Hamilton County Appeals.

and that upon warning being given, it became the duty of the plaintiff to turn back or to wait until defendant's employees saw fit to allow him to pass. This surely can not be the law, and rather are we inclined to the view that it was the duty of the defendant to exercise a high degree of care in preventing injury to anyone in the lawful and customary use of the street. This therefore, is not a case where the evidence of the plaintiff raised a clear presumption of negligence upon his part without any evidence tending to rebut it, which theory is the only one upon which the action of the court below could be sustained.

As touching facts and the law in this case, we think the following citations are worthy of notice: Ham v. Railway, 13-23 O. C. C. 496; Pennsylvania Co. v. Rathgeb, 32 Ohio St. 66; Marietta & C. Ry. v. Picksley, 24 Ohio St. 654; Cleveland, C. & C. Ry. v. Crawford, 24 Ohio St. 631 [15 Am. Rep. 633]; Cincinnati St. Ry. v. Snell, 54 Ohio St. 197 [43 N. E. Rep. 207; 32 L. R. A. 276], and the most recent case of Gibbs v. Girard, 88 Ohio St. 34 [Ann. Cas. 1914 C, 1082].

For the reasons above stated, the judgment is reversed, and the case remanded to the court of common pleas for further proceedings.

Swing, and Jones, O. B., JJ., concur.

Cook v. Pardee.

APPEAL-ELECTIONS.

[Ashtabula (7th) Court of Appeals, September Term, 1914.]

Spence, Pollock and Metcalfe, JJ.

H. D. COOK V. I. H. PARDEE.

1. Date of Service of Notice of Appeal in Election Contest and Date of Service of Notice to Take Depositions Excluded.

In measuring the minimum time in which depositions can be taken under the provisions of Sec. 5149 G. C., the day of service of notice of the notice of appeal must be excluded and ten days must intervene, excluding the day of service before the deposition can be taken; and if the notice of appeal states a shorter time, the depositions taken by contestant, without the appearance of contestee, should be stricken from the files on motion of contestee.

2. Mistake in Notice of Appeal Naming Date for Depositions not Jurisdictional.

A mistake in the notice of appeal in the contest of an election by naming a date for taking depositions less than ten days after the day of service of notice of the contest does not deprive the court of common pleas of jurisdiction of such proceedings.

3. Dismissal Without Prejudice of Notice of Election Appeal not Bar to Another Appeal Within Prescribed Time.

Where notice of appeal in the contest of an election is dismissed

without prejudice to a new action on motion of contestant a second appeal may be taken by the same contestant within the time fixed by statute.

ERROR.

H. R. Hill, Frank F. Gentsch and H. E. Starkey, for plaintiff in error.

B. F. Perry, J. F. Munsell and A. T. Ullman, for defendant in error.

POLLOCK, J.

The plaintiff, H. D. Cook, and the defendant, I. H. Pardee, were candidates for mayor of the city of Ashtabula at the municipal election held in that city on November 4, 1913.

Upon the canvass of the votes cast at that election, the deputy state supervisors of elections for Ashtabula county delivered 5 O. C. C. Vol. 36

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to the defendant, Pardee, a certificate of election as mayor of said city.

On December 2 of the same year the plaintiff, H. D. Cook, filed with the clerk of the court of common pleas a notice of appeal to contest the election of I. H. Pardee, and on the same day caused notice in writing of such notice of appeal to be served on the defendant, I. H. Pardee.

On December 8, Pardee, appearing for the purpose of the motion only, moved the court to set aside the pretended service for the reason that the pretended service showed upon its face that no notice was served upon said contestee. This motion was overruled, and then the contestee filed a further motion on the ground that prior to the filing of this notice the contestant had filed a notice of contest of the same election, and afterwards dismissed it without prejudice to a new action. This motion was also overruled by the court.

Thereupon the contestee filed a further motion asking that the depositions taken in obedience to the notice of contest be stricken from the files. Upon a hearing this motion was sustained, and the depositions were stricken from the files.

Thereupon the contestee filed a motion to set aside the pretended service of notice on contestee of notice of contest, and to quash said appeal, which was sustained by the court and the proceedings dismissed. The judgments of the court striking the depositions from the files, and setting aside the service of notice and quashing the appeal, are assigned as errors by the plaintiff in error in this action.

Section 5169 G. C. provides that the election of city officers may be contested in the manner provided for the contest of the election of county officers.

Section 5148 provides that the election of county officers may be contested by any elector of the county by appeal to the court of common pleas of the county.

Section 5149 provides for notice of the appeal as follows: "The contestor shall file a notice of such appeal with the clerk of such court and give notice thereof in writing to the contestee, or leave such notice at the house where he last resided,

Cook v. Pardee.

on or before the thirtieth day after the day of election. The notice shall state the grounds of contest and the names of two justices of the peace before whom depositions will be taken, and the place, and a time not less than ten days nor more than twenty days from the day of service thereof, where and when such justices will attend and take the depositions."

Referring now to the error complained of in striking the aepositions from the files, the contestee claims that the date. named in the notice of contest was less than ten days, as required by the provision of the above section. Notice of the contest was filed with the clerk of court, and service thereof was made on December 2. This notice provided that the depositions should be taken on December 12. It is urged that this was less than the ten days' time provided by statute. It will be observed that the statute provides that the depositions shall be taken not less than ten days from the day of service thereof.

The Supreme Court of this state in the case of State v. Roney, 82 Ohio St. 376 [92 N. E. Rep. 486; 19 Ann. Cas. 918], say:

"A statute declared to take effect from and after a date named, takes effect on the day after the day of the date named."

And in the same case Justice Summers in the opinion says that the word "from" is a word of exclusion. Following the holding in this case the word "from" would exclude December 2, the day the notice was served. Counting from that date the ten days' notice required by the code would not have expired until December 13, and that day would have been the first day that the depositions could have been taken.

This rule will be further illustrated by reference to the case of Best v. Doe, 85 U. S. 112 [21 L. Ed. 805]; Bemis v. Leonard, 118 Mass. 502 [19 Am. Rep. 470]; Holt v. Richardson, 134 Ga. 287 [67 S. E. Rep. 798].

There was no error in the action of the court below in striking the depositions from the files.

The next error complained of was in the court sustaining the motion to set aside the service of notice and dismissing the appeal. Some little complaint is made on the part of the con

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testee of the notice served upon him-that it recited that the notice of appeal was filed November 2. This was a mere clerical error and could not deceive the defendant. The election which was being contested was not held until after November 2. In addition to that the statute does not provide for notice of the date of filing. It says that the contestor shall file a notice of such appeal with the clerk, and give notice thereof in writing to the contestee. The mistake in date of filing notice of contest did not deprive the court of jurisdiction.

Some objection is made that the notice served on the contestee did not contain a copy of the notice of appeal filed with the clerk, but simply stated that a copy of such appeal is hereto attached. If it is necessary that the notice served on the contestee should contain a copy of the notice of appeal filed with the clerk, the attaching of it to the notice would be sufficient; it would then be part of the written notice served on defendant. But an examination of Sec. 5149 will show that it was not necessary that the copy of the notice of appeal filed with the clerk should be served upon the contestee. The section only provides that the contestee shall have notice in writing that a notice of contest has been filed with the clerk. This would not require that a copy of the notice of appeal accompany the notice to the contestee, or be served on the contestee.

We come now to the principal ground claimed for dismissing these proceedings. We have already stated that the notice of appeal was filed on December 2, and provided that depositions should be taken before two justices of the peace on December 12, and that the time fixed by this notice for taking the depositions was not sufficient under the requirements of the statute, and that it was proper to strike the depositions from the files. The question now to be determined is, is the requirement in the statute of the time depositions shall be taken jurisdictional, and if an error has been made in stating the time for taking the depositions does it deprive the court of common pleas of jurisdiction to hear and determine the contest?

Not much assistance in determining this question can be re