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Hunt et al. v. Hunter, Treasurer, et al.

We think that the motion of the plaintiff to take the case from the jury ought to have been granted, for all the testimony in the case indi. cates, and that of the plaintiff indicates, clearly, that it was carelessness on his part by which he was injured. Probably he went and stood there doing something, perhaps lighting his pipe---some of the witnesses say rolling a cigarette--but he was doing something with his back towards this derrick, within five feet of it, when it started up and passed over his foot.

We do not think there is any evidence of negligence on the part of the defendant. The defendant had a right to have this machine and the evidence does not show it was not constructed like every other machine of the same kind. Defendant had a right to have it upon this track and use it for its purposes. Upon the defendant was the obligation to furnish one reasonably safe for the work to be performed, and I think the evidence shows that it did it in furnishing this. It is not enough to say that it did not furnish it with a steam whistle, or a locomotive bell, or a sufficient supply of windows. The company had a right to leave off the whistle and bell if it saw fit. This derrick ran on a different gauge than any other wheeled vehicle in the yard—a guage 15 feet wide-on a track 200 feet long, and ran at no other place than upon those two rails 200 feet in length, and it was not required to be fitted up with those apparatus for giving alarms that are provided for locomotives running through the country.

So this judgment will have to be reversed..
McDonnell and J. M. Ritchie, Attorneys for Plaintiff.

King and Tracy, Attorneys for Defendant.

NOTE.—This case was first tried to a jury, before Judge Pugsley, at the January, 1896, term of common pleas court, and resulted in a disagreement. It was again tried to a jury, before Judge Morris, at the April term, 1896, with a like result. The third trial occurred at the September, 1896, term, before Judge Pratt and a jury, and resulted in a verdict for plaintiff of $2,000. Thereupon error was prosecuted to circuit court with above result.

Editor LEGAL News.

ASSESSMENTS.

(Lucas Circuit Court, June 19, 1897.)

King, Haynes and Parker, JJ. MARY H. HUNT, ET AL. V. SAMUEL A. HUNTER, TREASURER, ET AL. 1. ASSESSMENTS FOR Two SEPARATE IMPROVEMENTS-EFFECT.

An assessment for paving a street and for building a sidewalk adjoining

the lot is an assessment for two separate improvements, and there being no statute limiting the amount of an assessment, or percentage of an assessment for two different improvements such as the above, therefore, there is no limitation which will render either invalid because the sum of the two shall

exceed twenty-five per cent, of the value of the lot. 2. THE LIMITATION, AS FOUND IN SECTION 2271, APPLIES TO THE CONSTRUCTION OF SIDEWALKS. The twenty-five per cent. limitation, as found in section 2271, applies to the con

struction of sidewalks, and, therefore, where a sidewalk is constructed and an assessi nt is levied, such assessment shall not exceed twenty-five per cent of the value of such lot at the time the sidewalk was built.

Lucas Circuit Court.

KING, J.

In this case, which is No. 1117 and Nos. 1118 and 1119, submitted with it, we have come to an opinion as to the law governing the case. We have not had time to go over all the papers in the case to get at what the facts are, but shall leave them to counsel until later, in prepar ing the journal entry. I can, however, indicate in this one case-in which I have examined the papers—the theory upon which we have proceeded. In the case of The City of Toledo v. Cole, we have examined the papers. In that case there was an assessment made upon Mr. Cole's lot on the day of July, 1891, for the paving and improving of Lenk street, upon which it is situated, in a sum the amount of which I have not before me; and, on May 15, 1893, there was a second assessment of $89.12 levied and assessed upon that lot for building a sidewalk, and in 1895 a third assessment, for paving and improving Wisconsin street, amounting to $32.30. The court of common pleas found the value of said lot to be $275 before the improvement of Wisconsin street and $300 after it was improved. It is claimed by the defendant that these assessments may be added together, and if they exceed twenty-five per cent. of the value of the lot they are illegal. The court of common pleas held that the Wisconsin street assessment was illegal, and adjudged that the owner should not pay that; and, with that, we are in full accord; but the question is, whether the sidewalk assessment was illegal? The sidewalk assessment was made upon Lenk street, upon which there had been previously assessed a certain amount for paving tax. We think that, clearly, under the authorities, these were two separate improvements, and that there is no statute limiting the amount of an assessment, or percentage of an assessment, for two different improvements, such as in this case--the paving of a street and the building of a sidewalk adjoining the lot—that is, no limitation which will render either invaild because the sum of the two shall exceed 25 per cent. The limitation provided by the statute, sections 2271 and 2283, is that no assessment for any improvement shall exceed twenty. five per cent., and that—as provided in section 2283—if the improvements are completed on intersecting streets, within the period of five years, so that the two joined together shall exceed twenty-five per cent., they shall be illegal beyond that limit. But here it will be noticed that the first two assessments were upon the same street, and, being upon the same street, they cannot be added together; and that, so far as the uwner of the property is concerned, leaves only the question whether the sidewalk assessment exceeded twenty-five per cent. and whether the limitation found in section 2271 applies at all to the sidewalk. As a matter of fact, the $89.12 exceeds 25 per cent. of the value of the lot as found by the court of common pleas—$275—and certainly that value must be taken since it was the value of the lot at the time the sidewalk was built. One-fourth of that would be $68.75, and that amount can only be levied under the limitation of section 2271. It is said by counsel that we should not hold this because it has been determined by this court, in a case of the same title, in an opinion rendered by Judge SCRIBNER in a different way, reported in 5 C. D.90. Upon careful reading, however, of that case, it will be found that this question was not decided. It was not necessary to be decided in that case. There are some remarks in that opinion which would seem to imply that the court was proceeding upon the line that this 25 per cent. did not apply to sidewalk assessments. The court held that.

Hunt et al. v. Hunter, Treasurer, et al.

ander the facts before it at that time, it might fairly be treated as a separate improvement made at another time than that of the street paving and could not be added to the street paving to ascertain whether it exceeded the 25 per cent., but the sidewalk tax alone did not exceed 25 per cent. of the value of the lot in that particular property, so that it was held to be legal upon that property. That being the only question decided there we are not at all embarrassed by that decision. That was not a corner lot case. Under section 2327 it is provided that all of these sections in this chapter relating to assessments, shall be strictly construed in favor of the owner of the property to be affected by the assessment, and a careful reading of all the sections in this chapter will show that there is a connection between all of them. The subject of sidewalks is mentioned in a section of the statutes much earlier than the subdivision which treats of sidewalk assessments. That subject is treated in this same chapter, commencing with section 2328 and following, but at the same time sidewalks are mentioned in earlier sections, and it is clear that the limitation in sections 2271 and 2283 are intended to apply to all of these assessments. If there be two improvements upon the same street, which are clearly separable, then the limitation contained in section 2283 does not apply. But the question only is left, whether either of these assessments, alone, exceeded twenty-five per cent. ? But the lot is a corner lot, and the intersecting street has been improved, so that there are two street improvements which (not as in the Cole case, but I think one of the others) preceded in order of time the building of the sidewalk, and then the street assessment and the sidewalk assessment may be added together to determine whether the whole exceeds 25 per cent., and in that case—under section 2283–if the sidewalk assessment, together with the assessment upon the intersecting street, exceeds 25 per cent., it would be illegal, but not so when the sidewalk and the street assessments are upon the same streets. In the Cole case, they were upon the same street, except that after the sidewalk was improved then the improvement was made upon Wisconsin street. But the sidewalk assessment, at the time it was made, was legal to extent of 25 per cent. of the valuation, and it was not rendered illegal by the making of the other assessment.

I think from these remarks counsel can prepare the entries in these cases. In the Cole case I have indicated exactly what the entry should be; in the others I have not, because I have not had time to go over the papers and ascertain the order in which these assessments were made and whether in every case they were intersecting street improvements. We hold that, standing alone, the sidewalk assessments must be limited to 25 per cent., and we are clearly satisfied that that is correct.

C. F. Watts and William A. Mills, Attorneys for Plaintiffs.
P. A. MacGahan and T. J. McDonnell, Attorneys for Defendants.

7 Dec. 32

Logan Circuit Court.

JUDGMENTS—PLEADINGS-SURETIES.
[Logan Circuit Court, October Term, 1896.]

Day, Price and Rohn, JJ.
E. J. HOWENSTINE, ADM’R, V. JOHN 0. SWEET ET AL.
1. POWER OF COMMON PLEAS COURT TO OUNCEL OR ANNUL A JUDGMENT OB-
TAINED BY FRAUD.
The court of the common pleas, having general equity Jurisdiction and

powers independent of the provisions of section 5354, Revised Statutes, has power, in an original action for that purpose, to cancel or annul &

judgment for fraud practiced by the successful party. 2. THE SPECIAL PROCEEDING PROVIDED BY SECTION 5354 IS CUMULATIVE MERELY.

The special proceeding provided by section 5354, et seq., is cumulative

merely, not exclusive, and not limiting the right, by an original action

to impeach a judgment for fraud. 8. PLEADING IN AN ACTION TO SET ASIDE A JUDGMENT OBTAINED BY FRAUD.

In an action to vacate and set aside a judgment or order of the probate

court, discharging the sureties on an executor's bond, which cause of action is based on the ground that the judgment or order of discharge was procured by fraud successfully practiced on the court, and the peti. tion definitely states all the facts constituting the fraud, such petition

states a good cause of action and is good as against a general demurrer. 4. RIGHTS AND LIABILITIES OF A SURETY ON AN EXECUTOR'S BOND.

The rights and liabilities of a surety on an executor's or administrator's

bond are fixed and determined by the provisions of the statute. The contract of such surety is made with reference to the provisions of the statute bearing on the subject, and its provisions are as much a part of

the contract as if written into it. 6. How A SURETY ON AN EXECUTOR'S BOND MAY BE RELEASED FROM LIABILITY.

A surety on an executor's or administrator's bond may be released from

liability thereon by order of the probate court, on request and good cause appearing to the court, and the court shall order a new bond given, but the surety shall not be released until such new bond is given.

APPEAL from the court of common pleas of Logan county. DAY, J.

The plaintiff is administrator in place of John O. Sweet, removed. The action here and below is to vacate and set aside a judgment or order of the probate court discharging the sureties on an executor's bond, and is based on the ground that the judgment or order of discharge was procured to be entered by a fraud successfully practiced on that court. The matter was submitted and disposed of on demurrer to the petition.

The facts stated in the petition as a basis for the relief prayed, are, in substance: That plaintiff is administrator in place of John 0. Sweet, removed, who was duly appointed and qualified executor of the last will of George Foulk, deceased; that Adam Foulk, Jacob Foulk and David Watson were sureties on the bond of Sweet as such executor, in the sum of $100,000; that in March, 1890, Adam Foulk made application to the probate court of Logan county, O., under the provisions of section 6204, Revised Statutes, to be released from liability as surety on said bond, under which application such proceedings were had that Sweet was ordered and required to give a new bond; that afterwards, on March 31, 1890, pursuant to the order of the said court, Sweet did make and file in

Howenstine, Adm'r, v. Sweet et al.

said court a paper signed by himself, and purporting to have thereto the signatures of David Watson and Peter Detrick as sureties,and falsely represented and pretended that said signatures were the genuine signatures of said persons, and the said court believing said representation and pretense to be true, and that said signatures of Watson and Detrick were genuine, accepted said new bond as true and genuine, entered judgment to that effect and discharging Adam Foulk from further liability on the said original bond; that said bond was not a true and genuine one, but was a forgery; that said representation and pretense were false and fraudulent; that the said signatures of Watson and Detrick were in fact forged and counterfeit, and not genuine, and the probate court was imposed upon, misled and induced, by such fraudulent and criminal conduct to make and enter the said judgment, so that the order approving the alleged new bond and the sureties named, and discharging the said surety on the original bond, was directly procured by fraud; that Sweet was subsequently removed as executor, and a settlement of his accounts shows him a defaulter to the extent of more than $19,000, for which suit has been instituted on the original bond, and is now pending; that on the trial of said suit the record of the judgment of the probate court releasing said sureties, if allowed to stand, will be evidence greatly deterimental to the rights of plaintiff. The prayer of the petition is that the said judgment or order releasing the sureties on the original bond be vacated, annulled and held for naught as a fraudulent thing.

The demurrer suggests: 1. That the court has no jurisdiction to hear and determine the question, or to grant the relief prayed. 2. If the court has jurisdiction of the subject matter, the petition does not state facts sufficient to constitute a cause of action against the defendants, or either of them. 3. The defendants are not necessary nor proper parties.

Sweet, Adam Foulk, Jacob Foulk and the executor of David Watson, deceased, are the defendants named. They are also defendants to the action on the original bond. They are directly interested in the result of the suit, and will be benefited, or otherwise, accordingly as the result is favorable or unfavorable; and it would seem, under the express provisions of the code of civil procedure, are both proper and necessary parties. This being so, then but two propositions raised by the demurrer and urged by counsel remain to be disposed of, viz.: 1. Has the court jurisdiction of the case? 2. Do the facts stated constitute a cause of action against the defendants ?

1. As to the first proposition, the supreme court, in the case of Darst v. Phillips, 41 0. S. 514, seem to have decided the precise question, and settled it adversely to the claim of the demurrant. In that case it is held that the court of common pleas, having general equity jurisdiction, and powers independent of the provisions of section 5354, Revised Statutes, has power to cancel or annul a judgment for fraud practiced by the successful party, in an original action for that purpose, and that the special proceeding provided by said section 5354, et seq., Revised Statutes, is cumulative merely, not exclusive, and not limiting the right, by an original action, to impeach a judgment for fraud. To the same effect is the case of Coates v. Chillicothe Bank, 23 O. S., 415. But the case of Darst v. Phillips is directly in point, and, as we think, clearly decides the question of jurisdiction raised in the case.

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