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Opinion Per Curiam.

self against the charges made in the affidavit, and from having an opportunity to be heard in the proceedings, states facts sufficient, either as a petition or motion, to invoke the jurisdiction of the court to hear and determine the truth of these averments.

It is the duty of the court making such order, and in which the petition is filed, to hear the same upon evidence, and to make such order and judgment in the premises as to it seems just and proper.

The demurrer to the petition is overruled, and, the respondent not desiring to plead further, a peremptory writ is allowed, as prayed for in the petition of relatrix.

Peremptory writ allowed.

NICHOLS, C. J., JONES, MATTHIAS, JOHNSON and DONAHUE, JJ., concur.

Opinion Per Curiam.

SOLZE V. SOLZE.

Execution - Sale of personalty by sheriff - Right of claimant to

sue purchaser.

(No. 15304 — Decided March 6, 1917.)

ERROR to the Court of Appeals of Crawford county.

Mr. L. C. Feighner, for plaintiff in error.

Mr. Benjamin Meck and Mr. Edward J. Myers, for defendant in error.

Judgment affirmed on authority of Patty v. Mansfield, 8 Ohio, 370.

Judgment affirmed.

WANAMAKER, NEWMAN, JONES, MATTHIAS and JOHNSON, JJ., concur.

PENNSYLVANIA RAILROAD Co. v. HOBBS.

Malicious prosecution Probable cause.

(No. 15406 — Decided March 6, 1917.)

CERTIFIED by the Court of Appeals of Cuyahoga county.

Messrs. Squire, Sanders & Dempsey and Mr. Thomas M. Kirby, for plaintiff in error.

Mr. Harry C. Gahn and Mr. C. A. Riemenschneider, for defendant in error.

Opinion Per Curiam.

Judgment affirmed on authority of Ash v. Marlow, 20 Ohio, 119.

Judgment affirmed.

NICHOLS, C. J., WANAMAKER, NEWMAN, JONES, MATTHIAS, JOHNSON and DONAHUE, JJ., concur.

HAMMOND, RECEIVER, V. MAGIRL ET AL.

Mechanics' liens Time for perfecting lien.

(No. 15341 – Decided March 20, 1917.)

ERROR to the Court of Appeals of Coshocton county.

Mr. W. S. Merrell; Mr. Joseph L. McDowell and Messrs. Cobb, Howard & Bailey, for plaintiff in

error.

Mr. Lloyd S. Leech; Mr. James Joyce and Mr. Milo C. Ely, for defendants in error.

It is ordered and adjudged by this court, that the judgment of the said court of appeals be, and the same hereby is, reversed on the authority of King, Gilbert & Warner v. Ship Building Co., 50 Ohio St., 320.

And coming now to render the judgment which the court of appeals should have rendered, it is hereby ordered and adjudged that the judgment of the court of common pleas herein be, and the same is hereby, reversed, and this cause is remanded to

Opinion Per Curiam.

the court of common pleas with instructions to enter judgment in favor of the plaintiff in error herein against the board of education for the amount of its claim, as shown by its pleading; with interest from January 22, 1914, and for further proceedings according to law.

Judgment reversed.

NICHOLS, C. J., NEWMAN, JONES, MATTHIAS, JOHNSON and DONAHUE, JJ., concur.

SCHMIDT v. SCHOPMEIER.

Error proceedings Cause submitted to two judges of court of

appeals Waiver of assignment of error - That judgment against weight of evidence Deed construed as contract for sale Real property.

(No. 15403 — Decided March 20, 1917.)

ERROR to the Court of Appeals of Hamilton county.

Mr. Charles Broadwell, for plaintiff in error.

Messrs. Healy, Ferris & McAvoy and Mr. Frank J. Dorger, for defendant in error.

This court finds that it is shown by the record that the court of common pleas held that the deed which purported to convey the interest of the

Opinion Per Curiam.

plaintiff, Charles Schmidt, in the said real estate did not convey any right, title or interest of the plaintiff in said premises to the defendant; and the record further shows that the court of appeals correctly held that while said deed did not in its legal effect operate to transfer the title held by the plaintiff to the said premises, it did operate as a contract by him to convey the same to the defendant.

This court further finds that by consenting to the consideration of the cause by two judges of the court of appeals, the plaintiff in error, Schopmeier, waived the assignment of error in his petition in error, that the judgment of the court of common pleas was against the weight of the evidence and of the equivalent assignment that it was not sustained by sufficient evidence. But this court finds that the testimony of the plaintiff, if wholly undisputed, fails to sustain the allegation in his reply, that the said deed was obtained from him by fraud and misrepresentation. The circumstances connected with the execution of the said purported deed, as related by the plaintiff, are not sufficient in law to sustain the allegation referred to.

It is, therefore, ordered and adjudged by this court that the judgment and order of the court of appeals reversing the judgment of the court of common pleas be, and the same is hereby, affirmed, and the cause is hereby ordered to be remanded to the court of common pleas with directions to permit an issue to be made up concerning said con

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