Page images



An action pending in the superior court of Cincinnati, on and before November 1, 1893, and in which a judgment was entered on June 20, 1894, ten days before the law of May 16, 1894, took effect, cannot properly be appealed to the circuit court, and motion to dismiss such appeal will be sustained and the case stricken from the docket. Thompson v. Building Assn.

68. Where an appeal has been perfected, and the court has acquired jurisdiction of the parties, but no pleadings having been filed within the rule days for filling pleadings in such cases, the defendant may either move to dismiss the appeal or file his answer, asking for judgment upon the answer for failure of plaintiff to file his petition. Parker V. Haight.

609. A petition on appeal may be amended. Bausch v. McConnel.

547. An appeal bond from the pro bate court to "the appellate court" is vacated when the judgment which follows in the common pleas is re versed and a different judgment rendered by the circuit court. Miller v. Ryan.


Where railroad has taken possession of land for its right of way without the owner's consent, such property belongs to the owner up to the time he tenders the deed, and, if, at the time of tendering the deed, he elected to hold the company for the land and receive for it the compensation due him for its value, his cause of action arose by that election, and he had the right to bring and maintain his suit, and damages should be awarded of the date when the title of property passed, that is, for the value of the land to the owner at that time. W. & L. E. Ry. Co. v. Fries et al. 297.

In such case it is error to allow testimony to be offered as to the value of the land when the railroad went into possession, in that it was offered and directed to a point of time prior to the time when the cause of action accrued. Such tes. timony should have been confined to the time when the deed was delivered.

Ib. It is error to refuse to charge the jury that in such case plaintiff is not entitled to recover damages to land not taken by the railroad, but

is restricted to compensation for land taken.

Ib. In determining the market value of lands sought to be appropriated by a city for water-works, the jury are precluded from considering its enhanced value, from the fact that it was adapted for a reservoir, which was the very purpose for which it was being appropriated, and the jury is not permitted to make any use of the fact that such lands may have increased in value by the proposal or construction of the work for which it is to be taken. Gibson V. Norwalk.

6. When a municipal corporation seeks to appropriate private property under sec. 2235, Rev. Stat., as amended (91 O. L., 127), the mort. gagees of such property are not necessary parties to be notified of the resolution before the passage of the same. Put-in-Bay v. Stimmel.

380. Where plaintiff, a municipal corporation, seeks to enjoin a party from cutting trees on certain lands, which plaintiff alleges in its petition it has commenced proceedings to appropriate, and defendant answered denying the allegations in the petition and also sets up a crosspetition asking for

а counter injunction enjoining plaintiffs from prosecuting their aforesaid appropriation proceedings: Held, that defendants could not maintain a cross-petition enjoining plaintiff from prosecuting another suit in the same court for any reasons grounds which might have been set up as a defense to the appropriation proceedings. Put-in-Bay v. Webb et al.

478. Where a municipal corporation has commenced appropriation pro ceedings of land for park purposes under the provisions of sec. 2232 as amended (91 0. L., 213), relating to the appropriation of land, in such case: Held, that it is not necessary for the corporation clerk to file, before appropriation proceedings are commenced, certificate showing that the money required to be paid for the appropriation of the land in question was then in the treasury to the credit of a fund for that purpose.


To constitute probable cause so as to warrant the arrest of a person for the commission of a crime there must be such circumstances and sur. rounding facts as will lead a person





of ordinary prudence to believe in the guilt of the person arrested, and if the facts show that to be the case, then there is probable cause for arrest. Britton v. Granger. 182.

Where an officer finds one violating a law or ordinance, and then and there arrests him, and thereafter files an affidavit charging him with the offense he was found committing, the prosecution begins with the filing of the affidavit and not with the arrest. If such officer, before making the affidavit, takes the advice of an attorney-at-law, upon full and fair disclosure of the facts and follows his advice in making an affidavit, and prosecuting


so charged, the officer is entitled to tbe benefit of such consultation and advice, in determining whether he had reasonable or probable cause for the prosecution.

Ib. Where a person is arrested on view, without a warrant, for violation of an ordinance, and trial and conviction followed for the identical offense for which the arrest was made the officer making such arrest is accorded the same 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. Billington v. Hoverman.

358. Where an affidavit charging & person with the commission of a crime, describes the accused by ini. tials merely, and a warrant is issued upon such affidavit, such warrant is not void for that reason, the same being regular in form in all respects to constitute it a valid warrant for tho arrest of the accused and the officer having such warrant to execute is clothed with the authority to make the arrest. State v. Miller, 552.

In attempting the arrest of one accused with the commission of a crime, who is found expecting the officer and is armed with deadly weapons to resist the arrest, it is the right of such officer to use necessary strategy to disarm the accused before producing the warrant.


Where an owner of premises abutting upon a street leases them with the provision that the lesseo, in addition to annual rental, is to pay all taxes and improvement assessments, and the street is afterwards paved when a street railway secures a franchise in said street,

and in return agrees to repay the assessments that were made for paving, such money belongs and should be paid to the property owner. Harkness v. Schiely. 108.

The street assessment on a triangular corner lot should not exceed its greatest breadthwise frontage. Thompkins et al. V. Village of Norwood.

416. An assessment for paving a street and for building a side walk 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. Hunt v. Hunter.

495. The twenty-five per cent. limi. tation, as found in sec. 2271, applies to the construction of sidewalks, and, therefore, where a sidewalk is constructed and an assessment is levied, such assessment shall not exceed twenty-five per cent. of the value of such lot at the time the sidewalk was built.

Ib. Under sec. 2272, a lessee of property is not the owner of such property for the purpose of signing a petition for the improvement of certain streets, making the assessments binding upon the interest of the owners of such lots. Kemper v. (village) St. Bernard.

617. Such lessee can only represent his own interest therein, and not that of his lessor, and such lessor is not bound by the act of the lessee in signing such petition.

Ib. The lessee is not the agent of the lessor for the purpose of signing & petition asking for the improvement of certain streets.


A deed of assignment conveying lands of the assignor situate in an. other county of the state than that of his residence takes effect as to all persons from the time of its delivery to the probate court of the county in which the assignor resided at tho time of its execution. Harrison v. Chatfield.

692. It is not necessary that it be also filed for record with the recorder of the county where the land is situats.


The claim for damages in an
action for breach of a contract of
marriage, is a debt on demand aris.
ing upon contract, within the mean-
ing of sec. 5521, Rev. Stat., and
plaintiff may have an attachment on
the ground that defendant is a non.
resident. Albert V. Armstrong.

Refusal of a justice to discharge
an attachment cannot be reviewed
on error when there was no excep-
tion to such ruling and no bill of
exceptions taken, setting out the evi-
dence submitted. Bradley V.

It is error for a justice for
failing to discharge an attachment,
where the only evidence was the affi.
davit of plaintiff averring the
grounds of attachment, and defend.
ant's afidavit denying those aver-
ments. In such case the burden of
proof ison plaintiff to prove by
other evidence that his affidavit is

Where an attachment has been
granted against an unmarried man,
his subsequent marriage will not
affect the vested rights of plaintiff,
nor will the attachment be dissolved
on these grounds.

A defendant in a bastardy pro
ceeding whose earnings have been
garnisheed is entitled to his exemp
tions linder the provisions of sec.
5430, Rev. Stat., even though such
defendant be a non-resident. State
ex rel, Herr v. O'Brien.


In an action for the recovery
upon a forfeited recognizance, it will
be sufficient if the petition sets forth
exactly what was done to constitute
the forfeiture, and it is not necessary
to allege that the bond was duly for-
feited. Kinney v. State.

A recognizance being a promise
to pay the money condition
broken draws interest from the time
when it becomes due, which is from
the date of its forfeiture.


In a bastardy proceeding testi.
mony offered on behalf of defendant
to show that at times from six
months to a year prior to the time
the prosecutrix conceived the
bastard child she associated with a
man other than defendant under air
cumstances and in situations that
afforded them opportunities to have
sexual intercourse unaccompanied
by an offer to prove that they had

shown a disposition to have sexual
intercourse, was properly excluded:
First, because of the remoteness of
the time. Second, because evidence
of mere opportunities without eri.
dence of disposition also to commit
such acts was immaterial. Ely v

Reviewing court is not author.
ized to disturb the judgment of the
trial court on the ground that the
judgment required to be paid by the
reputed father for the mainte
nance of the bastard child is exces.
sive, unless it shall appear that
there has been an abuse of the dis-
cretion vested in said trial court,
and in this case the court refuses to

disturb a judgment of $1,300. Ib.

The failure of a justice to
transmit a bill of exceptions to the
clerk of the common pleas within
ten days from its allowance, is not
ground for striking such bill fronı
the files. Borsodi v. State. 31

A bill of exceptions must be in
the hands of opposite counsel on or
before the fortieth day after the
overruling of the motion for a new
trial, and in the hands of the judge
for his allowance on or before the
forty-fifth day after the overruling
of such motion. Dwelle v. Wilson.

There is no provision for taking
a bill of exceptions to a matter ron.
sidered alone by the judge, therefore,
it is impossible to take a bill of
exceptions to the consideration by
the judge of the question as to
whether he shall sign another bill
of exceptions, consisting of facts

occurring in a trial in court. Ib.

No action can be maintained
against the maker of a promissory
note, which is barred by the statute
of limitations, on a verbal promise
to pay, made after the bar had arisen
the consideration of the promise
being the original and valid debt.
Stephenson v. Line.

Where a person draws a number
of bills and endorses a number of
notes, signing his own name thereto,
with the word “agent" added, such
person is personally liable upou
such bills and notes. Barnhisel v.

Where a note on its face in
barred by the statute of limitations,
and a payment endorsed thereon ig
relied upon to bring it within the
cucaption provided by sec. 4292, the


party relying upon such payment
has the burden of proving that it
was in fact made. Keel, Exr. V.

Endorsement of credit on a note
is not prima facie evidence of pay.


motion or Ole one on their own


In an action to enjoin a municipal
corporation from paying interest on
certain bonds issued by such corpo-
ration, a person necessarily interested
in the determination of the legality
of such bonds would have the right
to defend in the case, to prevent if
he may, the holding that such bonds
are illegal and void, without regard
to the amount of his claim, which
otherwise the court would have no
jurisdiction in the case. Keehn v.
City of Wooster.

All bonds issued by a municipal
corporation under the provisions of
sec. 2701, Rev. Stat., must express
on their face the purpose for which
they were issued and under what

Where bonds of a municipal
corporation are issued under an act
of the legislature which is unconsti-
tutional, the refunding bonds will
also be invalid.



Under sec. 6830, there are two
ways by which the crime of black-
mail may be committed. One is to
accuse of a crime, punishable by law,
or of immoral conduct, etc., with in.
tent to extort or gain chattel, money
or valuable security. The other, to
knowingly send or deliver any letter
or writing, or a matter of printed
communication with or without a
name, or with any letter, mark or
designation, accusing or threatening
to accuse of any crime punishable
by law, etc., or to do injury to the
person or property of any person,
with the intent above stated. Jones
V. State.

An affidavit filed with a mayor,
charging a person with having com-
mitted the crime of murder, with
the intent thereby to secure chattel,
money or valuable security, is suffi-
cient to sustain an indictment under
sec. 6830.

It is not necessary, in such in.
dictment based on the filing of an
affidavit with the mayor, accusing a
person of committing a crime, to
allege or set forth the warrant or its

Proof that the warrant issued
on an affidavit, charging a person
with the crime of murder, was com-
municated to accused, or sent or
delivered with the purpose of having
it communicated to accused, under
circumstances which rendered it
probable that the same would be so
communicated, with intent alleged
to the indictment, will not justify
conviction of the crime of black-
mail and it is error in the court to
charge that this proof, upon failure to
prove the filing of the affidavit, will
warrant conviction.

A demurrer to an indictment for
blackmail is a waiver of such an
objection as that it charged different,
distinct and repugnant crimes, and
was bad for duplicity, such irregu-
larity can only be reached by motion
to quash.

An error in overruling a motion
to quash such indictment, filled by
one of several defendants, jointly 10-
dicted, is not available to other de.
fendants: they must join in the


Where a surveyor makes a plat
of certain land and the dimensions
or lengths of the lines that are laid
down upon the plat conflict with
proved or admitted facts, they must
give way to them. Railroad v.

Where certain lands have been
platted in lots which the owner con-
veys by lot numbers, it matters not
whether their boundary lines are
correct or whether he gave entirely
wrong lengths to all of them, as
the intent is manifest to convey all
the land, which intent cannot be
overcome by any theory that may
be subsequently discovered. Ib.

If there is a shortage on a plat
in which the owner intended to plat
all his property, it is the well set-
tled rule, in this state, that surh
shortage will be divided as near as
possible pro rata between the owners
of the whole.



Where a person purchasing a
ticket from a railroad company enti
tling the purchaser to be carried
from one station to another on the
line of its road, and the purchaser,
after having inquired of the ticket
agent, is told to take a certain train,
which, according to the schedule of
the railroad company, does not stop
at his destination, and as & conse-
quence he is ejected from the train


by the conductor, such passenger
has a cause of action against the
railway to recover damages as for
a tort, and not merely for a breach
of contract. Reynolds v. Railway

The contract of a common
carrier is not that he will ascertain
the owner of goods, and deliver them
to him, but he will deliver the goods
according to directions; that is, at
the place of destination, and to the
party designated to receive them or
to his order. Southern Ex. Co. v.
Oskamp, Nolting & Co.

Where two men of like name
live in the same town, and one
orders goods from a dealer, who
ships them in the common name,
simply; in the absence of notice to
the contrary, the party giving the
order is, in contemplation of law,
the one to whom they are sent. Conse-
quently, delivery to him will be a due
execution in that particular of the
contract of carriage, although the
consignor believed the order was
from, and intended the goods to go
to the other man.

The result is not varied by the
circumstance that the purchaser
fraudulently assumed the name
used in buying, provided it is that
by which he was known at the place
of destination, unless negligence be
shown; and this, the mere fact that
delivery was not refused by the
carrier, until inquiry could be made
of the shipper as to which party the
goods were designed for, fails to


Brothers and sisters the
next of kin, under the act of May,
1894 (91 0. L., 231), providing for
the removal of bodies from ceme-
teries, but where they are minors,
the parents are next of kin and en-
titled to make the application. State
V. Shonhoft.


It is not error for a court to
refuse to send its charge to the
jury, where there was no request
made of the court to reduce it to
writing, though it had voluntarily
reduced it to writing, therefore the
parties were not entitled to demand,
as of right, that the charge should
be sent to the jury, along with the
papers in the case. Railroad V.

The warranty in a contract for
the sale of glass survives the
acceptance of the goods, and it is,

therefore, error for the court to
charge that if the goods were re
ceived and used after the purchaser
saw, or had an opportunity to see
and know their condition, that he
could not afterwards be heard to
complain and recover damages of
the vendor because the glass was not
of the quality called for by the
contract. Tillyer et al. v. Glass Co.

In an action for damages, in.
cluding physician's fees, for injuries
sustained by plaintiff, a married
woman, it is error to charge the
jury that plaintiff's right to recover
such fees depended upon the fact
whether she herself or is not
liable to pay these expenses.” Toledo
v. Duffy.

Such fees cannot be recovered
where the evidence clearly shows
that there was no employment by
plaintiff of the physician, but that
instead the husband was clearly
liable and it was therefore the
duty of the court to have directed
the jury that the fees for the
physician's services could not be
recovered by the plaintiff in this
case as against the city.

It is the duty of a court in
charging a jury to fully cover the
case on trial in all its material
phases and aspects, and give to the
jury, in plain English, such precise
and definite instructions, as to the
rules of law applicable and govern.
ing, that will make the jurors as
intelligent as may be on the subject,
and so aid them to a just and
proper conclusion. Pennsylvania
Co. v. Rossman.

Where defendant, charged with
shooting another with intent to
kill, pleads a justification on the
ground of self-defense, it is error to
charge that the person who assaulted
him must have come at him “malici.
ously and with every manifestation
of endeavoring to kill the person
assaulted, and that he was prepared
and manifested the fact that he was
able to carry out his malicious
assault. It is only under such cir.
cumstances that the person assaulted
may use the force necessary, without
retreating," to kill the assailant.
Jordan v. State.

That the jury must be satisfied
from a preponderance of the evi.
dence that the defendant "used 20
more force than was necessary to
repel the assailant," or than "was
reasonably necessary to save his life,
or his person from great bodily



« PreviousContinue »