action taken place before notice in which Cambre had participated in ignorance of his removal, and were the validity of the action taken at that time and under these circumstances contested, a different question would arise.”

From these considerations it follows that the removal of the relator and the appointment of the defendant was authorized, and the question as to whether the relator was an elector is immaterial. The judgment is affirmed.

Judgment affirmed.

Crew, Spear, Davis, Spiauck and Price, JJ., concur.'


text:
    No. 11071.
    The Wabash Railroad Co. v. Shea.
    Decided March 1, 1910.
    Error to Circuit Court of Defiance county.

      Messrs. Henry & Robert Newbegin, for plaintiff in error.

      Messrs. Ansberry & Farrell, for defendant iii error.
   Judgment affirmed.

Summers, C. J., Spear and Price, JJ., concur.


text:
    No. 11304.
    Rogers, a Taxpayer, v. The Cincinnati, Georgetown & Portsmouth Railroad Co. et al.
    Decided March 1, 1910.
    Error to Superior Court of Cincinnati.

      Mr. John C. Rogers and Mr. Powel C. Crosley, for plaintiff in error.

      Mr. George H. Warrington; Mr. Frank F. Dinsmore and Messrs. Kittredge & Wilby, for defendants in error.
   Judgment affirmed.

Summers, C. J., Davis and Price, JJ., concur.


text:
    No. 11337.
    Norfolk & Western Railway Co. v. Moore.
    Decided March 1, 1910.
    Error to Circuit Court of Scioto county.

      Messrs. Bannon & Bannon and Mr. Theodore W. Reath, for plaintiff in error.

      Messrs.-Milner, Miller & Searl, for defendant in error.
   Judgment affirmed.

Crew, Spear and Price, JJ., concur.


text:
    No. 11361.
    The Cincinnati, Lebanon & Northern Railway Co. v. Kelsall, Trustee, et al.
    Decided March 1, 1910.
    Error to Superior Court of Cincinnati.

      Messrs. Maxwell &■ Ramsey, for plaintiff in error.

      Mr. William C. McLean and Mr. Charles D. Jones, for defendants in error.
   Judgment affirmed.

Crew, Spear and Shauck, JJ., concur.


text:
    No. 11366.
    Harshman et al. v. Miller, ADMR.
    Decided March 1, 1910.
    Error to Circuit Court of Clark county.

      Messrs. Martin & Martin and Messrs. Kennedy, Munger & Kennedy, for plaintiffs in error.

      Mr. J. E. Bowman and Mr. Edwin S. Houck, for defendant in error.
   Judgment affirmed.

Crew, Spear and Shauck, JJ., concur.


text:
    No. 11367.
    Smith, Admr., et al. v. Phillips et al.
    Decided March 1, 1910.
    Error to Circuit Court of Hamilton county.

      Mr. W. A. Hicks and Mr. Joseph C. Smith, for plaintiffs in error.

      Messrs. Harper & Allen and Mr. Stanley Matthews, for defendants in error.
   Judgment affirmed.

Crew, Spear and Shauck, JJ., concur.


text:
    No. 11388.
    Smith, Doing Business as A. E. Smith & Co., v. Shanks et al., Partners.
    Decided March 1, 1910.
    Error to Superior Court of Cincinnati.

      Mr. C. B. Matthews and Messrs. Healy, Ferris & McAvoy, for plaintiff in error.

      Messrs. Paxton & Warrington and Mr. Murray Seasongood, for defendants in error.
   Judgment affirmed.

Crew, Spear and Shauck, JJ., concur.


text:
    No. 11566.
    Ward, Admr., v. The Great Eastern Casualty & Indemnity Co.
    Decided March 1, 1910.
    Error to Circuit Court of Montgomery county.

      Messrs. McMahon & McMahon and Mr. R. G. Corwin, for plaintiff in error.

      Messrs. Rowe, Shuey, Matthews & James, for defendant in error.
   Judgment affirmed.

Summers, C. J., Davis and Price, JJ., concur.


text:
    No., 11607.
    The Lake Shore Electric Railway Co. v. King.
    Decided March 1, 1910.
    Error to Circuit Court of Sandusky county.

      Mr. T. H. Hogsett; Messrs. M. B. &.H. H. Johnson and Messrs. Kinney, O’Farr el & Rimelspach, for plaintiff in error.

      Mr. H. C. DeRan and Mr. F. S. Monnett, for defendant in error.
   Judgment affirmed.

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


text:
    No. 11617.
    The Cleveland, Painesville & Ashtabula Railway Co. v. Mullen.
    Decided March 1, 1910.
    Error to Circuit Court of Ashtabula county.

      Mr. C. H. Sargent and Messrs. Perry & Hitchcock, for plaintiff in error.

      Mr. M. C. McNab; Mr. W. W. Woodbury and Messrs. W. S. Anderson & Son, for defendant in error.
   Judgr ment affirmed.

Spear, Si-iauck and Price, JJ., concur.


text:
    No. 11619.
    Gander et al. v. Dackin.
    Decided March 1, 1910,
    Error to Circúit Court of Putnam county.

      Messrs. Bailey & Leasure and Mr. Ben. L. Griffiths, for plaintiffs in error.

      Messrs. Handy & Unverferth and Mr. Guy B. Killen, for defendant in error.
   Judgment affirmed.

Spear, Davis and Price, JJ., concur.


text:
    No. 11626.
    The W. M. Pattison Supply Co. v. Harvey.
    Decided March 1, 1910.
    Error to Circuit Court of Cuyahoga county.

      Messrs. Smith, Taft & Arter, for plaintiff in error. Mr. Frank Fligley, for defendant in error.'
   Judgment affirmed.

Summers, C. J., Crew, Spear, Davis and Si-iauck,- JJ., concur.


text:
    No. 11636.
    The City of Columbus v. Morgan.
    Decided March 1, 1910.
    Error to Circuit Court of Franklin county.

      Mr. George S. Marshall, city solicitor; Mr. Charles E. Carter and John L. Davies;, assistant city solicitors, for plaintiff in error.

      Mr. Byron Stilwell, for defendant in error.
   Judgment affirmed.

Summers, C. J., Crew- and Spear, JJ., concur.


text:
    No. 11638.
    Royer et al. v. White.
    Decided March 1, 1910.
    Error to Circuit Court of Stark county.

      Messrs. Welty & Albaugh, for plaintiffs in error.

      Mr. Milton J. Braucher, for defendant in error.
   Judgment affirmed.

Spear, Davis and Shaucic, JJ., concur.


text:
    No. 11884.
    Appler, Admx., v. The Portsmouth Street Railroad & Light Co.
    Decided March 1, 1910.
    Error to Circuit Court of Scioto county.

      Mr. James S. Thomas and Mr. Oscar W. Newman, for plaintiff in error.

      Messrs. Milner, Miller & Searl, for defendant in error.
   Judgment of reversal of judgment of the court of common pleas affirmed; final judgment of circuit court reversed and cause remanded to' the court of common pleas for new trial.

Summers, C. J., Crew, Spear and Price, JJ., concur.


text:
    No. 11929.
    Thompson v. Tallman, Admr. de bonis non.
    Decided March 1, 1910.
    Error to Circuit Court of Belmont county.

      Messrs. Heinlein & Armstrong and Mr. J. B. Driggs, for plaintiff in error.

      Mr. James C. Tallman, for defendant in error.
   Judgment affirmed on authority of Doney v. Clark, Admr., 55 Ohio St., 294.

Crew, Spear and Shaucic, JJ., concur.


text:
    No. 11067.
    The Cleveland, Cincinnati, Chicago & St. Louis Railway Co. v. Fehl, Admr.
    Decided March 8, 1910.
    Error to Circuit Court of Marion county.

      Messrs. Mouser & Quig

      ley and Mr. Leonard J. Hackney, for plaintiff in error.

      Messrs. Scofield, Durfee & Scofield, for defendant in error.
   Judgment of the circuit court reversed and judgment of the court of common pleas affirmed.

Summers, C. J., Davis, Shauck and Price, JJ., concur.


text:
    No. 11081.
    The City of Cincinnati v. Chatfield.
    Decided March 8, 1910.
    Error to Superior Court of Cincinnati.

      Mr. Edward M. Ballard and Mr. Albert LI. Morrill, city solicitors, for plaintiff in error.

      Mr. Joseph W. O’Hara and Mr. Charles P. Brown, for defendant in error.
   Judgment affirmed.

Summers, C. J., Crew, Spear, Davis, Spiauck and Price, JJ., concur.


text:
    No. 11093.
    Prior et al. v. Prior et al.
    Decided March 8, 1910.
    Error to Circuit Court of Portage county.

      Messrs. Cushing & Siddall, for plaintiffs in error.

      Mr. J. LI. Dussel, for defendants in error. Judgment affirmed.
    Summers, C. J., Spear and Price, JJ., concur. Shauck, J., dissents


text:
    No. 11101.
    The Akron Water Works Co. v. The City of Akron.
    Decided March 8, 1910.
    Error to Circuit Court of Summit county.

      Messrs. -.Allen, Waters, Young & Andress, for plaintiff in error.

      Mr. Nicholas M. Greenberger and Mr. Jonathan Taylor, for defendant in error.
   Judg-

ment of the circuit court reversed and iudgment of the court of common pleas affirmed. Grounds stated in journal entry.

It is ordered and adjudged by this court, that the judgment of the said circuit court be, and the same hereby is, reversed for error in reversing the judgment of the court of common pleas sustaining a general demurrer to the amended petition. The suit was brought by the city solicitor under Section 1777, Revised Statutes, for the specific performance of a contract to maintain water works and to supply the city and its inhabitants with water, the contract is not set out in the petition, it is not averred that it is in the power of the defendant to perform, and the allegations are so general and indefinite that they do not state a case either for forfeiture or specific performance. And this court proceeding to render the judgment that the circuit court should have rendered,

It is ordered and adjudged that the judgment of the court of common pleas be, and the same hereby is, affirmed, and that the defendant in error, The Akron Water Works Company, recover from the plaintiff in error, The City of Akron, its costs and that said city pay its own costs.

Summers, C. J., Davis, Shauck and Price, JJ., concur.


text:
    No. 11150.
    Hartline et al. v. Baumbarger.
    Decided March 8, 1910.
    Error to Circuit Court of Monroe county.

      Messrs. Mallory, Jeffers & Sears, for plaintiffs in error.

      Messrs. Matz & Kremer, for defendant in error.
   Judgment affirmed.

Summers, C. J., Shaucic and Price, JJ., concur.


text:
    No. 11271.
    Hosszu, Admr., v. Empire Coal Mining Co.
    Decided March 8, 1910.
    Error'to Circuit Court of Belmont count)*-.

      Mr. W. V. Campbell and Mr. William E. Krupp, for plaintiff in error.

      Mr. A. EL Mitchell and Mr. J. B. Sommerville, for defendant in error.
   Judgment affirmed.

Summers, C. J., Spiauck and Price, JJ., concur.


text:
    No. 11380.
    Graham et al., Trustees, v. Barrett et al.
    Decided March 8, 1910.
    Error to Circuit Court of Scioto county.

      Messrs. Evans & Crawford and Mr. Noah J. Dever, for plaintiffs in error.

      Mr.: Frank B. Finney and Mr. John C. Milner, for defendants in error.
   Judgment affirmed.

Crew, Spear and Si-iauck, JJ., concur.


text:
    No. 11403.
    Martindale et al., Partners, v. Ellis.
    Decided March 8, 1910.
    Error to Circuit Court of Scioto county.

      Messrs. Bannon & Ban-non, for plaintiffs in error.

      Mr. N. W. Evans and Mr. F. W. Moulton, for defendant in error.
   Judgment affirmed.

Crew, Spear and Spiauck, JJ., concur.


text:
    No. 11429.
    Max v. New York Life Insurance Co.
    Decided March 8, 1910.
    Error to Circuit Court of Lawrence county.

      Mr. L. R. Andrews and Mr. Julius L. Anderson, for plaintiff in. error.

      Messrs. Maxwell & Ramsey and Messrs. Johnson & Corn, for defendant in error.
   Judg-

ment affirmed.

Crew, Spear and Shauck, JJ., concur.


text:
    No. 11621.
    Fry v. Boggs.
    Decided March 8, 1910.
    Error to Circuit Court of Pickaway county..

      Mr. Barton Walters, for plaintiff in error..

      Mr. Clarence Curtain and Mr. C. A. Weldon, for defendant in error.
   Judgment affirmed.

Crew, Shauck and Price, JJ., concur.


text:
    No. 11641.
    Mitchell, Jr., v. The City of Toledo.
    Decided March 8, 1910.
    Error to Circuit Court of Lucas county.

      Mr. Frank G. Crime, for plaintiff in error.

      Mr. Charles S. Northup, city solicitor, and Mr. Ralph Emery', for defendant in error.
   Judgment affirmed.

Summers, C. J., Spear, Davis, Shauck and Price. JJ., concur.


text:
    No. 11646.
    Kramer v. Kramer.
    Decided March 8, 1910.
    Error to Circuit Court of Cuyahoga county.

      Messrs. McKisson & Minshall, for plaintiff in error.

      Mr. George B. Harris and Messrs. Smith, Taft & Arter, for defendant in error.
   Judg-

ment-affirmed.

Summers, C. J., Crew, Spear, Davis, Shauck and Price, JJ., concur.


text:
    No. 11647.
    Kravat v. The Cleveland & Sandusky Brewing Co.
    Decided March 8, 1910.
    Error to Circuit Court of Cuyahoga county.

      Messrs. Solders, Thayer & Mansfield, for plaintiff in error.

      Messrs. Higley, Maurer & Dautel, for defendant in error.
   Judgment affirmed.

Summers, C. J., Davis and Shauck, JJ., concur.


text:
    No. 11649.
    Reynolds v. Woodworth, Treasurer.
    Decided March 8, 1910.
    Error to Circuit Court of Athens county.

      Messrs. Lewis & Sayre, for plaintiff in error.

      Mr. I. M. Foster; Mr. U. G. Denman, attorney general, and Mr. Justice Wilson, for defendant in error.
   Judgment affirmed.

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


text:
    No. 11824.
    The Hanging Rock Iron Co. v. Clouse, Admr.
    Decided March 8, 1910.
    Error to Circuit Court of Lawrence county.

      Mr. A. R„ Johnson and Mr. Dan C. Jones, for plaintiff in error.

      Mr. L. R. Andrews and Messrs. Milner, Miller & Searl, for defendant in error.
   Judgment affirmed.

Summers, C. J., Shauck and Price, JJ., concur.


text:
    No. 11082.
    The Cincinnati, New Orleans & Texas Pacific Railway Co. v. Tate.
    Decided March 15, 1910.
    Error to Superior Court of Cincinnati.

      Messrs. Harmon, Colston, Goldsmith & Hoadly, for plaintiff in error.

      Mr. Morison R. Waite and Mr. Prescott Smith, for defendant in error.
   Judgment affirmed on the ground that the case should have been submitted to the jury.

Crew, Spear and Price, JJ., concur.

As to the other grounds of error the judgment of reversal is not affirmed.

Summers, C. J., Spear, Shauck and Price, JJ., concur.


text:
    No. 11103.
    The Interurban Railway & Terminal Co. v. Broadus.
    Decided March 15, 1910.

      Error to Superior Court of Cincinnati.

      Mr. Frank F. Dinsmore, for plaintiff in error

      Mr. A. C. Fricke and Mr. Thomas L. Michie, for defendant in error.
    Judgment reversed. Grounds stated in journal entry.
   Tins case came on to be heard upon the transcript of the record of the superior court of Cincinnati, at both general and special term, and was argued by counsel. On consideration whereof, this court is of opinion that the charge of the court to the jury at special term was erroneous and misleading in a number of respects:

1. In saying to the jury (page 110 printed record) that the driver “lit on the ground some 20 or 25 feet from where his wagon was struck,” the evidence being contradictory on that point.

2. In saying to the jury (page 111) that the speed of the car was estimated from 18 to 25 miles an hour, and assuming the speed to have been 25 miles an hour, the evidence being contradictory on that point, and the statement of the court, although referred to later, not being distinctly withdrawn, and the explanation as given at page 117 being itself misleading with respect to speed..

3. In charging unqualifiedly (page 116) that: “If you find that the accident was caused by the negligence of the street car motorman your verdict should be for the plaintiff.”

4. In charging unqualifiedly (page 117) that the question of contributory negligence “is not in issue in the case,” the answer having tendered the issue of plaintiff’s negligence, and the evidence at the trial being such as to make such negligence a question fairly to be considered by the jury.

For which errors the judgment of the superior court at general term affirming the judgment of the said court at special term is hereby reversed, and proceeding to render the jug'dment that that court at general term ought to have rendered, the judgment of the special term is reversed for the foregoing errors and for overruling the motion of the defendant below for a new trial.

The court is further of opinion that the oral request of counsel for defendant below to charge with respect to negligence (page 117) should have been given as requested instead of as modified on the succeeding page, but as no exception was specifically made to this refusal the same is not made a ground of reversal.

It was also misleading- for the court to dwell upon the fact that the car was a freight car. Also misleading for the court to emphasize the fact (page 118) that the plaintiff was a colored man.

It is further considered and adjudged that the plaintiff in error recover of the defendant in error its costs in this court and in the superior court at general term, and that this cause be remanded to the superior court to carry this judgment into execution and for further proceedings according to law.

Summers, C. J., Crew, Spear, Davis, Shauck and Price, JJ., concur.


text:
    No. 11413.
    McCoy, by etc., v. The Board of County Commissioners of Scioto County.
    Decided March 15, 1910.
    Error to Circuit Court of Scioto county.

      Messrs. Evans & Crawford, for plaintiff in error.

      Mr. Harry W. Miller, prose-cubing attorney, and Mr. John C. Milner, for defendant in error.
   Judgment affirmed.

Summers, C: J., Crew, Davis, Shauck and Price, JJ., concur.


text:
    No. 11435.
    Fraternal Mystic Circle v. Baker, Admx.
    Decided March 15, 1910.
    Error to Circuit Court of Franklin county.

      Messrs. Williams, Williams & Taylor, for plaintiff in error.

      Mr. John J. Lents; Mr. John D. ICarns; Mr. L. W. Jones and Mr. James M. Hen'gst, for defendant in, error.
   Judgment affirmed.

Crew, Spear and Shauck, JJ., concur.


text:
    No. 11442.
    Forry, Trustee, v. Crayton.
    Decided March 15, 1910.
    Error to Circuit Court of Licking county.

      Messrs. Flory & Flory and Mr. J«.R. Davies, for plaintiff in error,

      Messrs. Kibler & Montgomery, for defendant in error.
   Judgment

affirmed.

Crew, Spear and Shauck, JJ., concur.


text:
    No. 11446.
    Dunn et al. v. Wood et al.
    Decided March 15, 1910.
    Error to Circuit Court of Hamilton county.

      Mr. W. A. Hicks, for plaintiffs in error.

      Messrs. Mallon & Vordenberg, for defendants in error.

   Judgment affirmed.

Crew, Spear and Shauck, JJ., concur.


text:
    No. 11448.
    Gray et al., Exrs., v. Hunter.
    Decided March 15, 1910.
    Error to Circuit Court of Monroe county.
    Messrs. Mallory, Jeffers &

      Sears, for plaintiffs in error.

      Messrs. Mats & Kremer., for defendant in error.
   Judgment affirmed.

Crew, Si-iaucic and Price, JJ., concur.


text:
    No. 11453.
    Evans, Admr., v. The Baltimore & Ohio Southwestern Railroad Co.
    Decided March 15, 1910.
    Error to Circuit Court of Scioto county.

      Mr. Nelson W. Evans and Mr. Alex C. Woodrow, for plaintiff in error.

      Mr. Edward Barton; Mr. George 0. Newman; Mr. John P. Phillips and Mr. James I. Boulger, for defendant in error.
   Judgment affirmed.

Summers, C. J., Crew, Davis, Si-iaucic and Price, JJ., concur.


text:
    No. 11648.
    C. F. Adams Co. v. Robertson.
    Decided March 15, 1910.
    Error to Circuit Court of Cuyahoga county.

      Mr. Albert Lawrence, for plaintiff in error.

      Mr. Conway W. Noble, for defendant in error.
   Judgment affirmed.

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


text:
    No. 11653.
    Piero v. Piero.
    Decided March 15, 1910.
    Error to Circuit Court of Stark county.

      Mr. William J. Piero and Mr. E. L. Mills, for plaintiff in error.

      Mr. W. 0. Werntz and Messrs. Krichbaum & Daniels, for defendant in error.
   Judgment affirmed.

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


text:
    No. 11661-.
    Love v. Simon et al., Commissioners of Fairfield County.
    Decided March 15, 1910.
    Error to Circuit Court of Fairfield county.

      Messrs. Moore & Moore; Mr. S. L. James and Mr. William Davidson, for plaintiff in error.

      Mr. J. H. Fultz and Mr. C. A. Radcliffe, for defendants in error.
   Judgment affirmed.

Crew, Shauck and Price, JJ., concur.


text:
    No. 11886.
    The State Life Insurance Co. v. Friedley, Guardian, et al.
    Decided March 15, 1910.
    Error to Circuit Court of Seneca county.

      Mr. C. F. Coffin; Mr. H. S. McMichael and Messrs. Dore & Dore, for plaintiff in error.

      Messrs. Royer & Spitler, for defendants in error.
   Judgment affirmed.

Summers, C. J., Davis and Price, JJ., concur.


text:
    No. 11912.
    Ikirt, Exr., v. Wells, Sheriff.
    Decided March 15, 1910.
    Error to Circuit Court of Columbiana county.

      Mr. W. H. Spence, for plaintiff in error.

      Mr. C. S. Speaker and Mr. George T. Farrell, for defendant in error.
   Judg-

ment affirmed.

Spear, Sháúck and Price, JJ., concur.


text:
    No. 11918.
    The William B. Pollock Co. v. Reepsummer.
    Decided March 15, 1910.
    Error to Circuit Court of Mahoning county.

      Mr. Myron A. Norris and Mr. George E. Rose, for plaintiff in error.

      Mr. F. R. Hahn and Mr. Paul J. Jones, for defendant in error.
   Judgment affirmed.

Summers, C. J., Spear, Shauck and Price, JJ., concur.


text:
    No. 11938.
    The Cincinnati Traction Co. v. Woodruff, Admx.
    Decided March 15, 1910.
    Error to Circuit Court of Butler county.

      Mr. W. C. Shepherd, for • plaintiff in error.

      Messrs. Andrews, Harlan & Andrews and Mr. Robert S. Woodruff, for defendant in error.
   Judgment affirmed.

Summers. C. J., Crew, Spear, Davis, Shaucic and Price, JJ., concur.


text:
    No. 11096.
    Rawlins, Admr., v. The Hocking Valley Railway Co.
    Decided March 22, 1910.
    Error to Circuit Court of Franklin county.

      Messrs. Pugh & Pugh and Mr. F. S. Monnett, for plaintiff in error.

      Mr. C. O. Hunter, for defendant in error.
   Judgment affirmed.

Summers, C. J., Spear, Davis, Si-iauck and Price, JJ., concur.


text:
    No. 11116.
    Padgett v. Greer et al., Admrs.
    Decided March 22, 1910.
    Error to Circuit Court of Knox county.

      Messrs. P%igh & Pugh; Messrs. Overturf & Hough and Mr. W. H. Thompson, for plaintiff in error.

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

Summers, C. J., Davis, Si-iauck and Price, JJ., concur.


text:
    No. 11417.
    The Hunter Illuminated Car Sign Co. v. Wilson.
    Decided March 22, 1910.
    Error to Circuit Court of Hamilton county.

      Mr. Ellis G. Kinkead; Mr. John D. DeWitt and Mr. A. Breitenstein, for plaintiff in error.

      Mr.

      Joseph IV. O’Hara and Mr. Orville K. Jones, for defendant in error.
   Judgment affirmed.

Summers, C. J., Davis and Price, JJ., concur.


text:
    No. 11438.
    The Board of Education of Norwich Township v. Brown et al.
    Decided March 22, 1910.
    Error to' Circuit Court of Franklin county.

      Messrs. Godown & Godown and Messrs. Pugh & Pugh, for plaintiff in error. Mr. J. F. Rogers, for defendants in error.
   Judgment affirmed.

Crew, Spear and Shauck, JJ., concur.


text:
    No. 11449.
    Phillips v. Tolerton, Exr.
    Decided March 22, 1910.
    Error to Circuit Court of Columbiana county.

      Messrs. Taylor & FI arris and Mr. C. S. Speaker, for plaintiff in error.

      Messrs. Hart & Koehler, for defendant in error.
   Judgment affirmed.

Crew, Spear and Shauck, JJ., concur.


text:
    No. 11518.
    Berchtold et al. v. Foote et al.
    Decided March 22, 1910.
    Error to Circuit Court of Cuyahoga county.

      Mr. Jesse A. Fenner, for plaintiffs in error.

      Messrs. Squire, Sanders Dempsey; Messrs. Cook, McGowan & Foote; Messrs. Tanney & Barber and Messrs. Brady & Dowling, for defendants in error.
   Judgment affirmed.

Crew, Spear and Shauck, JJ., concur.


text:
    No. 11527.
    Larcomb et al. v. Hesket et al.
    Decided March 22, 1910.
    Error to Circuit Court of Coshocton county.

      Mr. C. B. Hunt and Mr. A. D. Follett, for plaintiffs in error.

      Messrs. Duncan & McDermott; Messrs. Pomerene & Pomerene and Messrs. Voorhees & Voorhees, for defendants in error.
   Judgment affirmed.

Summers, C. J., Davis and Price, JJ., concur.


text:
    No. 11662.
    The State, ex rel. The Massillon Light, Heat & Power Co. v. Douglass, City Auditor.
    Decided March 22, 1910.
    Error to Circuit Court of Stark county.-

      Mr. D. F. Reinoehl and Mr. W. E. Russell, for plaintiff in error. Mr. George W. Kratsch, city solicitor, for defendant in error.
   Judgment affirmed.

Summers, C. J., Crew, Si-iauci-c and Price, JJ., concur. _


text:
    No. 11666.
    Guessbacher, by etc., v. Howard et al.
    Decided March 22, 1910.
    Error to Circuit Court of Franklin county.

      Mr. FI. J. Ossing and Mr. J. V. Lee, for plaintiff in error.

      Mr. John M. Swartz and Messrs. Gumble & Gumble, for defendants in error.
   Judgment affirmed.

Summers, C. J., Crew, Davis, Shauck and Price, JJ., concur.


text:
    No. 11667.
    Iams v. Morrison.
    Decided March 22, 1910.
    Error to Circuit Court of Sandusky county.

      Messrs. Garver & Bogue and Messrs. Garver, Garver & Garver, for plaintiff in error.

      Mr. J. D. Finch; Mr. Lester Wilson and Mr. W. W. Campbell, for defendant in error.
   Judgment .affirmed.

Crew, Shauck and Price, JJ., concur.


text:
    No. 11680.
    The Galion Lumber Co. v. Schaffner.
    Decided March 22, 1910.
    Error to Circuit Court of .Crawford county.

      Mr. R. W. Johnston and Mr. W. J. Geer, for plaintiff in error.

      Mr. J. W. McCarron and Mr. C. H. Henkel, for defendant in error.
   Judgment affirmed.

Crew, Shauck and Price, JJ., concur.


text:
    No. 11683.
    The City of Akron v. Miller.
    Decided March 22, 1910.
    Error to Circuit Court of Summit county.

      Mr. Nicholas M. Greenberger, city solicitor, and Mr. Jonathan Taylor, assistant city solicitor, for plaintiff in error.

      Messrs. Rogers & Rowley, for defendant in error.
    Judgment affirmed. Grounds stated in journal entry.
   It is ordered and adjudged by this court, that the judgment of the said circuit court be, and the same is hereby, affirmed.

The city filed an application in the probate court to assess compensation to certain persons, including the defendant, for lands appropriated by the city for a park. The jury assessed' to the plaintiff $10,500, and she filed notice of appeal-to the court of common pleas. The city filed a motion to dismiss the appeal, which motion the court of common pleas sustained and dismissed the appeal. On error in the circuit court the judgment dismissing the appeal was reversed and the cause was remanded to the court of common pleas for further proceedings. The city did not prosecute error in this court to reverse the judgment of the circuit court, but again filed a motion in the court of common pleas to dismiss the appeal, which motion

was overruled and a trial was had resulting in a judgment for the defendant in the sum of $13,050. Error was then prosecuted in the circuit court where the judgment was affirmed and error is now prosecuted in this court to reverse the judgment of the circuit, and the only error relied upon is error in overruling the motion to dismiss the appeal. The judgment of the circuit court reversing the judgment of the court of common pleas and remanding the case for further proceedings for error in dismissing the appeal was a final judgment, and error not being prosecuted in this court to reverse that judgment it settled the law of the case for the court of common pleas on the question of the appealability of the proceeding, and that court did not err in overruling the second motion to dismiss the appeal, and the question of error in the judgment of the circuit court on the ruling on the first motion is not raised on the record in this proceeding, and it appearing to the court that there were reasonable grounds for this proceeding in error, it is ordered that no penalty be assessed herein.

Summers, C. J., Crew, . Spear, Davis, S'i-iauck and Price, JJ., concur.


text:
    No. 11694.
    Smith et al. v. Bodley et al., Exrs., et al.
    Decided March 22, 1910.
    Error to Circuit Court of Union county.

      Messrs. Hoopcs & Robinson, for plaintiffs in error.

      Mr. James McCampbell and Mr. James A. Price, for defendants in error.
   Judgment affirmed.

Crew, Shauck and Price, JJ., concur.


text:
    No. 11702.
    Beilstine v. The City of Akron.
    Decided March 22, 1910.
    Error to Circuit Court of Summit county.

      Messrs. Miller & Wilson, for plaintiff in error.

      Mr. Nicholas M. Greenb.erger, city solicitor, and Mr. Jonathan Taylor, assistant city solicitor, for defendant in error.
   Judgment affirmed.

Crew, Si-iauck and Price, JJ., concur.


text:
    No. 11707.
    Harris v. The Akron Water Works Co.
    Decided March 22, 1910.
    Error to Circuit Court of Summit county.

      Messrs. Otis, Beery & Otis; Mr. Nicholas M. Greenberger, city solicitor, and Mr. Jonathan Taylor, assistant city solicitor, for plaintiff in error.

      Messrs. Allen, Waters, Young & Andress, for defendant in error.
    Judgment affirmed.
    Grounds stated in journal entry.
   It is ordered and adjudged by this court, that the judgment of the said circuit court be, and the same is hereby, affirmed, upon the sole ground that the plaintiff in error was properly required to pay the cost of making the connection.

Summers, C. J., Crew, Spear, Davis and Sitauck, JJ., concur.


text:
    No. 11112.
    The United States Board & Paper Co. v. Yeiser, Admr., et al.
    Decided March 29, 1910.
    Error to Superior Court of Cincinnati.

      Messrs. Roettinger & Gorman and Mr. Edward J. Dempsey, for plaintiff in error.

      Messrs. Pogue & Pogue and Mr. C. B. Matthews, for defendants in error.
   Judgment affirmed.

Crew, Si-iauck and Price, JJ., concur.


text:
    No. 11416.
    Firestone et al. v. Bowland, Treasurer, et al.
    Decided March 29, 1910.
    Error to Circuit Court of Franklin county.

      Messrs. Williams, Williams & Taylor, for plaintiffs in error.

      Messrs. Webber, McCoy, King & Game, for defendants in error.
   Judgment affirmed.

Summers, C. J., Crew, Davis, Shauck and Price, JJ., concur.


text:
    No. 11458.
    Murray, Admr., v. The Third National Exchange Bank of Sandusky et al.
    Decided March 29, 1910.
    Error to Circuit Court of Erie county.

      Mr. John F. McCrystal, for plaintiff in error. Mr. George C. Beis and Mr.

      E. B. King, for defendants in error.
   Judgment affirmed.

Summers, C. J., Crew, Spear, Davis, Shauck and Price, JJ., concur.


text:
    No. 11521.
    Brandt et al. v. Rabenstein et al., Partners.
    Decided March 29, 1910.
    Error to Circuit Court of Hamilton county.

      Mr. Otis H. Fisk, for plaintiffs in error.

      Mr. Gideon C. Wilson, for defendants in error.
   Judgment affirmed.

Crew, Spear and Shauck,. JJ., concur.


text:
    No. 11547.
    Haskins, Doing Business as tile Haskins Glass Co., v. Lewis.
    Decided March 29, 1910.
    Error to Circuit Court of Hamilton county.

      Messrs. Roettinger & Kinney, for plaintiff in error.

      Mr. Alfred B. Benedict, for defendant in error.
   Judgment affirmed.

Crew, Spear and Shauck, JJ., concur.


text:
    No. 11582.
    Boynton v. Straus et al.
    Decided March 29, 1910.
    Error to Circuit Court of Lorain county.

      Mr. Norton T. Horr and Mr. W. W. Boynton, for plaintiff in error.

      Messrs'. Webber, Wilford & Gillie, for defendants in error.
   Judgment affirmed.

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


text:
    No. 11710.
    The Pittsburgh, Lisbon & Western Railroad Co. v. Farrell, Admr.
    Decided March 29, 1910.
    Error to Circuit Court of Columbiana county.

      Messrs. Billingsley & Clark, for plaintiff in error.

      Mr. George T. Farrell; Mr. C. S. Speaker and Messrs. Anderson, McNab & Anderson, for defendant in error.
   Judgment

affirmed.

Summers, C. J., Spear and Price, JJ., concur.


text:
    No. 11715.
    McAdams, Jr., v. Union Portland Cement Co.
    Decided March 29, 1910.
    Error to Circuit Court of Logan county.

      Mr. James Kernan and Mr.. John A. Price, for plaintiff in error.

      Mr. Dwight Harrison and Messrs. Hamilton Bros., for defendant in error.
   Judgment affirmed.

Summers, C. J., Spear, Davis, Shauck and Price, JJ., concur.


text:
    No. 11717.
    Columbus Machine Co. v. Wells et al.
    Decided March 29, 1910.
    Error to Circuit Court of Franklin county.

      Messrs. Addison,

      Sinks & Babcock, for plaintiff in error.

      Messrs. VorySj Safer, Seymour & Pease, for defendant.; in error.
   Judgment affirmed.

Summers, C. J., Spear, Davis and Spiauck, JJ., concur.


text:
    No. 11850.
    The Willson Improvement Co. v. Malone et al.
    Decided March 29, 1910.
    Error to Circuit Court of Cuyahoga county.

      Messrs. Beardsley & Morgan; Messrs. Henderson, Quail & Siddall and Mr. Robert M. Morgan, for plaintiff in error.

      Messrs. Ford, Snyder & Tilden and Messrs. Brady & Dowling, for defendants in error.
   Judgment affirmed.

Summers, C. J., Crew, Spear, Davis, Spiauck and Price, JJ., concur.


text:
    No. 11927.
    The Cincinnati Traction Co. v. Steppiens, Admr.
    Decided March 29, 1910.
    Error to Circuit Court of Plamilton county.

      Messrs. Outcalt & Flick enloo per, for plaintiff in error.

      Mr. 'Ll. S. Aston and Mr. Thomas L. Michie, for defendant in error.
   Judgment affirmed.

Crew, Spear and Price, JJ., concur.


text:
    No. 11117.
    Drake v. Zutterling et al.
    Decided April 12, 1910.
    Error to Circuit Court of Hamilton county.

      Messrs. Burch & Johnson, for plaintiff in error.

      Mr. Eugene C. Pociey, for defendants in error.
   Judgment affirmed.

Summers, C. J., Crew and Price, JJ., concur.


text:
    No. 11120.
    Nichols v. Turner et al., Township Trustees, et al.
    Decided April 12, 1910.

      Error to Circuit Court of Portage' county.

      Mr. A. S. Cole and Mr. J. H. Nichols, for plaintiff in error.

      Mr. E. IV. Maxson and Mr. D. B. Wolcott, for defendants in error.;
   Judgment reversed and judgment for plaintiff in error on authority of The Alma Coal Co. v. Cozad, Treasurer, 79 Ohio St., 348.

Summers, C. J., Crew, Spear, Davis and Si-iauck, JJ., concur.


text:
    No. 11466.
    Ginn & Co. et al. v. Lenhart.
    Decided April 12, 1910.
    Error to Circuit Court of Muskingum county.

      Mr. Robert J. King and Mr. George K. Browning, for plaintiff in error.

      Mr. John J. Adams, for defendant in error.
   Judgment affirmed.

Crew, Spear and Shauck, JJ., concur.


text:
    No. 11479.
    Gregory v. Smith.
    Decided April 12, 1910.
    Error to Circuit Court of Huron county.

      Mr. ,B. F. Long and Mr. George W. Cable, for plaintiff in error.

      Mr. Stephen M. Young, for defendant in error.
   Judgment affirmed.

Crew, Spear and Shauck, JJ., concur.


text:
    No. 11482.
    Long v. Long et al.
    Decided April 12, 1910.
    Error to Circuit Court of Williams county.

      Mr. R. L. Starr and Messrs. Lyman, Lyman & O’Connor, for plaintiff in error.

      Messrs. Newcomer & Gebhard and Mr. Oscar C. Beechler, for defendants in' error.
   Judgment affirmed.

Crew, Spear and Si-iauck, JJ., concur.


text:
    No. 11537.
    Wolf v. Wolf.
    Decided April 12, 1910.
    Error to Circuit Court of Clinton county.

      Mr. John R. Horst, for plaintiff in error.

      Mr. Eldon L. Hayes, for defendant in error.
   Judg-

ment affirmed.

Summers, C. J., Crew, Spear and Price, JJ., concur.


text:
    No. 11719.
    The Board of Commissioners of Pike County v. Vonschriltz, Executrix.
    Decided April 12, 1910.
    Error to Circuit Court of Pike county.

      Mr. C. M. Caldwell and Messrs. Eylar & Douglas, for plaintiff in error.

      Messrs. Dougherty & Moore, for defendant in error.
    Judgment reversed and judgment for plaintiff in error. Grounds stated in journal entry.
   It is ordered and adjudged by this court, that the judgment of the said circuit court be, and the same hereby is, reversed. And this court proceeding to render the judgment which said circuit court should have rendered,

It is considered and adjudged that the judgment of said court of common pleas be, and the same hereby is, reversed because said court erred in refusing to give the third and seventh instructions requested by the original defendant, and because the evidence of the original plaintiff showed that the injury of her intestate was due to his own want of care.

It is further considered that said plaintiff in error recover its costs in this action in this court and in the circuit court and that said cause be remanded to the court of common pleas of Pike county for a new trial.

Summers, C. J., Crew, Davis, Si-iauck and Price, JJ., concur.


text:
    No. 11724.
    Kerst et al. v. Noggle et al.
    Decided April 12, 1910.
    Error to Circuit Court of Darke county.

      Mr. D. P. Irwin and Mr. D. W. Bowman, for plaintiffs in error.

      Mr. E. C. Wright; Mr. Martin B. Trainor and Mr. W. N. Stubbs, for defendants in error.
   Judgment affirmed.

Summers, C. J., Crew, Shauck and Price, JJ., concur.


text:
    No. 11727.
    The State, ex rel. Barger et al., v. The Board of Commissioners of Pike County et al.
    Decided April 12, 1910.
    Error to Circuit Court of Pike county.

      Mr. S. L. Patterson, for plaintiff in error.

      Mr. lames A. Douglas, for defendants in error.
   Judgment affirmed.

Summers, C. J., Crew, Spear, Davis, Shauck and Price, JJ., concur.


text:
    No. 11728.
    Knepper v. Moffitt.
    Decided April 12, 1910.
    Error to Circuit Court of Putnam county.

      Mr. W. W. Sutton and Mr. George Fritz, for plaintiff in error.

      Messrs. Bailey & Leastire, for defendant in error.
   Judgment affirmed.

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


text:
    No. 11730.
    Searles et al. v. Cowdrick.
    Decided April 12, 1910.
    Error to Circuit Court of Lucas county.

      Messrs. Ray & Cor dill for plaintiffs in error.

      Mr. W. P. Tyler, for defendant in error.
   Judgment affirmed.

Summers, C. J., Spear and Shauck, JJ., concur.


text:
    No. 12052.
    Harmon, Receiver, v. Reed.
    Decided April 12, 1910.
    Error to Circuit Court of Wood county.

      Mr. N. R. Harrington and Mr. Moris on R. Waite, for plaintiff in error.

      Mr. Datus R. Jones, for defendant in error.
   Judgment

affirmed.

Summers, C. J., Crew, Spear and Shauck, JJ., concur.


text:
    No. 11459.
    Lydick v. Welker et al.
    Decided April 19, 1910.
    Error to Circuit Court of Wayne county.

      Mr. Wellington Stillwell; Messrs. McClaran & Jones; Mr. L. R. Critchfield and Mr. J. T. Holmes, for plaintiff in error.

      Messrs. Weiser & Ross; Messrs. Taylor & Taylor; Messrs. Smyser, Weygandt & Weiser and Mr. J. B. Taylor, for defendants in error.
   Judgment af-

firmed.

Summers, C. J., Crew, Davis, and Shauck, JJ., concur.


text:
    No. 11476.
    Vermillion et al. v. Myers.
    Decided April 19, 1910.
    Error to Circuit Court of Licking county.

      Mr. John M. Swartz and Messrs. Kibler & Montgomery, for plaintiffs in error.

      Messrs. Norpell & Norpell and Mr. James R. Fitzgibbon, for defendant in error.
    Judgment affirmed. Grounds stated in journal entry.
   This cause came on for hearing upon the record of the circuit court of Licking county and was argued by counsel and submitted to the court. On consideration whereof the court finds, upon the undisputed evidence and admitted facts as shown by the record, that the trustees of Hopewell township, and the superintendent of roads in said road district, plaintiffs, in error, were and are without authority to turn the.water from the west side of said Black Hand road on to the said lands of the said Myers described in the petition in any different way or in different places from the natural flow of the water falling upon the west side of said road, and that to the extent of preventing such action on the part of said trustees and superintendent of roads, but no further, said Myers is entitled to have and maintain the injunction by the said circuit court allowed.

The court further finds that, as shown by the record, the said lands of said Myers are servient to the lands composing the west half of said Black Hand road, and said lands of said Myers are therefore in law bound to take the natural flow of the water therefrom.

The court further finds that the said Myers has no right to insist that sa'id trustees and said superintendent shall construct or maintain, at the side of said road, any ditch for carrying the water falling upon the west half of said road down said road, or any embankment for the purpose of preventing the said surface water, so falling upon the west half of said road, from descending naturally upon the said lands of said Myers.

It is therefore considered and adjudged that the said judgment of the circuit court, as hereinbefore explained and construed, be and the same is hereby affirmed.

Summers, C. J., Crew, Spear, Davis and Price, JJ., concur.


text:
    No. 11506.
    Myers v. Hankins et al.
    Decided April 19, 1910.
    Error to Circuit Court of Butler county.

      Messrs. Andrews, Harlan & Andrews and Mr. J. S. Hankins, for plaintiff in error.

      Messrs. Slayback & Harr, for defendants in error.
   Judgment affirmed.

Summers, C. J., Davis and Price, JJ., concur.


text:
    No. 11734.
    Wottring, Treasurer, et al. v. Schaffner, Admr.
    Decided April 19, 1910.
    Error to Circuit Court of Marion county.

      Mr. John PI. Clark, for plaintiffs in error.

      Messrs. Scofield, Durfee & Scofield, for defendant in error.
   Judgment reversed and judgment for defendant in error upon his cross-petition in error.

Summers, C. J., Spear, Davis, Spiauck and Price, JJ., concur.


text:
    No. 11735.
    The Pittsburgh, Lisbon & Western Railroad Co. v. Metzger.
    Decided April 19, 1910.
    Error to Circuit Court of Columbiana county.

      Messrs. Billingsley & 'Clark, for plaintiff in error.

      Mr. A. W. Taylor, for defendant in error.
   Judgment affirmed.

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


text:
    No. 11742.
    Bush et al. v. Howard et al., Exrs.
    Decided April 19, 1910.
    Error to Circuit Court of Morgan county.

      Mr. P. PI. Tannehill; Messrs. Lewis & Sayre and Messrs. Ivers & Dan-ford, for plaintiffs in error.

      Mr. George W. Barry and Mr. Prank PI. Southard, fo" defendants in error.
   Judgment affirmed.

Summers, C. J., Spear, Davis, Shauck and Price, JJ., concur. Crew, J., not participating.


text:
    No. 11743.
    Glasgow v. Roosfeld, Admr.
    Decided April 19, 1910.
    Error to Circuit Court of Cuyahoga county.

      Messrs. Higley, Maurer & Daittel, for plaintiff in-error..

      Mr. Conway W. Noble, for defendant in error.
   Judgment affirmed.

Summers, C. J., Spear, Shauck and Price, JJ., concur.


text:
    No. 11745.
    Lay, Admx. de bonis non, v. Christ et al., Exrs.
    Decided April 19, 1910.
    Error to Circuit Court of Cuyahoga county.

      Mr. Iral A. Webster and Mr. H. Hitghes Johnson, for plaintiff in error.

      Messrs. Hidy, Klein & Harris and Messrs. Blandin, Rice & Ginn, for defendants in error.
   Judgment affirmed.

Summers, C. J., Spear, Davis, Shauck and Price, JJ., concur.


text:
    No. 11747.
    Montgomery v. The Pennsylvania Company.
    Decided April 19, 1910.
    Error to Circuit Court of Columbiana county.

      Messrs. P. M. & A. G. Smith, for plaintiff in error.

      Messrs. Carey & Mullins, for defendant in error.
   Judgment affirmed.

Summers, C. J., Shauck and Price, JJ., concur.


text:
    No. 11749.
    The Cincinnati, Hamilton & Dayton Railway Co. v. The Myers & Patty Co.
    Decided April 19, 1910.
    Error to Circuit Court of Miami county.

      Mr. Edward Colston; Mr. A. F. Broomhall and Mr. Morison R. Waite, for plaintiff in error.

      Mr. William Harry Gilbert and Mr. Leonard H. Shipman, for defendant in error.
    Judgment reversed and judgment for plaintiff in error. Grounds stated in journal- entry.
   It is ordered and adjudged by this court, that the judgment of the said circuit court be, and the same hereby is, reversed. And this court proceeding to render the judgment which said circuit court should have rendered, the judgment of the court of common pleas in said cause is hereby reversed and the original petition of The Myers & Patty Company, defendants in error, is dismissed upon the ground that the undisputed evidence showed that considering1 the difference in the situation of the parties there was no discrimination for which the plaintiff in error was liable.

Summers, C. J., Crew, Davis and Sitauck, JJ., concur.


text:
    No. 11753.
    Harris v. Kahle et al.
    Decided April 19, 1910.
    Error to Circuit Court of Putnam county.

      Mr. George Frits’ and Messrs. Bailey & Leasure, for plaintiff in error.

      Messrs. Handy & Unverferth; Mr. H. M. Summers and Mr. C. S. Malone; for defendants in error.
   Judgment af-

firmed.

Crew, Spear, Davis and Shauci-c, JJ., concur.


text:
    No. 12125.
    The State of Ohio v. Orebaugh.
    Decided April 19, 1910.
    Error to Circuit Court of Hamilton county.

      Mr. Henry T. ILunt, prosecuting attorney, and Mr. Denis F. Cash and
      Coleman Avery, 'assistant prosecuting attorneys, for plaintiff in error.

      Mr. Ulric Sloane, for defendant in error.
   Judgment reversed and judgment of the' court of common pleas affirmed.

Summers, C. J., Spear, Davis, Shauck and Price, JJ., concur.


text:
    No. 12137.
    The State of Ohio v. Fetters.
    Decided April 19, 1910.
    Error to Circuit Court of Fairfield county.

      Mr. T. T. Courtright, prosecuting attorney, and Mr. Thomas H. Dolson, for plaintiff in error.

      Mr. C. W. McCleery and Mr. M. A. Daugherty, for defendant in error.
   Judgment affirmed.

Summers, C. J., Crew, Spear, Davis, Sitauck and Price, JJ., concur.


text:
    No. 12138.
    Ewing v. The State of Ohio.
    Decided April 19, 1910.
    Error to Circuit Court of Athens county.

      Mr. M. S. Webster and Messrs. Grosvenor, Jones & Worst ell, for plaintiff in error.

      Mr. I. M. Foster, for defendant in error.
    Judgments of circuit court and court of common pleas reversed and defendant discharged. Grounds stated in journal entry.
   It is ordered and adjudged by this court, that the judgment of the said circuit court be, and the same hereby is, reversed for error in affirming instead of reversing the judgment of the court of common pleas for error committed by said court of common pleas in overruling defendant’s motion made at the conclusion of the state’s evidence in chief, and renewed at the conclusion of all the evidence, to direct the jury to return a verdict for the defendant. And this court proceeding to render the judgment the circuit court should have rendered, it is considered and adjudged that the judgment of the court of common pleas be and the same hereby is reversed and held for naught and the plaintiff in error, Emmett Ewing, is discharged.

Crew, Spear, Davis and Shauck, JJ., concur. Price, J., dissents.


text:
    No. 11352.
    Lewis, Doing Business as J. C. Lewis & Co. v. Farmers’ & Merchants’ Insurance Co.
    Decided April 26, 1910.
    Error to Circuit Court of Columbiana county.

      Mr. P. M. Smith, for plaintiff in error.

      Mr. C. B. Obermeyer and Mr. Lodge Riddle, for defendant in error.
   Judgment affirmed.

Summers, C. J., Crew and Shauck, JJ., concur. Spear, J., dissents.


text:
    No. 11358.
    Painter v. The City of Cleveland.
    Decided April 26, 1910.
    Error to Circuit Court of Cuyahoga county.

      Mr. C. W. Fuller and Mr. E. J. Blandin, for plaintiff in error.

      Mr. Newton D. Baker, city solicitor, for defendant in error.
   Judgment reversed and original petition

dismissed.

Summers, C. J., Spear, Davis, Shauck and Price, JJ., concur.


text:
    No. 11507.
    The Lake Erie & Western Railroad Co. v. Good, Admr., et al.
    Decided April 26, 1910.
    Error to Circuit Court of Mercer county.

      Mr. John B. Cockrum; Mr. Walter B.

      Richie and Mr. John W. Loree, for plaintiff in error.

      Messrs. Ford & Raudabaugh, for defendants in error.
   On rehearing. Former judgment adhered to.


text:
    No. 11528.
    The Milburn Wagon Co. v. Gawronski, by etc.
    Decided April 26, 1910:
    Error to Circuit Court of Lucas county.

      Messrs. Smith & Baker, for plaintiff in error.

      Mr. C. A. Thatcher, for defendant in error.
   On rehearing. Former judgment adhered to.


text:
    No. 11563.
    Galbraith et al. v. Sutton et al.
    Decided April 26, 1910.
    Error to Circuit Court of Hamilton county.

      Mr. John Q. Martin and Mr. David Davis, for plaintiffs in error.

      Mr. George S. Hawke, for defendants in error.
   Judgment affirmed.

Summers, C. J., Crew, Spear, Shauck and Price, JJ., concur.


text:
    No. 11564.
    The Nypano Railroad Co. et al. v. Wintringham, Admr.
    Decided April 26, 1910.
    Error to Circuit Court of Marion county.

      Messrs. Cushing & Siddall and Messrs. Crissinger & Guthery, for plaintiffs in error.

      Messrs. Scofield, Durfee & Scofield, for defendant in error.
   Judgment of the circuit court reversed for insufficiency of the charge of the trial court and for refusing to give defendants’ special requests Nos. 2 and 3, and cause remanded for further proceedings.

Summers, C. J., Crew, Spear, Davis, Shauck and Price, JJ., concur.


text:
    No. 11668.
    Cox v. Nash et al.
    Decided April 26, 1910.
    Error to Circuit Court of Lake county.

      Messrs. Smart, Marvin & Ford and Messrs. Alvord & Blakely, for plaintiff in error.

      Mr. Martin A. Ttittle and Mr. G. N. Ttittle, for defendants in error.
   Judgment affirmed.

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


text:
    No. 11765.
    The Lumberman’s Mutual Insurance Co v. The Wealaka Mercantile & Manufacturing Co.
    Decided April 26, 1910.
    Error to Circuit Court of Richland county.

      Mr. Lewis Bruckcr, for plaintiff in error.

      Messrs. Jcnner & Weldon, for defendant in error.
   Judgment affirmed.

Summers, C. J., Crew, Davis, Shaucic and Price, JJ., concur.


text:
    No. 11770.
    The Village of Antwerp v. Eckenrhoad.
    Decided April 26, 1910.
    Error to Circuit Court of Paulding county.

      Mr. W. F. Corbett, for plaintiff in error.

      Mr. John W. Zuber and Mr. David Sharp, for defendant in error.
   Judgment affirmed.

Summers, C. J., Crew, Spear, Davis, Si-iauck and Price, JJ., concur.


text:
    No. 11771.
    The Western Straw Board Co. v. Benton et al.
    Decided April 26, 1910.
    Error to Circuit Court of Auglaize county.

      Mr. Anthony Culliton, for plaintiff in error.

      Mr. John T. Schoonover; Messrs.

      Koenig & Koenig and Mr. Jacob T. Koenig, for defendants in error.
   Judg-

ment affirmed.

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


text:
    No. 11775.
    Fox et al. v. Wolf.
    'Decided April 26, 1910.
    Error to Circuit Court of Montgomery county.

      Mr. W. W. Symmes and Messrs. Murphy, Elliff & Emanuel, for plaintiffs in error.

      Messrs. Fitzgerald & Sprigg, for defendant in error.
   Judgment ■ affirmed.

Summers, C. J., Crew, Spear, Davis, Shauck and Price, JJ., concur.


text:
    No. 11777.
    Hayne v. Drennen.
    Decided April 26, 1910.
    Error to Circuit Court of Bel-, mont county.

      Mr. J. C. Tollman, for plaintiff in error.

      Mr. L. J. C. Drennen, for defendant in error.
   Judgment of the circuit court reversed and judgment of the court of common pleas affirmed.

Summers; C. J., .Crew, Spear, Shauck and Price, JJ., concur.


text:
    No. 11780.
    The Arbuckle-Ryan Co. et al. v. Mann et al.
    Decided April 26, 1910.
    Error to Circuit Court of Wyandot county.

      Messrs. Brown, Hahn, Sanger & Froehlich and Messrs. Carey & Carey, for plaintiffs in error,

      Messrs. Carter, Carter & Carter, and Messrs. Carter & Goodrich, for defendants in error.
   Judgment

affirmed.

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


text:
    No. 11781.
    Mathews v. The City of Delaware.
    Decided April 26, 1910.
    Error to Circuit Court of Delaware county.

      Messrs. Marriott & Freshwater and Messrs. Jewell & Benton, for plaintiff in error.

      Mr. E. S. Owen, city solicitor, and Mr. F. A. Owen, for defendant in error.
   Judgment affirmed.

Davis, Shauck and Price, JJ., concur.


text:
    No. 11783.
    The Arbuckle-Ryan Co. et al. v. Mann et al.
    Decided April 26, 1910.
    Error to Circuit Court of Wyandot county.

      Messrs. Carey & Carey and Messrs. Brown, Hahn, Sanger & Froehlich, for plaintiffs in error.

      Messrs. Carter, Carter & Carter and Messrs. Carter & Goodrich, for defendants in error.
   Judgment affirmed.

Davis, Shauck and Price, JJ., concur.


text:
    No. 11794.
    Brenner v. The State, ex rel. Christman.
    Decided April 26, 1910.
    Error to Circuit Court of Cuyahoga county.

      Mr. Hermann Preusser, for plaintiff in error.

      Mr. M. P. Mooney, for defendant in error.
   Judgment affirmed.

Summers, C. J., Spear, Davis, Shauck and Price, JJ., concur.


text:
    No. 11805.
    Williams et al. v. Greiser.
    Decided April 26, 1910.
    Error to Circuit Court of Hancock county.

      Messrs. .Burket & Burket and Messrs. Axline & Betts, for plaintiffs in error.

      Messrs. Poe & Poe, for defendant in error.
   Judgment of circuit court reversed and decree for plaintiffs in error.

Summers, C. J., Crew, Spear, Davis, Shauck and Price, JJ., concur.


text:
    No. 11890.
    Frank v. The Herancourt Brewing Co.
    Decided April 26, 1910.
    Error to Circuit Court of Hamilton county.

      Messrs. Strieker & Johnson; Mr. Sidney G. Strieker and Mr. Nathaniel Wright, for plaintiff in error.

      Messrs. Robertson & Buchwalter and Messrs. Roettinger & Gorman, for defendant in error.
   Judgment of the circuit court reversed and judgment of the superior court in special term affirmed.

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


text:
    No. 11332.
    The State, ex rel. Brister, v. Kreig.
    Decided May 3, 1910.
    Error to Circuit Court of Licking county.

      Messrs. Kibler & Montgomery, for plaintiff in error.

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

Summers, C. J., Spear, Davis, Shauck and Price, JJ., concur.


text:
    No. 11520.
    Brickman et al. v. Shale et al.
    Decided May 3, 1910.
    Error to Circuit Court of Cuyahoga county.

      Mr. C. R. Grant; Mr. W. B. Neff; Mr. F. R. Marvin and Mr. W. D. McTighe, for plaintiffs in error.

      Mr. M. P. Mooney and Messrs. Meyer & Mooney, for defendants in error.
   Judgment affirmed.

Crew, Spear and Shauck, JJ., concur.


text:
    No. 11799.
    Dinger, Admr., v. Journeymen Barbers’ International Union of America.
    Decided May 3, 1910.
    Error to Circuit Court of Hamilton county.

      Mr. - Thos. F. McGuire, for plaintiff in error.

      Messrs. Bates & Meyer, for defendant in error.
   Judgment affirmed.

Summers, C. J., Spear, S:haucic and Price, JJ., concur.


text:
    No. 11801.
    Mulligan v. Mulligan.
    Decided May 3, 1910.
    Error to Circuit Court of Mercer county.

      Mr. James D. Johnson, for plaintiff in error.

      Mr. John Kramer, for defendant in error.
   Judgment reversed and judgment of the court of common pleas affirmed on authority of Parish v. Parish, 9 Ohio St., 534.

Summers, C. J., Crew, Spear, Shaucic and Price, JJ., concur.


text:
    No. 11810.
    The Incorporated Village of Frankfort v. Clark.
    Decided May 3, 1910.
    'Error to Circuit Court of Ross county.

      Mr. Wallace D. Yaple and Mr. E. P. Matthews, for plaintiff in error.

      Mr. Robert S'. Swepston; Mr. Luther B. Yaple and Mr. N. P. Clyburn, for defendant in error.
   Judgment affirmed.

Crew, Spear and Price, JJ., concur.


text:
    No. 11811.
    Strong et al. v. Warnock et al.
    Decided May 3, 1910.
    Error to Circuit Court of Belmont county.

      Mr. William A. Wilson and Mr. A. M. Brown, for plaintiffs in error.

      Mr. Charles J. Lynch, for defendants in error.
   Judgment affirmed.

Crew, Shaucic and Price, JJ., concur.


text:
    No. 11812.
    Gilbert v. The Toledo Urban & Interurban Railway Co.
    Decided May 3, 1910.

      Error to Circuit Court of Hancock county.

      Messrs. Burket & Burket, for plaintiff in error.

      Mr. E. V. Bope, for defendant in error.
   Judgment affirmed.

Davis, Shauck and Price, JJ., concur.


text:
    No. 11814.
    Fix v. The Champion Thresher Co.
    Decided May 3, 1910.
    Error to Circuit Court of Richland county.

      Mr. A. A. Douglass, for plaintiff in error.

      'Messrs. Huston & Marquis and Messrs. Taylor & Taylor, for defendant in error.
   Judgment affirmed.

Davis, Shauck and Price, JJ., concur.


text:
    .No. 11818.
    Klein v. The Cincinnati, Hamilton & Dayton Railway Co.
    Decided May 3, 1910.

      Mr. C. J. Smith; Messrs. Kramer & Kramer; Mr. Gilbert Bettman and Mr. E. A. Belden, for plaintiff in error.

      Messrs. Shotts & Millikin, for defendant in error.
   Judgment affirmed.

Summers, C. J., Crew, Davis and Spiauck, JJ., concur.


text:
    No. 11829.
    McKee et al. v. Collins et al.
    Decided May 3, 1910.
    Error to Circuit Court of Jefferson county.

      Mr. J. C. Bigger and Mr. John H. McKee, for plaintiffs in error.

      Messrs. Mans-Held & Merryman and Mr. P. A. Galvin, for defendants in error.
   Judgment affirmed.

Davis, Shauck and Price, JJ., concur.


text:
    No. 11860.
    The Dayton Citizens Electric Co. v. Breunig.
    Decided May 3, 1910.
    Error to Circuit Court of Montgomery county.

      Messrs. McMahon & McMahon, for plaintiff in error.

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

Summers, C. J., Crew, Spear, Si-iaucic and Price, JJ., concur.


text:
    No. 11939.
    The Hamilton Home Telephone Co. v. Marshall, Admr., et al.
    Decided May 3, 1910.
    Error to Circuit Court of Butler county.

      Messfs. Slayback & Harr, for plaintiff in error.

      Mr. Walton S. Bowers and Messrs. Shotts & Millikin, for defendants in error.
   Judgment affirmed.

Summers, C. J., Crew, Spear and Price, JJ., concur.


text:
    No. 12142.
    Ireton, Auditor, v. The State, ex rel. Rapp et al., Partners.
    Decided May 3, 1910.
    Error to Circuit Court of Clermont county.

      Mr. Daniel W. Murphy, prosecuting attorney, for plaintiff in error.

      Mr. W. C. Bishop, for defendant in error.
   Judgment affirmed.

Crew, Davis and Price, JJ., concur.


text:
    No. 11121.
    Button v. Wilcox.
    Decided May 10, 1910.
    Error to Circuit Court of Wood county.

      Messrs. James & Kelly, for plaintiff in error.

      Messrs. Baldwin & Harrington, for defendant in error.
   Judgment affirmed.

Summers, C. J., Crew, Spear, Davis, Shauck and Price, JJ., concur.


text:
    No. 11830.
    Bader et .al. v. Wheeler.
    Decided May 10, 1910.
    Error to Circuit Court of Licking county.

      Mr. S. L. James, for plaintiffs in error.

      Mr. E. S. Randolph and Messrs. Flory & Flory, for defendant in error.
   Judgment affirmed.

. Summers, C. J., Crew Spear, Davis, Shauck and Price, JJ., concur.


text:
    No. 11837.
    The Scioto Valley Traction Co. v. Obetz.
    Decided May 10, 1910.
    Error to Circuit Court of Franklin county.

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

      Mr. Walter S. Page, for defendant in error.
   Judgment affirmed.

Crew, Davis, Shauck and Price, JJ., concur. Spear, J., not participating.


text:
    No. 11840.
    Baer v. Gill et al.
    Decided May 10, 1910.
    Error to Circuit Court of Cuyahoga county.

      Mr. R. C. Linder, for plaintiff in error.

      Messrs. Myers & Green; Mr. W. H. Schwartz; Mr. J. W. Sykora; Mr. Edward H. Tracy; Mr. J. DeKaiser; Mr. R. C. Linder; Mr. Fred Desberg;. Mr. A. S. Kraus; Mr.- A. A. Maresch and Mr. E. J. Albl, for defendants in error.
   Judgment affirmed.

Summers, C. J., Crew, Spear, Davis, Shauck and Price, JJ., concur.


text:
    No. 11843.
    Bennett et al., Commissioners of Spielby County, v. Sherer et al.
    Decided May 10, 1910.
    Error to Circuit Court of Shelby county.

      Mr. Charles C. Marshall and Mr. Percy

      R. Taylor, for plaintiffs in error. Messrs. Munggr & Kennedy and Mr. R. L. Gowdy, were permitted to submit a brief for plaintiff in error on behalf of other parties similarly interested.

      Messrs. Wicoif, Emmons & Needles and Mr. J. D. Barnes, for defendants in error.
   Judgment of- circuit court and of the court of common pleas reversed, and cause remanded to the board of county commissioners.

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


text:
    No. 11847.
    Shoe v. The Dayton & Northern Traction Co.
    Decided May 10, 1910.
    Error to Circuit Court of Montgomery county.

      Messrs. Marshall & Marshall and Mr. W. S. Kessler, for plaintiff in error.

      Messrs. Rowe, Shuey, Matthews & James and Messrs.

      Munger & Kennedy, for defendant .in error.
   Judgment affirmed.

Summers, C. J., Crew, Davis,, Si-iaucic and Price, JJ., concur. .


text:
    No. 11848.
    Stammen v. The Greenville National Bank et al.
    Decided May 10, 1910.
    •Error to Circuit Court of Darke county.

      Mr. D. W. Bowman, for plaintiff in error.

      Mr. O. R: Krickenberger and Messrs. Bickel & Baker, for defendants in error.
   Judgment affirmed.

Summers, C. J., Crew, Davis, Si-iauck and Price. JJ., concur.


text:
    No. 11853.
    Linn v. The Miami Valley Hospital Society.
    Decided May 10, 1910.

      Error to Circuit Court of Montgomery county.

      Mr. V. 'A. Troxell and Mr. Charles W. Finch, for plaintiff in error.

      Messrs. Munger & Kennedy, for defendant in error.
   Judgment affirmed.

Summers, C. J., Crew, Shauck and Price, JJ., concur.


text:
    No. 11856.
    Kinsella et al. v. Printz.
    Decided May 10, 1910.
    Error to Circuit Court of Miami county.

      Mr. William H. Gilbert and Mr. L. H. Shipman, for plaintiffs in error.

      Mr. Jas. Ward Keyt and Messrs. O'Donnell & Billingsly, for defendant in error.
   Judgment affirmed.

Summers, C. J., Crew, Shauck and Price, JJ., concur.


text:
    No. 11857.
    City of Toledo v. Buckmiller.
    Decided May 10, 1910.
    Error to Circuit Court of Lucas county.

      Mr. Charles S. Northup, ■ city solicitor, and Mr. Charles JJ. Masters, for plaintiff in error.

      Mr. Karl A. Flic kin ger, for defendant in error.
   Judgment affirmed.

Summers, C. J., Crew. Shauck and Price, JJ., concur.


text:
    No. 11868.
    Hepner v. The Dayton & Western Traction. Co.
    Decided May 10, 1910.
    Error to Circuit Court of Montgomery county.

      Messrs. Mattern & Brumbaugh and Messrs. Jones & Routzohn, for plaintiff in error.
    Messrs.. McMahon & McMahon, for defendant in error.
   Judgment affirmed.

Summers. C. J., Davis and Shauck, JJ., concur.


text:
    No. 11950.
    The Toledo Foundry & Machine Co. v. Winzler.
    Decided May. 10, 1910.
    Error to Circuit Court of Lucas county.

      Mr. Charles K. Friedman and Mr. W. J. Wuerfet, for plaintiff in error.

      Mr. G. B. Keppcl, for defendant in error.
   Judgment reversed and judgment for plaintiff in error.

Summers, C. J., Crew, Davis and Si-iaucic, JJ., concur.


text:
    No. 11978.
    The Board of Education of Rich Hill Township et al. v. Mintier et al.
    Decided May 10, 1910.
    Error to Circuit Court of Muskingum county.

      Messrs. Winn & Bassett, for plaintiffs in error.

      Mr. Harry C. Shepherd and Mr. John J. Adams, for defendants in error.
   Judgment affirmed.

Summers, C. J., Davis, Si-iauck and Price, JJ., concur.


text:
    No. 12156.
    Baeder v. The State of Ohio.
    Decided May 10, 1910.
    Error to Circuit Court of Licking county.

      Messrs. Jones & Jones, for plaintiff in error.

      Mr. Phil. B. Smythe, for defendant in error.
   Judgment affirmed.

Summers, C. J., Crew, Spear, Davis, Si-iaucic and Price, JJ., concur. • _


text:
    No. 12157.
    Craig v. The State of Ohio.
    Decided May 10, 1910.
    Error to Circuit Court of Licking county.

      Mr. J. Howard Jones, for plaintiff in error.

      Mr. Phil. B. Smythe, for defendant in error.
   Judgment affirmed.

Summers, C. J., Crew Spear, Davis, Si-iaucic and Price, JJ., concur.


text:
    No. 12339.
    Wright, Auditor, et al. v. The State, ex rel. Cline, Prosecuting Attorney.
    Decided May 10, 1910.
    Error to Circuit Court of Cuyahoga county.

      Mr. Newton D. Baker, city solicitor, for plaintiffs in error.

      Mr. John A. Cline, prosecuting attorney; Mr. Walter D. Meals and Mr. Fielder Sanders, assistant prosecuting attorneys, for defendant in error.
   Judgment

affirmed.

Davis, Si-iauck and Price, JJ., concur.


text:
    No. 11122.
    Flury v. Bonner et al.
    Decided May 17, 1910.
    Error to Circuit Court of Cuyahoga county.

      Mr. Lindley Fogg, for plaintiff in error.

      Mr. Clifford A. Neff; Mr. A. C. K. Schoeneman and Messrs. White, Johnson, McCaslin & Cannon, for defendants in error.
   Judgment affirmed.

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


text:
    No. 11124.
    Converse, Admr., v. Lauterbach & Eilber.
    Decided’ May 17, 1910.
    Error to Circuit Court of Franklin county.

      Messrs. Warner & Halterman, for plaintiff in error.

      Messrs. Huggins, Huggins & Johnson, for defendant in error.
   Judgment affirmed.

Summers, C. J., Crew, Spear, Davis, Shauck and Price, JJ., concur.


text:
    No. 11132.
    The State, on Complaint of McCullough, v. Moffitt et al.
    Decided May 17, 1910.
    Error to Circuit Court of Putnam county.

      Messrs. Handy & Unverferth, for plaintiff in error.

      Messrs. Ross & Kinder and Messrs. Risser.& Smith, for defendants in error.
   Judg-

ment affirmed.

Summers, C. J., Crew, Spear, Davis, Shauck and Price, JJ., concur.


text:
    No. 11228.
    The Saginaw Bay Transportation Co. v. The Portage Entry Quarries Co.
    Decided May 17, 1910.
    Error to Circuit Court of Cuyahoga county.

      Mr. Roger M. Lee, for plaintiff in error.

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

Summers, C. J., Crew, Spear, Day . Shauck and Price, JJ., concur.


text:
    No. 11229.
    The Saginaw Bay Transportation Co. v. Prendergast et al., Partners.
    Decided May 17, 1910.
    Error to Circuit Court
    of Cuyahoga county.

      Mr. Roger M. Lee, for plaintiff in error.

      Messrs. Goulder, Holding & Masten, for defendants in error.
   Judgment affirmed. Mr. Roger

Summers, C. J., Crew, Spear, Davis, Shauck and Price, jj., concur.


text:
    No. 11230.
    The Saginaw Bay Transportation Co. v. Croze.
    Decided May 17, 1910.
    Error to Circuit Court of Cuyahoga county.

      M. Lee, for plaintiff in error.

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

Summers, C. J., Crew, Spear, Davis, Shauck and Price, JJ., concur.


text:
    No. 11383.
    The State of Ohio et al. v. Smith.
    Decided May 17, 1910.
    Error to Circuit Court of Mahoning county.

      Mr. W. R. Graham, prosecuting attorney, and Messrs. Arrel, Wilson & Harrington, for plaintiffs in error.

      Mr. A. W. Jones; Mr. W. S. Anderson and Mr. George E. Rose, for defendant in error.
   Judgment affirmed.

Crew, Spear and Shauck, JJ., concur.


text:
    No. 11861.
    The State, ex. rel. Townsend, v. Snyder, Auditor.
    Decided May 17, 1910.
    Error to Circuit Court of Darke county.

      Mr. John C. Clark and Messrs. Bickel & Baker, for plaintiff in error.

      Mr. John F. Maher, prosecuting attorney; Mr. U. G. Denman, attorney general, and Mr. F. H. Kirtley, for defendant in error.
   Judgment affirmed.

Summers, C. J., Crew, Spear, Davis, Shauck and Price, JJ., concur.


text:
    No. 11864.
    Tombes, Admr., et al. v. Ferguson.
    Decided May 17, 1910.
    Error to Circuit Court of Ashtabula county.

      Messrs. Hoyt, Mun-sell & Flail and Mr. C. S. Ma%ik, for plaintiffs in error.

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

Spear, Sitauck and Price, JJ., concur.