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Railroad Company v. McLaughlin.

the knowledge of, and without any objections from his father, and that when he was so employed as a freight handler, he had filed a written application for employment with Coneys, the agent, in which he represented that he was 21 years of age June 3, 1892. That when he was employed as a brakeman by Coneys, in April, 1893, the latter believed from his statement, appearance, conduct and size that he was of age, that his general make-up, his size and his appearance led him to believe that he was over 21 years of age.

We are of the opinion that the charge as asked was correct and should have been given to the jury in the language asked or in substance, but it was not done. The fact that in 1891, a year and a half before this last employment by the son, the plaintiff had simply informed the agent of the company that his son was then a minor, should not be held to be notice to the company, that he was not of age in April 1893. In the natural course of events, if the son lived he would become of age. And the question for the consideration of the jury was, whether the defendant company was negligent in employing him in 1893. If the officer of the company at that time in good faith believed, and had reasonable ground to believe from the size, appearance, conduct and statement of the son, that he was then of full age, it would seem that this would be the exercise of reasonable care and the company could not be deemed to have been negligent. As has been said there was no charge equivalent to that asked. The instructions of the court on this point were to the effect that the company or its agents should have used reasonable care to ascertain the age of the son, without in any way defining what such care was.

The defendant's counsel also asked the court to give this special charge to the jury, which was refused, and exceptions taken.

“In any aspect of the case, the defendant was not required as matter of 'aw, to inquire of plaintiff whether his son had reached his majority.”

It seems to us that this charge also should have been given. It was the duty of the defendant company towards this plaintiff, to use reasonable care to ascertain the age of the son, before putting him into a dangerous position or occupation. But we know of no principle of law, or any adjudication of a court which goes so far as to make it essential and necessary that inquiry should be made of the father as to the age of the

It is manifest that a very high degree of care as to this might have been shown without any such inquiry of the father. The refusal of the court to give this charge was in effect a holding that such inquiry was essential to prove reasonable care on the part of the company.

For these reasons, the judgment of the court of common pleas will be reversed and a new trial awarded.

Ramsey, Maxwell & Ramsey, Attorneys for the Railroad Company.
Peck & Phaffer, Attorneys for McLaughlin.

son.

Hamilton Circuit Court.

JUDICIAL SALES -ASSESSMENTS-LIENS.

Hamilton Circuit Court, 1897.]

Cos, Smith and Swing, JJ.
THE CITY OF CINCINNATI V. H. H. LINGO ET AL.

FAILURE OF CITY TO SET UP AN ASSESSMENT LIEN.

Where the city fails to set up an assessment lien against property going to a

judicial sale, such lien cappot afterwards be asserted against the property

HEARD ON ERROR. SMITH, J.

The question in this case briefly stated is this.-An action was brought in the court of common pleas of this county for the foreclosure of a mortgage on certain real estate in the city and to marshal the liens thereon. Before that time viz. : in 1892, the city by an assessing ordinance had levied an assessment upon such property, viz.: a street improvement, payable in 10 annual installments, and in 1889 had levied another assessment thereon for the improvement of alley, and which was also payable in 10 annual installments, part of which had been paid at the time of the filing of the petition for the foreclosure, viz.: February 4, 1893. After the filing of this petition the city was made a party defendant, and thereupon came into court and by its answer and cross-petition set up its claim for the amount due upon the street assessment, viz.: $297.95 but said city entirely failed by its answer or cross-petition to set up any claim on account of the alley assessment. The defendant in error purchased said real estate at the sale thereof made by the sheriff under the decree of the court in said case, which sale was confirmed by the court, and a distribution of the proceeds of sale ordered. The court found that there was due to the city for street assessments $297.95 and this sum was paid in full to the city. Afterwards the defendants in error filed a petition in the court of common pleas averring that the city by its officers were taking steps to collect the alley assessment, and setting up the facts mentioned, and averring that for said reasons the collection thereof would be illegal, and that the city was estopped from the collection thereof against the property in the hands of the plaintiffs, and asking an injunction to prevent said collection. The city filed a general demurrer to this petition which was overruled by the court, and the defendant not desiring further to plead, a decree was entered as prayed for. The plaintiff in error in this proceeding claims that in such action the court erred, and this is the question for decision.

Under the provisions of section 2285, the assessment for the improvement of the alley became a lien on this property from the date of the assessing ordinance, and on the facts set up in the petition in this case, if the city in its answer and cross-petition filed in the original suit had set up its claim for the alley assessment also, the court might properly have found it to be a lien on the property, (unless controverted by the owners on some sufficient ground,) and ordered its payment from the purchase money.

It seems clear too on general principles, that if in an action of that kind, to foreclose a mortgage and marshal and adjudicate as to other liens held by other persons on the same premises, the holders of such liens are made parties to such proceeding and called upon to set up their said liens, and they fail or neglect to do so, or by way of answer

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City of Cincinnati v. Lingo et al.

or cross-petition set up only a part of the claims held by them at the time they became parties, and the court adjudicates as to the rights of such lienholders, and the property is sold to pay them, and the purchase money distributed according to the order of the court, in such case, if such decree stands in full force, the purchaser of the property takes it free of the claims of all parties to the proceeding, not only of those asserted and adjudicated, and the parties are estopped to set up, as against the purchaser of other claims held at the time, but not set up by them. This is certainly a fair and equitable doctrine, and almost essential to the projection of purchasers at judicial sales.

I have said that this is the general rule. Does it apply to a case of this kind, where the lienholder is a municipal corporation, and the lien itself is for an assessment upon the property?

The claim of the corporation counsel is, that it does not. That in such case the city is not a necessary or proper party, and if made a party is not bound to assert its claim, and if it does not do so, or if it does file an answer and cross-petition, and by mistake or otherwise fails to set up its whole claim, and the liens are adjudicated as in this case and the property sold, that the lien omitted to be set up remains upon the property, and can be asserted at any time. That in this respect such a lien for an assessment is like that of the state for taxes, and that in cases to sell property or marshal liens the state or its representative is never made a party.

The question is a novel one and as to which the members of the court are not agreed. So far as our knowledge goes, the point has never been raised in practice. It has always, we think, been the practice in such cases, to make the municipal corporation a party, and for it to set up and assert its lien, and a majority of the court is of the opinion that such is the proper practice, and that it ought to be followed, or at the least, that if the corporation is made a party, and fails to set up its lien or claim, or does it incorrectly, and it is adjudicated, that the same rules should apply to a municipal corporation, as to an individual or a private corporation. · That the same rule does not apply to an assessment made by a municipal corporation as does the lien of the state for taxes. The latter is the sovereign power. It is not liable to a suit, unless in the cases specifically provided for by statute. It is not affected by suits or adjudications to which it is not a party. Its lien for taxes is the first and best lien, and must be paid. And for the protection of purchasers at judicial sales, section 2854 Revised Statutes, provides that "on all judicial sales, the court, ” (without pleadings of any kind raising the question,) "shall order the taxes and penalties, and the interest thereon against said lands to be discharged out of the proceeds of such sale.” This renders it wholly unnecessary for the question to be raised by any pleadings. But we have never understood that this provision applied also to assessments made by a municipal corporation. The state as a sovereign power in many respects stards on a very different footing from private persons or corporation, or even municipal corporations. For instance as to the bar of the statute of limitations. The maxim"nullum tempus occured regi."applies to the state, but not to municipal corportations as held by our supreme court, and if a person is permitted by a statute to sue the state, it would be as much bound by the adjudication of the court, as an individual, and we suppose the same principles of estoppel would apply in such case.

A majority of the court then is of the opinion that the petition of the plaintiff stated a good cause of action against the city, the defendant.

Cuyahoga Circuit Court.

That such defendant by reason of the proceedings in, and the judgment of the court in the case mentioned, was estopped from the enforcement of this alley assessment as against the land of the plaintiffs below who purchased it at the judicial sale made under the order of the court in that case, and therefore that the demurrer to the petition was properly overruled, and the judgment will be affirmed.

Fred Hertenstein & W. H. Whittaker, Attorney for the City

J. H. Charles Smith, Attorney for Lingo. SWING, J. (dissenting opinion.)

I do not agree with the majority of the court as to the question here determined. It seems to me that the city was not a necessary or proper party and that the question of its lien was not before the court for any determination. The lien of the city had been fixed by the assessing ordinance and unless directly set aside by a court in a direct proceeding could only be relieved by payment. The mistake of any officer in saying what the amount of the assessment was, cannot bind the city and there does not arise in this case an estoppel.

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ORDINANCE-ARREST.

(Cuyahoga Circuit Court.]

Caldwell, Hale and Marvin, JJ.

John BILLINGTON v. CHRISTINE HOVERMAN.
1. VALIDITY OF AN ORDINANCE PROVIDING FOR THE PUNISHMENT OF LASCIVIOUS

BEHAVIOR.
An ordinance, passed by a hamlet, providing for the arrest of any person guilty

of any loud or lascivious behavior in the streets, alleys and other public
places in such hamlet, is valid, and full authority is given the hamlet to pass

such ordinance, by the provisions of section 1653, Revised Stațutes. 2. LIABILITY OF AN OFFICER MAKING ARREST ON VIEW.

Where a person is arrested on view, without a warrant, for the violation of an

ordinance providing for the arrest and punishment of any person committing
certain mentioned inimoral acts, and trial and conviction followed for the iden-
tical offense for which the arrest was made, the officer making such arrest is
accorded the sanie protection from a civil action for damages for the injury
resulting from the arrest, by the party arrested, as if the arrest had been made

under the authority of a warrant. HALE, J.

The case of John Billington against Christine Hoverman is a proceeding in error pending in this conrt, in which the plaintiff in error seeks to reverse a judgment that the defendant in error obtained against him. The defendant in error in her petition charged that the plaintift in error, Billington, and one C. L. Tyler, had unlawfully caused her arrest and imprisonment, and she sought to recover compensation for injuries which she had sustained by reason of such arrest and imprisonment.

The answer of the defendant was that Tyler was the president of the board of trustees of the hamlet of Lakewood, and that Billington was the marshal of said hamlet; that the arrest was made and the imprisonment of the defendant caused for a violation of an ordinance of the hamlet which justified that arrest.

Billington v. Hoverman.

The first point made in behalf of the defendant in error is that the ordinance under which the arrest and imprisonment was had and under which the officers justify, was illegal and void for the want of power in the hamlet to pass the ordinance. The second section of the ordinance, the one which the defendant in error was charged with haviug violated reads:

“It shall be unlawful for any person to commit any indecent, immodest, lewd and filthy act, or utter any lewd, lascivious or filthy words, or use any scandalous, obscene, indecent or profane language in the presence of any other person or persons, or make any immodest, obscene or insulting motions or gestures to or about any other person publicly in the hamlet. Any person violating this ordinance shall be punished as here provided."

We think this ordinance is a valid one, and that full authority is given to the hamlet to pass such ordinance, by section 1653, Revised Statutes of the state, the second and third sub-divisions of that section.

Going to the transaction, it appears from the record here that the defendant in error was arrested about 12 or 1 o'clock of the night of the 18th of August 1894; that she was taken immediately before the president of the board of trustees, Tyler, whose duties were similar to those of mayor of municipal corporations, an affidavit filed, a warrant issued, trial and conviction had and a commitment to the county jail. The arrest it will be seen took place prior to the filing of the affidavit, but the prisoner was taken immediately before the president of the board of trustees.

The trial court ruled that the proceedings before the president of the board of trustees were a complete protection to the officers for all that was done after the filing of the affidavit, since the trial resulted in a conviction. But the trial court also in substance held that the officer's liability in this action for the arrest, and the transaction prior to the filing of the affidavit, was to be determined wholly independently of the fact that there had been a trial and conviction for the offense for which the defendant was arrested. The jury were permitted to pass not only upon the question whether the arrest was made on view of the transaction, but permitted to pass upon the question whether the defendant in error was guilty of that transaction, although the arrest was made on view of it, whatever it was. It will readily be conceded that if the arrest had been made under the authority of a warrant issued by the mayor after affidavit filed, followed by conviction, no action could be maintained against the officer for making the illegal arrest. The record of the trial and conviction would in such case be a complete vindication of the officer. At common law the officer was authorized and empowered to make arrest on view for a felony, to apprehend one in the act of the commission of a felony. And if trial and conviction followed the offense for which the arrest was made, the officer was accorded the same protection as if the arrest had been made under the authority of a warrant. Bear in mind that I say if the trial and conviction followed for the identical offense for which the party was arrested the result is as I have stated. By statute in this state the right to arrest on•view has been extended, and now includes violations of the statutes of misdemeanors, and also ordinances. Section 7129, Revised Statutes provides:

"A sheriff, deputy sheriff, constable, marshal or deputy marshal, watchman, or police officer, shall arrest and detain any person found vio

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