STATE ex rel. MOHLER v. BEAM et al. (No. 17480.)
(Supreme Court of Ohio. June 27, 1922.)
Error to Court of Appeals, Henry County. George S. May and Donovan & Donovan, all of Napoleon, for plaintiff in error.
J. F. Vandenbroek, of Napoleon, P. C. Prentiss, of Bowling Green, and Roger D. Hay, of Defiance, for defendants in error.
PER CURIAM. It is ordered and adjudged by this court that the judgment of the said Court of Appeals be and the same is hereby affirmed, on authority of McBride v. Marguerat, 99 Ohio St. 452, 126 N. E. 926. Judgment affirmed.
JOHNSON, HOUGH, WANAMAKER, ROBINSON, JONES, and MATTHIAS, JJ.,
WILSON v. CITY OF SPRINGFIELD. (No. 17392.)
(Supreme Court of Ohio. June 27, 1922.)
Error to Court of Appeals, Clark County. Clem V. Collins, of Springfield, for plaintiff in error.
R. W. Flack, City Sol., of Springfield, for defendant in error.
PER CURIAM. It is ordered and adjudged by this court that the judgment of the said Court of Appeals be and the same is hereby affirmed on authority of Froelich v. City of Cleveland, 99 Ohio St. 376, 124 N. E. 212.
JOHNSON, HOUGH, WANAMAKER, ROBINSON, and MATTHIAS, JJ., concur.
![[blocks in formation]](https://books.google.ru/books/content?id=gvY7AAAAIAAJ&hl=ru&output=html_text&pg=PA927&img=1&zoom=3&q=editions:STANFORD36105063507185&cds=1&sig=ACfU3U3ULV-YgtYrdy545Ghx93CEoJCquw&edge=0&edge=stretch&ci=474,130,413,221)
Edward C. Stanton, Pros. Atty., George C. Hansen, Asst. Pros. Atty., and George D. Hile, all of Cleveland, for defendants in error.
PER CURIAM. This court is clearly convinced and is unanimously of the opinion:
(1) That the allegations of fraud concerning the judgment rendered by the court of common pleas are wholly unsustained, and this court finds that there was no fraud practiced in the procuring and rendering of said judgment.
(2) The majority of the judges of this court are of the opinion and find that the matters involved in this proceeding were not adjudicated in the former litigation referred to in the pleadings.
(3) A majority of this court are of the opinion and find that the statute fixing the salaries involved in this proceeding has no application in this cause because of the provisions of section 20, article 2, of the Constitution.
(4) A majority of this court are of the opinion and find that the defendant, Bernon, whose service and term of office began subsequent to the passage of the statute involved in this case is entitled to the salary fixed thereby.
It is, therefore, ordered and adjudged that the judgment of the said Court of Appeals be and the same is hereby affirmed. Judgment affirmed.
MARSHALL, C. J., and JOHNSON, HOUGH, WANAMAKER, ROBINSON, and MATTHIAS, JJ., concur.
THIS IS A KEY-NUMBER INDEX
It Supplements the Decennial Digests, the Key-Number Series and
Prior Reporter Volume Index-Digests
V. DEATH OF PARTY AND REVIVAL OF See Principal and Agent.
(A) Abatement or Survival of Action.
50 (Mass.) Statute held to comprehend all 9 (Mass.) Statute requiring reimbursement
cases within its scope, whether existing or cre- of expense of suppressing moths is impera-
ated since its enactment.-Putnam v. Savage, tive.-Town of Milton v. Cook, 589.
808.
Right of reimbursement for suppressing
52 (Mass.) Right of action for tort does moths not dependent on forester's approval
not survive at common law.-Putnam v. Savage, of expenditure.-Id.
808.
VI. WAIVER OF GROUNDS OF ABATE-
MENT AND TIME AND MANNER OF
PLEADING IN GENERAL.
82 (Ind.App.) Plea in abatement not filed
until after plea in bar is too late.-Warren
County Bank v. Keister, 517.
See Abatement and Revival; Dismissal and
Nonsuit.
II. NATURE AND FORM.
35 (Mass.) Remedy prescribed by statute,
creating right and liability, must be pursued.-
Cosmopolitan Trust Co. v. Cohen, 711.
III. JOINDER, SPLITTING, CONSOLIDA-
TION, AND SEVERANCE.
47 (Mass.) Counts for damages for fraud
may be joined with counts to recover amount
paid.-Patch v. Cashman, 329.
IV. COMMENCEMENT, PROSECUTION,
AND TERMINATION.
ALTERATION OF INSTRUMENTS.
12 (III.) Alteration in deed consented to
by grantor did not invalidate it.-Williamson v.
Williamson, 166.
See Carriers, 218-229.
ANTI-TRUST LAWS.
See Monopolies, 8-31.
APPEAL AND ERROR.
See Courts, 219-220; Criminal Law, m
1007-1189; Exceptions, Bill of.
For review of rulings in particular actions or
proceedings, see also the various specific top-
ics.
III. DECISIONS REVIEWABLE,
(D) Finality of Determination.
78(3) (Mass.) Overruling of plea in abate-
ment will not support appeal.-Cosmopolitan
Trust Co. v. Cohen, 711.
68 (Ind.App.) Denial of stay of proceed-78 (4) (Mass.) Denial of motion to dismiss
ings for indefinite time held not error.-War-will not support appeal.-Cosmopolitan Trust
ren County Bank v. Keister, 517.
V. PRESENTATION AND RESERVATION
IN LOWER COURT OF GROUNDS
OF REVIEW.
(A) Issues and Questions in Lower Court.
4(7) (Mass.) Evidence held to make ques-
tion for jury as to whether excavating was
done by defendant, and to sustain finding of 170(2) (III.) Objections to constitution-
negligence.-Hartshorn v. Tobin, 805.
-7 (III.) When excavating negligently done,
notice to owner of building to protect it or in-
sufficient depth of wall not a defense.-Best
Mfg. Co. v. Peoria Creamery Co., 684.
ADMINISTRATION.
See Executors and Administrators.
ADMIRALTY.
1. JURISDICTION.
20 (Mass.) Workmen's Compensation Act
applies to all cases within state's jurisdiction;
"employee."-Gillard's Case, 384.
Workmen's Compensation Act applicable to
person injured in shipbuilding on navigable wa-
ter.-Id.
ality of statute, not urged below, cannot be
urged on appeal.-People v. Louisville & N. R.
Co., 656.
173 (2) (III.) Contention that objection to
school tax levy was not sufficiently specific
cannot be first raised on appeal.-People v.
Chicago & A. R. Co., 105.
173(6) (TH.) Variance between instru-
ment and name of party must be raised below.
-Charles Friend & Co. v. Goldsmith & Sei-
del Co., 185.
174 (Ind.App.) Attorney General's right to
sue in city's name regarded as waived where
not questioned.-City of Indianapolis v. Na-
tional City Bank of Indianapolis, 791.
174 (N.Y.) Objection assignment by com-
mittee of lunatic was not ordered by court can-
not be first raised on appeal.-Hackenheimer v.
Kurtzmann, 735.
(B) Objections and Motions, and Rulings (E) Entry, Docketing, and Appearance.
Thereon.
197(5) (III.) Variance between declaration held to obviate necessity of giving notice to
435 (Ind.) General appearance of appellees
and evidence waived by failure to object.-them.-Rockey v. Hershman, 339.
Thomas v. Chicago Embossing Co., 285.
220 (Mass.) Final decree must stand on X. RECORD AND PROCEEDINGS, NOT IN
appeal from it alone, if warranted by facts
found.-Dennett v. Nesson, 381.
221 (Mass.) When no question raised be- (A) Matters to be Shown by Record.
low as to amount of recovery, it cannot be rais-493 (III.) Want of placita fatal defect in
ed on exceptions.-Patch v. Cashman, 329.
record.-Hardy v. Jones, 122.
230 (Ind.App.) Refusal to strike testimony
held not reviewable in absence of objection to (B) Scope and Contents of Record.
question.-Seymour Water Co. v. Lebline, 787.518(4) (Ind.) New paragraph repeating al-
232(1) (II.) Objection corporation's cer-legations to which demurrer had been sustained
tificate was immaterial held not to raise ob- is amended answer, and other paragraphs are
jection it varied from defendant's name.- not in record.-Pittsburgh, C., C. & St. L. Ry.
Charles Friend & Co. v. Goldsmith & Seidel Co. v. Ft. Wayne & Northern Indiana Traction
Co., 185.
Co., 759.
232(12) (III.) Bill cannot be questioned
for insufficiency on grounds not raised in an-
swer. Young v. Jameson, 228.
241 (Ind.App.) Refusal to strike testimony
held not reviewable in absence of statement of
reason in motion to strike.-Seymour Water Co.
V. Lebline, 787.
520 (1) (III.) Written motions in chancery
parts of record, without incorporation in cer-
tificate of evidence.-Young v. Jameson, 228.
Written motions in law cases must be in-
corporated in bill of exceptions signed by judge,
to become part of record.-Id.
525(3) (Ind.App.) No question presented,
instructions not being marked "excepted to."-
Wabash Water & Light Co. v. Home Telephone
Co., 692.
266 (2) (Mass.) Master's findings final,
when evidence not reported, and report not ex-526 (Mass.) Commissioner's report not
cepted to.-Nelson v. Wentworth, 917.
part of record, in absence of report, exceptions,
or agreement that it should be treated as case
stated.-McMillan v. City of Gloucester, 718.
(C) Necessity of Bill of Exceptions, Case,
267(1) (Ill.) Insufficiency of facts to sup-
port judgment reinstating cause not reviewa-
ble, in absence of exception to entry of judg-
ment. Smyth v. Fargo, 610.
274(3) (Mass.) Exception not sustained on
ground that answer was unresponsive, when
not objected to on that ground.-Mielke v. Do-
brydnio, 561.
(E) Cases and Questions Reserved or
Certified.
320 (Mass.). Report after decree treated
as appeal.-Taylor v. Whittier, 6.
327 (4) (Ind.) Party not interested or af-
fected by appeal need not be joined.-Rockey
v. Hershman, 339.
or Statement of Facts.
544(1) (III.) Generally no bill of excep-
tions in suit in chancery.-Young v. Jameson,
228.
548 (7) (III.) Bill of exceptions in suit in
chancery necessary to preserve oral evidence
at hearing.-Young v. Jameson, 228.
(F) Making, Form, and Requisites of
Transcript or Return.
597(1) (Ind.) Immaterial matters properly
omitted from transcript on appeal.-Rockey v.
Hershman, 339.
(G) Authentication and Certification.
334 (2) (N.Y.) After reversal of judgment613(2) (Ind.) Bill of exceptions held to
for personal injuries on the facts representa- properly authenticate
tives of deceased defendant will not be substi-
tuted.-McDonnell v. Gerken, 472.
Hershman, 339.
336(1) (Ind.) Stranger to judgment joined
on appeal may be dismissed.-Rockey v. Hersh-
man, 339.
Omission of unnecessary parties does not
warrant Appellate Court in refusing to assume
jurisdiction.-Id.
336(1) (Ind.App.) Appellate court may ex-
amine record to determine proper parties to ap-
peal. Campbell v. Payne, 766.
VII. REQUISITES AND PROCEEDINGS
FOR TRANSFER OF CAUSE.
(A) Time of Taking Proceedings.
345(1) (Ohio) Time for appeal in divorce
proceedings runs from entry of decree, and not
from denial of new trial.-Wells v. Wells, 71.
Motion for new trial affects time for appeal
only when entry of judgment prevented.-Id.
355 (Ohio) Limitation of time for appeal
in divorce cannot be extended by appearance
or agreement.-Wells v. Wells, 71.
(H) Transmission, Filing, Printing, and
of power of court to grant appeal after lapse
629 (Ind.) Facts did not call for exercise
of time allowed. Smith v. Hart, 501.
(J) Conclusiveness and Effect, Impeach-
ing and Contradicting.
667 (Ind.App.) Accident policy held ad-
missible in evidence as against claim that copy
thereof was not attached to complaint as
amended, where no such objection shown by
record.-National Life & Accident Ins. Co. v.
Williams, 826.
(K) Questions Presented for Review.
687 (Mass.) Appeal not available, when
McMillan v. City of Gloucester, 718.
report of commissioner not properly in record.
≈692(2) (III.) Record held not to support
357(1) (Ind.) Appellant relying on orders complaint of withdrawal of depositions.-Bolton
induced by affidavits containing incorrect state-694(1) (Mass.) Master's findings conclu-
v. Bolton, 158.
ments not entitled to special consideration in sive, unless wrong on face of report, when evi-
order to save appeal.-Fishback v. Public Serv-dence not reported.-Jacobs v. Anderson, 314.
ice Commission of Indiana, 346.
694(1) (Mass.) Master's findings must
reported.-Davoren v. Nolan, 540.
stand, unless plainly wrong, when evidence not
694(1) (Mass.) Master's findings conclu-
sive, unless inconsistent, when evidence not be-
fore the court.-Brown v. Green & Hickey
Leather Co., 714.
694 (!) (Mass.) Master's findings final, (C) Parties Entitled to Allege Error.
when evidence not reported.-Nelson v. Went-878 (6) (Mass.) Party not appealing waives
worth, 917.
inconsistency between findings and decree.-
Owen Tire Co. v. National Tire & Rubber Co.,
911.
For casus in Dec.Dig. & Am.Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER
695 (1) (Mass.) Findings not disturbed,
when it does not appear all evidence is before
the court.-Mann v. Eastern Sugar & Products
Co., 244.
695(1) (Mass.) Findings of master stand,
when whole evidence not reported, unless incon-
sistent or plainly wrong on face of report.
Fenelon v. Fenelon, 334.
702(1)(Ind.App.) Appellant need set out
only those instructions challenged.-Reming-
ton v. Edwards, 824.
704(2) (Mass.) Exceptions to findings, or
failure to make findings, not considered, when
Green &
evidence not reported.-Brown v.
Hickey Leather Co., 714.
705 (Mass.) Question concerning check an-
nexed to brief, but not referred to in record,
not before the court.-Brown v. Green & Hick-
ey Leather Co., 714.
XI. ASSIGNMENT OF ERRORS.
722(3) (Ind.) Assignment of error must
contain full names of all parties affected by
judgment appealed from.-Rockey v. Hersh-
man, 339.
882 (4) (Ind.App.) Answer of federal Agent
held to preclude claim he was not properly
made party to the action.-U. S. Railroad Ad-
ministration v. Monahan, 785.
882 (7) (Mass.) Party introducing evidence
could not complain or object to any result re-
quired thereby.-Allied Furriers' Corporation
v. Lisker, 571.
(D) Amendments, Additional Proofs, and
Trial of Cause Anew.
889(3) (Ind.App.) Complaint amendable to
conform to evidence assumed amended on ap-
peal.-Davis v. Hunter, 785.
907 (4) (Mass.) Absence of other evidence
on particular point not assumed, when all evi-
dence not reported.-Mann v. Eastern Sugar &
Products Co.. 244.
907 (5) (Mass.) Presumed that document
not before court was before trial judge, and
that finding was based thereon.-Arnold v.
Chandler Motors of New England, 574.
920 (2) (Mass.) Presumed that defendant's
rights would have been protected by postpone-
ment of trial on motion.-Walsh v. Wyman
Lunch Co., 389.
Assignment of error in drainage proceedings
sufficient, if persons named therein correspond
to names in pleadings or in judgment.-Id.
Assignment of errors held not insufficient for
discrepancy in names of appellants in drainage
proceedings.-Id.
748(1) (Ind.App.) Assignment of error not926(5) (Mass.) Presumed that evidence
invalidated by confusion in naming defendant. properly limited, in absence of any showing to
contrary.-Walsh v. Wyman Lunch Co., 389.
Campbell v. Payne, 766.
931 (3) (Ind.App.) Failure to find facts al-
750 (7) (Ill.) Record held not to present leged in complaint deemed finding against plain-
question of propriety of nunc pro tunc judg-tiff.-Cole v. Board of Com'rs of Noble County,
ment.-Village of Oak Park v. Hulbert, 678.
(F) Discretion of Lower Court.
761 (Ind.App.) No question presented, in-970(1) (Ind.App.) Requiring abstract of ti-
structions not being discussed under points and tle is discretionary with trial court and ruling
authorities. Wabash Water & Light Co. V. will not be reversed except for abuse of discre-
Home Telephone Co., 692.
tion.-Seymour Water Co. v. Lebline, 787.
XIII. DISMISSAL, WITHDRAWAL, OR
(G) Questions of Fact, Verdicts, and Find-
ings.
*~781(1) (Ind.) No appeal in drainage pro-1005 (4) (Mass.) Weight and credibility of
ceedings from judgment for costs merely.- evidence not for reviewing court.-Cummings v.
Rockey v. Hershman, 339.
Copley, 803.
781(1) (Ind.) Moot questions not of pub-1008(1) (Ind.App.) Whether principal was
lic interest will not sustain appeal.-State v. negligent, and so could not recover for bro-
Wheaton, 820.
ker's failure to notify principal of cancellation
of order, held for the trial court.-Mason Pro-
duce Co. v. Harry C. Gilbert Co., 100.
in case tried
1008 (1) (Mass.) Finding
without jury conclusive, if warranted.-Patch
v. Cashman, 329.
XV. HEARING AND REHEARING.
828 (N.Y.) Where constitutional question
of general interest not argued, reargument or-
dered.-Howard v. City of New York, 424.
(A) Scope and Extent in General.
1009 (3) (III.) Chancellor's findings on con-
flicting evidence not disturbed, unless manifest-
ly against weight of evidence.-Winkelman v.
Winkelman, 637.
842(1) (Mass.) Question of waiver of pro-1009 (3) (III.) Chancellor's finding on con-
vision of lease is one of fact, as to which mas-
ter's finding on unreported evidence is final.
Grennan v. Murry-Miller Co., 591.
843(1) (Ind.App.) Questions not likely to
arise on another trial not considered.-Davis v.
Hunter, 785.
flicting oral testimony not disturbed, unless pal-
pably contrary to its weight.-Mackie v. Schoen-
stadt, 686.
1009 (7) (Mass.) Court will draw inferenc-
es for itself, when decree of single justice based
on master's report.-Fenelon v. Fenelon, 334.
858 (Mass.) On appeal court can deter-1015(5) (Ind.App.) Finding of trial court
mine whether relief should be decreed.-Cur- on conflicting affidavits as to misconduct of
jury not disturbed.-Seymour Water Co. v. Le-
ran v. Magee, 1.
861 (Mass.) Rulings not included in re-bline, 787.
port not considered.-Cosmopolitan Trust Co.
V. Cohen, 711.
Report of issues raised by demurrer includes 1031(6) (III.) Court cannot determine on
grounds overruled as well as those sustained. what instructions jury based verdict when some
-Id.
instructions incorrect.-Gregory v. Richey, 669.
866(3) (Ind.App.). In absence of evidence
for defendant defeating policy sued on, chal-
lenge of directed verdict for plaintiff as not
sustained by sufficient evidence goes only to
question whether plaintiff made prima facie
case.-Gary Nat. Life Ins. Co. v. McQuaid, 353.
1031 (6) (Ind.App.) Burden of showing er-
roneous instructions were not prejudicial is
upon appellee.-Remington v. Edwards, 824.
1031(6) (Ind.App.) Erroneous instruction
presumed harmful.-Indiana Rys. & Light Co.
v. Armstrong, 830.
|