dangerous obstructions, the city had a right to suppose such lights were so placed in the nighttime. While it was the general duty of the city to keep its streets in safe condition for the use of persons passing over the same, and liable for injuries caused by its neglect or omission to keep them in repair and reasonably safe, yet in such a case, the basis of the action being negligence, it is not liable for an injury resulting from such negligence unless it had notice or knowledge of the defect that caused the injury before it was sustained, or, in the absence of express or direct notice, such notice or knowledge may be inferred from facts and circumstances showing that such want of proper lights to denote dangerous obstructions existed for a sufficient period of time, and in such a public and notorious manner, as that the officers representing the city, or those employed by the city for the purpose of removing obstructions in the city, in the exercise of ordinary care and diligence, ought to have known of such want of proper guards in the nighttime. The city is not an insurer of the absolute safety of persons passing along its streets in the nighttime. It is only required to exercise ordinary care for such safety; and, in judging of what would be ordinary care, you are to take into account the great number of streets, and their mileage, contained in the city. If the city, or the officers or employers representing it, had such notice or knowledge, direct or implied, as I have stated, then it was its duty to see that proper lights in the nighttime were placed at or near the obstructions, such as would be sufficient to warn persons of reasonable and ordinary prudence of the presence of such obstructions; and, failing to do so, it would be liable for injuries resulting from such failure."

These cases, read in the light of the facts, an excavation in the sidewalk, necessarily dangerous, in the one case, and in the other an obstruction in the street, not necessarily dangerous, consisting of building materials, are not in conflict, and the present case being one of an obstruction in the street, not necessarily dangerous, we are not required to determine whether Clark v. Fry, supra, in so far as it applies to excavations or obstructions necessarily dangerous, it too broad, or whether, in a case of permit to the owner of adjacent property to make an excavation in the street for some lawful purpose incident to the use of his property, it would be the duty of the city to see that a nuisance is not created. To hold that the city may not grant such a permit without assuming the duty of seeing that the obstruction is properly guarded with barriers and lights would require the city to exact from the property owner the expense of doing so, which, in many cases, would be a hardship on the property owner and an unreasonable regulation, so that, being of the opinion that a permit by a city to use part of the street for the placing of building materials for use in the construction of a

building on the adjacent property is a mere regulation of a right of the property owner to make such use of the street, and not a license to do an act in the street which but for such license would be illegal or a nuisance, the city, by giving such permit, is not charged with the duty of seeing that the place is guarded, and will not be liable in damages to a person injured in consequence of the omission to guard such place with barriers or lights, unless it had notice, express or implied, of such omission, and after such notice was guilty of negligence.

The judgments of the circuit court and of the court of common pleas are reversed, and judgment is entered for the plaintiff in error upon the special findings.

Where the vendee of the coal underlying lands desires to have that part of the premises transferred into his name on the tax list of the county, it is incumbent upon him, under the provisions of said section, to present to the county auditor proper evidence of his title and make satisfactory proof to him of the value of such coal as compared with the valuation of the whole lands as charged on the tax list; and a written agreement between the vendor and vendee of the coal as to a division of the valuation on the tax list between them is not binding upon the auditor. The evidence on which he is to act is prescribed by the statute and he can be compelled to act on no other.

3. TAXATION-CORRECTION OF ASSESSMENTMANDAMUS-COUNTY AUDITOR-EVIDENCE.

A petition for mandamus to compel the auditor to transfer a part of lands or town lots under the provisions of said section, which fails to allege that competent evidence was offered to the auditor of the value of such part as compared with the value of the whole as charged on the tax list of the county, is fatally defective and states no ground for the writ of mandamus.

(Syllabus by the Court.)

Error to Circuit Court, Morgan County. Application by the state, on the relation of one Davis, for writ of mandamus to one Dye, auditor of the county of Morgan. From an order granting the writ, defendant brings Reversed.

error.

The defendant in error filed in the circuit court of Morgan county the following petition for mandamus: "Relator, for cause of action, says: The defendant is the duly elected, qualified and acting auditor of the county of Morgan, in the state of Ohio.

That since August 1, 1902, relator has purchased the coal underlying about 3,269.79 acres of land lying and being in sections numbered 22, 23, 24, 25, 26, 27, 34, 35, and 36, in township numbered 14, of range numbered 14, in York township, Morgan county, Ohio, from the persons theretofore owning the same in fee, and deeds have been made, executed and delivered to him by the various owners thereof, conveying to the relator the fee in said coal with the right and privilege of mining and removing the same. That each and every part and parcel of land from under which relator purchased said coal was appraised for taxation at the decennial land appraisement for the year 1900, by the land assessor of said York township, and such appraisement, with the corrections made necessary by the action of the county and state boards of equalization, was entered upon the tax duplicates of said Morgan county, Ohio, by the auditor thereof, and taxes thereon charged against said several and various landholders. That your relator purchased and received conveyances from the following named persons, for the coal underlying the following described lands situate in said York township, Morgan county, Ohio, which were and are charged with taxes (exclusive of buildings), in the following amounts, to wit: (Here follows a description of the various tracts of lands, the names of the owners thereof, and the amount of tax valuation of each tract on the tax duplicate of the county.)" The petition then proceeds: "That relator and each of the above-named grantors entered into an agreement in writing, indorsed upon the deed and signed by the grantor in the words following, to wit: "To the Auditor: You are hereby authorized to transfer the abovegranted property to the grantee, charging him with the one-third of the tax valuation of the same, after deducting valuations of buildings.' That relator purchased and received conveyances from the following named persons for the coal underlying the following described lands situate in said township, county, and state, which were (and are) charged with taxes (exclusive of buildings), in the following amounts, to wit: (And here follows a list of the various tracts of land, the names of the owners thereof, and the tax valuation of each tract as it appears on the tax duplicate of the county.)" The petition proceeds to aver: "That relator did not make any agreement with said landholders as to the division of the tax valuation of the said lands. That on November 5, 1902, relator, by his counsel, presented his deeds for the first above described lands, together with the above described written request for transfer to the defendant, and demanded and requested of him as such auditor to make transfer to him of the first above described lands upon the tax duplicates of the said county and charge him with the onethird of such tax valuation of each of said

tracts, as agreed upon between relator and the above-mentioned landowners, to wit, George Ogg, F. Darringer, H. W. Weller, E. Nemberry, Emaline Deaver, A. R. Pickens, L. S. Gossman, B. R. House, M. L. Howard, Jesse George, M. V. B. Woods, C. E. Baker, J. A. Woods, C. C. Crider, Joseph Driggs and W. R. Milligan, and that said defendant then and there refused to transfer the said lands or any part thereof, as requested, and declined and refused to recognize the right of the relator and said landowners to make the said or any agreement of division of tax valuation, and threatened, if said deeds were given him for transfer, to place the same on the tax duplicates for taxation at a valuation of about eight dollars per acre, and, as relator understands and alleges, without making any reduction of the valuation of said lands as charged against the said above-named persons who sold the same to relator, but leaving the tax values to stand as before the sale of said coal to relator. Relator says that at the time he presented to said defendant his deeds of conveyance last herein above described and demanded and requested of defendant that he transfer the same upon said tax duplicates, so that relator might be charged with such taxes upon his said coal as might be just and equitable, and so that the valuation of said coal be ratable with said first above described coal land, and that all of relator's holding in said township be taxed at uniform values. The defendant refused and declined to comply with said request, and refused and declined to transfer said lands, except at an arbitrary valuation of about eight dollars per acre, and without making any reduction of valuation to said persons who made said above described conveyances to relator. That it is the duty of said defendant, as such auditor, under the law to make transfer of all deeds and conveyances of real estate situate in his county, when presented to him, and to apportion the tax valuation of the same between grantor and grantee as they may agree, and, in the absence of such agreement, in proportion of the value of the part sold, to the part retained. That the coal sold and conveyed to relator, as hereinbefore alleged, was part of the real estate appraised and upon the duplicate for taxation, and the value of the same was included within, and was a part of the valuations hereinbefore set forth and alleged, and relator and each of his grantors have a right and are entitled to have the tax valuation of said lands apportioned between them, as they have agreed, or, where there is no agreement, in proportion of the value of the coal bought by relator to the residue of said lands still owned by his grantors. Wherefore relator prays that a writ of mandamus issue against the defendant, commanding him to recognize agreements for division of tax valuations made by and be

tween relator and his several grantors, as herein before set forth, to transfer the said lands and coal sold him at a tax valuation of one-third of the present valuation, exclusive of buildings, to transfer his said lands, where he has made no agreement of division, at such proportionate part of the present tax valuation as the value of the part purchased by relator bears to the part retained unsold by his grantors, and for all proper relief in the premises."

On motion of the relator, the court allowed an alternative writ of mandamus to issue, returnable on the first day of the next term thereof to be held in said county. The auditor filed a general demurrer to the alternative writ, which the court overruled, and the auditor excepted. He then answered to the petition, but the answer was held bad on general demurrer. An amended answer was filed, in which it is denied that he refused to transfer said lands to relator upon the tax duplicate; that, on the contrary, he was ready and willing, and offered at the time set out in the petition, to make said transfers, but that he refused to recognize the right of the landowners and the relator to determine by agreement between them in what manner or to what amounts the tax valuation on said lands should be divided upon the duplicate. In addition to other facts, not regarded as material in disposing of this controversy, the amended answer alleges that the relator, at the time he presented his deeds, nor at any time, did not furnish or offer any proofs of the value which the coal so assigned by the respective deeds bears to the value of the lands retained by the grantors, and that the valuations agreed upon by the relator and his grantors is not just or equitable. It is also alleged that at the preceding decennial appraisement of said lands, it was not known that there was coal therein, and the appraisement was made regardless of coal. In the reply the relator admits that the auditor was willing and offered to transfer the lands described in the deeds, and further admits that the relator offered no proof of the value of the part purchased by him, but assigns as an excuse that the auditor refused to recognize said contract of division and to make any division other than at $10 per acre. The court heard some evidence, which appears in a bill of exceptions, and excluded evidence offered by the auditor. A peremptory writ of mandamus was granted, and error is prosecuted in this court to reverse that judgment.

Charles H. Fouts, for plaintiff in error. J. M. McGillivray, for defendant in error.

PRICE, J. (after stating the facts). The duty of a county auditor in respect to the transfer of real estate on the tax list to the name of a purchaser, is defined by section 1025, Rev. St. 1906. The section has not been materially charged since the relator com

menced his action for mandamus, and the rights and duties of the parties to this case are governed by it. It reads as follows: "The auditor shall, on application and presentation of title, with such affidavits as are required by law, or the proper order of a court, transfer any land or town lot, or part thereof, charged with taxes on the tax list, from the name in which it stands, into the name of the owner, when rendered necessary by any conveyance, partition, devise, descent or otherwise; and if, by reason of the conveyance or otherwise, a part only of any tract or lot, as charged on the tax list, is to be transferred, the party or parties desiring the transfer, shall make satisfactory proof of the value of such part as compared with the valuation of the whole, as charged on the tax list, before the transfer is made; and the auditor shall indorse on the deed, or other evidences of title presented to him, that the proper transfer of the real estate therein described has been made in his office, or that the same is not entered for taxation, and sign his name thereto."

It may be seriously doubted whether this statute authorized the severance of the surface of lands from the coal or other mineral embedded beneath it, so as to transfer the latter to a purchaser, leaving the other parts of the lands to stand in the name of the vendor. But other and some later legislation found in section 2792, and supplementary section 2792a, Rev. St. 1906, seems to make the way clear to that result, and we need not linger on the above query. The auditor made no stand on that ground, and it has not been brought in question here. We express no opinion regarding it. The section under consideration (1025) imposes certain duties on the county auditor, and the performance of these duties are made dependent upon certain acts to be performed by the party desiring a transfer of any land or town lot, or part thereof, charged with taxes on the tax list, from the name in which it stands, into the name of the new owner. The latter part of the section relates to the transaction involved in the case at bar, and it provides: "And if, by reason of the conveyance or otherwise, a part only of any tract or lot, as charged on the tax list, is to be transferred, the party or parties desiring the transfer, shall make satisfactory proof of the value of such part as compared with the valuation of the whole, as charged on the tax list, before the transfer is made; and the auditor shall indorse on the deed or other evidence of title presented to him, that the proper transfer of the real estate therein described has been made in his office, * and sign his name thereto." In this case, it was a part only of the lands for which the relator desired a transfer, and when he presented his title for the purposes of a transfer, it was incumbent upon him to make satisfactory proof before the auditor of the value of such part as compared with the valuation of the

whole, and until he did so the auditor was not in default.

On this subject what has the relator pleaded? As to the first description set out in his petition, he avers, in substance, that he presented to the auditor his deed or deeds, on which was indorsed an agreement in writing and signed by the grantor, in the words following, to wit: "To the Auditor: You are hereby authorized to transfer the above granted property to the grantee, charging him with the one-third of the tax valuation of the same; after deducting valuations of buildings." No other form or character of proof is alleged in the petition, and if this contract is not the kind of proof contemplated by the statute, none is pleaded, and as to the first class of lands the petition fails to state a case for mandamus. It is not averred that the grantors were present when the deed was presented for transfer, or that any proof was made or offered as to the execution of the contract. But, beyond that, it was a mere stipulation between the parties thereto, and in no sense binding upon the auditor. As an item of evidence in a controversy between the grantor and grantee, it might be competent, but surely not competent to bind one not a party thereto or a privy thereunder. The parties, as between themselves, might agree upon what portion of the entire taxes the grantee should pay; but such agreement is of no avail to compel the auditor to make that division on the tax list. He is entitled to satisfactory proof, and that is the nature of the proof the relator was required to make. It is evident, from the language of the petition, that the auditor was not satisfied with the contract as the proof required by statute, and the relator offered no other.

As to the second class of lands described in the petition, no contract existed between the vendor and vendee. At least none is alleged, and the petition fails to state that any kind of proof whatever was offered. The amended answer avers that none was offered and the reply admits it. The same answer avers that the auditor was ready and willing to make the transfers, and the reply admits that; but it attempts to excuse the offering of proof on the ground that the auditor asserted that, if he made the transfers, he would place a valuation of $8 per acre on the coal. The same excuse is made as to both the first and second descriptions contained in the petition. Whatever may have been the fact as to the statement of the auditor on that subject, the relator was not relieved from offering to comply with the statute, tender the required proofs, and thus put the officer clearly in the wrong. It is the law that, to entitle the relator to the mandamus prayed for, he must show that the auditor is in default in respect to the performance of an act which the law specially enjoins as a duty resulting from his office. The threat, or milder statement of the

auditor, if such was made, should have put relator on guard to strictly comply with the statute, by offering proofs which should have been satisfactory, and then, in case he could not be heard, a writ might be obtained to compel the officer to perform his duty-hear the evidence and determine the question.

Counsel for relator asks why he should be required to do an idle or foolish thingoffer proofs in the face of a threat by the auditor that he would place the coal on the tax list at $8 per acre? We answer that it is never an idle or foolish thing to do as the law directs, and certainly so, when the doing of the act is a condition precedent to obtaining the right or favor demanded. The proper proofs are intended to enlighten and convince the officer and enable him to perform his duty. These views are in accord with the holding of this court in Cincinnati College v. La Rue, Auditor, 22 Ohio St. 469. It is there held that, "in a proceeding by mandamus to compel an officer to do an act which it is claimed the law enjoins on him as a duty, the existence of all the facts necessary to put him in default must be shown. Again: "Where the transfer is to be of only a part of such property, satisfactory proof must also be made to the auditor of the value of such part as compared with the valuation of the whole as charged on the duplicate. The presentation, by the party seeking the transfer, of a statement of facts concerning the title, with the request to the auditor to have the property valued and transferred, is not a compliance with the statute. The evidence on which the auditor is to act is prescribed by the statute, and he can be required to act on no other.

The defective petition is not helped out by any evidence contained in the bill of exceptions. There is no evidence that any proof whatsoever was offered, and we have said that the written agreement between vendor and vendee was not competent evidence. The prayer of the petition is, not to order the auditor to hear the evidence and decide as to the right of transfer, but that he be compelled to recognize the agreements between vendors and vendee and to transfer the land where no agreements had been made at the proper valuation; and the lower court awarded a writ according to that prayer. We hold that there is no cause of action for mandamus stated in the petition; and, owing to the averments of the amended answer and the admissions made in the reply, the pleadings clearly show that the peremptory writ should not have been allowed.

The judgment of the circuit court is reversed, and the petition dismissed. Judgment reversed.

. SHAUCK, SUMMERS, and SPEAR, JJ., concur. CREW, J., not participating.

SION-CONCLUSIVENESS.

A determination of the Appellate Court that the finding of the superior court was not against the weight of the evidence and that the amount of the judgment was not excessive cannot be reviewed on further appeal to the Supreme Court.

2. SAME-HARMLESS ERror.

In an action for the price of certain jewelry sold, the admission of a receipt executed by a wholesale jewelry firm, showing payment by plaintiff for a lot of jewelry, and a certificate by the same firm that plaintiff had good title and authority to sell such jewelry, over objection that it was not proved that the jewelry mentioned in the receipt and certificate were the same as that sold by plaintiff to defendant, was without prejudice; the only contested issue in the case being whether defendant agreed to pay $500 or $3,300 for the jewelry sold.

Appeal from Appellate Court, First District.

Action by William B. White against Joseph Brown. From a judgment for plaintiff, affirmed by the Appellate Court, defendant appeals. Affirmed.

Leo Koretz, for appellant. Frederick Duffy, for appellee.

SCOTT, J. William B. White, the appellee, obtained a judgment in the superior court of Cook county against Joseph Brown, the appellant, for $2,800, which judgment has been affirmed by the Appellate Court for the First District. The cause was submitted to the superior court for trial without the intervention of a jury. The controversy arises out of a sale of jewelry by appellee to appellant. Appellee contends that he was to receive $3,300 for the jewelry, and that only $500 of that amount has been paid, while appellant claims that the appellee sold him the jewelry for $500, which he paid at the time the jewelry was turned over to him.

Appellant urges that the finding of the superior court and Appellate Court is against the weight of the evidence, and that the amount for which judgment was rendered in the superior court is excessive. Those questions cannot be considered here. The judgment of the Appellate Court is final as to each. Consolidated Coal Co. v. Peers, 150 Ill. 344, 37 N. E. 937; Westville Coal Co. v. Schwartz, 177 Ill. 272, 52 N. E. 276; Meyer v. Purcell, 214 Ill. 62, 73 N. E. 392.

For the purpose of showing that he was the owner of the jewelry at the time of the sale to the defendant, the plaintiff offered in evidence a receipt from a wholesale jewelry firm showing payment of $3,000 by the plaintiff for a lot of jewelry, and a certificate made by the same firm stating that the plaintiff had good title and right to sell such jewelry. Both purported to have been made prior to the time of the sale by White to Brown, and the former testified that he received them at the time he purchased the 76 N.E.-53

How

goods in question. No particular description of the jewelry was contained in either document. The court, over the objection of the defendant, admitted both in evidence, and it is here urged that the action of the court in that regard was error, because it was not proved that the jewelry mentioned in the receipt and certificate was the same as that sold by the plaintiff to the defendant. We think the testimony of White shows that this receipt and certificate were issued by the wholesale firm for the identical goods which were sold by White to Brown. ever, if they did not refer to that jewelry, their admission in this case was harmless error, in view of the fact that the only contested issue in the case is whether the defendant agreed to pay $500 for the jewelry, as he claims, or $3,300, as claimed by the plaintiff, and the receipt and certificate did not purport to throw any light on that issue. No other reasons are suggested by appel. lant for reversing the judgment of the Appellate Court. That judgment will therefore be affirmed. Judgment affirmed.

(219 Ill. 593.)

MCCORMICK et al. v. CHICAGO & S. L. R. CO.

(Supreme Court of Illinois. Feb. 21, 1906.) APPEAL-ASSIGNMENT OF ERRORS-NECESSITY OF APPEARANCE IN RECORD.

An assignment of errors must be attached to the record, or the case cannot be reviewed; and it is not sufficient that the abstract shows assignments of error.

[Ed. Note.-For cases in point, see vol. 3, Cent. Dig. Appeal and Error, § 3039.]

Appeal from Lake County Court; D. L. Jones, Judge.

Condemnation proceedings by the Chicago & State Line Railroad Company against R. Hall McCormick and others. From a judg ment of condemnation, defendants appeal. Dismissed.

A. K. Stearns and Elbridge Hanecy, for appellants. Charles Whitney and Ralph J. Dady (S. A. Lynde, of counsel), for appellee.

PER CURIAM. This was a condemnation proceeding brought by appellee in the county court of Lake county to condemn certain property, owned by appellants, for railroad purposes. The cause was tried before a jury, which, after hearing evidence and viewing the premises, returned a verdict for $1,075 for land taken, and $400 for the damages to property not taken. Judgment was entered on the verdict, and this appeal is prosecuted to reverse that judgment.

Various alleged errors are argued by appellants, but, owing to the condition in which we find the record, we cannot review the errors, for the reason that no errors are assigned of record. Appellee, in its brief filed November 16, 1905, and before the sitting of the court, called appellants' attention to the