Brewing Co. v. Cassman.

associations doing business in the state, duly authorized to do so. And the fact that a penalty is provided against the company who does without authority carry on such business, strengthens this idea.

But if this be so, and the section is applicable to this case, what is the meaning of it? Was it the intention of the legislature forever to exempt the fund arising form such insurance, no matter how great it may be, from application by any process or operation of law to the payment of the debts of the beneficiary, before or after it comes into his hands? We think not. There is no limitation in it as to the amount of such insurance, and a large amount might be affected. The meaning of the section is not clear, but we are of the opinion that the intention was to prevent it being so appropriated before the death of the person whose life is insured, to "pay the debts or liability of a certificate holder or of any beneficiary named in a certificate, or any person who may have any rights thereunder." And that after it comes into possession of the party entitled to it, such person has only the same rights of exemption as to that fund, which he has as to the other property. A claim is also made by the counsel for the administrator that the claim of the plaintiff against his intestate which accrued in 1896, is exempt for another reason. It appears that the claim of plaintiff against Mrs. Cassman arose in 1896 or 1897, and that it was a debt, as is claimed, which arose on a contract as to her separate estate, and for which she pledged all the separate estate then owned by her. This was sold and a judgment rendered against her for the deficiency. Afterwards she became entitled to this insurance money which she claims was after-acquired separate estate, and that she or it was not liable for the old debts.

We think this claim not well founded. Since the act of March 19, 1887 (Sec. 3114, Rev. Stat.), a married woman may make a contract with any person which she might make if unmarried, and for any debt contracted by her after that date, her property acquired after that date, and while a feme sole, is liable to be seized as her general property and subject to the payment of her debts.

What then is the effect of our holding as to the distribution of the residue of the fund in court after the payment of the claims of Ottman & Company and of Clements? As to this the members of the court are hardly agreed. Judges Swing and Giffen are of the opinion that as the money had not reached the hands of Mrs. Cassman at the time plaintiff's action was commenced, that this action was improperly brought and that the plaintiff obtains no priority over any other general creditor. I incline to the opinion that the payment of the money into court was in effect a payment to her, and further that the provisions of the section were intended only to prevent the attachment or garnishment of the fund, or by creditor's bill during the life of the party insured, and that on his death the insurance claim might be so subjected, before its payment to the beneficiary. But in accordance with the holding of the majority a decree may be entered that the amount of the fund remaining after the payment of the Ottman & Company and Clements claims be paid to the administrator of the estate of Mrs. Cassman, to be by him administered according to law.

10 O. C. D. Vol. 19

Hamilton Circuit Court.

APPEAL-ASSESSMENTS-SEWERS.

[Hamilton Circuit Court, January Term, 1901.]
Smith, Swing and Giffen, JJ.

POTTER ET AL. v. NORWOOD (VIL.).

1. A PROPOSED ASSESSMENT MAY BE ENJOINED.

Where property is already provided with local drainage and does not need other drainage, the owners may enjoin the levy of an assessment for the cost of construction of a new sewer, and are not required to wait until the assessment is actually levied and then seek to be relieved from it, especially since it is fairer to the corporation to have its right to assess determined before the expense of the improvement is incurred.

2. COURT MAY ALLOW AMENDMENTS ON APPEAL, WHEN.

A court has a right in a case coming to it on appeal to allow amendments in furtherance of justice, where the effect of such amendments is not to state a new and different cause of action from that originally brought in the lower court.

8. CASE IN WHICH AMEndment was PROPERLY ALLOWED.

Where during the pendency of a suit in which the plaintiffs were entitled to an injunction to restrain the levying of an assessment against their property for the construction of a sewer, but wherein no temporary injunction was issued, the municipal authorities proceeded to do the work sought to be enjoined and improperly assessed parts of the costs therefor on lots of the plaintiffs, the plaintiffs have the right on appeal in the original action, by way of suppleinental petition, under Sec. 5119, Rev. Stat., to set up the fact of such illegal assessment and seek to enjoin its collection. The allegations referred to do not constitute a new or different cause of action, but simply present additional facts as to the same transaction entitling plaintiff to other and different relief.

APPEAL.

W. T. Poster, for plaintiff.

W. R. Collins, solicitor, for defendant.

On motion for leave to file amended and supplemental petition. SMITH, J.

The claim of the plaintiffs in the original petition, filed by them some time in 1897, was substantially this, as we understand: That the village by its authorities, as shown by its resolutions, ordinances and other proceedings, was about to make a contract with some one to take up and remove a sewer which had been constructed in certain streets and avenues of the village, duly dedicated to public use by the proprietors of a subdivision afterwards annexed to the village, and which sewer when constructed was for the use of the abutting lots and lot owners for drainage purposes, and had been used for that purpose for years, and adopted by the village after the subdivision was annexed. And that the village, after the old sewer was taken up, was about to put down a new one of the same general character at great cost, and assess the cost of all of said improvement upon the property abutting on said streets where the work was done, and thus on their property. That their said lots that would be so assessed for such cost, do not need local drainage, as they were already provided therewith by the old sewer about to be removed. They therefore prayed that the said village be enjoined

Potter v. Norwood.

from accepting any bids for said proposed work, and from making any sewer thereunder or contract for the removal of the existing sewer, and the construction of the new one, or from levying ny assessment therefor on the property of the plaintiffs, and for such other relief as they may be entitled to.

An answer was filed by the village as we understand, denying some of the allegations of the petition, particularly those as to the plaintiffs having local drainage, and on a hearing of the case in the common pleas court the petition of the plaintiffs was dismissed, September 7, 1897. Plaintiffs appealed the case to this court, and about October 25, following filed an amended and supplemental petition and a temporary injunction was allowed on plaintiffs giving bond in the sum of $3,000. but no undertaking was executed. This amended petition does not differ much from the original, but sets up other reasons why their property should not be assessed.

But as no injunction bond was executed by plaintiffs, the village proceeded with the improvement as though no action was pending, and now the plaintiffs seek to file a second amended and supplemental petition, which is resisted by defendant. It avers, substantially, that after the appeal of the cause to the circuit court, the village proceeded to take up their old sewer, and constructed the new one according to the plan adopted, and took the old pipes and appropriated them to other uses, and on February 21, 1898, passed an assessing ordinance, assessing each front foot of the lots of plaintiffs arbitrarily, 0.7116 cents, without regard to benefits. That the total cost assessed on the abutting property in claded the cost of other improvements made by the village years before and not contemplated or provided for by the proceedings in this case, there being about $2,237.34 so illegally assessed on the abutting property and that for this reason also the assessment on their property should be enjoined.

The question which now arises is, whether the court has the right under this state of fact to allow this amended and supplemental petition to be filed, and if so, should it be granted, and on what terms? There can be no question, we think, but that the court has the right when a case comes to it on appeal, to allow amendments to be made to the pleadings in furtherance of justice, and where the effect of such amendments is not to state a new and different cause of action from that originally brought in the lower court. Grant v. Ludlow, 8 Ohio St., 1, 32. The question in this case then, so far as regards the right of the court to allow the amendment presented, is whether it does state a new and different cause of action from that originally prosecuted.

It seems to us that the only good cause of action presented by the original petition is, that the village for the reason stated therein, viz. : that the plaintiffs' property was already provided with local drainage, and did not need other drainage, and that the village was about to incur a very great expense in the construction of the new sewer and was about to assess the cost thereof upon the abutting property, including 'hat of the plaintiffs, and that so far as the plaintiffs' property was concerned they ought to be restrained from doing so, for the reason that under the provisions of Sec. 2380, Rev. Stat., it had no right under these circumstances to make any assessment on such lots so provided with local drainage. It would seem that on no other ground stated in the original petition would the plaintiffs have been entitled to relief for if the village thorities act in good faith, they have authority to construct a general

Hamilton Circuit Court.

system of sewerage, and in doing so, destroy or change existing ones; but if they do this, and the old system afforded to any one local drainage from his premises, then such premises can not be assessed for the cost of the new system.

The question does arise, whether the plaintiffs under the allegations of their petition, had a good cause of action to enjoin the levy of an assessment on their property for the cost thereof (as was evidently contemplated by the village authorities as shown by their proceedings and ordinance), or whether they must wait until the assessment is levied and seek to enjoin that.

With some doubt, we have reached the conclusion that they had a right to seek to enjoin the levy of the assessment, and if the facts disclosed warran it, to have an injunction, and would not be required to wait until it was actually levied and then seek to get rid of it. Indeed, for some reasons it would seem fairer to the village to adopt this course, and thus have the question raised as to the rights of the village to assess certain property before the expense is incurred.

If, then, the plaintiffs had the right to seek to enjoin the assessment, as was done, and during the pendency of the suit the village proceeded to do the work, and then assessed part of the cost on lots of the plaintiffs which for the reason before assigned, were not subject to assessment therefor, have the plaintiffs the right in the original action, by way of supplemental petition, to set up such facts and seek to enjoin the collection thereof? We think this may properly be done. Section 5119, Rev. Stat., provides that "Either party may be allowed on such terms as to costs, as the court or a judge thereof may prescribe, to file a supplemental petition, answer or reply, alleging facts material to the case which occur subsequent to the filing of the former petition, answer or reply."

That is sought to be done in this case, by alleging the doing of the work and the subsequent illegal assessment (as is claimed), on plaintiffs' property. That, it seems to us, is not the setting up of a new or different cause of action, but only facts which it is claimed entitle them to other and different relief.

Nor do the additional reasons set up in this pleading why the assessment or some part of it is invalid which plaintiffs seek to file, make a new cause of action, but it only avers facts as to the same transaction which give the plaintiff's, as they claim, the right to the same kind of relief as to the matter complained of. We therefore have come to the conclusion to allow this supplemental pleading to be filed. Whether plaintiffs should be taxed with any part of the costs, as a condition thereto, will hereafter be decided, at the final hearing.

ASSIGNMENTS FOR CREDITORS.

[Hamilton Circuit Court, 1901.]

Swing, Giffen and Jelke, JJ.

ROSE WACHTEL V. WILLIAM CAMPBELL ET AL. INSOLVENCY-TRANSFER TO PAY GAMBLING DEBT-RECOVERY BY ASSIGNEE. A transfer of life insurance in payment of a debt arising out of transactions in stock on margins is void at common law and under the statutes of Ohio and can be set aside at the suit of the assignee for the benefit of creditors; a proceeding under Sec. 6244, Rev. Stat, by a creditor is not necessary.

HEARD ON ERROR.

Wachtel v. Campbell.

H. P. Kaufman, for plaintiff in error.

Adolph L. Brown and Frank Seinsheimer, for defendants in .error.

The plaintiff sued for the benefit of herself and other creditors to set aside the transfer of certain life insurance by Joseph Wachtel to secure the payment of a note for $6,000, which said Wachtel had executed in payment of a debt arising out of marginal transactions.

JELKE, J.

These are not cases involving actual or constructive fraud, where the transfer is good as against the grantor, but voidable at the suit of the creditor.

The transfer under consideration in these cases was absolutely void at all times and between all parties, both at common law and under our statutes, resting upon a gambling consideration, which in law is no consideration. It is not true as contended by counsel for Rosa Wachtel that at common law where such a transaction was executed the title was permitted to remain in the transferee. The transferrer being out of possession, was in such cases in pari delicto with the transferee and could obtain no standing in court. That does not mean that such a transfer had any legal attributes or that there was any recognition of title having changed.

The assignee, as the representative of all creditors, including Rose Wachtel, succeeded to all the property rights of Joseph Wachtel without incurring any of his personal odium or disability. Therefore, on November 27, 1894, title to the property represented by these policies of insurance passed to Seinsheimer, assignee. An action under Sec. 6344, Rev. Stat., by a creditor is not necessary. An action by the assignee to compel Campbell to surrender these policies is proper.

We approve the opinion of the court of common pleas (Hollister, J.) in Wachtel v. Campbell, 9 Dec., 572 [7 N. P., 507]. ` Judgment affirmed.

ERROR.

[Allen Circuit Court, April Term, 1900.]

Price, Norris and Day, JJ.

*MCARTHUR BROTHERS V. CENTRAL TRUST CO. ET AL.

1. WHAT IS NECESSARY TO MAKE AN ORDER SUBJECT TO REVIEW. An order made in an action or proceeding, in order to be available on error must so prejudicially affect a legal right as to extinguish it or destroy its proper and legitimate effect in the final determination of the subject in controversy.

2. REFUSAL TO SET ASIde a Sale-REVIEW.

The refusal to set aside a sale may be preserved in the record as an error of the court on such motion, and be reviewed in proceedings to reverse the order of confirmation, but the refusal to set aside a sale is not a final order which may of itself be reviewed on error, within the meaning of Sec. 6707, Rev. Stat.

Affirmed by the Supreme Court without report (63 O. S., 593).