author: Burket, C. J.

text:
    The City of Cincinnati v. The Cincinnati Inclined Plane Railway Company. The Cincinnati Street Railway Company v. The Cincinnati Inclined Plane Railway Company, et al.
    Error to the General Term of the Superior Court of Cincinnati.
    Error to the Special Term of the Superior Court of Cincinnati.

      Suspension of operation of decree — Power of courts as to — Suspension must be by court rendering judgment, or on error — Application for extension must be before expiration of time.

    1. When a question of law or fact is reserved by the Superior Court of Cincinnati, at special term to the general term upon a bill of evidence, and final judgment is rendered thereon, the general term has no power to remand such judgment to the special term for further proceedings. The cause may be remanded to the special term for trial as to matters left unad-' judicated, but in such trial, the judgment must be taken and held as final, as to the questions upon which it was rendered but it may be used as a factor in moulding the decree covering the whole case.
    2. When it is provided in a final judgment, not rendered in a proceeding in error, that its operation shall be stayed for a given time, with liberty to apply for an extension of the time, such application must be made to the court rendering the judgment, or having control of it on error.
    3. A final judgment was rendered by the Superior Court of Cincinnati, at general term, upon questions of law and fact on a bill of evidence reserved at special term to the general term, in which judgment it was ordered that its operation should be stayed for six months, with liberty to apply for an extension of the time. Upon proceedings in error the judgment was affirmed by this court and remanded to the general term for execution. Thereafter the general term remanded the cause to the special term for further proceedings in accordance with the terms of the judgment; and on motion for that purpose, the special term granted a suspension of six months additional time, with liberty to apply for a still further extension of time: Held.-. That the general term had no power to remand the judgment to the special term for such further proceedings, and that the order of suspension made at special term is void, for want of jurisdiction of the subject matter.
    4. While a court may vacate or modify its judgments or orders as provided by statute after the close of the term of court at which they were rendered, the court has no power in the absence of proceedings under the statute, to suspend the operation of such judgments or orders after the close of such term, except in so far as that power is expressly reserved in the entry of the judgment; and under an order appended to a judgment by which its operation is suspended for a definite period, with the right to apply to the court for an extension of such suspension, the application for such extension must be made before the expiration of-the time of the original susjpension, and unless the application be so made, the court is without authority to grant it. Under such an -order there is no power to grant a new suspension after the expiration of the original suspension.
    (Decided June 23, 1897.)
    The city of Cincinnati commenced its action against The Cincinnati Inclined Plane Railway Company for the recovery of certain car rentals claimed to be due, and to enjoin said Inclined Plane Railway Company from maintaining and operating its cars upon more than one track on Auburn street, between Mason and Vine Streets; and also to enjoin said Railway Company from maintaining its tracks and operating- its cars upon any tracks on Main, Court, Walnut, and Fifth streets in said city.
    Issues were made up and the case tried at special term, and reserved on bill of evidence to the general term, in which the following judgment was rendered on the 21st day of October, 1893:
    “This cause came on for hearing as reserved from special term upon the certified bill of evidence herein, the original pleadings and papers, and was argued by counsel; on consideration whereof the court find on the issues joined for the plaintiff, and that defendant, the Cincinnati Inclined Plane Railway Company, at the time of the commencement of this action was unlawfully maintaining and operating in the city of Cincinnati a street railroad by double track on Main street, between Mulberry street and Court street; by single track on Court street between Main and Walnut streets; by single track on Walnut street between Court and Fifth streets; by single track on Fifth street btweeen Main and Walnut streets, and by single track on Main street between Fifth and Court streets, together with the necessary poles, wires and other appliances for the operation of'the same by electricity as a motive power; further that at the time of the commencement of this action said defendant was unlawfully maintaining and operating in the city of Cincinnati more than one street railroad track oh Auburn street between Mason and Vine streets. And thereupon the defendant moved the court to set aside its findings herein, and for a new trial upon the ground that said findings and the judgment of the court thereon are, and each of them is, contrary to the evidence and contrary to law, and that the same ought to have been in favor of the defendant and against the plaintiff, which said motion the court overruled, to which ruling of the court defendant at the time excepted and presented to the court its bill of exceptions herein, which being found by the court to be true, is allowed and ■signed, and on motion is hereby made a part of the record of the case.
    Wherefore, it is adjudged and decreed that the defendant be and the same is hereby perpetually enjoined from maintaining any of its said tracks, poles, wires, or other appliances in Main street, Court street, Walnut street, or Fifth street, and from operating any of its cars over any of said tracks, and also be perpetually enjoined from maintaining and operating more than one street railroad track on Auburn street between Main and Vine streets.
    Wherefore, it is ordered, adjudged, and decreed that the cause be remanded to the superior court, in special term, for trial for the purpose of determining the amount in money which plaintiff is entitled to recover from defendant. It is further ordered that the operation of this decree be and the same is. hereby stayed for the period of six months from the date hereof, with liberty upon the part of defendant, to apply for an extension of said time, to which order staying the operation of this decree plaintiff excepts.”
    A motion for a new trial was made and overruled and proper exceptions taken.
    A petition in error was filed in this court by the Inclined Railway Company, and on its motion this court allowed a supersedeas in May, 1894, to stay the execution of the judgment until the final hearing of the case in this court.
    In October, 1894, the ease was heard in this court and it was ordered and adjudged, “that the judgment of the Superior Court of Cincinnati, be and the same is hereby affirmed, * * * * and that a special mandate be sent to the Superior Court of Cincinnati to carry this judgment into execution.”
    On the 30th day of October, 1894, the clerk of this court sent a special mandate of that date to the Superior Court, in which said court is com* manded to proceed without delay to carry the judgment of this court in said case “into execution, the petition in error herein and heretofore granted to the contrary notwithstanding. ”
    After this mandate was sent down from this court to the Superior Court of Cincinnati, the case was allowed to rest by reason of some litigation in the circuit court of the United States for the southern district of Ohio, until May 14th, 1896, when a second supplemental answer was filed by the Inclined Railway Company. On December 18, 1896, the following entry was placed on the journal of the general term.
    “This cause is hereby remanded to the Superior Court in special term for further proceedings in accordance with the terms of the decree and judgment in this case.”
    And on December 19, 1896, a motion was filed by the Inclined Plane Company, for a further stay of the operation of the decree rendered in October, 1893, and on the same day the court in special term granted the motion and' it was ordered “that the operation and enforcement of the injunction in said final decree be and the same is hereby suspended for the period of six months,, with leave at the end of said time to apply for a further suspension thereof.” Proper exceptions were taken to this order, and in April, 1897, a petition in error was filed in the general term of the Superior Court to reverse this order, and on May 7, 1897, the judgment was affirmed, and thereupon a petition in error was filed by the city in this court seeking to reverse the judgment of affirmance, and also the order so made at special term.
    On the second of January, 1897, the Inclined Plane Railway Company, on leave, filed a supplemental answer and cross-petition in which it informed the court as to the litigation in the United States circuit court, and that the Cincinnati Street Railway Company claimed to have obtained a franchise for a street railroad on some of the streets occupied by the Inclined Plane Railway, and caused the Cincinnati Street Railway Company to be made a party, and asked that it and the city be enjoined from interfering in any way by force or otherwise with the operation of the Inclined Planes’ road until the expiration of said stay so granted December 19th, 1896.
    Issues were made up on this cross-petition by both the city and the Cincinnati Street Railway Company, and the same were heard at special term on April 13, 1897, and an order was made “that the City of Cincinnati and the Cincinnati Street Railway Company be and they are each hereby restrained and enjoined from interfering by force or otherwise with the operation of the defendant’s, the said The Cincinnati Inclined Plane Railway Company’s road until the expiration of the stay of this court of dfite of December 19, 1896.”
    Proper exceptions were taken to this order by the city and the street railway company, and upon leave of this court the Cincinnati Street Railway Companjr hied its petition in error in this court to reverse the said order and judgment of the special term of the Superior Court of Cincinnati, and the city filed a cross-petition, in error for the same purpose.
    The petition in error of the City of Cincinnati is to reverse the order of the Superior Court in granting a further stay of the final decree December 19, 1896, for six months, and the petition in error of the Cincinnati Street Railway Company, as well as the cross-petition in error of the city, is to reverse the judgment of the Superior Court granting an injunction April 13, 1897. Both petitions in error, as well as the cross-petition in error, are founded upon the same record and will be considered together.

      Frederick Hertenstein, Corporation Counsel and J. D. Brannon, for plaintiff in error, the City of Cincinnati.
    The first question which arises upon the record is as to the jurisdiction and power of the Superior Court to make the order of December19, 1896, suspending the operation of the injunction contained in the final decree of October 21,1893, which was affirmed by this Court, October 30, 1894, and also reserving to the Inclined Plane Railway Company leave to apply for a further suspension after the expiration of said six months.
    The City of Cincinnati 'denies the right of the Superior Court to make such order, and submits that the same is in violation of the judgment of this Court, and of its mandate.
    The inferior Court is bound by the decree as the law of the case, and must carry it into execution, according- to the mandate. Fx pan'te Sibbald v. P. S., 12. Peters, 4Q2-, Boyce v. Gnmdy, 9 Peters, 275; Chaires v. U. S., 3 How., 611; Patten Paper Co. v. Qreen Bay Co., 66 N. W., 601; Ex parte Dubuque v. Pac. R. R., 1 Wall, 69; Tyler v. McGuire, 17 Wall., 253; In re Washington and Georgetoion R. Co., 148 U. S., 91; Gaines v. Rugg, 148 U. S., 229; Shelly v. Jefferson Branch of State Bank of Ohio, 9 Ohio St., 606; Jefferson Branch Bank v. Shelly, 1 Black, 436; Southard v. Russel, 16 Howard, 547; In re Potts 17 Supreme Court, Rep., 520 ; Ex parte Story, 12 Peters, 339; Keller v. Lewis, 56 Cal., 466; McMillan v. Richards, 12 Cal., 468; Kirby v. Superior Courts 68 Cal., 604; ILemlein v. Martin, 59 Cal., 181; Dubrell v. Eastland, 3 Yerger, 507 \ Marysville v. Buchanan, 3 Cal., 212; In re Murray et al., 39 N. Y. Supp., 579 ; McKinney v. Jones, 57 Wis., 301.
    As soon as the petition in error was filed in this Court the controversy was transferred to this Court and became a new action. It has often been held that a proceeding in error is a new action. Laffex'ty v. Shinn, 38 Ohio St. 48; The Marindy v. Doxolin, 4 Ohio St., 500; Robinson v. Crr, 16 Ohio St., 287; Bonn v. Messinger, 4 Mass., 469; Young v. Shallenberger, 53 Ohio St., 291.
    We invite the attentiion of the Court to the fact that the Superior Court not only suspended the injunction for six months from December 19, 1896, but also gave “leave at the end of said time to apply for a further susfrension. ” This was error even if it be conceded that the affirmance of the final decree by this Court affirmed the stay in that decree in all its terms, and that by reason thereof the Superior Court had the right to grant an extension. Times v. Munro, 1 Exch., 473; Gibbon v. Scott, 2 Starkie, 286.
    The decision of the Court upon which the judgment of April 13, 1897, was based, ignored all the questions presented in regard to the right of a Court to issue an injunction in favor of a trespasser who had no title, and who had, moreover, been judicially declared to have no right or title to the alleged property sought to be protected by an injunction, but proceeded upon the theory that the previous order suspending the injunction granted by the final decree operated, so to speak, as a counter injunction against the city. This assumption is in violation both of principal and of the adjudications of Courts. Lane v. Ca/psey, 3 Ch. Div., 411; Elliott on Appellate Procedure, Sec., 391; i?. R. Go. v. Gilbert Elev. R. Go'., 71 N. Y., 430; Rissell Carpet Sweeper Go. v. Goshen Sweeper Co., 19 C. C. A., 25.
    This brings us to the consideration of remedies other than by suit, to which a person wrongfully dispossessed of his property may have recourse.. What would be the right of the city if, in this case, there had been only a finding and declaration of the relative rights of the city and the Railway Company, and no injunction had been asked for or granted. May mire v. Jetmore, 22 Ohio St., 271; Davis v. Williams,-16 Queen’s Bench, 546; Loro v. Elwell, 121 Mass., 309; Hart v. Mayor of Albany, 9 Wendell, 571; Bay State Brick Co. v. Foster, 115 Mass., 431; Easton Pass. Ry. v. Easton, 133 Pa. St., 505; Ry. Co. v. Ashville, 199 N. C., 688; Baird v. Clark, 12 Ohio St., 87.
    The principle case cited in Beach on Injunctions is the case of American Furniture Co. v. Batesville, 35 N. E., 682, cited for the Inclined Plane Company.
    But the mere fact that the Court declines to ábate it, after declaring it a nuisance, does not give the offender a right to continue it, or change its charter from an unlawful to a lawful act. Traders Ins. Co. v. Carpenter, 85 Ind., 350; Klebar v. Cory don, 80 Ind., 95 ; Dunkle v. Elston, 71 Ind., 585; Searle v. Whipperman, 79 Ind., 424; Ney v. Sxoinney, 36 Ind., 454; Buscher v. Knapp, 107 Ind., 340; Baumgartners. Hasty, 100 Ind., 575; Cincinnati Street Ry. Co. s. Smith, 29 Ohio St., 291.
    It is alleged that the city claims the right to tear up defendant’s rails and stop the running of its cars — in other words; that the city threatens to commit an act or acts of trespass against the defendant, and that this threatened trespass should be enjoined. But it is a fundamental principle of equity jurisdiction that to warrant the interference of a court of equity to restrain a trespass, “The plaintiff’s title must be undisputed, or established by legal adjudication. ” Schonover v. Bright, 24 W. Va.,698; Cause v. Perkins, 3 Jones Eq. (N. C.), 178; McMillan v. Ferrill, 7 W. Va., 223; Cox v. Douglass, 20 W. Va., 175; Tate v. Vance, 27 Grattan, 571; High on Injunction, sec. 20; Beach on Injunction, sec, 1352.
    It must be borne in mind that this company is a steam or general traffic railroad corporation, not a street; railway company, and that it is not seeking to acquire and use rights-of-way for a steam or commercial railroad, but for a street railroad. The easement in the street which it is now using are for street railroad purposes, and it is interference by the city with that kind of easement which the company sought to enjoin.
    A company incorporated to operate a steam or commercial railroad has no power to operate either a street railway or an elevated railway. Potts v. Elevated B. B. Co., 161 Pa. St., 396 ; Commonwealth v. N. E. Elevated By. Co., 161 Pa. St., 409; P. B. T. Co. v. Dash, 125 N. Y., 93. Millón Eminent Domain, sec. 48; Cooley on Constitutional Limitations, 651; Currier v. Marrietta <& Ct. B. Co., 11 Ohio St., 228 ; Miami Coal Co. v. Wigton, 19 Ohio St., 560; Cooley on Constitutional Limitations, 486, 487, 666; B. B. Co. v. Salem & Lowell B. B., 2 Gray, 36 ; United States v. Bauers, 70 Fed., 748.
    There is a well recognized distinction between a railroad and a street railroad. Louisville and Port

      land B. Co. v. Louisville City By. Co., 2 Duvall (Ky.), 175; Funk v. By. Co., 61 Me., 435; Thompson-Houston Co. v. Simon, 20 Oregon, 60; South Beach B. Co. 119 N. Y., 141; Carli v. Stilhmiter St. By., 28 Minn., 373; B. B. Co. v. Galt 133 111., 657; Bagare v. Chicago, 139 111., 48; Forbes v. Delashmutt, 68 Iowa, 164; Matter of Niagara Falls v. Whirlpool B. Co., 108 N. Y., 375; City v. Pioneer Live Stock Co., 38 Ohio St., 348; Moore v. Given, 39 Ohio St., 663.

      J. W. Warrington and F. W. Liitiredge, for plain-in error the Cincinnati Street Railway Co.
    We insist that there was error in the orders and judgment of the court:
    1. In granting leave, in spite of the judgment of affirmance of this court and of its mandate, to the Inclined Plane Company to file a supplemental answer and cross-petition on January 2, 1897, and in requiring the Street Railway Company to appear and answer.
    2. In rendering a judgment enjoining the Street Railway Company on April 13, 1897, the court having no power or jurisdiction in the premises and its action being in violation of the judgment and mandate of this court.
    It is claimed, that the original order staying the operation of the decree was a part of the decree itself, and that the judgment of this court in effect affirms power in the court below to entertain and allow as many applications for further periods of suspension of the injunction as the defendant may desire.
    This construction is in violation of the very language of the original order itself. That order did not in terms allow defendant to apply for repeated extensions of time; it only permitted it “to apply for an extension.” Innes v. Munro, 1 Exch., 473; Gibbons v. Scott, 2 Starkie, 286; Stevenson v. Morris, 37 Ohio St., 10; Levin v. Hanley, Wright’s Rep., 588; In re Sandford Fork and Tool Co., Petitioner, 160 U; S., 247.
    If this extension was rightfully granted, then the Street' Railway Company has an easement in the streets mentioned, which is independent of the city’s interest in the streets.
    That the extension was rightfully granted, can be sustained in -several ways:

      (a) This court in this case decided that substantial portions of the grant of the Inclined Plane Company had expired, and that the company was unlawfully occupying the street. City of Cincinnati v. Cincinnati Inclined Plane Co., 30 W. L. B., 321; 52 Ohio St., 609; Louisville Trust Co. v. City of Cincinnati, 76 Fed., 296.

      (b) The mere presence of tracks, poles and wires, and the running of cars in streets without lawful authority, can in no wise impair or affect the right of a municipality. through any proper agency to grant to another company a street railroad easement or right of way along the same streets in the same line so occupied by such unlawful railway; because :
    1. An unlawful railway in a public street is a nuisance per se. Booth on Str. Ry., section 3; 2 Dill., section708.
    2. The municipality, through its legislative agencies, has a right to abate such nuisance. R. S. section 2640; Baumgartner v. Hasty, 100 Ind., 575-9; Ulster v. Springfield, 49 Ohio St., 83; Darling v. Peck, 15 Ohio, 71.

      (c) That the resolution of April 3,1896, extending Route No. 5 of The Cincinnati Street Railway Company as aforesaid was a valid exercise of power by the City of Cincinnati through its Board of Administration is settled by thedecision of this Court.
    As regards the right of the city through its Board of Administration to permit the Street Railway Company by the resolution of April 3, 1896, to occupycertain tracks of the Inclined Plane Company, it is to be said in the first place, that such' right was expressly reserved as to the portion of tracks lying in Vine street between Corry and St. Clair streets. Coppock’s (Ordinances, p. 667, art. 6.) And, in the next place, since consent of the city was «given by the resolution to occupy still other portions, there is express power to be found in R. S., section 3440, to condemn the further right or privilege which is required of the Inclined Plane Company, Sir. By. Go. v. Sir. By. Go., 50 Ohio St., 603; Simons v. Sir. By. Go.,37 OhioSt., 556; B.B. Go.y.B. B. Go., 36 Ohio St., 251; Elec. L. & P. Go. v. Sir. By. Co., 51 Ohio St., 633.
    The Cincinnati Street Railway Company having received a valid grant of street railway privileges along’ the invalid portions of the Inclined Plane Company’s tracks, cur insistence below was and it still is, that the Street Railway Company can rightfully challenge and dispute the power of the Inclined Plane Company to condemn and appropriate a right of way along the line of the Street Railway Company’s easement.

      (a) The right to construct, maintain, and operate a street rail way in a public highway is an easement, and consequently property in its owner within the meaning and intendment of the constitution. Ohio ex rel. v. Neff, 52 Ohio St., 375; Tuompihe Co. v. Parks, 50 Ohio St., 576; Cincinnati St. By. Co. v. Smith, 29 Ohio St., 291.

      (b) Where a corporation seeks by injunction to interfere with the enjoyment of a right of property belonging* to another person or corporation, on the ground that it has the power to condemn and appropriate such right of property, the owner may in the injunction proceeding contest such power. Zanesvillev. Zanesville, Gas Light Co., 47Ohio St.,1; Denison Co.v. Denison Co., 33 S. W. Rep., 332.

      (c) The statutes of Ohio vest no power' in any corporation to condemn a right of way through a municipal street for street railway purpose as against the will of the municipal corporation; nor to condemn a street railway easement or street railway property of any kind belonging to a street railway company, until and unless a grant to occupy the streets in which such easement exists has been obtained from the municipality.
    The only sources of power of eminent domain which by any stretch of language could be claimed to exist in the Inclined Plane Company are R. S., sections 3440 and 3283, in connection with act March 30,1877 (74 Ohio L., 66;) Citizens Elec. B. B. Co. v. County Commissioners, 37 W. L. B., 165.

      {a) The remedy of injunction is applied with the utmost caution. An injunction is never granted in favor of one whose right to the subject sought to be protected has been finally adjudicated against it. Sparrovi v. Oxford, etc., By. Co., 9 Hare, 435; Allison v. Cincinnati, 2 Sup. Ct. Rep., 467; S. P. Md. Sav. 1. v. Schroder, 8 Gill & J., 93; Morse v. ■ Machias Water Poioer Co., 42 Me., 119; Snoioden v. Noah, Hopkins, Oh. (N. Y.) 347; Hoyt v. Albany, 3 Pe., 213; s. c., 9 Wend. 571; North Biver St. Bt. Co. v. Livingston, 3 Cowen, 713.

      (b) The Inclined Plane Company having no right itself to maintain or operate a railroad in the streets, cannot enjoin the Cincinnati Street Railway Company from placing its tracks in such streets. Brush Elec. L. Co. v. Jones Bro. Elec. L. Co., 5 O. C. C., 340; affirmed by this court, 29 W. L. R, 72.

      (c) The last analysis of the Inclined Plane Company’s claim is, that while it confessedly has no present right itself in the streets, yet it is nevertheless entitled to enjoin another company which confessedly has apresent right in those streets, until the Inclined Plane Company can also, in some way, secure an equivalent right.
    The theory of this extraordinary claim is twofold: (1) that the public interests require the continuance of the Inclined Plane Railroad; and (2) the bondholders expended money in reconstructing the road. 78 Fed., 314.
    As regards the bondholders’ expenditures, there are two answers: (1) Both this court and the federal court refused to recognize these expenditures as a reason for alleged implied renewal (30 W. L. B., 327, affirmed, 52 Ohio St., 609; 76 Fed,, 316); and (2) the court would itself have to create a right or easement in the streets in favor of the bondholders — which, of course, would be a legal absurdity.
    . It was claimed in argument, in the court below, in respect of the railroad tracks and appurtenances actually in the streets, that the Inclined Plane Company’s mere possession thereof was property. This is an obvious fallacy. The right or interest in the thing possessed must in every instance depend, either upon the mode of its -acquisition, or the duration of the possession. Steamboat Company v. Livingston, 3 Cowen, 755.

      Outcalt <& Granger and G. B. Matthews, for defendant in error.
    Did the superior court at the time of making this order of December 19,1896, have the power to make it? Upon this question, we submit that in temporarily staying the order of injunction originally granted in this case, Judge Smith did what he had a power to do, and what he did was wisely and discreetly done. 23 Am. & Eng. Ency. of Law, 530; Eaton v. B. B. Go., 41 Fed. Rep., 421; Sawinv. The Mt. Vernon Bank, 2 R. I., 383; Bobinson v. Yon, 8 Fla., 355; Granger v. Graig, 85 N. Y., 619; Blackburn v. Biley, 48 N. J. Law, 85.
    The court also saw, from the evidence at hand, that to refuse the company a reasonable opportunity to secure an honorable settlement and adjustment with the city, would result in the usurpation and confiscation of a greater portion of its property by a rival and competitor, a condition which the law, as well as the courts, abhorred.
    That it was not only possible, but legally certain, that a franchise could be granted by the city and accepted by the company is manifest.
    In the first place, under the statute of this state, a street railway franchise that has expired can be renewed, and this, too, as well after the grant has expired as at any time before. Haskins v. Gin. Gons. St. B. B. Go., 4 W. L. B., 1126; J. B. Clement v. City of Cincinnati etal.,lQ W. L. B., 355.
    Second, under the second clause of what is commonly known as the Miller Law, 88 Ohio Laws, 303, the Board of Administration derives the power to grant permission to any corporation, individual, or company, owning or having the right to construct any street railroad to extend the route and tracks thereof.
    This clause of this act has been the subject of judicial arbitrament by the Superior Court of Cincinnati, and by this court has been declared to* be a valid and constitutional act.
    The two street railroad grants made to this company December 1, 1871, and October 27, 1875, are now lawfully owned by the Inclined Plane Company and are .lawfully held, maintained and operated by it. The Louisville Trust Co. v. The City of Cincinnati, 76 Fed. Rep., 296; Street By. Co. v. Cumminsville, 14 Ohio St., 523.
    The only standing which the Cincinnati Street Railway Company has, or can claim to have, in this controversy is grounded upon certain alleged grants made by the Board of Administration of the City of Cincinnati, April 3d and July 16, 1896, extending street railroad routes Nos. 5, 9 and 18, belonging to The Cincinnati Street Railway Company.
    Our contention is that The Cincinnati Street Railway Company has no standing in this case or in this controversy.
    First, because the alleged extensions referred to above are attempted extensions of extensions, which we claim was neither contemplated nor to be permitted under the laws as they now exist, for the result must inevitably follow, that all laws now in force for the creation and establishment of new street railroad routes become nugatory, and all idea of competitive bidding vanishes at once.
    Second, the alleged extension of route No. 5, of date April 3, 1896, must be treated as an entirety, and if it fails in any part, the whole attempted extension must fall.
   Burket, C. J.

Briefly stated, the record discloses, that the general term of the Superior Court of Cincinnati rendered a final decree finding’ that the Inclined Plane Railway Company was liable to pay one hundred dollars per annum license fee for each car operated for a given time, and perpetually enjoining the company from maintaining’ its tracks and operating its cars on certain streets, and in this decree ordered that the operation of the decree should be stayed for six months, with liberty to apply for an extension of said time. In this decree it was “ordered adjudged and decreed that the cause be remanded to the Superior Court'in special term for trial, for the purpose of determining the amount in money which plaintiff is entitled to recover from defendant.”

It will be noticed that the final decree was not by its terms remanded to the special term for any purpose, and that the cause was remanded to the special term for one purpose only, and that was for the purpose of determining the amount in money which plaintiff was entitled to recover from defendant.

' Section 495, Revised Statutes, empowers the special term to vacate or modify its own judgments or orders, rendered at a special term, but we find no statute authorizing the special term to vacate or modify a judgment or order rendered at general term.

Upon the trial of the cause at special term, the special term rendered no decree, but. certified the evidence in writing to the general term, and the general term rendered the decree upon what is known as a bill of evidence, and the statute does not require the general term to remand a judgment so rendered to the special term for any purpose.

When the general term reverses a judgment or order of the special term, upon proceedings in error, the general term has power to render such judgment as should have been rendered at special term, or remand the cause to the special term for judgment. Section 199a, Revised Statutes. But as the judgment or decree in question was not rendered upon proceedings in error, but upon a bill of evidence, this section does not apply, and affords no authority for remanding the cause or judgment to the special term.

Neither does section 6726, Revised Statutes, furnish any authority for remanding a judgment rendered by the general term on a bill of evidence, to the special term for execution, or for any other purpose.

Section 503, Revised Statutes, provides that the special term may reserve and adjourn for the decision of such court in general term, any question of law or fact arising in any case upon the record, or upon evidence in writing, and when the decision of such questions authorizes or requires a final order or judgment, the same may • be entered by the court in general term. In the case at bar, the question as to the right of the Inclined Plane Railway Company to occupy certain streets, and the granting of a perpetual injunction, authorized and required a final judgment by the general term, but the decision of the question of the amount due for car license, did not require a final judgment, and no final judgment could • be rendered until an account should be taken, and therefore that part of the cause was very properly remanded to the special term for trial. But we find no authority, express or implied, for remanding a final judgment rendered on a bill of evidence at the general term, to the special term for further proceedings as to such judgment. In the further trial of the cause at special term, the final judgment of the general term must stand in full force, and cannot be reversed, reviewed, vacated or modified at special term, but must be held and taken as an unalterable factor in moulding the decree covering the whole ease, upon the further hearing at special term. This inevitably follows from sections 499 and 503, which provide that judgments rendered and final orders made by the general term, may be reversed, reviewed, vacated or modified, only by the Supreme Court.

The remanding of the cause by the general term to the special term, December 18, 1896, “for further proceedings in accordance with the terms of the decree and judgment in this case,” was no broader than the remand in the original decree for trial for the purpose of determining the amount in money which plaintiff was..entitled to recover from defendant, and gave no power or control to the special term over the final decree of the general term. The suspension of the operation of the decree was made by the general term, and the liberty to apply for a further suspension, is liberty to apply to the general term, and the remanding of the cause December 18, 1896, above shown, did not remand the decree to the special term with liberty to apply to that term for a further extension of time, but only remanded the cause, which in legal effect, was so much of the cause as remained unadjudicated.

That which had already been adjudicated and carried into the decree did not need any furthér proceedings.

To say that remanding the cause to the special term “for further proceedings in accordance with the terms of the decree and judgment in this case,” was in legal effect remanding the judgment for execution, does not help the matter, because the action of the special term was not in execution of the judgement, but in suspension thereof. To suspend the operation of a judgment with an added liberty of applying for a still further suspension, is not carrying it into execution.

The further extension of time, as to process of execution, while it is not, strictly speaking, a modification of the judgment, in its legal effect partakes somewhat of that nature, and should be made by the court which rendered the judgment, or has control of it on error, or control of an execution issued on it.

Instead of applying' to the general term for a further suspension of the decree, the Inclined Plane Company filed a petition in error in this court to reverse the final judgment of the general term, and this court having thus obtained jurisdiction of the judgment, on motion for that purpose, suspended its operation until the petition in error could be heard and disposed of by this court. *

Upon hearing the petition in error, this court affirmed the judgment, and sent a special mandate to the general term of the Superior Court to carry its judgment into execution.

The judgment of affirmance by this court and the mandate, commanded the general term to carry the original judgment into execution, and did not authorize the general term to remand the judgment still further down the line to the special term, or a judge thereof, to carry the judgment into execution, or suspend its operation for such, time as might be thought proper. When this court affirmed the decree of the general term, and sent its mandate to that term to carry its judgment into execution, it became the duty of the general term, and it had the power, by virtue of section 6726, to “proceed in the same manner as if such judgment had been rendered therein. ” The language of the section on this point, is the same as when it applied only to such judgments as a higher court proceeded to render after reversing the judgment of a lower court, and when the statute was made applicable in 1870, to judgments of affirmance, as well as to reversals, the language as to what the lower court might do under the mandate was left unchanged. As applied to cases in which the judgment is affirmed, it means that the lower court shall proceed after affirmance, in the same manner as if no proceedings in error had been prosecuted.

That part of section 6726, which authorizes a suspenson of an execution by the court before which it is made returnable until the matter can be further heard, is applicable only to executions issued out of a higher court and made returnable in a lower court, and is not applicable to executions issued out of the same court to which they are returnable. This is the plain import of the words used, and is manifest from the different statutes which were passed at an early day, and amended from time to time, and finally broug-ht together in what now forms section 6726.

See Chases Statutes, vol. 1, 562, section 11; 707, section 15; vol. 2, 796, section 11; vol. 3, 1689, section 106., Code of Civil Procedure section 526, and subsequent amendments. As no execution was issued from a higher to a lower court in this case, that part of the section is not applicable here.

When this court passed upon the petition in error, it had power to so modify the decree as to provide for a further suspension of its operation after affirmance, but that power was not invoked, and no good cause being made to appear, the judgment was affirmed generally, and remanded for execution. When the mandate reached the general term, it had power to proceed in the same manner as if no proceedings in error had been prosecuted.

No application was made to the general term for futher suspension within the six months granted in the decree, nor was any application made to the general term for a further suspension when the mandate was received from this court. In fact no application was ever made to the general term for a further suspension. The general term had no power to remand the final decree to the special term, so as' to permit an application for further suspension to be made and allowed at special term, and the special term in granting the suspension of December 19, 1896, acted without jurisdiction of the subject matter. The injunction granted April 13, 1897, is based upon the order of suspension of December 19, 1896, and by its terms is to expire with that order.

The general term erred in affirming the judgment of the special term as to the suspension of December 19, 1896, and the special term erred in granting the injunction of April 13, 1897.

The judgment of the general term, affirming the suspension granted by the special term, is reversed with costs, and the judgments of the special term, granting said suspension, and said injunction, are both reversed with costs, thus leaving the original decree in full force and operation, and to be executed according to law.

Judgments reversed.

After the cases were decided and the opinion prepared, the Inclined Plane Railway Company on June24,1897, filed its motion in the superior court in general term, and thereby applied for a further suspension of the operation of the judgment of October 21,1893 in this case, and the general term on the same day granted said application, and ordered that the operation and enforcement of said injunction in said final decree be suspended until June 30, 1897, to which the city excepted, and at once prepared, and on leave of this court, filed its supplemental petition in error to reverse said order of suspension.

Thereupon this opinion was extended, and the fourth subdivision of the sjdlabus added, determining the questions arising on the supplemental petion in error.

This presents the question, whether a court has the power, not only to control the process of execution by which its judgments may be enforced, but to suspend the operation of its judgments rendered at a former term, when such suspension is not sought in pursuance of the statutes regulating the vacation and modification of judgments after the close of the term at which they are rendered.

Upon the affirmance of the judgment of October 21, 1893, the general term had power when it received the mandate from this court, to “proceed in the same manner as if such judgment or final order had been rendered therein” section 6726, Revised Statutes.

Bub what power had the court at general term over the operation of its final judgments rendered after the close oí the term at which they were rendered? Manifestly none, unless in pursuanceof the statute for the vacation and modification of such judgments. No process for the' execution of the judgment was issued, and therefore the question as to the power of the court over the execution of its judgments, does not arise in this case.

The power of the court to suspend the operation of the judgment, if it exists at all, must be found in the reservation in the entry, to the effect that the operation of the decree should be stayed for the period of six months, with liberty to apply for an extension of said time. But that six months was permitted to expire without an application for a further extension, and thereby the judgment, as to the court rendering it, became absolute, and thereafter the court had no power to take up the case and make a further extension. To then suspend the operation of the judgment by the court rendering it, would be to modify the judgment, and that can only be done in pursuance of the statute, or by a higher court on error, or by virtue of a power reserved in the judgment itself, whereby the court retains control of the operation of the judgment for a certain time, with liberty to apply for further extension of the time; and if the time for which the operation of the judgment is suspended is allowed to expire without obtaining a further extension of time, the judgment becomes absolute, and the court thereafter can not further extend such time.

Where the entry of the judgment provides that its operation is suspended for a certain time, with liberty to apply to the court for an extension of such time, a suspension of the operation of the judgment by virtue of the power so .reserved in the entry, is not a modification of the judgment. The judgment in such case remains the same as originally entered, and when the suspension of its operation expire, the original judgment must be carried into execution. The legal effect is the same as when the execution of a judgment is suspended under the supersedeas' statute, in which case the judgment is not modified, but its execution is stayed by order of the court having jurisdiction of it on proceedings in error. Lewis v. Commissioners, 14 Ohio St., 515. In the one case the stay is by virtue of the power reserved in the entry of the judgment, and in the other the stay is by virtue of the power granted in the supersedeas statutes.

The time for which the operation of the judgment in this ease was stayed by the general term, having expired, and no application having been made for further time before the expiration of the suspension granted in the entry of the judgment, it follows that the general term had lost all power over the judgment under the right reserved in the entry thereof, and that’ therefore the further suspension thereof on June 24, 1897, is void.

Order of suspension reversed.


source: Caselaw Access Project

author: By the Court.

license: Public Domain

text:
    The Board of Trustees of the Ohio State University v. Folsom et al.

      Construction of will — Devise to Ohio State University — Devise over to children of two deceased brothers of testator, if held invalid — Proviso that devise-over shall be revoked, if testator's daughter shall ratify devise to University — Effect of such satis, faction on devise-over.

    Error to the Circuit Court of Pickaway county.
    The will of Henry F. Page, deceased, contained a devise to the Ohio State University to be a part of an endowment fund; and provided that if the devise to the University should fail or be held void for any cause, it should then go to the children of two of his deceased brothers. In a subsequent codicil, he fully empowered his daughter, Isabel, to ratify and confirm his bequest to the University; and further provided, that if she complies with this request, the devise over to the children of his deceased brothers “is revoked.’’ Tire testator died within a year from the making of the will, so that the devise to the University became invalid, by reason of the provisions of section 5915, Revised Statutes. The daughter executed the power given her by the will, by executing and delivering a deed for the property to the University. She has since deceased.
    Harrison, Olds <& Henderson, for plaintiffs in error.
    I. The plaintiffs were not the heirs of Henry F. Page, and can take nothing by descent from him.

      ii. It was not the intention of the testator to give anything unconditionally to the plaintiffs.
    The intention of the testator in making a conditional and contingent devise to the plaintiffs, is distinctly and explicitly declared in his first codicil. He there says:
    “The object and intention of the devise in my will to the children of George Folsom, deceased, and to the children of Charles Folsom, was .that, in case of my death within a year from the date of my will and the consequent failure of the bequest and devise to the Ohio State University, the said children should take the property, but not that they should have the same in any other event.”
    Two things, therefore, under the original will, must happen before said children could take the property: (1) The testator should die within a year from the date of his will; and (2), the bequest and devise to the Ohio State University should fail in consequence thereof. If the devise should not fail in consequence of his death within that time, then said children should not have the property.
    In said codicil, the testator further says : “I now provide and declare that my said daughter is fully authorized and empowered to ratify and confirm ¿aid devise and bequest to the said University in case of my death within a year from the date of said will, and she is desired and requested by me to do so. In case she complies with this request, the devise and bequest to the said children of George Folsom and Charles Folsom are hereby revoked. ’ ’
    Now, the testator did die within a year from the date of said will, and his said daughter did comply with his request that she should ratify and confirm said devise and bequest to the said University, and so the devises and bequests to said children were revoked.
    It is plain that the devise to the children of the brothers pf the testator merely vested in them a right to a future freehold upon .the happening of an uncertain event.
    The right was conferred by the will, and vested by the will of the testator, and vested at the instant of his death. The devisees held it as a vested right, but only such a right as the contingent and uncertain character of the devisee created. Moore v. littell, 41 -N. Y., 66; Ilennessy v. Patterson, 85 N. Y., 91,104. 2 Sugden on Powers, star p., 159.
    The devise to the children of the Folsoms’ was a contingent devise. The fee in remainder vested in the heir of the testator at his death, subject, however, to be divested in the event that she made a conveyance thereof to the University. Gilpin v. Williams, 25 Ohio St., 283.
    But whether the estate in remainder in fee devolved upon Isabel Page, or upon the children of the testator’s brother, it was subject to be divested immediately upon the conveyance of the estate by her to the University.
    III. The second item of the first codicil to the will, and the execution of the authority and power thereby conferred upon the testator’s daughter, revoked the devises and bequests in the will to the children of George Folsom and Charles Folsom, even if the deed of conveyance by the daughter of the estate to the University could not, for any reason, vest the title thereto in the University. The .said children, therefore, have not any interest in the property.- Price et al. v. Maxioell et al. 28 Pa. St., 23 ; Tupper v. Tupper, IK. & Johnson, 655; Onions v. Tyrer, 1 P. Wms., 343; 2 Vern., 741.

      An express revocation will prevail, though the object for which it was made fails, as being against public policy. Gossett v. Weatherly, 5 Jones’ Equity, 46. 1 Roll. Abr., 615.
    IV. The testator’s daughter being his only issue or lineal descendant, it was competent for him to authorize and empower her, in ease she chose to do so, to convey his property to the Ohio State University, after his decease, subject to the life estate of herself and the life estate of her mother therein, and to direct that in the event that she should, in the exercise of her discretion under the power, determine not to make such conveyance, the property should go to his collateral relations.
    Such a power may be created by deed or by will. 4 Kent’s Comm., star p.-319; 2 Washburn on Real Property, star p. 314; 1 Sugden on Powers, star. p. 118. No precise form nor technical words are necessary to the creation of a power. 1 Sugden, Powers, 173; 4 Kent’s Comm., 319; 2 Washburn, Real Property, 315; Borland v. Borland, 2 Barb., 80. Farwell on Powers, 377, et seq.

    The power given by Mr. Page to his daughter, was, both in its terms and legal effect, a mere naked power. It was not imperative upon her. She had an unlimited discretion whether she would exercise it or not. The power conferred, therefore, was not a power in the nature of a trust. Hence, it does not fall within the provision of section 5915. Attorney General v. Botoning, Wilmot, 23; Sugden on Powers, 392. Shelton v. Homer, 5 Met. (Mass)., 462; Sugden on Powers, (4th ed.), 357; Farwell on Powers, 160, 266, 267; 2 Story’s Eq. Jur., Section 1061; 1 Perry on Trusts, Section.248; Greenough v. Weeles, 10 Cu*sh., 571; Ear-well on Powers, 266; Bullir .Tardy, IVes. Jr., 279; Marlborough v. Godolphin, 2 Ves., 61.
    Miss Page, under the will and codicil, took both an estate for life and an added discretionary power to dispose of the property by conveying it in fee to the Ohio State University, subject to her life estate. Tomlinson v. Bighton, Salk 239 ; Anonymous, 3 Leon., 71 Liefe v. Saltingstone, 1 Mod., 189; 1 P. Wms., 171; Jackson v. Rodgers, 16 John., 587; Boioning v. Wherrin, 19 N. H., 985; Gilbert v. Chapin, 19 Conn., 342; Pennock’s Estate, 20 Penn. St., 268; Perry on Trusts, sec. 115; 2 Story’s Equity, sec. 1069; Young v. Martin, 2 Y. & C. Ch. Cas., 582; Richardson v. Inglesby, 13 Rich. Ex., 59; 2 Story Eq. Sec., 1069.
    It is perfectly clear that when there is a mere power of disposing, and that power is not executed, the Court cannot execute it. Broton v. Higgs 8 Ves. 570.
    In construing wills it is an universal rule that they are to be expounded favorably, and according to the intention of the devisor. Becker v. Becker, 3 Ohio, 147; 9 Ohio, 73 ; 17 Ohio, 250; 18 Ohio St., 247 ; 4 Ohio St., 333; 6 Ohio St., 563.
    In construing a will with codicil, the whole is to be taken together as parts of one instrument. Negley v. Gard, 20 Ohio, 310; Collier v. Collier, 3 Ohio St., 369 Boyle v. Boyle, 152 Penn. St., 108; 2 Story’s Equity Juris., See. 1069; 2 Redfield on Wills, 423; 2 Pomeroy’s Equity Juris., Sec. 1017; Lambe v. Eames, L. R. 6 Ch. App. 396; Stead v. Mellor 5 Ch. Div. ,¡225; In re Hutcheson v. Tennant, 8 Ch. Div., 540; Sugden on Property, 276; Hess v. Singler, 114 Mass., 56; Bryan v. Milby, 24 Atl., Rep. 333; Iluntv. Hunt, 11, Nev., 442-,Bulfery. Willingrod,
      71 la., 620; Bills v. Bills, 80 la; Corby v. Corby 85 Mo., 371.
    The statute was enacted to restrict the right of any testator who has a child, or a descendant thereof, to devise his property to charitable uses. •The restriction is applicable only to that special enumerated class of cases. Therefore, the second item or provision of the first codicil to Mr. Page’s will is not in contravention of Sec. 5915, R. S., and hence is not invalid. Jones v. Habersham, 107 U. S. Rep., 174; Reynolds v. Bristow, 37 Ga., 283 ; Wetter v. Habersham, 60 Id., 193.
    It is, therefore, a bold claim for any one to make, that the Courts in the enforcement of a supposed public policy, can apply this limitation or restriction so as to prevent a testator from authorizing his only child and heir, she being of mature age, to grant, at her pleasure property of which he may be possessed at his death, for public educational purposes. For, such charities are highly favored in the law; and the Courts will carry out a grant or devise or bequest for a charitable purpose whenever they possibly can. McIntireA P. School v. Zanesville, 9 Ohio, 203; Zanesville Co. v. Zanesville, 20 Ohio, 483; Urmey’s Executors v. Wooden 1 Ohio St., 160; American Bible Society v. Marshall 15 Ohio St. 537; Carders. Commissioners of Fayette County, 16 Ohio St., 353; Mchtirels Admrs. v. City of Zanesville, 17 Ohio St. 352; Miller v. leachout, 24 Ohio St., 525; American Tract Society v.At'iocoter, 30 Ohio St., 77; Sanderson v. White, 8 Pickering, 328.; Rcvwley v. Umaltilla Co., 172.
    There is nothing in the law relative to charitable uses which is repugnant to our form of government. 2 Kent’s Com., star p. 285.

      Statutes prohibiting conveyances of lands by deed or will to a corporation, are termed statutes of mortmain or mortmain acts. 2 Bl. Com. 268; 2 Kent’s Com., 282.
    Neither the Ohio State University, nor the Board of Trustees of the Ohio State University, is a corporation. The University is a State institution, and the Board is an organized public agency, having such powers as are conferred upon the Trustees to accomplish the objects for which the institution was established. Neil v. Board of Trustees, etc., 34 Ohio St. 15.
    While, oh the one hand, the judiciary should be careful not to make its office of expounding statutes a cloak for the exercise of legislative power; on the other hand, it is equally bound not to stick in the mere letter of a law, but rather to seek for its reason and spirit, in the mischief that required a remedy, and the scope of the statute designed to effect it. Tracy v. Card, 2 Ohio St., 431; 3 Ohio St., 80; Hurd v. Robinson, 11 Ohio St., 232.
    .It has been decided, that a thing within the letter, is not within the statute, unless within its intention. Burgett v. Burgett, 1 Ohio St., 469; 10 Ohio, 513; 15 Ohio, 338; 1 Ohio St., 511; 3 Ohio St., 80, 10 Ohio St., 536; 14 Ohio St., 80; Greens. Kemp, 13 Mass., 518; Commonwealths. Weiher, 3 Met., 445; Malins s. Freeman, 4 Bing. N. C-, 395; Fdioards s. Duck, 4B. & A., 212; Fuller v. Hutchins, 10'Cal., 523; Dade s. Madison, 5 Leigh, 401; Wrecks v. Nicholas, 2 Strange, 1066; Gray v." Goockson, 16 East, 13; Jacks s. Turquand, L. R., 2H. L., 325; Burgess’s Case, 15 Ch. D., 507.
    The act of Henry VII., c. 4, which declared that gifts of goods and chattels in trust for the donor and in fraud of his creditors should be “void and of none effect,” was held to bé so only as to those who are prejudiced by the gift. Ridler v. Punter, Cro. Eliz., 291; Bessey v. Winhani, 6 W. B., 166; Phihpott v. St. George's Hospital, 6 H. L., 338; Dent v. Allcroft, 30 Beav., 335 ; Edwards v. Hall, 6 De G. M. & G., 84; Wallgrove v. Tebbs, 2 K. & J., 313 ; Rex v. Little Oogglesshall, 6 M. & S., 264; Rex v. Mursley, IT. R., 694,
    As the act is in derogation of the absolute right of all men to control the disposition of their own property, it should be strictly construed; SchnorFs Appeal, 17 P. F. Smith, 138; Bishop on the Written Laws, section 155.
    Inasmuch as the statute under examination is not in aid of the common law, but is restrictive of it, it should have a strict interpretation. Perin v. Oarey, 24 How., 465, 906.

      Booth c& Keating; II. P. Folsom and Millihin, Shotts <& Millihin, for defendants in error.
    Brief of Booth <& Keating and II. P. Folsom.

    In Ohio the right to make a will is not an inherent or natural right, nor is it granted by the constitution, but is derived entirely from the statute; hence every testamentary provision is void which contravenes the statute either in substance or in form. Evans v. Price, 118 111. 593 (1887); Brettun v. Fox, 100 Mass. 234 (1868); In re Walker, 110 Cal. 387 (L895).
    1. It is clear that the testator intended to give his wife and daughter a life estate in the lands mentioned in the petition.
    2. It is equally clear that he did not intend that either of them should have the fee in any event.

      3. It is also clear that he wished and intended to give to the Ohio State University an estate in remainder, if he could lawfully do so.
    4. It also appears conclusively that the testator wished and intended to give to his nephews and nieces an estate in remainder in the'Ohio Lands, if the gift to the University should fail by reason of his death within a year after making his will.
    5. Recognizing it as a possibility that his daughter would refuse to accept under the will and would attempt to set it aside, he provided in his last codicil that, in that event, the land described in the petition should go to his nephews and nieces, subject only to the life estate of his wife. So that, by his last testamentary act, he expressed in the most solemn manner his preference, wish and intention that his nephews and nieces should have the Ohio lands instead of his daughter.
    6. Therefore it was not in accordance with his wish and intention to die intestate as to any of his property. On the contrary by unusual expedients and numerous provisions he manifested his fixed intention not to die intestate.

      Collier v. Collier's Mors., 3 Ohio St., 369; Le Breton v. Cook, 107 Cal., 410. Schouler on Wills, Section 490; Carney v. Kain, 40 W. Va., 758; Zimmerman v. Rafer, 81 Md., 347; Nexo England Trust Co. v. Pitkin, 163 Mass., 506.
    During the last year of his life the testator had not the right or legal capacity to make a testamentary disposition of his property for an educational purpose; and, therefore, his devise to the University was absolutely void. Patton v. Patton, 39 Ohio St., 590; McKeown v. Officers, 6 N. Y. Supp. 201; 3 Greenleaf’s Cruise on Real Property, star page 14: Raioe v. Burton , Comb. 84.

      The University had not the legal capacity to take from the testator, because he died within a year after making his will; and the devise to it failed for that reason, also. Both the capacity to make the devise and the capacity to take it were equally affected by the testator’s death within the year, Stephenson v. Short, 92 N. Y. 433 (1883); 'High School v. Harrison, 12 W. N. C., 32;Ze Fevre v.LeFevre, 59 N..Y., 434, (1875); Starkweather v. Bible Society, 72 111., 50(1874); Peoples Trust Go. v. Smith, 82 Hun. 494 (1894); Fairchild v. Fdson, 77 Hun. 298 (1894).
    The testator could not confer upon his daughter any power or authority to do for him'that which he could not do directly; therefore, his attempt to authorize and empower her to ratify and confirm his void devise to the University was itself absolutely void.
    1. If the provision of Item II. of the first codicil, by which the testator attempted to authorize and empower his daughter to ratify and confirm the devise to the University, in its terms, is sufficient to create a precatory trust, or a power in trust, it is void because expressly prohibited by section 5915.
    2. Mr. Page could not, by will, confer upon another a valid or effectual naked power to vest a title in, or “devolve” an estate upon, a devisee to whom he could not make the testamentary gift directly.

      a.) A party who takes upon the execution of a power of appointment contained in a will, takes under and by virtue of the will, upon the well settled doctrine that a derivative power cannot be greater that the power whence it is derived. 4 Kents Com. star p. 318; Bouv. Diet., Vol. 2, p. 411; Anderson Diet, of Law, 795; 18 Am. & Eng. Eney. of Law, 878, 919; Williams Real Property, 130; Willard on Real Estate and Conveyances 268; Mels v. Lynch, 8 Bosw., 482; Goodill v. Brigham, IB. & P., 194; Doolittle v. Leiois, et al., 7 John. Ch., 45; Burleigh v. Clough, 52 N. H. 271; Matter of Stewart, 131 N. Y. 274; Martindale on Conveyances, see. 148; Crabh on Real Prop., sec. 1969; Fargo v. Squires, 29 N. Y. Supp., 648; Tilden v. Coceen et al., 130 N. Y., 29; Bead et al. v. Williams etal. Í25,N. Y., 560.
    (5.) Therefore, even if the testator attempted to confer a mere naked' power, the so called deed of “confirmation and ratification” was not effectual to vest any estate in the University. Campbell v. Leach, 2 Ambler, 747.
    The following principles relating to the confirmation of testamentary gifts are so well settled as to be recognized as legal maxims:
    1. The confirmor must have an interest in the estate with reference to which the confirmation operates.
    2. A necessary element of every confirmation of a testamentary gift is the release of some property right or estate by the confirmor.
    3. A confirmation may make good a voidable or defeasible estate, but cannot aid an estate which is void in law, Barton’s Digest of Legal Maxims, 68; Gilbert on Tenures, 69 1 Cooley’s Blackstone, Book 2, p. 324; 1 Devlin on Deeds, Section 17; People v. Law, 34 Barb., 511; 3 Com. Dig., 139; Branham v. Mayor, 24 Cal., 585; Tomlin’s Law Diet., Confirmation; In section 5915 Invalid means absolutely void; 11 Am. & Eng. Enc. of Law, 780; Black’s Law Diet., 642; Peoples Trust Go. v. Smith, 82 Hun., 484; Fairchild v. Edson, 77. Hun., 298.

      The scheme by which the testator attempted to make a devise to the University must fail, because it is a manifest attempt to evade the letter and spirit of the statute, and if successful would be a fraud upon the law. Endlichon Interpretation of Statutes, 138; O'Hara v. Dudley, 95 N. Y., 403; Duke of Marlborough v. Dari GodoVphin, 1 Eden, 417; Stickland v. Aldridge, 9 Ves., Jr., 516; Boson v. Statham, 1 Cox. Cas. in Eq., 16; Kearney v. Miss. Soc., 10 A b. N. C., 274; Leary’s Estate, 1 Tuck., 233.
    The gift over to the nephews and nieces did not fail because of the failure of the primary gift to the University, Bulla/rd v. Toion of Shirley, 12 L. R. A., 110; S. C., 153 Mass.,' 559 (1891), 2 Woerner’s Amr. Law of Admr., section 425; Tudor’s Charitable Trusts, 25; 2 Williams on Exr’s (Ed. of 1895) top p. 311; 1 Jar. on Wills, (Big. Ed. 1893) top p. 243; Warren v. Kudall, 4 K. & J., 603; Miltocoukee Prot. Home for the Aged v. Becher, 87 Wis., 409 (1894); 2 Williams’ Exrs., top p. 573 ; Fink v. Wilkes, 41 N. Y. Supp., 227.
    The execution and delivery of the deed of confirmation did not have the effect of revoking the devise to the nephews and nieces.
    1. The estate in remainder did not pass to the daughter by descent. 2 Sugden on Powers, star p. 159.
    2. An estate in remainder vested in the nephews and nieces immediately upon the death, of the testator. Linton v. Lay cock, 33 Ohio St., 134.
    A remainder after a life estate will vest notwithstanding’ a power of disposal given to the life tenant.' Gandler v. Dunkle, 4 Watts, 143; Ackerman v. Gorton, 67 N. Y., 63

      3. The eondi tional revocation did not take effect, because it was expressly made to depend upon the exercise of a void power.
    The vasted estate in remainder, which became vested in the nephews and nieces upon the testator’s death, could not be divested except by some one of the recognized modes of revoking testamentary gifts. The testator might have revoked his devise to them either :
    1. By destroying his will.
    2. By a subsequent lawful disposition of the same property, by a devise so inconsistent with the original gift as to necessarily imply an intention to revoke it.
    3. By a substantive, express, unconditional and independent clause in a subsequent will or codicil.
    4. By a conditional clause in a subseqnent will or codicil in which the intention was expressly or by necessary implication made to depend upon the accomplishment of some lawful and possible design.
    He did neither.
    As the testator’s intention, so far as it is lawful and its fulfillment possible, is the controlling consideration in the interpretation of wills. Courts do not infer an intention to revoke where the substituted or inconsistent gift cannot take effect; 1 Redf. on Wills, star p. 343; Conrad v. Long, 33 Mich., 78; DoioerY. Seeds, 28 W. Va., 133; Appeal of Luthern Congregation, 133 Pa. St., 32; Sloan’s Appeal, 168 Pa., St., 422.
    As the act of Isabel Page was ineffectual to accomplish the sole purpose for which the testator attempted to confer the power, it did not operate to deprive other devisees of their rights under the will. Austin v. Oaks, 117 N. Y,, 578; Collier v.
      Collier's Exrs. 3 Ohio St., 369; The Earl llehester, ex parte, 7 Ves. Jr., 348; Piper v. Moulton, 72 Me., 155; Shattuch v. Hastings, 89 Mass., 23; Sheppard’s Touchstone, 129; Viele v. Keeler, 129 N. Y., 190; 1 Lomax Exrs., 44; Kennedy s. Hay, 105 N. Y., 137;' Mendenhall’s Appeal, 124 Pa. St., 387; Pringles. McPherson, 1 S. Car., 656; Churchill s. Churchill, L. R. 5 Eq. Cas., 44; 2 Williams Exrs., 573; Altrochv. Vandenburgh, 25 N. Y. Supp., 851; Warren s. Budall, 4 K. & J., 603.
    But how could he confer upon her such right, even if the statute did not forbid?
    1. Either, indirectly, by dying intestate, and thus permitting the title to pass to her by operation of law.
    2. By devising the fee to her.
    Mr. Page did neither.
    Our answer to the proposition above quoted is two fold:
    1. The statute does not permit, but, on the contrary, expressly prohibits such an act.
    2. The testator did not vest the title in his daughter.

    The validity of the authority which Mr. Page attempted to confer does not depend upon whether or not it is a naked power. The petition calls it a ‘‘pretended power and trust,” the answer of the defendant calls it a “power and trust.” Washburn Real Property, Vol. 1, p. 718; Hunt s. Bousmanier, 8 Wheat., 207; 2 Mason, 244.
    The individual defendants in error have the right to assert the invalidity of the devise to the University, and to deny that the pretended confirmation by Isabel Page of the void gift deprived them of an estate in remainder. E’olsom s. Haas et al., 9 OhioC. C., 473; Stephensons. Short, 92N. Y., 433; Harris v. Slaght, 46 Barb., 470; Harris v. American Bible Society, 2 Abb. Dec., 316; Kearney v. Missionmy Society of St. Paul the Apostle, 10 Abb. N. C., 274; McKeown v. Officer, 6N. Y. Supp., 201; Church of Redemption v. Grace Church, 68 N. Y., 570; Jones v. Habersham, 107 U. S., 174; Woodbury v. Berry, 18 Ohio St., 456; Burner v. Briggs, 39 Ohio St., 478; Wilcox v. Nolze, 34 Ohio St., 520; Sedg. on Statutes and Const. Law, (2ed) 326; Brower v. Hunt, 18 Ohio St., 312; Ash v. Ash, •9 Ohio St., 383; Bane v. Wick, 14 Ohio St., 505; Sturgis v. ,Ewing, 18 111., 184; Tiedeman’s Limitations of Police Power, 342; American Bible Society v. Marshall, 15 Ohio St., 537; McClain v. Wade, 41 Pa. St., 269; Demhitz on Land Titles, 578.
    But independent of the English statutes, and following in the same line of policy, many states have prohibited or restricted devises of land to corporations.
    New York, R. S., 8th ed., 2545, section 3. New York Act of 1848, e. 319, section 6. New York Act of 1860, c. 360. California, Civ. Code, sections 1275, 1313. Illinois, 1889, P. L., 94. Kentucky, 1887, G. S., 143, section 3. Indiana, 1888, R. S., section 3434a. Michigan, 1882, Am. Stats., section 4586. Wisconsin, 1889, Am. Stats., section 2061. Georgia, 1882, Code, section 2419. Ohio, 1890, 'R. S., section 5915. Pennsylvania Act of 1855. Tiffany & Bullard ,on Trust, p. 124. Muckleston v. Broion, 6 Yes., 52; 2 Redf. on Wills, 511; 1 Jarman, on wills (5th Ed. Bigelow,) 219.
    Mortmain statutes are founded upon the same policy as the rule against perpetuities. Shelford on Mortmain, p. 24. Tudor’s Charitable Trusts (3d Ed., 1889,) 372. Carter y. Reddich, 32 Ohio St., 1.

      We'do not claim that there is a general public policy in Ohio against charities, but we do claim that section 5915 is founded upon the same policy as were the Statutes of Mortmain in England.
    Brief of Millikin, Shotts dé Millikin

    We claim that by the terms of the will of May 5th, 1891, the devise to the Ohio State University of the estate in remainder was prohibited by the Statute and was void, and that at the death of Henry F. Page the estate vested immediately and absolutely in the children of his two brothers, defendants in error. Patton v. Patton, 39 Ohio St., 590; 72 O. L., 3.
    The devise to the University being void, it is as if not written in the will. The estate given tó the Folsom heirs becomes a vested remainder at the testator’s death and subject to no contingency. The will gave them the estate in fee and absolutely subject only to the life estate of the widow and daughter. Martin v. Ferry, 111 N. Y., 106, 39 Ohio St., 597; Britten v. Fox, 100 Mass., 234; Doyle v. Doyle, 50 Ohio St., 345.
    We claim that the codicil of July 6th, 1891, is void in so far as it attempts to confirm the void devise and bequest to the University and to defeat the devise and bequest to the children of George and Charles Folsom. Braddish v. Gibbs, 3 John Ch., 550; 2 Hillyard Real Property, 566, sec. 51; Terrell v. Auchauer, 14 Ohio St., 98; Bouv. Law Diet., Vol. 2, page 337 ; Hillenv. Iselon et al., 144 N. Y. Ct. Ap., 365; The Duke of Marlborough v. The Earl of Godolphin, 1 Eden Rep., 281; lBouv. Law Diet., 302; 2 Story Eq. Jr., sec. 1193; American Bible Society v. Marshall, 15 Ohio St., 544 ; In the Matter of McGraw, 11 N. Y., 107; Chamberlain v. Chamberlain, 43 N. Y., 424; In 1st Redf. Wills, 18; Ash v. Ash, 9 Ohio St., 383 ; 2 Redfield Wills, 796, sec. 48. '
   By the Court.

It is quite clear that the children of the testator’s brothers can take nothing under the provisions of the will, as the fact — the making of a deed to the University by the testator’s daughter — has occurred, on which it was not to go to them, and they are not the testator’s heirs. It is not material what construction the law may place on this will as between the University and the heirs of the testator’s daughter; for the devise over in case the deed or ratification should not be made, is not made to depend upon the validity of the ratification in whatever form adopted, but on the fact only of its not being made.

The judgment of the circuit court is therefore reversed, and the petition of the plaintiffs beloio dis missed, on the facts conceded in the record.


author: By the Court:

text:
    State on Application of Alter, v. Bader, et al., Commissioners.

      Taxation — Suit to enjoin 7inconstitutional act to improve road— Taxes voluntarily paid not misappropriated by treasurer.

    1. A suit by a tax-payer brought to enjoin the execution of an unconstitutional act for a local road improvement, is too late if no.t brought until after he has voluntarily paid all taxes assessed or to be assessed against him for that purpose.
    2. Nor will it be a mis-appropriation of moneys in the county treasury to devote the sum made up of the taxes so voluntarily paid by tax-payers of the county to the purpose for which they were so paid.
    (Decided June 22, 1897.)
    Error to the Circuit Court of Hamilton county.
    Suit was brought May 29, 1896, in the court of common pleas, by the plaintiff in error, it being alleged in the petition that the defendants, the commissioners of Hamilton county, and the other defendants, claiming to be trustees appointed under the pretended authority of an act entitled “An act to authorize the commissioners of Hamilton county to levy a tax for improving, grading and macadamizing Indian Hill avenue, in Columbia township, and for other purposes,” had already proceeded under said act to appropriate property for the widening of said avenue, and were about to enter into further contracts for said improvement and to carry out the provisions of said act; that said act is unconstitutional and void and that unless restrained, the defendants would enter into contracts for making such improvements, would issue bonds of the county to pay for the same and perform the other acts which said act assumed to authorize which would result in a mis-application of the funds of said county. It also alleged, that before the bringing of the suit, Alter had made application to the prosecuting attorney of the county to bring such suit, and that he had refused.
    The petition prayed for an injunction.
    The defendants, the county commissioners> answered, alleging- that they had levied a tax of two-tenths of a mill on the property of Hamilton county, one half of which was collected on the duplicate of the year 1894, and the other half on that of the year 1895, for the purpose of creating a fund to carry out the provisions of said act, and that the same was paid by the tax-payers of said county without objection or protest, and went into the county treasury to the credit of said fund; that they had by dedication and releases, acquired title to the right of way through certain. lands in said township, and that compensation for other lands necessary for that purpose, had been fixed in appropriation proceedings, but never paid. The answer denied all other allegations of the petition.
    In the court of common pleas, a demurrer to this answer was sustained and the defendants were enjoined in accordance with the prayer of the petition.
    On petition in error to the circuit court, that judgment was reversed.

      Theodore Ilorstmcon, for plaintiff in error.

      Bendigs, Foraker da Dinsmore, for defendants in error.

      A. J. Cunningham and J. T. DeMar, for defendant trustees.
   By the Court:

The act whose validity is challenged (91 O. L., 679), is void, being an act of a general nature, not having a uniform operation throughout the state. It is not deemed necessary to add to recent expression of our views upon this subject. Hixson v. Burson et al., 54 Ohio St., 470; State ex rel. The Attorney General v. Davis et al., 35 W. L. B., 387. The circuit court could not have regarded the act as valid.

But the record shows that Alter, before bringing the suit, had voluntarily paid all the taxes to be assessed against him for carrying out the provisions of the act. True, the petition alleges that the defendants were about to issue bonds for that purpose, but this allegation is embraced within the general denial of the answer. Upon the record, therefore, no burden, was to be placed upon him for the purpose of carrying out the void act except the levy of the tax which he had voluntarily paid before bringing the suit. At the time of the suit there was, therefore, no remedy available to him.

It will not be a mis-appropriation of the moneys now in the treasury to the credit of this fund to use them for the purpose for which they were voluntarily paid. They cannot be recovered by those who voluntarily paid them, nor can they be properly devoted to another purpose.

Judgment affirmed.


author: By the Court :

text:
    State ex rel. Attorney General v. Kinney, Secretary of State.

      Constitutional Convention — Invalidity of Joiut Resolution of April 16,1896 — Constitutional law.

    Joint resolution, April 16, 1896, (92 Laws, 787,) submitting the question of calling a constitutional convention to the electors of the state, held invalid.
    (Decided June 25, 1897.)
    In Quo Warranto.

      F. 8. Monnett, Attorney General and Daniel J. By an, for plaintiff.
    The legislature cannot by joint resolution repeal or amend a law.
    Our contention is that this piece of legislation being a joint resolution, that part of it relating to the manner of the election is nuil and void, for the reason that, in order to amend or repeal the general election of the state, it is necessary that the legislature should accomplish this purpose by law, and not by a joint* resolution. Section 18, article 2, of the Constitution.
    This is mandatory and it means that all the laws of Ohio shall be so framed; and that legislation, to have the force and effect of amending a general law, cannot be in the shape of a joint resolution.
    Cushing in his Law and Practice of Legislative Assemblies, Section' 2102. May v. Bice, 91 Ind., 546; State v. Bogers, 10 Nev., '250; Boyer v. Crane, 1 W. Va., 176.
    The great weight of authority on this proposition supports what we claim in this case, that a joint resolution which amends, or changes, or revises a general law is null and void, for the simple reason that it is not a law and is therefore ineffective to accomplish what it purports to on its face. State v. Patterson, (NT. C.) 4 S. E. Reporter, 350; Barry v. Viall, 12 R. I., 18; 34 Ohio St., 440; Reynolds v. Blue, 47 Ala/, 711; Brown v. Fleischmer, 4 Ore., 132 : 1 Wash. Terr., 143; Chapter 3 of Southerland on Statutory Construction.

      J. F. Leming and II. M. Daugherty, for defendant.
    The constitution has prescribed no form to be followed by the General Assembly, either in declaring the necessity of calling a convention, or in recommending to the electors to vote for or against a convention. The form to be followed is within the discretion of the legislature. Blanchard v. Bissell, 11 Ohio St., 103; üppington v. Oviatt, 24 Ohio St., section 232.
    All former submissions have been by joint resolution, prescribing the. manner of voting.
    This resolution does not repeal or amend an existing statute, directly or by implication.
    The method of voting provided in this resolution is in harmony with the methods of the Australian Ballot Law.
    If any advantage is given to the affirmative, it is a legitimate one.
    As it was not necessary to enact a law to sub ■ mit the question, Section 26 of Art. 2, does not apply. But the joint resolution does have an uniform operation throughout the state.
    Its provisions are clear and consistent with other election laws.
    The constitution provides that the recommendation may be made to the electors, but does not provide the particular manner of voting upon the recommendation. This is left to the legislature. State v. Moffitt, 5 Ohio, 361.
    Even as to bills, it is held that the provision of 'the Constitution in that respect (Article 2, Section 16,) which requires every bill to “be fully and distinctly read on three different days” is merely directory. Miller v. State, 3 Ohio St., 475.
    The whole resolution is not unconstitutional or invalid, though a part may be, if the valid or constitutional part can be separated or disconnected from the invalid or unconstitutional part. Exchange Bank v. Iiines, 3 Ohio St., 1; Monroe v. Collins, 17 Ohio St., 666; Taylor v. Boss Co., 23 Ohio St., 22; B. B. v. Commissioners; 31 Ohio St., 338; State v. Frame, 39 Ohio St., 399 ; Treasurer v. Bank, 47 Ohio St., 503; Bowles v. State, 37 Ohio St., 35Í Cincinnati v. Bryson, 16 Ohio, 625; Me Cormick v. Alexander, 2 Ohio St., 65; G. W. da Z. B, B. v. Clinton County, 1 Ohio St., 77; Lehman v. McBride, 15 Ohio St., 513; State ex rel, etc v. Cincinnati, 20 Ohio St., 18; Walker v. Cincinnati, 21 Ohio St., 14; W. IT. Tel. Co. v. Mayer, 28 Ohio St., 521; Xendle v. State, 52 Ohio St., 346.
    It was not the intention of the legislature to pass a law in the premises, nor was it necessary that the legislature should by a law make this recommendation and submit the proposition hereby submitted. It is not therefore contended that this resolution is a law. Not being a law it is not in contravention of article 2, section 26 of the Constitution.
    If a statute is constitutional the courts cannot declare it null as being against public policy or right. Probasco v. Bcoine, 50 Ohio St., 378.
    Special provisions of the same or another statute varying a general statute will be read as an exception thereto. State ex rel. Crawford, etc v. Mc-Gregor, 44 Ohio St., 628; Browers v. Hunt,-18 Ohio St., 311.
   By the Court :

The statute law of the state can neither be repealed nor amended by.a joint resolution of the general assembly.

In the joint resolution, adopted April 16, 1896, (92 Laws, 787,) recommending to the electors of the state the necessity for a convention to' revise, amend, or change the constitution of the state, the provision directing the mode in which they shall vote thereon, the provision authorizing the deputy state supervisors of elections, to determine how the official ballot shall, in this regard, be printed, and the provision that the convention shall not sit more than ninety days, and that the pay of its members shall not exceed five dollars each per day, are void. And these provisions being so intimately connected with the recommendation for calling a convention, that the court cannot say that the recommendation would have been made without these void provisions the whole resolution must be and is held void.

It is therefore ordered and adjudged, that the defendant be ousted from the claimed power of causing the official ballot for the coming November election to be printed in accordance with said resolution, or in any form, so as to submit the question of calling a constitutional convention to the electors of the state.


text:
    No. 4026.
    Dougherty v. Railway Company.
    (Decided February 2, 1897.)
    Error to the Circuit Court of Jefferson county.

      J. W. Jordan and J. F. Baton, for plaintiff in error.,

      John M. Cook; Swayne, Swayne do Hayes and R. C. Richards, for defendant in error.
   Judgment affirmed, it appearing one ground of reversal by the circuit court, of the judgment of the common pleas, may have been that the judgment was against the evidence. Other questions not passed upon.


text:
    No. 4027.
    Graveson v. Cincinnati Life Association.
    (Decided February 2, 1897.)
    Error to the Circuit Court of Hamilton county.

      Stephens, Lincoln dh Smith and Ledyard Lincoln, for plaintiff in error.

      Harmon, Colston, Goldsmith do Iloadly and George Hoadly, Jr., for defendant in error.
   Judgment affirmed.


text:
    No. 4084.
    Feike, Admr. v. White.
    (Decided February 2, 1897.)
    Error to the Circuit Court of Brown county.
    . N. W. Evans, Duncan Livingston and Rufus L. Fite, for plaintiff in error.

      D. W. C. Loudon and John T Waters, for defendant in error.
   Judgment affirmed.


text:
    No. 4085.
    Railway Company v. City of Fostoria.
    (Decided February 2, 1897.)
    Error to the Circuit Court of Seneca eount;y.

      Seney & Sayler;, Brewer & Breioer; A. W. Scott and Doyle & Lewis, for plaintiff in error.

      Noble, Neppel & Noble; A. J. Stackhouse and Mc-Cauley <& Weller, for defendant in error.
   Judgment affirmed.


text:
    No. 4430.
    Williard, Exr. et al. v. Yeoman et al. Ex’rs.
    (Decided February 2, 1897.)
    Error to the Circuit Court of Fayette county.

      M. Willard, for plaintiffs in error.

      Mills Gardner and J. A. O. Yeoman, for defendants in error.
   Judgment affirmed.

Williams, C. J. not sitting.


text:
    No. 4445.
    Bashold, Admx. et al. v. Pfannsteil, Jr., Guard, et al.
    (Decided February 2, 1897.)
    Error to the Circuit Court of Cuyahoga county.

      Ilessenmueller d¿ Bemis, for plaintiffs in error.

      Ileisley <& Selzer, for defendants in error.
   Judgment affirmed.


text:
    No. 4490.
    Saunders v. Knoop.
    (Decided February 2, 1897.)
    Error to the Circuit Court of Miami county.

      11. II. Williams, for plaintiff in error.

      C. I). Wright, for defendant in error.
   Judgment affirmed.


text:
    No. 5428.
    The State ex rel. Phifer v. Bolton.
    (Decided February 2, 1897.)
    In Quo Warranto.

      W. II. Kinder and W. II. Anderson, for plaintiff.

      William F. Duncan, for defendant.
   Judgment for defendant.


text:
    No. 3699.
    National Life Insurance Company v. Brobst.
    (Decided February 5, 1897.)
    Error to the Circuit Court of Huron county.

      John O. Winship, for plaintiff in error.

      O. H. Stewart; F. II. Jones and Horace Andrews, for defendant in error.
   Judgment affirmed.


text:
    4050.
    Shaw v. Prudential Insurance Company of America.
    (Decided February 5, 1897.)
    Error to the Circuit Court of Montgomery county.

      John M. Nutt and Hunger, Kennedy c& Hunger, for plaintiff in error.

      Oscar F. Havúson and Charles II. Kumler, for defendant in error.
   The judgment rendered by the circuit court, after reversing that of the common pleas, reversed and cause remanded for a new trial.


text:
    No. 4058.
    Moffatt et al. v. Fischmann Loan & Building Co. et al.
    (Decided February 5, 1897.)
    Error to the Circuit Court of Hamilton county.

      William Hartley Pugh; John . J. Clidden and Jacob R. He Carry, for plaintiffs in error.

      August II. Bode, for defendants in error.
   Judgment affirmed.


text:
    No. 4060.
    Farmers’ National Bank et al. v. Lehman & Co. et al.
    (Decided February 5, 1897)
    Error to the Circuit Court of Scioto county.

      N. W. Evans; F. F. D. Albery and Duncan Livingston, for plaintiffs in error.

      T. G. Anderson and H. W. Farnham, for defendants in error.
   Judgment affirmed.


text:
    No. 4106.
    Artz et al. v. Phillips.
    (Decided February 5, 1897.)
    Error to the Circuit Court of Ross county.

      J.W. Mooney; O. W. Aldrich and Mayo, Yaple <& Phillips, for plaintiffs in error.

      Van Deman c& Ghaffin, for defendant in error.
   Judgment affirmed.


text:
    No. 4113.
    Persinger et al. v. Haigler et al.
    (Decided February 5, 1897.)
    Error to the Circuit Court of Payette county.

      John Logan and J. J. Llarper, for plaintiffs in error.

      Post & Eeid; Humphrey Jones and Mills Gardner, for defendants in error.
   Judgment affirmed:


text:
    No. 4125.
    German Insurance Company et al. v. Mirick.
    (Decided February 5, 1897.)
    Error to the Circuit Court of Athens county.

      Sleeper da Sayre, for plaintiffs in error.

      Wood da Wood, for defendant in error.
   Judgment affirmed.


text:
    No. 4141.
    Bissman v. McCormick.
    (Decided February 5, 1897).
    Error to the Circuit Court of Richland county.

      .Laser, Brioher da Workman, for plaintiff in error.

      Douglass da Douglass and Jenner, Jenner dá Weldon, for defendant in error.
   Judgment affirmed.


text:
    No. 4150.
    Miller v. Kreiling et al.
    (Decided February 5, 1897.)
    Error to the Circuit Court of Wayne county.

      Adair da Adair, for plaintiff in error.

      B. & S. B. Eason, for defendants in error.
   Judgment affirmed.


text:
    No. 3900.
    Mrax v. Loo.
    (Decided February 16, 1897.)
    Error to the Circuit Court of Wood county.

      Parker <& Moore, for plaintiff in error.

      Baldwin c& Ha/rrington, for defendant in error.
   On consideration whereof it is ordered and adjudged by this court, that the judgment of the said circuit court be and the same is hereby reversed, and proceeding to render such judgment as the said circuit court should have rendered, it is ordered and adjudged that the judgment of the court of common pleas of Wood county in this ease be and the same is hereby reversed, for the reason that said court erred in sustaining the objection to the question as to the promise of defendant to convey land to plaintiff as compensation for her services, as said question and proposed answer would tend to show the services were not performed gratuitously; and for the further reason that the court erred in instructing the jury to return a verdict for defendant. It is further ordered that this case be and it hereby is remanded to the court of common pleas for' a new trial. It is further ordered that said plaintiff in error recover from said defendant in error her costs in this court and in the circuit court expended, and that said defendant in error pay the costs by him made in said courts, and in default that execution issue therefor.


text:
    No. 4470.
    Wayne County National Bank v. Snyder et al.
    (Decided February 16, 1897.)
    Error to the Circuit Court of Wayne county.

      Johnson.<& Taylor, for plaintiff in error.

      John Me Sweeney and John O. Morr, for defendants in error.
   Judgment affirmed.


text:
    No. 4769.
    Miller et al. Trustees v. Elder et al.
    (Decided February 16, 1897.)
    Error to the Circuit Court of Hamilton county.

      S. A. Miller, and Gustav Tafel, for plaintiffs in error.

      Syrnmes & Fox and A. B. Benedict, for defendants in error. '
   Judgment affirmed.


text:
    No. 5301.
    Stacy v. The State.
    (Decided February 16, 1897.)
    Error to the Circuit Court of Stark county.

      Atlee Pomerene and William B. Day, for plaintiff in error.

      Clvarles G. Boto, Prosecuting Attorney; George E. Baldwin, and Frank S. Monnett, Attorney General, for defendant in error.
   Judgment affirmed.


text:
    No. 3487.
    English et al. v. Monypeny.
    (Decided February 23, 1897.)
    Error to the Circuit Court of Franklin county.
    Powell, Ricketts <& Black; Selwyn N. Owen and Fairbanks Steele, for plaintiffs in error.

      George TO. Nash; R. A. Harrison; H. J. Booth and C. O. Hunter, for defendant in error.
   Judgment affirmed.

•Shauck, J., not sitting.


text:
    No. 3705.
    The Pennsylvania Company v. Sturges et al.
    (Decided February 23, 1897.)
    Error to the Circuit Court of Richland county.

      Harrison, Olds, & Henderson and Rush Tcoggart, for plaintiff in error.

      Edwa/rd S. Hosmer; D. Dirlam; John B. Ship-man; W. S. Kerr, and Jenner, Jenner <& Weldon, for defendents in error.
   Judgment affirmed. The case was orally argued to the first division but was considered by the the whole court.


text:
    No. 4124.
    The Pennsylvania Company v. Sturges et al.
    (Decided February 23, 1897.)
    'Error to the Circuit Court of Richland county.

      Harrison, Olds, <& Henderson and Rush Taggart for plaintiff in error.

      Edward S. Hosmer; D. Dirlam; John B. Ship-man; W. S. Kerr and Jenner, Jenner d¡ Weldon, for defendants in error.
   Judgment affirmed.

The ease was orally argued to the first division but was considered by the whole court.

Minshall, J., dissents.


text:
    No. 4172.
    Ewing, Admr. v. Baker.
    (Decided February 23, 1897.)
    Error to the Circuit Court of Knox county.

      D. F. <& J. D. Ewing, for plaintiff in error.

      U H & B. M. Greer and Oritchfield <& Graham, for defendant in error.
   J udgment affirmed.


text:
    No. 4174.
    Beilharz, Admr. v. Railway Company.
    (Decided February 23, 1897.)
    Error to the Circuit Court of Franklin county.

      F. S. Monnett; Arnold ds Morton and Finnley, Beer <& Bennett, for plaintiff in error.

      John Ferguson and W. O. Henderson, for defendant in error.
   Judgment affirmed for the reason that one ground of reversal was, that the verdict was against the weight of the evidence. Other questions not passed upon.


text:
    No. 4176.
    Lalley, Admr. v. The Pennsylvania Company.
    (Decided February 23, 1897.)
    Error to the Circuit Court of Mahoning county.

      B. B. Murray and L. 1-7. King, for plaintiff in error.

      J. B. Garry and W. T. Boyle, for defendant in error.
   Judgment affirmed for the reason that one ground of reversal was, that the verdict was against the weight of the evidence. Other questions not passed upon.


text:
    No. 4227.
    Sun Mutual Insurance Company v. Hock.
    (Decided February 23, 1897.)
    Error to the Circuit Court of Hamilton county.

      Paxton, Wamngton <& Boutet and Fred. G. Lamping, for plaintiff in error.

      Isaac B. Matson and Alfred B. Benedict, for defendant in error.
   Judgment affirmed without passing upon the effect of the evidence respecting the alleged notice by telephone.


text:
    No. 4292.
    Crossland, a Taxpayer v. The City of Zanesville et al.
    (Decided February 23, 1897.)
    Error to the Circuit Court of Muskingum county.

      F. A. Durban and W. II. Johnson, for plaintiff in error.

      F. II. Southard, and Isaac R. Humphrey, for defendants in error.
   Judgment to the circuit court reversed and that of the common pleas affirmed.


text:
    No. 4678.
    Railroad Company v. Scott, an Infant.
    (Decided February 23, 1897.)
    Error to the Circuit Court of Guernsey county.

      J. II. Oollins and Fred. L. Rosemond, for plaintiff • in error.

      S. A. Dickson and J. A. Foette, for defendant in error.
   Judgment affirmed on the authority of Roberts v. Mason, 10 Ohio St., 277, and A. & G. Ry. Co. v. Dunn, 19 Ohio St., 162.


text:
    No. 4013.
    Railway Company v. The State ex rel. Lawrence.
    (Decided March 2, 1897.)
    Error to the Circuit Court of Cuyahoga county.
    Dickey, Brewer <& Me Gotean and George G. Greene for plaintiff in error.

      W. H. Polhamus, for defendant in error.
   Judgment affirmed.


text:
    No. 4158.
    Merchants National Bank v. Beman.
    (Decided March 2, 1897.)
    Error to the Circuit Court of Hamilton county.

      Wilby da Wald and Edioards Ritchie, for plaintiff in error.

      ForaJoer <& Prior and David Davis, for defendant in error.
   Judgment affirmed.


text:
    No. 4207.
    Village of Tippecanoe v. Underwood.
    (Decided March 2, 1897.)
    Error to the Circuit Court of Miami county.

      Long do Kyle, for plaintiff in error.

      Ellis II. Kerr & J. A. Kerr, for defendant in error.
   Judgment affirmed.


text:
    No. 4211.
    Long v. Minner.
    Decided March 2, 1897.)
    Error to the Circuit Court of Muskingum county.

      Simeon M. Winn and W. S. O'Neil, for plaintiff in error.

      W. II. Ball and J. T. Grew, for defendant in error.
   Judgment affirmed.


text:
    No. 4586.
    The State ex rel. Attorney General v. Seward.
    (Decided March 2, 1897.)
    In Quo Warranto.

      Frank S. Monnett, Attorney General and Kerr <& La Dow, lor plaintiff.

      Seward c& Bricher and M. May, for defendant.
   Prayer of petition granted and defendant ousted.


text:
    No. 4718.
    Conner et al. v. Gordon, Jr., Auditor et al.
    (Decided March 2, 1897.)
    Error to the Circuit Court of Auglaize county.

      J. J. Walter and Clement Ohler, for plaintiffs in error.

      C. A. Layton and J. H. Qoeke, for defendants in error.
   Judgment affirmed.

Minshall, J., dissents.


text:
    No. 4719.
    Ohler et al. v. Gordon, Jr., Auditor et al.
    (Decided March 2, 1897.)
    Error to the Circuit Court of Auglaize county.

      J. J. Walter and Clement Ohler, for plaintiffs in error.

      C. A. Layton and J. II. Qoeke, for defendants in error.
   Judgment affirmed.

Minshall, J., dissents.


text:
    No. 4733.
    Scherer v. The State.
    (Decided March 2, 1897.)
    Error to the Common Pleas Court of Hamilton county.

      L. E. Pummill and Scott Bonham,, for plaintiff in error.

      S. C. Jones; Clark da Thompson and Dye <& Dye, for defendant in error.
   Judgment affirmed.


text:
    No. 4952.
    McCullough et al., Receivers, v. Jones.
    (Decided March 2, 1897.)
    Error to the Circuit Court of Trumbull county.

      Hiñe da Clarke, for plaintiffs in error.

      Frank Jacobs and Arril da Sullivan, for defendant in error.
   Judgment affirmed.


text:
    No. 4993.
    The State ex rel. Attorney General v. Miller.
    (Decided March 2, 1897.)
    In Quo Warranto.

      Frank S. Monnett, Attorney-General and Kerr da La Doto, for plaintiff.
    Jenner, Jenner da Weldon and Seward da Bricker, for defendant.
   Petition dismissed»


text:
    No. 5001.
    Street Railway Company v. Schmitt, Admr.
    (Decided March 2, 1897.)
    Error to the Circuit Court of Cuyahoga county.

      E. Jay Finney, for plaintiff in error.

      Mine, Carr, Tolies c& Goff, ■ for defendant in error.
   Judgment affirmed.


text:
    No. 5077.
    Railway Company v. Millhorn.
    (Decided March 2, 1897.)
    Error to the Circuit Court of Harrison county.

      J. Dunba/r, for plaintiff in error.

      D. A. Hottingsioorth, for defendant in error.
   Judgment affirmed.


text:
    No. 5134.
    Railway Company v. Scott.
    (Decided March 2, 1897.)
    Error to the Circuit Court of Guernsey county.
    . Mathews <& Ileade and J. J. Brooks, for plaintiff in error.

      B. T. Scott, for defendant in error.
   Judgment affirmed.


text:
    No. 5315.
    Burson et al. Commissioners v. Hixson.
    (Decided March 2, 1897.)
    Error to the Circuit Court of Athens county.

      Grosvenor, Jones do Worstell; Wood do Wood and Sleeper, Sayer c& Davis, for plaintiffs in error.

      A. M. Leiois and L. M. Jewett, for defendant in error.
   Judgment affirmed.


text:
    No. 4155.
    Cooper v. Railway Company.
    (Decided March 9, 1897.)
    Error to the Circuit Court of Hancock county.

      Alfred Graber and John Poe, for plaintiff in error.

      Doyle, Scott do Lewis and PL. F. Burket, for defendant in error.
   Judgment affirmed.


text:
    No. 4212.
    Railroad Company v. Rebman.
    (Decided March 9, 1897.)
    Error to the Circuit Court of Medina county.

      Swayne, Hayes 'do Tyler, for plaintiff in error.

      J. H. Dickson, for defendant in error.
   Judgment affirmed on the authority of Fries v. Railway Co., ante, 135.


text:
    No. 4419.
    Weiser v. Street Railway Company
    (Decided March 9, 1897.)
    Error to the Circuit Court of Cuyahoga county.

      John O. Winship, for plaintiff in error.

      E. Jay Finney, for defendant in error.
   Judgment affirmed.


text:
    No. 4427.
    Graef v. Gates.
    (Decided March 9, 1897.
    Error to the Circuit Court of Miami county.

      Long <& Kyle, for plaintiff in error.

      II. H. Williams, for defendant in error.
   Judgment affirmed.


text:
    No. 4472.
    Darling v. Trustees of Monroe Township.
    (Decided March 9, 1897.)
    Error to the Circuit Court of Richland county.

      Henry & Feed and Cummings & MeBride, for plaintiff in error.

      A. A. Douglass, Prosecuting Attorney, and M. May, for defendants in error.
   Judgment affirmed.


text:
    No. 4483.
    Owsley v. Murphy, Assignee, et al.
    (Decided March 9, 1897.)
    Error to the Circuit Court of Butler county.
    Millikin, Shotts da Millikin, for plaintiff in error,

      A. F. Hume; Israel Williams and Nelson Williams, for defendant in error.
   Judgment affirmed.


text:
    No. 5135.
    Railway Co. v. Irwin, Adm’x.
    (Decided March 9, 1897.)
    Error to the Circuit Court of Guernsey county.

      Mathews d Eeade and J. J. Brooks, for plaintiff in error.

      R\ T. Scott, for defendant in error.
   Judgment affirmed.


text:
    No. 5336.
    Reed et al. v. The State ex rel. McDermott, etc.
    (Decided March 9, 1897.)
    Error to the Circuit Court of Muskingum county.

      L. F. Dodd; E P. Willey and F S. Gates, for plaintiffs in error.

      Thomas J. McDermott; F. A. Durban and A. J. Andrexos, for defendant in error.
   Judgment affirmed.