text:
    No. 11876.
    Gribbing v. McArthur et al.
    Decided May 17, 1910.
    Error to Circuit Court of Richland county.

      Mr. A. A. Douglass and Mr. James P. Seward, for plaintiff in error.
      Mr. C. H. Workman;

      Mr. C. H. Huston and Mr. James V/. Galbraith, prosecuting attorney, for defendants in error.
   Judgment affirmed.

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


source: Caselaw Access Project

license: Public Domain

text:
    No. 11877.
    Brudno v. Mayer, etc.
    Decided May 17, 1910.
    Error to Circuit Court of Cuyahoga county.

      Mr. Ezra S. Brudno, for plaintiff in error.

      Mr. Walter D. Meals, for defendant in error.
   Judgment affirmed.

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


text:
    No. 11882.
    Henizer v. Miller et al.
    Decided May 17, 1910.
    Error to Circuit Court of Darke county.

      Messrs. Robeson & Yount, for plaintiff in error.

      Mr. George W. Porter, for defendants in error.
   Judgment affirmed.

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


text:
    No. 11885.
    Cummer v. Gerstenberger.
    Decided May 17, 1910.
    Error to Circuit Court of Cuyahoga county.

      Messrs. Brady & Dowling, for plaintiff in error.

      Mr. E. Jay Pinney and Mr. PI. J. Nord, for defendant in error.
   Judgment

of circuit court modified. Grounds stated in journal entry.

This court upon the record thus presented, finds that, if said William M. Cummer'is indebted at all upon the assignment of said policy of insurance. for any sum collected by him, such indebtedness is owing to the heirs of said Caroline M. Gerstenberger, deceased, jointly, and that therefore the right of action if any exists against said Cummer by reason of the facts alleged in the petition, is in the heirs of said deceased, and not in the plaintiff alone as one of said heirs. It is therefore considered and adjudged that the judgment of the circuit court be and the same is hereby modified to conform to the foregoing finding. And this cause is remanded to the court of common pleas of Cuyahoga county with direction to set aside the judgment entry of November 16, 1908; also-to permit the making of the other heir or heirs parties to said action, and for further proceedings according to law.

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


text:
    No. 11887.
    The Trustees of Sandusky Township v. The Pennsylvania Co. et al.
    Decided May 17, 1910.
    Error to Circuit Court of Richland county.

      Mr. L. H. Beam and Mr. Samuel Marriott, for* plaintiff in error.

      Mr. A. A. Douglass, for defendants in error.
   Judgment

affirmed.

Spear, Shauck and Price, JJ., concur.


text:
    No. 11962.
    Smith etc., v. Todd et al.
    Decided May 17, 1910.
    Error to Circuit Court of Wood county.

      Messrs. James & Kelly, for plaintiff in error.

      Mr. N. R. Harrington, for defendants in error.
   Judgment affirmed.

Crew, Spear and Shauck, JJ., concur.


text:
    No. 11976.
    Snyder et al. v. Johnson et al., Commissioners, et al.
    Decided May 17, 1910.
    Error to Circuit Court of Allen county.

      Mr. T. R. Hamilton, for plaintiffs in error.

      Mr. B. F. Welty, .prosecuting attorney; Mr. Bernard O’Conner, assistant prosecuting attorney, and Mr. D. C. Henderson, for defendants in error.
   Judgment affirmed.

Crew, Spear and Shauck, JJ., concur.


text:
    No. 12008.
    The City of Youngstown v. The Trumbull & Mahoning Water Co.
    Decided May 17, 1910.
    Error to Circuit Court of Mahoning county.

      Mr. Myron A. Norris; Mr. Prank L. Oesch and Mr. David G. Jenkins, for plaintiff in error.

      Mr. Edmond H. Moore and Mr. Paul J. Jones, for defendant in error.
   Judgment affirmed.

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


text:
    No. 12071.
    Strasel v. The City of Toledo.
    Decided May 17, 1910.
    Error to Circuit Court of Lucas county.

      Messrs. Marshall & Fraser and Mr. John A. Price, for plaintiff in error.

      Mr. Cornell Schreiber, city solicitor; Mr. Ashton H. Coldham and Mr. C. S. Northup, for defendant in error.
   Judgment affirmed.

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


text:
    No. 12126.
    The City of Toledo v. McNamara.
    Decided May 17, 1910.
    Error to Circuit Court of Lucas county.

      Mr. Charles S. Northup, city solicitor, and Mr. C. H. Masters, for plaintiff in error.

      Mr. Ashton H. Coldham, for defendant in error.
   Judgment affirmed.

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


text:
    No. 12158.
    Travis v. The State of Ohio.
    Decided May 17, 1910.
    Error to Circuit Court of Franklin county.

      Mr. Moses Bronson Earn-hart, for plaintiff in error.

      Messrs. Webber, McCoy, King & Game and Mr. Charles J. Pretzman, for defendant in error.
   Judgment affirmed.

Crew, Spear and Spiauck, JJ., concur.


text:
    No. 12175.
    The State, ex rel. Droege, v. Wright, Auditor.
    Decided May 17, 1910.
    Error to Circuit .Court of Cuyahoga county.

      Messrs. Mooney & Mahon, for plaintiff 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.

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


text:
    No. 12252.
    The State of Ohio v. Holden.
    Decided May 17, 1910.
    Error to Circuit Court of Cuyahoga county.

      Mr. John A. Cline, prosecuting attorney, and Mr. Charles H. Olds, assistant prosecuting attorney, for plaintiff in error.

      Mr. M. A. Foran and Mr. Samuel Doerfler, for defendant in error.
   Judgment affirmed on authority of Kelch v. The State, 55 Ohio St., 146.

Crew. Shauck and Price, JJ., concur.


text:
    No. 11137.
    The Cleveland & Mahoning Valley Railway Co. v. Board of Commissioners of Mahoning County et al.
    Decided May 24, 1910.
    Error to Circuit Court of Mahoning county.

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

      Mr. Myron A. Norris; Mr. S. S. Conroy and Mr. W. R. Graham, for defendants in error.
   Judgment affirmed.

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


text:
    No. 1146.
    The Lake Shore & Michigan Southern Railway Co. v. Schwartz.
    Decided May 24, 1910.
    Error to Circuit Court of Lucas county.

      Messrs. Doyle & Lewis, for plaintiff in error.

      Mr. George C. Bryce and Messrs. Marshall & Fraser, for defendant in error.
   Judgment of the circuit court reversed and judgment of the court of common pleas affirmed on authority of Regan, Admx., v. McHugh, 78 Ohio St., 326.

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


text:
    No. 11889.
    Norckauer v. Harbine.
    Decided May 24, 1910.
    Error to Circuit Court of Greene county.

      Mr. W. L. Miller, for plaintiff in error.

      Mr. Charles L. Darlington, for defendant in error.
   Judgment affirmed.

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


text:
    No. 11894.
    Fraver v. Emerine.
    Decided May 24, 1910.
    Error to Circuit Court of Seneca county.

      Mr. Ora A. Wade and Messrs. Guernsey & Guernsey, for plaintiff in error.

      Mr. Charles A. Strauch, for defendant in error.
   Judgment affirmed.

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


text:
    No. 11895.
    Whiteman et al., Admrs., v. Dunn et al., Exrs.
    Decided May 24, 1910.
    Error to Circuit Court of Brown county.

      Mr. Ulric Sloane and Mr. Rufus L. Fite, for plaintiffs in error.

      Mr. J. R. Moore; Mr. E. B. Parker and Mr. J. W. Tarbell, for defendants in error.
   Judgment affirmed.

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


text:
    No. 11896.
    Stewart et al. v. J. I. Case Threshing Machine Co.
    Decided May 24, 1910.
    Error to Circuit Court of Fayette county.

      Messrs. Abernethy & Folsom, for plaintiffs in error.

      Messrs. Rogers & Dempsey, for defendant in error. •
   Judgment affirmed.

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


text:
    No. 11901.
    Burch v. Brooks et al.
    Decided May 24, 1910.
    Error to Circuit Court of Lucas county.

      Mr. G. B. Keppel and Mr. Gilbert Harmon, for plaintiff in error.

      Mr. George B. Orwig; Mr. Raymond T. Garrison; Messrs. Brown, Geddes, Schmettau & Williams; Mr. Erskine H. Potter 'and Mr. Harry Levison, fpr defendants in error.
   Judgment affirmed.'

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


text:
    No. 11910.
    Hall v. The Laning Printing Co.
    Decided May 24, 1910.
    Error to Circuit Court of Huron county.

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

      Mr. A. V. Andrews, for defendant in error.
   Judgment affirmed.

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


text:
    No. 11911.
    Calhoun v. The City of East Liverpool.
    Decided May 24, 1910.
    Error to Circuit Court of Columbiana county.

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

      Mr. W. H. Vodrey, for defendant in error.
   Judgment affirmed.

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


text:
    No. 11915.
    The City of Cincinnati v. Witherby.
    Decided May 24, 1910.
    Error to Circuit Court of Hamilton «ounty.

      Mr. Edward M. Ballard, city solicitor; Mr. Albert H. Morrill and Mr. Charles F. Hornberger, assistant city solicitors,. for plaintiff in error.

      Mr. Powel Crosley and Mr. John C. Rogers, for defendant in error.
   Judgment affirmed.

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


text:
    No. 11920.
    Cole, Exrx., v. Byrns.
    Decided May 24, 1910.
    Error to Circuit Court of Lake county.

      Mr. G. N. Tuttle and Mr. Lloyd G. Tuttle, for plaintiff'in error.

      .Mr. Homer Harper and Mr. G. W. Alvord,. for defendant in error.
   Judgment affirmed.

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


text:
    No. 11921.
    Porter et al. v. Sloan et al.
    Decided May 24, 1910.
    Error to Circuit Court of Hardin county.

      Messrs. Briggs '& Stezvart; Mr. C. C. Lemert; Mr. H. D. Lease; Messrs. Johnson & Johnson and Mr. John A. Price, for plaintiffs in error.

      Mr. Phil. M. Crozv; Messrs. Stickle & Cessna and Messrs. Smick & Hoge, for defendants in error.
   Judgment affirmed.

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


text:
    No. 11923.
    Ray v. Randall.
    Decided May 24, 1910.
    Error to Circuit Court of Ashtabula county.

      Mr. Emil J. Anderson; Mr. Venice J. Lamb and Mr. Blake C. Cook, for plaintiff in error.

      Mr. F. J. Bishop and Messrs. Perry & Jiitchcock, for defendant in error.
   Judgment

affirmed.

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


text:
    No. 11925.
    Kinney v. Wickert, Exr., et al.
    Decided May 24, 1910.
    Error to Circuit Court of Sandusky county.

      Mr. Basil Meek; Mr. Morton S. Zeigler and Mr. J. M. Sheets, for plaintiff in error.

      Mr. E. C. Sayles and Mr. A. W. Overmyer, for defendants in error.
   Judgment affirmed.

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


text:
    No. 12205.
    The State of Ohio v. Geiger.
    Decided May 24, 1910.
    Error to Circuit Court of Allen county.

      Mr. B. F. Welty, prosecuting attorney, and Mr. B. E. O’Connor, assistant prosecuting attorney, for plaintiff in error.

      Messrs. Armstrong• & Armstrong, for defendant in error.
   Judgment affirmed. Grounds stated in journal entry.

It is ordered and adjudged that the judgment of the said circuit court be, and the same is hereby, affirmed, on the ground of misconduct of the prosecuting attorney.

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


text:
    No. 12217.
    Feller v. Carland et al., Partners as J. C. Carland & Co., et al.
    Decided May 24, 1910.
    Error to Circuit Court of Lucas county.'

      Messrs. Paul E. & E. D. Potter, for plaintiff in error.

      Messrs. Shunck & Thompson; Messrs. King, Tracy, Chapman & Welles and Mr. Harry W. Lloyd, for defendants in error.
   Judgment affirmed.

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


text:
    No. 11148.
    The Kelley Island Lime & Transport Co. v. Klatzik.
    Decided May 31, 1910.
    Error to Circuit Court of Ottawa county.

      Mr. George A. True and Mr. Ruel H. Crawford, for plaintiff in error.

      Mr. Scott Stahl and Mr. Charles H. Graves, for defendant in error.
   Judgment affirmed..

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


text:
    No. 11155.
    The Merchants National Bank of Toledo v. Newton et al.
    Decided May 31, 1910.
    Error to Circuit Court of Lucas county.

      Messrs. Swayne, Hayes, Fuller & Tyler and Messrs. Brown, Geddes, Schmettau & Williams, for plaintiff in error.

      Mr. Guy W. Kinney and Mr. Alex. L. Smith, for defendants in error.
   Judgment affirmed.

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


text:
    No. 11170.
    Craig, Admr., v. Craig.
    Decided May 31, 1910.
    Error to Circuit Court of Belmont county.

      Mr. Albert W. Kennon and Mr. Newell K. Kennon, for plaintiff in error.

      Messrs. Smith & Hotvard, for defendant in error.
   Judgment of

the circuit court reversed and judgment of the court of common pleas affirmed.

Summers, C. J., Crew, Spear, Davis and Shau'ck, JJ., concur.


text:
    No. 11171
    Grimes et al. v. Stevenson.
    Decided May 31, 1910.
    Error to Circuit Court of Adams county.

      Mr. John C. Milner and Mr. C. F. McCoy, for plaintiffs in error.

      Messrs. Stephenson & Mahaffey and Mr. C. C. W. Naylor, for defendant in error.
   Judgment affirmed.

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


text:
    No 11283.
    Ward, Admx., v. The Detroit Southern Railroad Co.
    Decided May 31, 1910.
    Error to Circuit Court of Ross county.

      Mr. N. P. Clyburn and ikfr. Walter W. Boulger, for plaintiff in error.

      Mr. Luther B. Yaple, for defendant in error.
   Judgment affirmed.

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


text:
    No. 11949.
    Thomson et al. v. The Citizens’ National Bank of Adams, N. Y.
    Decided May 31, 1910.
    Error to Circuit Court of Lucas county.

      Mr. G. W. Kinney, for plaintiffs in error.

      Mr. H. J. Chittenden, for defendant in error.
   Judgment affirmed.

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


text:
    No. 11955.
    The City of Youngstown v. Clark.
    Decided May 31, 1910.
    Error to Circuit Court of Mahoning county.

      Mr. Frank L. Oesch, for plaintiff in error.

      Mr. M. C. McNab and Messrs. W. S. Anderson & Son, for defendant in error.
   Judgment affirmed.

Spear, Davis and Price, JJ., concur.


text:
    No. 11956.
    Gleason v. V. H. Houtzer & Son.
    Decided May 31, 1910.
    Error to Circuit Court of Van Wert county.

      Mr. C. S. Mauk, for plaintiff in error.

      Mr. FI. C. Glenn, for defendant in error.
   Judgment affirmed.

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


text:
    No. 11957.
    Cooperider v. Johnson et al.
    Decided May 31, 1910.
    Error to Circuit Court of Licking county.

      Messrs. Kibler & Montgomery, for plaintiff in error.

      Mr. J. R. Fitzgibbon, for defendants in error.
   Judgment affirmed.

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


text:
    No. 11960.
    Scott v. The Village of McConnelsville.
    Decided May 31, 1910.
    Error to Circuit Court of Morgan county.

      Messrs. Ivers & Danford, for plaintiff in error.

      Mr. G. 0. McGonagle and Mr. 'Charles H. Fonts, for defendant in error.
   Judgment affirmed.

Spear, Davis and Shauck, JJ., concur.


text:
    No. 11963.
    Steiner et al. v. The City of Lima et al.
    Decided May 31, 1910.
    Error to Circuit Court of Allen county.

      Messrs. Halfhill, Quail & Kirk, for plaintiffs in error.

      Mr. W. L. Rogers, for defendants in error.
   Judgment of the

circuit court and of the court of common pleas reversed and judgment for plaintiffs in error on authority of Village of Oakwood v. Stoecklein, 81 Ohio St., 332.

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


text:
    No. 11964.
    Kerlin, Trustee, et al. v. The Board of Commissioners of Sandusky County et al.
    Decided May 31, 1910.
    Error to Circuit Court of Sandusky county.

      Messrs. Wilson, Hunt & Gam and Messrs. Marshall & Fraser, for plaintiffs in error.

      Mr. M. W-. Hunt; Mr. E. C. Say les, prosecuting attorney, and Messrs. Garver, Garver & Garver, for defendants in error.
   Judg-

ment affirmed.

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


text:
    No. 11969.
    The American Accident Insurance Co. v. Foreman, by etc.
    Decided May 31, 1910.
    Error to Circuit Court of Logan county.

      Messrs'. Mathews & Or gill, for plaintiff in error.

      Mr. Dow Aikin, for defendant in error.
   Judgment affirmed.

Crew, Spear and Davis, JJ., concur.


text:
    No. 11988.
    Herold v. The Simon Linser Brewing Co.
    Decided May 31, 1910.
    Error to Circuit Court of Muskingum county.

      Mr. J. T. Crew, for plaintiff in error.

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

Spear, Davis and Siíauck, JJ., concur.


text:
    No. 11997.
    Leverone v. Brown, Receiver.
    Decided May 31, 1910.
    Error to Circuit Court of Hamilton county.

      Mr. W. T. Porter, for plaintiff in error.

      Messrs. Galvin & Bauer, for defendant in error.
   Judgment affirmed.

Crew, Spear and Siíauck, JJ., concur.


text:
    No. 11163.
    The Village of Bellevue et al. v. Brady.
    Decided June 7, 1910.
    Error to Circuit Court of Sandusky county.

      Mr. J. B. Miller and Messrs. Garver, Garver & Garver, for plaintiffs in error.

      Mr. Jesse Vickery and Messrs. Wilson, Hunt & Gam, for defendant in error.
   Judgment affirmed.

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


text:
    No. 11181.
    The Cincinnati Traction Co. v. Gallagher.
    Decided June 7, 1910.
    Error to Superior Court of Cincinnati.

      Mr. George H.

      Warrington and Mr. Murray Seasongood, for plaintiff in error.

      Mr. W. A. Hicks and Mr. C. L. Hopping, for defendant in error.
   Judgment of the superior court in general term reversed and judgment of the superior court in special term affirmed.

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


text:
    No. 11968.
    Buchanan, Jr., v. The Modern Development Co. et al.
    Decided June 7, 1910.
    Error to Circuit Court of Monroe county.

      Mr. C. S. Buchanan, Jr., for plaintiff in error.

      Messrs. Moore & Devaul; Messrs. Mallory, Jeffers & Sears and Messrs. Lynch & Lynch, for defendants in error.
   Petition in error and cross-petition in error dismissed on the ground that the petitioner and cross-petitioner have waived error by accepting the judgment.

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


text:
    No. 11975.
    Swing, Trustee, v. The Yellow Poplar Lumber Co.
    Decided June 7, 1910.
    Error to Circuit Court of Lawrence county.

      Mr. Julius L. Anderson; Mr. Smith W. Bennett and Mr. Patterson A. Reece, for'plaintiff in error.

      Messrs. Hager & Stezvart and Mr. A. R. Johnson, for .defendant in error.
   Tudgment affirmed.

Spear, Spiauck and Price, JJ., concur.


text:
    No. 11990.
    The Indiana, Columbus & Eastern Traction Co. v. Lyons et al.
    Decided June 7, 1910.
    Error to Circuit Court of Allen county.

      Mr. Dow Aikin and Messrs. Cable & Parmenter, for plaintiff in error.

      Messrs. Howenstine & Huston, for defendants in error.
   Judgment affirmed.

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


text:
    No. 11991.
    Smith v. Latham et al.
    Decided June 7, 1910.
    Error to Circuit Court of Hamilton county.

      Messrs. Ho sea & Knight, for plaintiff in error.

      Mr. W. A. Hicks and Mr. C. 0. Rose, for defendants in error.
   Judgment affirmed.

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


text:
    No. 11992.
    Phillips v. Phillips.
    Decided June 7, 1910.
    Error to Circuit Court of Monroe county.

      Messrs. Mats & Krenter and Mr. A. D. Pallett, for plaintiff in error.

      Messrs. Mallory, Jeffers & Sears, for defendant in error.
   Judgment-affirmed.,

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


text:
    No. 11995.
    The Cincinnati, Hamilton & Dayton Railway Co. v. The German Baptist Mutual Fire Assn. et al.
    Decided June 7, 1910.
    Error to Circuit Court of Miami county.

      Mr. Moris on R. Waite; Mr. J. Leach; Mr. Edward Colston and Mr. A. F. Broomhall, for plaintiff in error.

      Messrs,. Meeker & Gaskill, for defendants in error.
   Judgment affirmed.

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


text:
    No. 12000.
    Beverstock v. Goldwood-Shaner et al.
    Decided June 7, 1910.
    Error to Circuit Court of Wood county.

      Mr. Edward Beverstock, for plaintiff in error.

      Messrs. Campbell & A pel, for defendants in error.
   Judgment affirmed.

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


text:
    No. 12009.
    Roche v. Brooks.
    Decided June 7, 1910.
    Error to Circuit Court of Licking county.

      Mr. Charles H. Follett, for plaintiff in error.

      Mr. John M. Swartz, for defendant in error.
   Judgment affirmed.

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


text:
    No. 12014.
    Speckman et al., Partners as Union Ice Co., v. The Union Hay & Grain Co.
    Decided June 7, 1910,
    Error to Circuit Court of Hamilton county.

      Mr. M. C, Lykins, for plaintiffs in error.

      Messrs. Jones & James, for defendant in error.
   Judgment affirmed.

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


text:
    No. 12015.
    The Union Insurance Co. v. Billman.
    Decided June 7, 1910.
    Error to Circuit Court of Medina county.

      Mr. J. W. Seymour and Mr. Lee Elliott, for plaintiff in error. Messrs. Grant, Sieber & Mather and Mr. John O. IJcey, for defendant in error.
   Judgment affirmed.

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


text:
    No. 12034.
    Richards, Receiver, v. Wert.
    Decided June 7, 1910.
    Error to Circuit Court of Van Wert county.

      Mr. Hiram C. Glenn; Mr. Smith W. Bennett and Mr. Patterson A. Reece, for plaintiff in error.

      Messrs. Salts gab ér & Hoke, for defendant in error.
   Judgment affirmed, there being not enough of the record printed to show the error complained of.

Spear, Shauck and Price, JJ., concur.


text:
    No. 12233.
    Walder v. The State of Ohio.
    Decided June 7, 1910.
    Error to Circuit Court of Fulton county.

      Mr. James P. Ragan, for plaintiff in error. Mr. Fred FI. Wolf, prosecuting attorney, for defendant in error.
   Petition in error dismissed

on authority of Village of Canñeld v. Brobst, 71 Ohio St., 42. Grounds stated in journal entry.

It is ordered and adjudged by this court, that the petition in error be, and the same hereby is, dismissed.

The plaintiff in error was convicted in the court of common pleas of a violation of the Rose law. The circuit court overruled a motion for leave to file a petition in error.

Section 4364-30sg, Revised Statutes of Ohio, Section 13246, General Code of Ohio, provides that no petition in' error shall be filed in any court to reverse any conviction for violation of any law prohibiting the sale of intoxicating liquors in any territory or district, except after leave granted by the reviewing court, and upon the reasoning in The Village of Canfield v. Brobst, 71 Ohio St., 42, the refusal of such leave is not reviewable.

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


text:
    No. 12239.
    Roth, Treasurer, v. Hall et al.
    Decided June 7, 1910.
    Error to Circuit Court of Hamilton county.

      Mr. Henry T. Hunt, prosecuting attorney, and Mr. Alfred Bettman and Mr. Stanley W. Merrell, assistant prosecuting attorneys, for plaintiff in error.

      Mr. Moses Ruskin and Mr. J. L. Kohl, for defendants in error.
   Judgment affirmed, the case involving only the weight of the evidence.

Crew, Spear and Shauck, JJ., concur.


text:
    No. 11655.
    Heckman, v. Kaufman.
    Decided June 14, 1910.
    Error to Circuit Court of Wayne county.

      Messrs. Weiser & Ross and Mr. /.. B. Taylor, for plaintiff in error.

      Mr. M. L. Spooner, for defendant in error.
   Judgment affirmed.

Spear, Davis and Price, JJ., concur.


text:
    No. 11948.
    Royer. Admr., et al. v. Hall et al.
    Decided June 14, 1910.
    Error to Circuit Court .'of Sandúsky county.

      Mr. Basil Meek; Messrs. Royer & Spitler and Mr. J. F. Bunn, for plaintiffs in error.

      Mr. Leo Boner; Mr. Frank J. Tuttle and Mr. John T. Garver, for defendants in error.
   Judgment affirmed on authoritv of Bray v. Darby, Admr., 82 Ohio St., 47.

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


text:
    No. 12001.
    Lewis et al. v. Owens.
    Decided June 14, 1910.
    Error to Circuit Court of Licking county.

      Mr. John M. Swartz, for plaintiffs in error.

      Messrs. Fulton & Fulton, for defendant in error.
   Judgment of the circuit court reversed and

judgment of the court of common pleas affirmed.

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


text:
    No. 12002.
    The National Label Co. v. Meyer.
    Decided June 14, 1910.
    Error to Circuit Court of Hamilton county.

      Mr. Louis B. Sawyer and Mr. L. H. Swormstedt, for plaintiff in error.

      Mr. L. H. Pummill, for defendant in error.
   Judgment affirmed.

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


text:
    No. 12011.
    McConville v. McConville et al.
    Decided June 14, 1910.
    Error to Circuit Court of Jefferson county.

      Mr. J. A. Mansfield; Mr. P. P. Lewis and Mr. A. C. Lewis, for plaintiff in error.

      Mr. J. W. Jordon; Mr. D. M. Gruber and Mr. A. E. Anderson, for defendants in error.
   Judgment reversed and petition dismissed.

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


text:
    No. 12012.
    Armstrong v. The City of Cincinnati et al.
    Decided June 14, 1910.
    Error to Circuit Court of Hamilton county.

      Mr. Ed. JJ. Williams and Mr. A. B. Huston, for plaintiff in error.

      Mr. J. W. Heintzman; Mr. James B.

      Frenkel; Mr. E. M. Ballard, and Mr. Smith Hickenlooper, for defendants in error.
   Judgment affirmed.

Crew, Spear and Shauck, JJ., concur.


text:
    No. 12019.
    The Board of Commissioners of Huron County v. Sutliff.
    Decided June 14, 1910.
    Error to Circuit Court of Huron county.

      Mr. G. Ray Craig and Mr. Louis W. Wickham, for plaintiff in error.

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

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


text:
    No. 12025.
    Musser, Admr., v. Dunn.
    Decided June 14, 1910.
    Error to Circuit Court of Summit county.

      Messrs. Musser, Kimber & Huffman, for plaintiff in error.

      Mr. George M. Anderson and Mr. L. S. Pardee, for defendant in error.
   Judgment affirmed.

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


text:
    No. 12026.
    The State, ex rel. Hunt, Prosecuting Attorney, v. Morgenthaler.
    Decided June 14, 1910.
    Error to Circuit Court of Hamilton county.

      Mr. Henry T. Hunt, prosecuting attorney, and Mr. Alfred Bettman and Mr. Stanley W. Merr ell, assistant prosecuting attorneys, for plaintiff in error.

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

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


text:
    No. 12124.
    Durack, Admx., v. The Cincinnati Traction Co.
    Decided June 14, 1910.
    Error to Circuit Court of Hamilton county.

      Mr. Dudley V. Sutphin and Mr. Walter A. De'Camp, for plaintiff in error.

      Mr. Ellis G. .Kinkead and Mr. H. Kenneth Rogers, for defendant in error.
   Judgment affirmed.

Crew, Davis and Sitauck, JJ., concur.


text:
    No. 12267.
    The State of Ohio v. Gibbs et al.
    Decided June 14, 1910.
    Exceptions to the Common Pleas Court of Huron county. _

      Mr. Don J. Young, prosecuting attorney, for the exceptions.

      Mr. A. V. Andrews, against the exceptions.
   Exceptions overruled.

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


text:
    No. 12268.

    The State of Ohio v. Gibbs.
    Decided June 14, 1910.
    Exceptions to the Common Pleas Court of Pluron county.

      Mr. Don J. Young, prosecuting attorney, for the exceptions.

      Mr. C. P. Wickham, against the exceptions.
   Exceptions overruled.

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


text:
    No. 12269.
    The State of Ohio v. Perrin.
    Decided June 14, 1910.
    Exceptions to the Common Pleas Court of Huron county.

      Mr. Don J. Younp\ prosecuting attorney, for the exceptions. Mr. C. P. Wickham, against the exceptions.
   Ex-

ceptions overruled.

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


text:
    No. 12270.
    The State of Ohio v. Gibbs et al.
    Decided June 14, 1910.
    Exceptions to the Common Pleas Court of Huron county.

      Mr. Don J. Young, prosecuting attorney, for the exceptions. Mr. A. V. Andrews, against the exceptions.
   Exceptions overruled.

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


text:
    No. 11175.
    Benham v. Baker et al.
    Decided June 21, 1910.
    Error to Circuit Court óf Miami county.

      Messrs. E. H. & R. A. Kerr, for plaintiff in error.

      Messrs. Long & Kyle and Mr. A. B. Campbell, for defendants in error.
   Judgment affirmed.

Crew, Spear and Sitauck, JJ., concur.


text:
    No. 11199.
    The Pullman Co. v. Irvine, Receiver, et al.
    Decided June 21, 1910.
    Error to Circuit Court.of Franklin county.

      Mr. Francis B. Daniels; Messrs. Squire, Sanders & Dempsey and Mr. Emmett Tompkins, for plaintiff in error.-

      Mr. Fred C. Rector; Messrs. Stewart & Stewart; Mr. T. E. Powell and Messrs. FI err on, Gatch & James, for defendants in error.
   Judgment affirmed.

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


text:
    No. 11207.
    The Cleveland, Cincinnati, Chicago & St. Louis Railway Co. v. Steinhelfer.
    Decided June 21, 1910.
    Error to Circuit Court of Crawford county.

      Mr. JJ. R. Schuler and Messrs. Cummings, McBride & Wolfe, for plaintiff in error.

      Mr. R. V. Sears and Messrs. Finley & Gallinger, for defendant in error.
   Judg-

ment reversed and cause remanded for new trial.

Summers, C. J., D'avis, Shauck and Price, JJ., concur.


text:
    No. 11268.
    Elliott v. American Tin Plate Co.
    Decided June 21, 1910.
    Error to Circuit Court of Trumbull county.

      Mr. Charles Fillius, for plaintiff in error.

      Mr. T. FI. Gillmer and Messrs. Seaton & Paine, for defendant in error.
   Judgments reversed and cause remanded for a new trial. Grounds stated in journal entry.

This cause came on to be heard upon . the transcript of the record of the circuit court of Trumbull county, and was argued by counsel. On consideration whereof this court finds that the undisputed evidence given at the trial of the case below in the court of common pleas of Trumbull county tended to show that the appliance known as a channel beam with which the plaintiff was working at the time of the accident was an unsafe appliance in that the ends of said beam were not securely fastened in their connection with the stirrups attached to the iron rods by which they were supported; that the evidence also tended to show that said defect was one 'of original construction, the defect being disclosed by use but not otherwise manifest to the intelligence of the ordinary workman; that the evidence further tended to show that some time prior to the accident to the plaintiff appliances in the same mill similar to the one which caused the injury to plaintiff had fallen while being used in a way to indicate improper and negligent construction, and that such fact was at the time well known to the company but unknown to the plaintiff.

The court further finds that there is no evidence in the record tending to show that the plaintiff was in any way guilty of contributory negligence.

This court is of opinion that the case made by the plaintiff at the trial was of such a character as to require its proper submission to the jury and that it was error for the trial court to direct a verdict for defendant.

This court is also of opinion that the risk incurred in the use of the channel beam was not of a character which should be conclusively held to have been assumed by the plaintiff, the facts of the case not. bringing it within the spirit of the rule announced in Pennsylvania Co. v. McCurdy, 66 Ohio St., 118, but more nearly resembling the principle on which rests the ruling in Manufacturing Co. v. Morrissey, 40 Ohio St., 148, and which is also recognized in the opinion in Coal & Car Co. v. Norman, 49 Ohio St., 598.

It is therefore considered and adjudged that the judgment of the circuit court be and the same is hereby reversed for error in affirming and in not reversing the judgment of the court of common jaleas. And proceeding to render the judgment said circuit court should have rendered, it is considered and adjudged that the judgment of the court of common pleas be reversed for error in directing a verdict for the defendant. And this cause is remanded to said court of common pleas for further proceedings according to law.

It is further considered and adjudged that plaintiff in error recover of' defendant in error his costs in this- court and in the circuit court to be taxed. It is further ordered that a special mandate be sent to the court of common -pleas of Trumbull county to carry this judgment into execution. Also that a copy of this entry be certified to the clerk of the circuit court of Trumbull county for entry.

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


text:
    No. 11270.
    Miller v. The Pittsburg, Cincinnati, Chicago & St. Louis Railway Co.
    Decided June 21, 1910.
    Error to Circuit Court of Clermont county.

      Mr. Eli H. Speidel and Messrs. Frasier & Hicks, for plaintiff in error.

      Messrs. Maxwell & Ramsey; Mr. Robert Ramsey and Mr. W. W. Ramsey, for defendant in error.
   Judgment affirmed.

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


text:
    No. 12024.
    The Northern Ohio Traction & Light Co. v. Lafferty.
    Decided June 21, 1910.
    Error to Circuit Court of Summit county.

      Messrs. Rogers & Rowley, for plaintiff in error.

      Mr. EL C. Sanford and Mr. T. E. Raley, for defendant in error.
   Judgment affirmed.

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


text:
    No. 12030.
    The State, ex rel. Garrett, v. Brelsford, Auditor.
    Decided June 21, 1910.

      Error to Circuit Court of Muskingum county.

      Mr. E. F. O’Neal, for plaintiff in error.

      Messrs. Kuntz & Tannehill, for defendant in error.
   Judg-

ment affirmed.

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


text:
    No. 12032.
    Spies v. Bauer et al., Partners.
    Decided June 21, 1910.
    Error to Circuit Court of Erie county.

      Mr. John Ray, for plaintiff in error.

      Mr. W. B. Starbird, for defendants in error.
   Judgment affirmed.

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


text:
    No. 12043.
    Murphy v. The Village of Gibsonburg.
    Decided June 21, 1910.
    Error to Circuit court of Sandusky county.

      Messrs. Kinney, O’Farrell & Rimelspach and Mr. M. W. Hunt, for plaintiff in error.

      Messrs. Wilson, Hunt & Gam and Mr. W. J. Mead, for defendant in error.
   Judgment affirmed.

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


text:
    No. 12045.
    Coblentz v. Roberts.
    Decided June 21, 1910.
    .Error to Circuit Court of Darke county.

      Messrs. Bickel & Baker, for plaintiff in error.

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

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


text:
    No. 12048.
    The Cleveland & Southwestern Traction Co. v. Smith, Admx.
    Decided June 21, 1910.
    Error to Circuit Court of Lorain county.

      Messrs. Blandin, Rice & Ginn, for plaintiff in error.

      Mr. F. M. Stevens and Mr. C. A. Hammond, for defendant in error.
   Judgments reversed and judgment for plaintiff in error on authority of Railroad Co. v. Harvey, 77 Ohio St., 235.

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


text:
    No. 12271.
    The State of Ohio v. Gibbs.
    Decided June 21, 1910.
    Exceptions to Common Pleas Court of Huron county.

      Mr. Don J. Young, prosecuting attorney for the exceptions.

      Mr. C. P. Wickham, against the exceptions.
   Exceptions

sustained.

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


text:
    No. 12272.
    The State of Ohio v. Gibbs et al.
    Decided June 21, 1910.
    Exceptions to Common Pleas Court of Huron county.

      Mr. Don J. Young, prosecuting attorney, for the exceptions.

      Mr. A. V. Andrews, against the exceptions.
   Exceptions overruled.

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


text:
    No. 11179.
    The Cleveland, Cincinnati, Chicago & St. Louis Railway Co. v. Clay.
    Decided June 28, 1910.
    Error to Circuit Court of Logan county.

      Mr. L. J. Hackney; Mr. Ben B. Nelson and Messrs. West & West, for plaintiff in error.

      Messrs. Hozvenstine & Huston and Messrs. Shockney & Shockney, for defendant in error.
   Judgment reversed and petition dismissed.

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 the judgment of the court of common pleas. And this court proceeding to render the judgment that said 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, reversed, and the petition dismissed for error in overruling the defendant's motion made at the conclusion of all the evidence to direct a verdict for the defendant.

This court being of the opinion that there was no evidence tending to show any negligence on the part of Bowman, the foreman, and the verdict of the jury was directly contrary to the instructions of the court given to the jury before argument.

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


text:
    No. 11227.
    Burkhardt v. The Cincinnati, Georgetown & Portsmouth Railroad Co. et al.
    Decided June 28, 1910.
    Error to Circuit Court of Hamilton county.

      Mr. H. C. Busch and Mr. Prescott Smith, for plaintiff in error.

      Mr. Frank F. Dinsmore; Mr. George H. Warrington and
      Mr. Murray Seasongood, for defendants in error.
   Judgment affirmed.

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


text:
    No. 11269.
    Geier, Admr., v. The Cincinnati, Hamilton & Dayton Railway Co.
    Decided June 28, 1910.
    Error to Circuit Court of Van Wert county.

      Messrs. Balyeat & Conn and Mr. James W. Half hill, for plaintiff in error.

      Mr. Edward Colston and Messrs. Seiders & Cunningham, for defendant in error.
   Judgment affirmed.

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


text:
    No. 11377.
    Burckhardt et al. v. The Ohio Conservatory of Music of Cincinnati et al.
    Decided June 28, 1910.
    Error to Superior Court of Cincinnati.

      Messrs. Kittredge, Wilby & Stimson, for plaintiffs in error.

      Messrs. Healy, Ferris & McAvoy, for defendants in error.
   Judgment affirmed.

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


text:
    No. 12053.
    Hinds et al. v. The Pennsylvania Co. et al.
    Decided June 28, 1910.
    Error to Circuit Court of Jefferson county.

      Mr. P. P. Leivis, for plaintiffs in error.

      Messrs. Carey & Mullins and Messrs. Miller & Miller, for defendants in error.
   Judgment affirmed.

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


text:
    No. 12054.
    La Belle Iron Works v. Welday.
    Decided June 28, 1910.
    Error to Circuit Court of Jefferson county.

      Mr. A. C. Letvis and Mr. J. 0. Naylor, for plaintiff in error.

      Mr. T. A. L. Thompson and Messrs. McClave Sr McClave, for defendant in error.
   Judgment affirmed.

Crew, Spear and Price, JJ., concur.


text:
    No. 12056.
    Shertzer v. Conover.
    Decided June 28, 1910.
    Error to Circuit Court of Warren county.

      Mr. Patrick Gaynor, for plaintiff in error.

      Messrs. Runyan Sr' Stanley, for defendant in error.
   Judgment affirmed.

Spear, Davis and Price, JJ., concur.


text:
    No. 12060.
    Henderson, Assignee, v. Henderson, Executor, et al.
    Decided June 28, 1910.
    Error to Circuit Court of Harrison county.

      Mr. R. H. Minteer, for plaintiff in error.

      Messrs. Hollín gszvorth & Worley, for defendants in error.
   Judgment affirmed.

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


text:
    No. 12061.
    Henderson, Assignee, v. The First National Bank of Cadiz et al.
    Decided June 28, 1910.
    Error to Circuit Court of Harrison county.

      Mr. R. H. Minteer, for plaintiff in error.

      Messrs. Hollín gszvorth Sr Worley, for defendants in error.
   Judgment affirmed.

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


text:
    No. 12062.
    Pruesser v. Faulhaber.
    Decided June 28, 1910.
    Error to Circuit Court of Cuyahoga county.

      Mr. Herman Pruesser, for plaintiff in error.

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

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


text:
    No. 12392.
    The City of Cincinnati v. The Louisville & Nashville Railroad Co.
    Decided June 28, 1910.
    Error to Circuit Court of Plamilton county.

      Mr. Edward M. Ballard, city solicitor; Mr. Albert Bettinger and Mr. Walter Schmitt, for plaintiff in error.

      Mr. J. B. Foraker; Mr. Ellis G. Kinkead and Mr. H. Kenneth Rogers, for defendant in error.
   Judgment affirmed.

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


text:
    No. 12463.
    The State, ex rel. Ackerman, Auditor, v. Fullington, Auditor of State.
    Decided June 28, 1910.
    Error to Circuit Court of Crawford county.

      Mr. C. H. Henkel, for plaintiff in error.

      Mr. U. G. Denman, attorney general, and Mr. Freeman T. Eagleson, for defendant in error.
   Demurrer sustained and petition

dismissed.

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


author: Price, J.

text:
    Burchard and McCarthy v. The State of Ohio.

      Trial before mayor, justice of peace or police judge — Defendant excepts to decision — Bill of exceptions prepared and filed — According to Section 6565, Revised Statutes — Not essential to jurisdiction of common pleas court — That judge of trial court below note signing and filing pn his docket — Law of court procedure.

    Where a case is tried before a justice of peace, mayor or police judge, and the defendant, during the progress of such trial, “excepts to the decisions of the justice of the peace, mayor or police judge upon matters of law arising in the case,” and a bill of exceptions is prepared, signed and filed in accordance with Section 6565, Revised Statutes (Bates’), it is not essential to the jurisdiction of the court of common pleas where such bill is filed for a review of said decisions, that the justice of the peace, mayor or police judge “note such signing and filing in his docket” as required by said section. The failure of the officer to make the notation in his docket does not warrant the court of common pleas in refusing to consider and pass upon the questions contained in the bill of exceptions.
    (No. 12513
    Decided October 25, 1910.)
    Error to the Circuit Court of Champaign county.
    On the 29th day of September, 1909, the plaintiffs in error were tried before E. L. Bodey, mayor of the city of Urbana, on an affidavit which charged them with keeping a place in said city where intoxicating liquors were kept for sale. They were found guilty, and after making that finding, the mayor continued the case until October 1, 1909, and on that day the said parties were sentenced to pay. a fine of $200 each and the costs of prosecution, and were to stand committed to the county jail until the fines and costs were paid. A motion for new trial was overruled, and on the application of the defendants, the mayor suspended the execution of the sentences until October 5, 1909.
    It is claimed by the state that on October 4, 1909, within three days after sentence, the mayor allowed and signed a bill of exceptions, and. it shows that he ordered the same made part of the record. The certificate of the mayor at the close of the bill of exceptions recites: “Thereupon, upon motion of the defendants, the court suspended the execution of the sentence until the 5th day of October, 1909.
    “Thereupon the defendants, within three days, to-wit: on the 1st day of October, 1909, made a-motion to set aside the judgment herein and for a new trial which was overruled by the court, to which ruling by the court, the defendants then and there excepted, and defendants tender this their bill of exceptions, which is allowed, signed, sealed and ordered made part of the record.

    “E. L. Bodey, Mayor.”
    The transcript made by the mayor is silent as to the signing or allowing of the bill of exceptions. The bill of exceptions and the transcript of the mayor’s docket were filed with the clerk of court of common pleas in due time, and on application for that purpose, the court of common pleas granted the defendants leave to file their petition in error to review the judgments of said mayor, and it was filed in due time.
    At the October term of the court, on the 30th day of November, 1909, the court made the following disposition of the case: “This day this cause came on for hearing upon the petition in error, bill of exceptions and exhibits, and a transcript of the docket entries of E. L. Bodey, mayor'of the city of Urbana, Ohio; whereupon the court after hearing arguments of counsel and being fully advised in the premises finds that the bill of exceptions was not duly signed by E. L. Bodey,mayor of the city of Urbana, Ohio, within the time prescribed by the statutes, and for this reason the court finds no error in the record of the court below. The judgment of the court below is therefore affirmed at the costs of the plaintiffs in error, and this cause is remanded to the said mayor for execution of sentence. To all of which ruling and orders of the court plaintiffs in error except.”
    The circuit court granted leave to file a petition in error in that court to review the said judgment of the court of common pleas, and a suspending bond was given. At the April term, 1910, the circuit court found, “that there is no error manifest upon the face of the record in said orders and judgment of said court of common pleas,” and affirmed its judgment without giving other reasons on the journal.
    The case is here on error to reverse the judgments of the lower courts.

      Mr. Benjamin E. Seibert and Mr. George W. Poland, for plaintiffs in error.
    As to the first question, plaintiffs in error contend this: That, in the case at bar, there having been no objection by the state to the bill of exceptions, no motion to strike the same from the files, no word said by the common pleas court anent the validity of the bill when the case was argued and submitted to the court, the said court was, under such circumstances, bound to presume from the fact that the bill itself showed it had been signed, allowed, and sealed as a part of the record within three days after sentence and within the time for which the mayor had suspended execution of judgment, that an application for time to reduce the exceptions to writing had been made and time given even though the record was silent as to that question. The following decisions wholly sustain this contention: State v. Wirick, 81 Ohio St., 343; Knox County v. Bank, 147 U. S., 91; Felch, Assignee, v. Manufacturing Co., 62 Ohio St., 317; Lewis v. Bancroft, 53 Ohio St., 92.
    “Equity looks upon that as done which ought to have been done.” That which the mayor ought to have done and which was his imperative duty to do under the statute, should have been looked upon by the common pleas court — especially in the absence of objection — as having been done.
    The court will see upon reading the latter part of Section 6565 (99 O. L., 78), that the duty of the mayor to note the signing and filing of the bill in his docket is of the same nature as his duty to transmit the bill, etc., within ten days to the higher court. They are both ministerial duties. When the plaintiffs in error are not at fault, the neglect of the mayor to perform either should not be prejudicial to them. Capple v. State, 4 N. P., N. S., 339; Davies v. Railway Co., 71 Ohio St., 325; Pullman Co. v. Washington, 10 C. C., N. S., 105; Young v. Shallenberger, 53 Ohio St., 291.

      Mr. George Waite, prosecuting attorney; Mr. Harold Houston, city solicitor, and Mr. H. M. Crow, for defendant in error.
    We find the situation to be as follows:

      First. No time was fixed by the mayor, and the record does not show that any time was fixed by him for reducing the exceptions to writing, either at the time the decision was made or at the time of the overruling of the motion .for a new trial or at the time sentence was pronounced.

      Second. No note is made on the docket of the mayor of the signing, allowing and filing of the bill of exceptions.

      Third. If by any sort of legal contortions the mere suspending of the sentence executing the judgment by the mayor can be construed into the fixing of a time in which to sign and allow a bill of exceptions, the time so fixed and at which the bill was allowed and signed, is not within the time prescribed by this statute, but is two days less than the time so prescribed, which, of course, the mayor had no authority to do; that is, the mayor could not shorten the time prescribed by the statute. Young v. Shallenberger, 53 Ohio St., 291.
    ■ All these facts being true, what authority has this bill of exceptions for being in existence? And what jurisdiction can it possibly give to a reviewing court to consider, reverse or set aside the judgment of the mayor when said judgment is final and complete so far as the record on his docket is concerned, and could be carried into execution at once, there being nothing whatever on his record to show that any bill of exceptions was ever signed and allowed or that any proceeding in error whatever is pending in the upper courts ?
    We claim this case should be decided in accordance with Lewis et al. v. Bancroft, 53 Ohio St., 92. For that is what this court practically decided in that case. Section. 6565, Revised Statutes, it is true has been amended several times since that case was decided but the amendments of the.statute do not so change it as to require this court to make any different construction of the statute or change the principles- announced in that case.
   Price, J.

The court of common pleas, as shown: by the journal entry, after hearing arguments of counsel for the parties, found that the bill of exceptions was not duly signed by E. L. Bodey, mayor of the city of Urbana, Ohio, “within the time prescribed by the statutes, and for this reason the court finds no error in the record of the court below. The judgment of the court below is therefore affirmed.”

What was said Dy counsel in the arguments referred to does not appear, but it seems that there was no motion filed by the state to strike off the bill of exceptions, and so far as we can determine by use of the record, the questions raised in-the bill of exceptions had been argued by counsel, for outside of the bill there was but little to require argument. It is not unfair to infer that after the case on error had been argued and submitted, the court discovered what it thought fatal to the bill and did not read or consider it. On the contrary, the court ignored the bill, and there being no error apparent on the record outside the bill, the judgment of the mayor was affirmed.

If we look to the bill itself, we think it clearly appears that the court of common pleas was mistaken — perhaps misled by a few words that appear below and to the left of the signature of the mayor. In our statement of the case we have quoted from the certificate of the mayor to the bill, and it shows that it was presented and allowed and signed on the 1st day of October, 1909. When we turn to the transcript of the mayor’s docket, transmitted by him to the court of common pleas with the bill of exceptions, we discover that after hearing the case on September 29, 1909, and finding the accused parties guilty, the case was adjourned until 9 o’clock a. m., October 1, 1909, and at this adjourned day, the mayor overruled a motion for new trial and passed sentence. The transcript also shows that after passing sentence, on application of defendants, execution of -sentence was suspended until October 5, 1909. The reason for this suspension does not appear of record, except that it was on application of the defendants.

The transcript does not show when the bill was allowed and signed, but the certificate of the mayor recites that it was done on the 1st of October, 1909 — the day judgment was rendered. The transcript is typewritten, except the signature of the mayor, and he signed his name to the right and at the end of the certificate, which is the proper’ place for the signature. There is written with pen and ink, three or four inches to the left and lower down on the page, these words: “Dated October 4, 1909.” There is nothing to show who wrote the words, or when they were written. They do not appear above or in any way related to the mayor’s signature, and can not be allowed .to control or contradict the statement properly preceding the mayor’s name. Therefore we must conclude that, so far as can be properly shown by the bill itself, it was presented, allowed and signed on the first day of October, which is the day the mayor rendered judgment, and of course within the ten days prescribed by Section 6565, Revised Statutes (Bates’).

But it is argued in the brief for the state, that there is nothing in the transcript sent up by the mayor to show that he allowed.and signed the bill of exceptions, and, therefore, it was not error for the court of common pleas to disregard it.

This is the more serious question in the case, although not expressed in the judgment entry made by the court of common pleas, and it becomes necessary to consider Section 6565, above mentioned. It provides: “In all cases before a' justice of the peace, mayor or police judge, whether tried by jury or the' justice, mayor or police judge, either party shall have the right to except to the decisions of the justice, mayor or police judge, upon any matters of law arising in the case. The party objecting to the decision must except at the time the decision is made, and on application made then or immediately after the overruling of a motion for a new trial, decision rendered or sentence pronounced, time shall be given to reduce the exceptions to writing/but not'more than ten days nor less than five days beyond the date of overruling the motion for a new trial, if such motion be made, or from the date on which the decision or sentence of the'justice, mayor or police judge, is rendered; * * * the party excepting must reduce this exception to writing, and present the same to the trial justice, mayor or police judge, or his successor, within the time herein limited, and if such bill of exceptions be not correct he shall make the necessary corrections therein- within three days after it is so presented, and when correct shall sign the bill of exceptions and file the same with the papers in the case, and note such signing and filing in his docket, and transmit the same with the transcript of his docket and • original papers, within ten daj^s of the date of such signing, to the clerk of the court of common pleas and by him filed and entered upon his trial docket as in other cases.”

The language of the latter part of the section now pertinent is: “and if such bill of exceptions be not correct, he shall -make the necessary corrections within three days after it is so presented, and, when correct, shall sign the bill of exceptions and file the same with the papers in the case, and note such signing and filing in his docket, and transmit the same with the transcript of his docket and original papers within ten days of the date of such signing, to the clerk,” etc.

Because the mayor did not “note such signing and filing in his docket’’ it is urged that the bill is not valid and may be disregarded.

It is trúe that the transcript is silent as to the signing and filing of the bill, but should the neglect of the mayor defeat the efforts of plaintiffs in error to have their case reviewed?

- The statute does not prescribe in what form or language the mayor shall note the signing and filing, and this ministerial act is not required to be done until the correct bill is signed and filed. After he has signed and filed the bill with the papers in the case, the magistrate should note such signing and filing on his docket. It was no part of the duty of plaintiffs in error to make or cause such notation to be made. They had no control over the docket, and when they presented a true bill within the statutory time and the same was duly signed by the mayor, the labor of plaintiffs in error was ended, because the statute requires the magistrate to file the bill with the other papers in the case, and having noted the signing and filing, • he must transmit the bill, transcript and original papers to the clerk of the court of common pleas. The mayor has performed all things made incumbent upon him by the statute, except making the notation on his docket. The signing and filing- precede the noting on the docket, but in this case, without making the note on the docket, the mayor performed the remaining duty of transmitting the bill, transcript and original papers to the clerk of courts.

So the court of common pleas had before it a correct bill of exceptions, signed by the mayor within the statutory time and by him filed with the other papers in the case, and in due time transmitted to the court of common pleas. If the noting the “signing and filing” on the docket required by the section is jurisdictional as to the fate of the bill after it reached the court of common pleas, the judgments of the lower courts may be justified. But we are of opinion that such act of noting on the docket is not jurisdictional, if all other steps prescribed by the statute have been taken in time. Such notation may aid in the identification of the bill of exceptions, but there was no question raised by the state, or anyone, concerning its identity, and the same was evidenced by the same signs that identified the transcript and other original papers in the case, and it would appear harsh indeed, that a bill of exceptions shall be cast aside because the magistrate neglected to perform the one ministerial act involved in the discussion.

We are not disposed to construe a statute regulating the practice before a mayor or justice of the peace with more strictness than is applied to the practice in the court of common pleas and circuit court, under provisions of Sections 5301 to 5302, Revised Statutes, inclusive, which were then in force.

The'noting on the docket the fact that a bill of exceptions had been signed and filed by the mayor, not being essential to the jurisdiction of the court of common pleas, the neglect of that ministerial duty is not the fault or neglect of the parties taking the bill.

It follows that we reverse the judgment of the circuit court, and also that of the court of common pleas, and remand the case to the court of common pleas 'with instructions to read, consider and pass upon the bill of exceptions and the questions therein contained.

r , , . Judgment reversed.

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


author: Davis, J.

text:
    The Pittsburgh, Cincinnati, Chicago & St. Louis Railway Co. v. Jackson, Administrator.

      Action for trespass on lands — In another state — Not maintainable in this state.

    An action for trespass on lands situated in another state, or injury thereto, cannot be maintained in this state.
    (No. 12084
    Decided October 25, 1910.)
    Error to the Circuit Court of Jefferson county.
    Leander Jackson, being the owner of certain lands situated in the state of West Virginia, brought an action in the court of- common pleas of Jefferson county, Ohio, against the plaintiff in error. Plis petition contained two causes of action: first, that the plaintiff in error had unlawfully appropriated to its own use about twenty feet of right of way in West Virginia, extending to a ferry on the Ohio River; and second, that said plaintiff in error failed and omitted to provide sewers, ditches, and drains to conduct the surface water from its right of way, by reason whereof the water flowed over the right of way of the said Leander Jackson. He claimed damages in the sum of five hundred dollars on each cause of action. The -plaintiff in error filed a demurrer to the jurisdiction of the court, which was submitted to, and sustained by, the court of common pleas. Thereafter, Leander Jackson died and Albert W. Jackson, as his administrator, was substituted as plaintiff and filed an amended petition in which the causes of actions are the same as in the original petition. To this amended petition the plaintiff in error filed a demurrer alleging: first, that the court had no jurisdiction of the subject of the action; and second, that said amended petition did not state facts sufficient to constitute a cause of action. This demurrer was sustained by the court of common pleas, the amended petition was dismissed, and judgment was rendered in favor of the plaintiff in error. The circuit court on error affirmed the judgment of the court of common pleas in sustaining the demurrer to the first cause of action, but reversed the judgment of the court of common pleas sustaining the demurrer to the second cause of action. Plaintiff in error seeks to reverse the judgment of the circuit court and to affirm the judgment of the court of common pleas.

      Messrs. Dunbar & Sweeney, for plaintiff in error.
    The property is located wholly in the state of West Virginia, and the acts complained of, and the injury alleged to have been occasioned by those acts were done and sustained in West Virginia.
    The railway company, defendant below, although sued in Ohio, is amenable to the laws of the state of West Virginia to the same extent as its lessor company, and full and complete redress may be had in the courts of that state.
    There is absolutely nothing in the pleadings to indicate that the railway company was sued in its capacity of an Ohio corporation or as a citizen of Ohio.
    We insist that the damage claimed in the second cause of action is alleged to be the result of the overflowing of particular lands, and such being the case, the action is local in character. Cooley on Torts (1 ed.), 471; Morris v. Railway Co., 9 L. R. A., 349; Dicey on Conflict of Laws (2 ed.), 230.
    An action for trespass upon land is a local action and can only be brought within the state in which the land lies. Ellenzvood v. Chair Co.,, 8 O. F. D., 541, 158 U. S., 106; Allin v. Lumber Co., 150 Mass., 560, 6 L. R. A., 416; Thayer v. Brooks, 17 Ohio, 489; Rorer on Inter-State Law (2 ed.), 324.
    The action of the circuit court can not be justified under any existing statute, and opposing counsel evidently fails to distinguish between county lines and state boundaries. The circuit court here undertakes to extend the power of the Ohio Legislature beyond the state, and seeks to invest the defendant in error with privileges and rights that are denied to him in the state in which the land is located and where the alleged cause of action arose. - .

      Mr. W. C. Brown, for defendant in error. .
    The defendant in error contends that there are no local actions in Ohio, -except what are expressly so made by statute. Genin v. Grier, 10 Ohio, 210; City of Fostoria v. Fox, 60 Ohio St., 340.
    Now, the only local actions mentioned in the Revised Statutes of Ohio are contained in Sections 5019 to 5022, inclusive. The only governing legislation where actions relating to real estate are limited to the county where the real estate is situated is Sections 5019, 5020 and 5021, Revised Statutes. Section 5019 provides that the action must be brought where the real estate is situated, for the recovery .of real property or an estate, or interest therein, for the partition of real property, and for the sale of real property under a mortgage lien or other incumbrance or charge. Section 5020 amplifying more fully the preceding section, provides for exigencies where the real estate is situated in two or more counties, while Section 5021 deals with the doctrine of specific performance.
    Section 5028 provides that every other action must be brought in the county in which the defendant resides or may be summoned, etc.
    Under the present state of facts, where the prayer of the petition seeks a personal judgment, why has not the court jurisdiction? City of Fostoria v. Fox, 60 Ohio St., 348.
   Davis, J.

The circuit court affirmed the judgment of the court of common pleas as to the first cause of action, but reversed it as to the second cause of action. The judgment of the circuit court is defended on the ground that the question involved is definitively settled by the rulings of this court in Genin v. Grier, 10 Ohio, 210, and City, of Fostoria v. Fox, 60 Ohio St., 340. With this contention/ we cannot agree.

The cases cited, like all others, should be interpreted with reference to the facts of each case and .the questions presented to and considered by the court. In those cases the question now before this court did not arise. In both cases the cause of action asserted accrued within this state, and the question of conflict of jurisdiction between the courts of this state and the courts of another state did not arise upon the record and was not considered by the court. In each case the question was, which county in this state was the proper forum for the action. That being so, it was answered that the forum must be determined by the statutes of this state, or as it was expressed by Hitchcock, J., in Genin v. Grier: “Whether this distinction between local and transitory actions shall be adhered to must depend upon our own peculiar system of jurisprudence.” But obviously, the statutes of this state could not settle a question of jurisdiction between the courts of this state and those of another state.

Hence, in Thayer v. Brooks, 17 Ohio, 489, in which the plaintiff complained that the defendant cut a ditch across his farm in Pennsylvania, whereby water was diverted from the plaintiff’s mill in Ohio, this court said: “Actions of trespass, and trespass on the case, for injuries to real estate, or land, are local; and in all cases where the act done, and the injury sustained, lie wholly in a foreign jurisdiction, the place of the injury is the forum of the trial. The doctrine is universally recognized as a rule of the common law. But where the injury is sustained in one state from an act done in another, an action to recover damages for the same may be prosecuted in either.”

In a well considered case, the supreme court of Massachusetts said: “It is not denied that trespass quare clausum fregit is a local action, and that at common law the courts of.this commonwealth have no jurisdiction of trespass upon land in another state or country. The objection is not that an action of which the court has jurisdiction is brought in the wrong county, but that the court has not jurisdiction of the cause of. action;” and the court dismissed the action because the cause of action accrued in another state. Allin v. Connecticut River Lumber Co., 150 Mass., 560.

In Ellinwood v. Marietta Chair Co., 158 U. S., 105, the supreme court of the United States declared that, “By the law of England and of those states of the Union whose jurisprudence is based upon the common law, an action for trespass upon land, like an action to recover the title or possession of the land itself, is a local action, and can only be brought within the state in which the land lies.” The same ruling was made in Morris v. Missouri Pacific Ry. Co., 78 Tex., 17.

In 2 Cooley on Torts (3 ed.), 901, it is said: “That actions for trespasses on lands in a foreign country cannot be sustained, is the settled law in England and in this country. The decision of Chief Justice Marshall to that effect in the suit brought by- Mr. Edward Livingston against Mr. Jefferson, for having forcibly dispossessed him of the batture in New Orleans, has been often- followed without question.”

We are of the opinion that the ruling of the circuit court is against the great weight of authority, and therefore its judgment is

Reversed and the judgment of the court of common pleas is affirmed.

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


author: Spear, J.

text:
    The Board of County Commissioners of Portage County v. Gates.

      County commissioners sitting as a board — In hearing on application of land-owners — For establishment of ditch — Represent landowners and not the county, when — Section 4447, Revised Statutes — Board represents county and not exclusively petitioners, when — Question of damages by construction of ditch — Owner of lands not party when — Personal notice to owner of land, not indispensable, when — Legality of proceedings — Section 4451a, Revised Statutes — Waiver of right of application for damages.

    1. The county commissioners, sitting as a board, in hearing an application on the part of land-owners for the establishment of a ditch, as provided by section 4447, and following, of the Revised Statutes, represent the land-owners, petitioners, and not the county, where it is found that the improvement is of local interest only, and that the cost and expense should be assessed wholly against the lands benefited. Where the finding is that the improvement is of sufficient importance to the public to justify the payment of damages and compensation, in whole or in part, out of the county treasury, the board may so order, and in such condition the board represents the county, and not exclusively the petitioners.
    2. An owner of land not a party to the proceeding, whose land may have been damaged by the construction of such ditch, cannot recover of the county for such damage where the board fails to find that the ditch will be of sufficient importance to the public to warrant an order for payment of damages and compensation, in whole or in part, out of the county treasury. Hence, a petition which seeks recovery in such case against the county which fails to aver such finding and order of payment will be held bad on general demurrer.
    3. The application for a ditch under the section cited is in the nature of an action in rem. Hence personal notice of the proceeding to the owner of land which may be affected by the ditch is not indispensable to the legality of the proceeding, and where publication as required by section 4451 o, has been duly made, a person failing to make application for damages within the time limited by the act will be held to have waived his right to the same although he had no actual notice of the proceeding. Cupp v. Commissioners, 19 Ohio St., 173.
    (No. 11217
    Decided October 25, 1910.)
    Error to the Circuit Court of Portage county.
    The defendant in error, Henry Gates, was plaintiff in the court of common pleas and plaintiff in error in the circuit court. His petition was held bad on demurrer and his cause dismissed by the common pleas, which judgment was reversed by the circuit court. The Board of Commissioners brings error, asking a reversal of the judgment of the circuit court and an affirmance of the judgment of the common pleas. The question, therefore, is, does the petition state a cause of action ?
    The petition in substance avers ownership by the plaintiff below of a tract of six acres of land situate in Portage county, a full description of which is given. On which premises is situated a mill-dam, race, flumes, water-wheels and a flour and feed mill, all which, with the rights and easements therewith and appurtenant thereto, have been in existence and continuous use for more than seventy years, and that plaintiff and those under whom he claims title, have been the owners of said land and water rights and privileges for more than seventy years, and • during all which time said mill has been operated by water-power derived from said dam, race, flumes, water-wheels and a stream known as Little Cuyahoga Creek, said stream constituting the outlet of what was known as Fritch’s Lake. The dam constituted a reservoir for the storage of water for use on the water-wheel, and from time immemorial the meanderings of said stream from the upper part of said dam through the nearby lands to Fritch’s Lake had so held back the flow of water from the lake when the water was high that the water was gradually brought down to the dam and race, thereby furnishing a comparatively steady amount and ample quantity of water to furnish power with which to operate the mill. The real estate, together with the mill, dam, race, flumes, wheels, and water-privileges, was of great value, which consisted largely of the dam, race, flumes and water rights and in the use of the water as it had been accustomed to flow and did flow during the time the stream was in a state of nature and up to the time of the acts herein complained of.
    On or about February 24, 1905, the owners of certain lands lying between Fritch’s Lake and plaintiff’s said property, filed a petition with the Board of County Commissioners of Portage county praying for the establishment and construction of a county ditch in and along the stream from FritclTs Lake to plaintiff’s mill dam; that such preceedings were thereupon had before the Board as that it found in favor of tile improvement and ordered the ditch constructed according to plans and specifications prepared by the Board under the provisions of the county ditch laws, and thereafter, in the fall of 1905, and the spring of 1906, the Board, in accordance with the statutes, let contracts for excavating and constructing the ditch in and along said stream on the route petitioned for. Plaintiff was in no way made a party to said proceeding and was not served with any notice of any hearing thereon; but it is not averred that he did not have actual knowledge of the pendency and character of the proceeding.
    Plaintiff further says that the construction of the ditch caused the water of the stream to carry vast quantities of dirt and refuse onto plaintiff’s property and into his mill-dam, thereby completely filling it with mud, dirt and refuse and entirely destroying it as a reservoir for the storage of water. Plaintiff further says that the construction of the ditch so accelerated the flow of the water from Fritch’s Lake and from the surrounding swamps and low ground that the waters which were formerly held back as a source of supply to plaintiff’s water-power, as to bring the water down upon plaintiff’s dam in vastly accumulated quantites, overflowing- the dam and permitting the water 'to immediately overflow the dam and race, thus depriving plaintiff of the use of the water; that by reason of the aforesaid acts of defendants the plaintiff’s property rights and easements have practically been taken and destroyed; plaintiff has in no way been compensated for the property rights so taken for public use, and no proceedings have been had under section 4567a, etc., Revised Statutes, for acquiring plaintiff’s rights in the property, and the aforesaid rights and property have thus been taken for public use without compensation within the purview of the constitution. Damage in the sum of five thousand dollars is alleged and judgment for that sum is asked against the Board of County Commissioners.

      Mr. D. B. Wolcott, for plaintiff in error.

      Messrs. Wilcox, Parsons, Burch & Adams, and Messrs. Siddall & Hanselman, for defendant in error.
   Spear, J.

This pleading undertakes to set forth a claim ostensibly against the Board of County Commissioners, though in reality against the county of Portage, for compensation for private property alleged to have been taken for public use without compensation having been awarded. The constitutional provision invoked (section 19, article I), is to the effect that when private property shall be taken for public use, a compensation therefor shall first be made in money, or first secured by a deposit of money. It was the judgment of the circuit court that the petition makes a case by virtue of the clause of the constitution above cited, and thereupon its judgment of reversal necessarily followed.

To justify this conclusion two propositions must be • established: (1) that, within the meaning of the above section, there has been a taking without provision for opportunity to obtain compensation, and (2) that such taking has been for a public use. Do the averments of the pleading establish these propositions ? There is much conflict among the decisions of courts with respect to what is necessary to constitute a taking, many courts holding that a physical seizure or appropriation is essential, while others adhere to the doctrine laid down in Mansfield v. Balliett, 65 Ohio St., 451, that any actual and material interference with private property rights is a taking of property within the meaning of the' constitution. Regarding the rule as thus settled in this state we do not consider it necessary to discuss the legal proposition. It is, however, of importance to keep in mind that in the present instance there was in fact no actual taking, no seizure or physical appropriation of any of the property or rights of the plaintiff. We inquire, therefore, whether such taking in the present case has been without opportunity afforded for ascertainment of damage and payment of compensation, and whether upon the whole the taking has been for a public use within the meaning of the clause of the constitution cited. This inquiry calls for an examination of certain provisions of the statute providing for the construction of ditches. By .section 4450, Revised Statutes, and following, provision .is made for application signed by owners of lots or lands which will be benefited by the proposed improvement to the county commissioners for the establishment of such ditch. The petition is to be filed with the auditor accompanied by a bond. The auditor shall thereupon give notice to the commissioners of the filing of the petition, fix a day for hearing, and prepare and deliver to the petitioners or' any of them a notice in writing directed to the landowners affected by the improvement setting forth the substance, pendency and prayer of the petition. Copies of the notice are to be served on each landowner (that is, owner named in the petition), and return made to the auditor. The auditor shall at the same time give a like notice to each nonresident lot or land-owner by a publication in a newspaper printed and of general circulation in the county at least two weeks before the date of the hearing, and no further notice of the petition or the proceeding shall thereafter be required. On the day fixed for the hearing the commissioners shall meet at the place of the beginning of the ditch and hear all competent proof offered, go over the whole line of the ditch, determine the necessity thereof and in case they find for the improvement, fix a day for the hearing of application for any appropriations of land taken and damages to said parties affected by the improvement. The surveyor is then required to make a survey of land that will be benefited with an apportionment of the cost of location, and - labor of constructing, according to benefits which will result to each, and in apportioning the costs, etc., etc. At any time on or before the day set for hearing any person whose lands are taken or affected in any way by such improvement may make application in writing for compensation or damages, and a failure to make such application shall be deemed and held to be a waiver of all rights thereto. The commissioners shall allow such compensation as they may deem just and equitable and assess such damages as may accrue to each person making application therefor. When the allowance for compensation and damages is determined the commissioners shall determine the proportionate benefits to accrue. They may, if they find that the public health, convenience or welfare will be promoted by the improvement, and that the same is of sufficient importance to the public, cause the damages and compensation which have been assessed to be paid out of the county treasury, and shall order the same to be so paid, or a portion thereof by the county and the remainder by the benefited land-owners, but if such improvement is not of sufficient importance to the public to cause such damage or compensation, or any part, to be paid by the county, they shall determine the proportionate amount thereof which shall be paid by the several land-owners. Order shall issue by the auditor accordingly. Provision is also made for appeal by any aggrieved person to the probate court where a jury shall try the issues.

In the absence of allegations to the contrary the presumption must be indulged that the Board, throughout these proceedings, acted strictly in conformity with the requirements of the statute, and this presumption is strengthened by the direct averments of the petition. ' Therefore, it is presumed that written notice was served on all persons named in the petition as land-owners or others to be affected by the construction of the ditch, and as to all others, the world at large, the auditor did give a like notice by publication in a newspaper printed and of general circulation in the county for at least two weeks before the day set for the hearing. Thus was the Board clothed 'with jurisdiction and power to conduct legally the proceedings initiated by the filing of the petition and as contemplated by the statute. Being, so far as this petition was concerned, and within the meaning of the statute, a non-resident land-owner, the plaintiff received the notice which the statute provides although, as alleged in his petition, he was in no way made a party to the proceedings and was not served with any notice of any hearing.

The concrete question is, did the publication of notice so far affect the plaintiff as to debar him from his claim for damages, it being conceded that he made no claim whatever before the Board? We regard the question as settled adversely to the claim of plaintiff by previous decisions, and will briefly call attention to some of them.

In Cupp et al. v. Commissioners, 19 Ohio St., 173, the plaintiffs’ action was to enjoin the construction of a ditch about to be constructed over the land of plaintiffs and others. The' statute authorizing the proceeding (58 O. L., 49), was attacked as unconstitutional in that it-provides for the appropriation of land without actually paying or securing compensation. No compensation had been paid or secured plaintiffs for their land taken, and that although notice of the prayer and pendency of the petition for the ditch and of the time fixed for its hearing, etc., was published agreeably to the requirements of the statute, plaintiffs had no actual notice of the same, nor consented. They made no claim for compensation or damages within the time limited by statute. The statute then in force. required publication and notice in a newspaper for four weeks, but did not require written notice to be served on land-owners. Otherwise in general and as regards the present contention,, the statute was similar to the provisions now in force. The court held that personal notice is not indispensable in order to its condemnation, the notice by publication provided being for that purpose sufficient; and that the land-owner failing to make application for compensation or damages will be held to have waived his right, although he had no actual notice of the proceeding. It was the opinion of the court that the proceeding was substantially in rem. Welch, J., in the opinion observes that the law of all such proceedings rests in the necessity of the case, and that without the aid of some such proceeding the construction of ditches would be next to impracticable. Some such provision of law seems indispensable, and without the power to proceed in some such form against the land itself, the right guaranteed to the public by the provision of the constitution would be of little avail. Owners of land are presumed to know of the existence of the act, and therefore to have notice that their lands are liable at any time, upon four weeks’ publication of notice, to be taken for the use of a ditch and that, their non-claim will be held as a waiver. There is, continues thé learned judge, no greater hardship in this implied waiver, after notification beforehand that silence will be taken for consent, than there is in the analogous cases of creditors of a bankrupt or insolvent, or of claimants upon any fund in the hands of a court for distribution who fail to present their claims within the designated time. This case would seem to have been a much stronger one for the claimant than the one at bar inasmuch as the commissioners might with little effort have learned who the owners of the lands proposed to be actually taken were, while it could hardly be assumed that the Board in the present case would be possessed in its own consciousness of prescience to anticipate and make provision for a claim not presented to it and at most a case of mere consequential damages.

Chesbrough v. Commissioners, 37 Ohio St., 508, was an action brought in the common pleas of Putnam county to enjoin the commissioners of Putnam and Paulding counties from constructing a ditch, and from assessing the cost against the plaintiff’s land, the ditch being partly in Putnam and partly within Paulding county, and was located and established by a joint session of the two boards. It was claimed that no notice had been given such as the statute requires, and that plaintiff had no actual notice. The court held that the burden was on the plaintiff to show a want of notice. Plaintiff offered in evidence a copy of the proceedings in Putnam county only. What was done in Paulding did not appear except as it was to be inferred from the recitals in the record made in Putnam county, and in the action of the joint boards. These showed notice of publication' in Putnam. For aught that appeared the records of Paulding showed a like notice in that county. Plaintiff was denied relief.

Another view would seem to be equally fatal to the claim of plaintiff in this case. We are dealing with a question of liability of a county, a claim to be made good, if at all, by taxation upon the property of the people at large. Now a county is not a body corporate but rather a subordinate political division, an instrumentality of government, clothed with such powers and such only as are given by statute, and liable to such extent and such only as the statutes prescribe. The board of commissioners acts in such matters as the construction of ditches in a political rather than a judicial capacity, and that body also in such action is clothed with such powers only as the statutes afford. The board represents in general in a proceeding of this character the land-owners whose, lands are to be benefited by the improvement. In its corporate capacity the county has no special interest in the improvement. It is local in character, not differing in that respect in principle from the establishment of sewers in municipalities. It is only when the proofs adduced show that the health, convenience or welfare of the public at large, the county, requires the construction' of the ditch, that the board is authorized to represent the county in that regard, the provision of statute being that if it be found not only that the public health, convenience or welfare will be promoted by the improvement, but that the same is of sufficient importance to the public, then the board may cause the damages and' compensation which have been assessed to be paid out of the county treasury, or a part thereof to be so paid, but if, in the opinion of the board, the improvement is not of sufficient importance to the public, then the board must fix and determine the proportionate amount thereof which should be paid by the several land-owners benefited by the improvement. In the present case that was all that was done. No finding appears which relieves the ditch from being simply a private ditch as between the land-owners benefited and the public at large, and in such case the county has no proprietary interest in the ditch. As held in Commissioners v. Krauss, 53 Ohio St., 631, “it belongs to the land-owners on whose lands and for whose benefit it was constructed. The commissioners simply acted as a board before whom the necessary proceedings for the construction of the ditch had, by the statute, to' be conducted.”

With this understanding of the principles involved in the case, it seems clear that the “taking” in this instance, however unfortunate it may have proven to the plaintiff below, is not a violation of any constitutional right, for, as expressed by Burket, J., in Dayton v. Bauman, 66 Ohio St., at page 393: “There is no taking of private property by the public for public use, but, on the contrary the public confers a special benefit upon the property and then enforces an assessment not exceeding the benefit so conferred.”

Nor are these views novel as introducing any new rule of law or of construction. Grimwood v. Commissioners, 23 Ohio St., 600, was an action to recover of defendants as commissioners of Summit county damages resulting from the wrongful and negligent construction of an embankment made by order of the defendants in the opening and grading of a highway whereby water was diverted from the natural channel and flowed back on lands of plaintiff. The court held that the action could not be maintained. That is, that the county could not be held liable for such acts of the commissioners although negligent and working damage. The decision is based upon Commissioners v. Mighels, 7 Ohio St., 110, in which case it is held that: “The board of commissioners of a county are not liable in their quasi corporate capacity, either by statute or common law, to an action for damages' for injury resulting to a private party by their negligence in the discharge of their official functions.” In the opinion, Brinkerhoff, J., admits that if the negligence and injury had been the act of a natural person or the agents of a municipality or other corporation proper, the corporation might have been held, but municipal corporations proper are created by the direct solicitation or the free consent of the people who compose them, while counties are local subdivisions of a state, created by the sovereign power of the state of its own sovereign will, without the particular solicitation, consent or concurrent action of the people, and almost exclusively with a view to the policy of the state at large, for purposes of political organization and civil administration, in matters of finance, of education, of provision for the poor, of. military organization, of the means of travel and transport, and especially for the general administration of justice. The logical deduction from the foregoing is that, in the absence of statutory provision entailing liability on a county for acts of its board of commissioners, no such liability exists. Since the foregoing decisions were pronounced statutes have been enacted giving in more or less direct terms a right of action under specified circumstances against the county for the acts or omissions of the board, but, as we have already found, the statutes invoked in this inquiry do not give such right of action under the circumstances of this case.

A construction of the ditch statutes similar to that hereinbefore announced was taken by the circuit court in Smith v. Griffin, 6 O. C. D., 232, the action being for breach of bond to complete ditch work. The opinion is by Price, J., now a member of this court. In it the learned judge observes: “A proper understanding of the several sections of the statute regulating the mode and manner of forcing the construction of ditches in Ohio shows that the expenses of the work, with all its attending costs, from the inception to the final close of the proceedings, shall be borne alone by those who are found and adjudged to be benefited, and the statute carefully guards the rights of those whose lands are so situated that no benefit will accrue to them by reason of the ditch improvement. The entire system of ditch legislation as. we now have it proceeds on the theory that those who are to be benefited in some substantial way, and those alone shall bear the burden of providing the drainage. It is true that under the provisions of the statute, the enforcement of proper and sufficient drainage of lands in localities requiring it, is worked out through application to the board of commissioners, who, together with the engineer and other instrumentalities provided, have charge of the work; yet, in the performance of such official duties they are not acting as agents of the county at large; nor can they bind the county at large by any neglect or wrongful act while conducting and managing the execution of the ditch work. If any relationship of agency exists in such a case, they would seem to be more the agents of the parties interested in the drainage, who by petition have invoked the action of the commissioners, than of the taxpayers and people of the county. While the statute authorizes the board of commissioners to appoint an engineer, and provides that the engineer shall let the work and take contracts and bonds for its performance, subject to the approval of the commissioners; it is plain that in the discharge of these statutory duties, neither the engineer nor the commissioners are representing the county so as to make all its taxpayers liable for the manner in which they discharge or neglect to discharge their duties, or for breach of such contract as is contained in the petition.” Relief was denied, and the judgment was affirmed by this court, 56 Ohio St., 775.

Much stress is laid by counsel for defendant in error in their able brief on the case of Smith v. Commissioners, 50 Ohio St., 628. That was an action for damages accruing to abutting land from a change in the established grade of a public road. The relief granted the land-owners was distinctly based upon the proposition that the statute having empowered county commissioners to improve any state, county or "township road, or any part thereof, by grading, etc., and the board having exercised the power and in their official capacity having improved the road for the public benefit, the county was liable for damages to abutting lands. The obvious difference between this case and the one at bar is ‘that while the former embraced a proceeding instituted and conducted for the public benefit, the latter was for private benefit exclusively.- Manifestly the decision can have no controlling effect upon the present inquiry. Other cases cited by the counsel have been considered. We do not deem it necessary to extend an opinion already too long by comment upon them more than to say that in our opinion they do not require any modification of the conclusions hereinbefore stated.

Recurring to the introductory statement, we repeat that we are asked to maintain a claim of a property-owner against a county. The ultimate question is, does the petition state a case against Portage county? We hold that it does not. Whether a remedy by injunction might have been awarded the plaintiff, had he applied in time to a court of equity we need not inquire, for no such application was made although, for aught that appears in the petition, the plaintiff may have had actual knowledge of the pendency and purpose of the proceeding before the wúrk had been accomplished or entered upon, and thus opportunity to bring such action.

The judgment of the circuit court will be reversed and that of the common pleas affirmed.

Reversed.

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