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Hamilton Circuit Court.

The cause was tried before a jury. The court ruled that the defendant had the opening and closing on the issue raised by her answer and cross-petition as to whether she was entitled to a return of 50 per cent. of the amount she had paid on account of the purchase of the piano which was the only issue on the trial.

The defendant testified that there was no agreement between herself and the Hocket Bros. Puntenney Company or the plaintiff other than expressed in the mortgage which was introduced in evidence. The mortgage recited an indebtedness from the defendant to the Hocket Bros.-Puntenney Company, evidenced by the notes given for the installments. The condition of the mortgage was as follows:

"Now, therefore, in consideration of such indebtedness and to secure the payment of the same as aforesaid, said party of the first part does hereby sell, assign, transfer, and set over to said party of the second part, the property described in the following schedule, viz: 5 Wal. Briggs Piano, No. 17559, with stool and cover.

"Provided, however, that if said debt and interest be paid as above specified, then this sale and transfer shall be void. The property sold is to remain in the possession of the party of the first part until default in the payment of the debt and interest aforesaid, or some part thereof, in which case all of the said debt shall then become due and payable at the option of the said party of the second part; or in case of a sale or attempt to sell or a disposal or attempt to dispose of, or a removal or attempt to remove the same from where it now is, then the said second party may take such property into its own possession, and sell the same either at private or public sale, as it may elect, and after satisfying the aforesaid debt and interest thereon, and paying all costs, expenses and charges on the same out of the proceeds of such sale, then the surplus, if any, shall be returned to said party of the first part."

At the close of the defendant's testimony, in opening, the plaintiff moved the court to instruct the jury to return a verdict for the plaintiff which motion the court overruled and the plaintiff excepted. The jury returned a verdict for the defendant for the amount claimed in her crosspetition.

A motion for a new trial was filed and overruled. The trial court signed and allowed a bill of exceptions purporting to contain all the evidence introduced. It being claimed that the bill allowed had not been presented within the time required by law to opposing counsel, the trial court found that a bill of exceptions complete in form purporting to contain all the evidence and with the exhibits attached was presented to opposing counsel in time. The other facts are recited in the opinion. GIFFEN, J., (orally)

In the case of the Chicago Cottage Organ Company v. Bertie A. Biggs and others, first to be considered is a motion to strike the bill of exceptions from the files. The court passed upon this in the fall of 1899, and counsel have requested that it again be considered.

The difficulty arose from a dispute between counsel as to what the bill should be. The bill was prepared and presented to opposing counsel in due time. That bill was lost, and then a copy was substituted, and counsel to whom the bill was submitted prepared a bill himself, and that it was afterwards agreed should be the bill of exceptions, and it was so signed and so found by the court.

Organ Co. v. Biggs.

Now there are affidavits on file contradicting this statement, or rather, as against the finding of the court, but there is no tions embodying the evidence in these affidavits, so this nothing but approve the finding of the court below.

bill of excepcourt can do

The court below found that the bill was presented in due time and that the bill of exceptions if it was substituted was substituted as a copy and suggested by counsel for Mrs. Biggs. That is the very purpose of submitting a bill of exceptions to opposing counsel, in order that a correction may be made if necessary, and according to the finding of the court below it was made in this case. We have no evidence before us to change that finding. We therefore adhere to the former ruling of the court on the motion to strike the bill of exceptions from the files.

The judgment below was against the organ company, and they prosecute error, and assign error of the court in overruling the motion upon the termination of defendant's testimony to render a judgment in favor of the plaintiff.

The defendant has filed a cross-petition, and the court below had held that the defendant had the opening and closing; and at the close of the testimony offered by defendant in support of that cross-petition, this motion was made. The motion was overruled, and it is claimed that that was error.

The allegations of the petition are that the piano had been sold and a mortgage given back to the organ company. The answer of Mrs. Biggs does not deny this, but admits that there was a mortgage given, and her testimony sustains that allegation.

She avers in her cross-petition that it was one transaction, all done at one and the same time. So far as we are able to discover that is the only allegation tending to show that it was not a mortgage, but a conditional sale.

In our judgment it does not even tend to establish that fact. Most mortgages are given at the time of the transaction; in fact, all mortgages for purchase money are given at the time of the transaction in order that the party making the sale may be secured, as the mortgage is given for that purpose.

Counsel rely upon the case of Caldwell v. Singer Mfg. Co., 4 Circ. Dec. 680 (7 R. 460), in which the court held that a paper signed, similar to this one, was a conditional sale although perhaps it was denominated a mortgage. But in that case the petition distinctly avers that the title was to remain in the vendor. Now there is a total absence in this petition of any averment of that kind.

It was argued to us orally that it was a makeshift, a device to take what purported on its face to be a mortgage when in fact it was a conditional sale.

It is in many respects in the ordinary form of a chattel mortgage and states that the transfer shall be void in the event that the payments are made.

We think that the case of the Caldwell v. Singer Mfg. Co., supra, cannot be applied to this case because there the pleadings distinctly say, and the issue was raised as to whether or not it was a conditional sale, whether or not the title remained in the vendor after the sale; and that is the provision of the statute, Sec. 4155-3, Rev. Stat., that a conditional sale where the title remains in the vendor shall require before the property be taken from the vendee certain payments to be made by the

Hamilton Circuit Court.

vendor, and that it in no sense prevents the taking of a chattel mortgage.

So that not only with reference to the weight of the testimony, but in this case there is a total absence of any averment that would bring it within the provisions of this statute concerning conditional sales, and therefore the judgment below must be reversed.

CRIMINAL LAW-BILLS OF EXCEPTIONS-NEW TRIALS.
[Montgomery (2nd) Circuit Court, May Term, 1901.]
Wilson, Sullivan and Suminers, JJ.

GERMANTOWn v. Basore.

1. NEW TRIal Before MAYOR OR POLICE Court.

In prosecutions for the violations of ordinances of a municipal corporation a mayor or a police court may grant a new trial on the grounds that the court of common pleas may grant a new trial in criminal cases.

2. CONVICTION BEFORE MAYOR OR POLICe Court-Review of Evidence. A conviction in such case before a mayor or in a police court may be reviewed on the weight of the evidence.

3. SAME-BILL OF EXCEPTIONS FROM Mayor or Police Court.

The taking of a bill of exceptions in such case before a mayor or in a police court is governed by the rules in civil cases in the court of common pleas.

HEARD ON ERROR.

Sprigg & Fitzgerald, for plaintiff in error.

L. S. Crickmore and W. A. Hallonan, for defendant in error, cited: State v. Simmons, 49 O. S., 305; Flaton v. Mansfield, 7 Circ. Dec. 39 (14 R. 592), Secs. 614, 1752, 7360, 7356 Rev. Stat., 66 O. S., 170; Slaughter v. Columbus, 61 O. S., 53; State ex rel. v. Protective Association, 26 O. S., 38; Miller v. Bellefontaine, 1 C. D. 407, (2 R. 139), Sec. 1692 Rev. Stat; Sec. 4364-20 and 4364-16, Ib.

The defendant was charged with the violation of an ordinance of the village, and on trial before the mayor, on July 3, 1900, found guilty ; thereupon he filed a motion for a new trial on the ground that the finding was not sustained by sufficient evidence and was against the weight of the evidence, which motion was, on the same day, overruled, and upon request of the defendant the mayor then allowed until July 12 for the preparation and presentation for allowance of a bill of exceptions, and on July 9 allowed, signed and ordered to be made a part of his record a bill of exceptions containing all the evidence.

On error the court of common pleas reversed the judgment and discharged the accused, on the ground that the finding was against the weight of the evidence.

It is contended here that the court of common pleas is without authority to review upon the weight of the evidence; and that, inasmuch as the statutes do not authorize a mayor to allow time beyond the trial for the preparation and allowance of a bill of exceptions, the bili formed no part of the record, the mayor being without jurisdiction to allow it when he did, and the court of common pleas therefore erred in reversing upon the weight of the evidence.

O. C. D.

CIRCUIT COURTS.
Germantown v. Basore.

501

SUMMERS, J.

In Flatau v. Mansfield, 7 Circ. Dec. 39 (14 R. 592), it is held that a judgment of conviction by a mayor of a violation of an ordinance is Whether in that case the reviewable upon the weight of the evidence. bill was taken at the trial does not appear.

In Bradner (Vil.) v. Grundetisch, 8 Circ. Dec. 122 (15 R. 32), it is held that a mayor is not authorized to allow time for the preparation of a bill of exceptions, and that a bill allowed and signed after the day of trial cannot be considered by a reviewing court.

In Bellefontaine (Vil.) v. Vassaux, 55 Ohio St. 323 [45 N. E. Rep. 321], the court declined to determine whether the judgment of a mayor can be reviewed upon the weight of the evidence, but looked to the record to see if there was any evidence tending to support each element of the complaint.

In Slaughter v. Columbus, 61 Ohio St. 53 [55 N. E. Rep. 221], it is held that a conviction in a police court may be reviewed on the weight of the evidence.

Further light upon the questions presented may be had by an examination of the statutes.

Section 115, 66 O. L. 170, of the municipal code, provides that "any final sentence or conviction before the mayor may be examined and revised in the same manner and by the same tribunal as is provided for the examination and revision of any final sentence or conviction in the police court."

Section 179, as amended, 67 O. L. 72, provides that "Any final conviction or sentence of the police court may be examined into by the court of common pleas on writ of error."

In Williams v. State, 25 Ohio St. 628, the Supreme Court, at its December, 1874, term, held that, "Proceedings in error to review the final conviction or sentence' of police court are regulated by the provisions of the municipal code, Secs. 179, 180, 181. By these provisions there is no authority for taking an exception to the overruling of a motion for a new trial on the ground that the verdict or finding of the court is not sustained by sufficient evidence, or for setting out the whole of the testimony in a bill of exceptions, if such motion be overruled. Areviewing court may not, therefore, weigh the testimony offered on the trial in the police court for the purpose of determining whether the conviction was right."

This was followed by the act of April 11, 1876, 73 O. L. 226, amending Sec. 179 of the municipal code, so that one of the causes for allowing a writ of error "shall be the overruling of a motion for a new trial on the ground that the verdict or finding of said court is against the weight of evidence."

Section 180 (66 O. L. 178) provided that "The police court shall return on such writ of error, all matters of record or on file touching the proceedings, or a transcript thereof, and any facts which may have been noted by the judge or certified in the nature of a bill of exceptions at the time of trial."

So the law stood prior to the revision of 1880. The judgment of a police court then could be reviewed on writ of error because of error in overruling a motion for a new trial on the weight of the evidence, and to that end a bill of exceptions could be taken at the time of trial, and by express provision of the statutes any final sentence or conviction before the mayor might be reviewed in the same manner.

Montgomery Circuit Court.

In the Revised Statutes of 1880, Sec. 125 of the code appears as Sec. 1752, in which it is provided that "a conviction under an ordinance * * * may be reviewed by petition in error, in the same manner and to the same extent as was heretofore permitted on writs of error and certiorari, * * * and for this purpose a bill of exceptions may be taken, or a statement of facts embodied in the record on the application of any party."

Section 179 of the code appears in Sec. 7356, Rev. Stat., which provides, "In any criminal case, including a conviction for a violation of an ordinance of a municipal corporation, the judgment or final order of a court or officer interior to the common pleas court may be reviewed in the common pleas court."

Section 7358, Rev. Stat., provides that the proceedings to review shall be by petition in error.

Section 1792, Rev. Stat., relating to the police court, provides "and in any case a new trial may be granted within the same time and for the same cause as in like cases in the court of common pleas."

"Like cases in the court of common pleas" are criminal cases, and Sec. 7350, Rev. Stat., prescribes for what causes a new trial may be granted in such cases, and one cause is that "the verdict is not sustained by sufficient evidence."

Section 7304, Rev. Stat., provides for the taking of bills of exceptions in criminal cases, and that the taking of such bills" shall be governed by the rules established in civil cases."

As we understand the opinion in Slaughter v. Columbus, supra, the reasoning is in substance that the Revised Statutes of 1880 provide that a conviction in a police court may be reviewed by petition in error to the same extent as was previously done on writs of error, and as they were previously reviewed on the weight of the evidence by writ of error they still may be so reviewed by petition in error. Upon like reasoning, it follows that a judgment of conviction under an ordinance by a mayor may be reviewed upon the weight of the evidence, for Sec. 1752, Rev. Stat., is not limited to convictions in a police court, but applies to convictions before a mayor, and provides that they "may be reviewed by petition in error in the same manner and to the same extent as was heretofore permitted on writs of error and certiorari," and since it was theretofore, and at the time of the revision, permitted to review a conviction under an ordinance before a mayor in the same manner and by the same tribunal as was provided for the examination and revision of any final sentence or conviction in the police court, which, as we have seen, might be reviewed on the weight of the evidence, it follows that a conviction under an ordinance before the mayor may be now reviewed by petition in error on the weight of the evidence.

It remains to determine whether time beyond the trial may be given to prepare the bill of exceptions.

It is contended that no time is expressly fixed by statutes and, inasmuch as prior to the revision, section 181 of the code provided that the police court should return on the writ or error any facts that may have been certified in the nature of a bill of exceptions at the time of the trial, that the mayor is without authority to allow a bill of exceptions at any time other than at the time of trial.

The almost universal practice is, when a review of the evidence is contemplated, to have the evidence taken down by a stenographer and subsequently transcribed and made into a bill of exceptions, and it would

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