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Railway Co. v. Telegraph Co.

ON MOTION to dismiss petition in error.

E. A. Foote and H. D. Estabrook, for plaintiff in error.

Henry and Robert Newbegin and F. J. Loesch, for defendant in error.

DAY, J.

These two cases in error, Nos. 268 and 276, entitled the same, grow out of an appropriation proceeding, which had its beginning in the probate court of Crawford county, and was instituted by the Ohio Postal Telegraph Cable Company to appropriate, by virtue of the provisions of Sec. 3456-9, Rev. Stat., the right to erect and maintain a line of telegraph on and along the right of way of the Cleveland, Cincinnati, Chicago & St. Louis Railway through this state, from Berea to Union City. The two cases were submitted together on the petitions in error, and a motion, in No. 268 to strike the bill of exceptions from the files and dismiss, and in No. 276 to dismiss the petition in error, for the reasons that the bill of exceptions was not perfected and secured according to law, and that in No. 276 there was not filed with the petition in error, within four months of the rendition of the judgment sought to be reversed, "such original papers or transcripts thereof as are necessary to exhibit the error complained of," as required by Sec. 6716, Rev. Stat.

The cases are disposed of on the motions; a sufficient statement of the facts to exhibit the grounds of the court's action, and perhaps to justify it, is as follows:

Certain preliminary questions, jurisdictional in their character, were for disposition by the probate court, before a jury could be called to determine the compensation to be paid. The telegraph company in its application represented that it was an Ohio corporation; that it was necessary to make the appropriation, etc. The railroad company joined issue on all the propositions. A trial was had to the court, evidence pro and con was heard and a decision and judgment, on such preliminary questions, favorable to the telegraph company. was given on January 16, 1900. On March 3, 1900, the railway company filed a motion for a new trial of said preliminary questions on the ground that the finding and decision was not sustained by the evidence, and because of error in admitting and rejecting evidence on the hearing. This motion was overruled March 29, and on April 23, 1900, a bill of exceptions containing all the evidence and the various rulings of the court, as to the admissibility of evidence, was signed and ordered made a part of the record. After the decision and judgment in favor of the telegraph company on the preliminary and jurisdictional questions, the case was tried to a jury on the question of compensation and damages necessary to be paid to the railway company by the telegraph company for the rights appropriated, resulting in a verdict for the railway company of more than $6,000. A motion for new trial was overruled by the probate court and judgment given on the verdict. The elegraph company took a bill of exceptions and prosecuted error to the court of common pleas, to obtain reversal of the judgment in the matter of compensation and damages. The railway company filed its ill of exceptions taken in the preliminary matter and filed a cross-petition in error in the case in the common pleas court. On motion of the telegraph company the bill of exceptions of the railway company was stricken from the files and the cross-petition in error dismis-ed by the common pleas court, and to this order the railway company prosecuted error, filing the original papers in the case, transcript

Crawford Circuit Court.

of the journal and docket entries, with a petition in error in the circuit court. The appearance of defendant in error was effected, and that is case No. 268 on the circuit court docket. The cross-petition in error thus disposed of, the case came on or hearing and was heard on the petition in error of the telegraph company. Error was found in the proceeding of the probate court and its judgment as to compensation and damages reversed and the matter set down for trial in the common pleas court. Trial was had to a jury and a verdict rendered in favor of the railway company for $500. A motion for new trial made by the railway company was overruled and judgment given on the verdic. The railway company not content with the disposition made of its case, secured a bill of exceptions containing all the evidence had on the trial, the rulings of the court on the admissions of evidence and the charge of the court to the jury, and filed it here on May 11, 1901, with a petition. in error pointing out many alleged errors occurring at the trial. Transcripts of the docket and journal entries were also filed within four months of the judgment. No transcripts of the original papers were ever filed, but the clerk of courts, within four months after the judgment was procured, by counsel for the railway, to place upon the original papers filed in case No. 268, indorsements as follows: "Filed May 31, 1901, Circuit Court 276." This last named proceeding is case No. 276.

In case No. 268, all questions of error assigned, arise on the record, as constituted and made up by regarding the bill of exceptions as part of it, and it follows of necessity, if a bill of exceptions was not secured in conformity to the provisions of law, the questions sought to be reviewed were not brought into the record, and the lower court was right in disposing of the cross-petition in error, and its judgment will per force have to be affirmed. Then the question first presented here is the one: Did the railway company secure a bill of exceptions, under the provisions of law, on the trial of the preliminary questions in the probate court? That trial was had and decision given January 16, 1900. A motion for a new trial was filed March 3, overruled March 29, and a bill of exceptions allowed April 23, 1900. The issues joined were of fact and concerned the right of the telegraph company to institute and maintain the proceeding of all; and a motion for new trial, if overruled and exceptions taken to the ruling, was necessary in order to review the decision on the weight of the evidence, and we think it was necessary on the authority of Ide v. Churchill, 14 Ohio St. 372 and other decisions sustaining that view. Such motion is required, by the provisions of Sec. 5307, Rev. Stat., to be filed within three days after the decision was rendered. In this instance the motion was not filed within three days and not until the forty-sixth day after the decision, and could not properly be considered or acted on by the probate court. Not having filed its motion for new trial within the time fixed by law, the railway company is held to have waived its right to move for a new trial; and the subsequent filing was of no avail, nor was the ruling thereon of any avail.

In this state of fact appearing on the record, we are compelled to the conclusion that the railway company secured no proper legal bill of exceptions, and failing in that, the cross-petition in error was properly dismissed, and we affirm the judgment.

As to case No. 276, same parties as in case No. 268, just now disposed of; it is intended to secure a reversal of the judgment of the court

Railway Co. v. Telegraph Co.

of common pleas rendered on the further trial of the case, in relation to compensation for the property rights of the railway company appropriated in the proceeding. The petition in error was filed in this court May 11, 1901. A transcript of the docket and journal entries and a bill of exceptions was filed May 31, 1901. As we have seen, the original papers in the appropriation proceeding were filed in case No. 268 in error, marked "Filed January 21, 1901, Circuit Court No. 268." Transcripts of the original papers are provided for by Sec. 6716, Rev. Stat.; but the railway company did not see fit to avail itself of this provision, and instead of filing transcripts, it procured the original papers, filed in No. 268, to be marked "Filed May 31, 1901, Circuit Court No. 276." And that is as near as plaintiff in error came to filing in case No. 276 "such original papers or transcripts thereof, as are necessary to exhibit the error complained of," as required by the provisions of Sec. 6716, Rev. Stat. That section provides: "The plaintiff in error shall file with his petition either a transcript of the final record, or a transcript of the docket or journal entries, with such original papers or transcripts thereof as are necessary to exhibit the error complained of ***." It has been held that these requirements are mandatory and essential to be complied with, in order to accomplish the commencement of an action in error. It is not necessary that they be all filed at one time. The filing may be at different times; but they must all be filed within the time fixed as a limitation for the commencement of actions in error, which now is within four months after the rendition of the judgment complained of. See Bartoon v. Bank, 8 Circ. Dec. 27 (14 R. 450), Townsend v. Harris, 58 Ohio St. 398 [50 N. E. Rep. 985].

The four months limitation having fully run, and more than run, it is now too late to file; so that the question is squarely presented for the determination of this court: Did the plaintiff in error, by the steps taken by it, accomplish and has it now pending, an action in error in this court? The proper answer to the question depends altogether upon the proposition as to whether filed the original papers in case No. 276. No transcript of the original papers was filed or attempted to be filed. The only thing done, was, as I have said, to procure an endorsement on the papers already on file in case No. 268 of "Circuit Court No. 276, filed May 31, 1901." We are of opinion the indorsement did not have the effect to place the papers on file in case No. 276. They are part of the files in the other case, were in the custody and control of the court, and could not properly be withdrawn from the files except upon leave of the court.

The papers were found on file in case No. 268 by this court, and as they do not possess the quality of ubiquity, it would seem to be physically impossible for them to be found in two separate and distinct places-in cases No. 268 and No. 276 at the same time. The effect to perform such a miracle, was of course, innocent and harmless, and we think entirely failed to place the original papers among the files of this case.

If this is correct, plaintiff in error, in failing to comply with the provisions of Sec. 6716, Rev. Stat., did not succeed in commencing an action in error; and on authority of Bartoon v. Bank, 8 Circ. Dec. 27 (14 R. 405), the petition in error is dismissed at cost of plaintiff in error.

Lucas Circuit Court.

HUSBAND AND WIFE-FRAUD-ALIMONY.

[Lucas Circuit Court, September Term, 1901.]
Haynes, Hull and Parker, JJ.

EDWIN J CHITTENDEN v. HERBERT J. CHITTENDEN ET al.

1. DUTY OF HUSBAND TO SUPPORT AND MAINTAIN WIFE.

The obligation of a husband to support and maintain his wife is not only a common law obligation, but is fixed by express statute. Sec. 3110, Rev. Stat. The wife is to that extent a creditor of the husband and may enforce such right against his property unless the rights of others have intervened to exclude her.

2. FRAUD UPON MARITAL RIGHTS OF WIFE.

Where a husband intends to abandon his wife, and, for the purpose of depriving her of alimony, procures her signature to a mortgage upon his property upon representations that it is necessary to secure an indebtedness to his father, which the latter had not demanded, and of which he had no knowledge at the time of its execution, and four days after the execution of the mortgage abandons his wife, such mortgage is a fraud upon her marital rights and is invalid as against her claim for alimony, whether the son was indebted to his father or not.

8. FATHER CHARGED WITH FRAUD OF HIS SON.

Where a son in business transactions with his father does all the business, invests the father's money, keeps the books, executes notes and mortgages to the latter when he sees fit to do so, and without request therefor by the father, and deposits money secured thereby in his own name, with his father's knowledge and consent, the son in securing his wife's signature to a mortgage of their property to his father, not requested by the father and obtained just prior to an abandonment which she had no reason to expect, and upon assurances that the mortgage was necessary to secure an indebtedness to his father, acts as agent for the father; and whether the latter's claim is valid or not, and whether he had knowledge of the son's intentions or not, he is not an innocent purchaser but is bound by the fraud of his son and the mortgage so obtained is invalid as against the rights of the wife.

4. MORTGAGES EXECUTED BY HUSBAND BEFORE MARRIAGE AND FOUR Years BEFORE SEPARATION FROM WIFE, Held Valid.

Under the circumstances in this case, mortgages executed by the husband on part of his property, to his father, before his marriage, and four years before the separation from his wife took place, will not be set aside as far as the wife's right to alimony is concerned, although these mortgages were executed voluntarily without request therefor from his father and although it seems probable that in executing them he was looking forward to a time when he might be expected to respond in alimony to his intended wife.

5. DEED FRAUDULENTLY OBTAINED FROM WIFE HELD INVALID IN EQUITY. A husband, soon after marriage, conveyed to his wife the homestead property which thereafter was always treated and spoken of by him as her property, but four years later, and a week before he separated from his wife, he filed for record a quitclaim deed by his wife to himself for the same property, claiming that the quitclaim deed was executed by her simultaneously with his deed to her for the property, but she denied the execution of such quitclaim deed and in fact knew nothing of having executed it: Held, that she never having knowingly signed and executed such deed, the property in equity is still hers and is to be subjected last to the payment of mortgages given upon it and other property by her husband before marriage.

APPEAL.

Charles E. Chittenden and C. W. F. Kirkley, for plaintiff.
C. W. Everett and Spencer, for defendant.

Chittenden v. Chittenden et al.

HULL, J.

This action was heard in this court on appeal from the judgment of the court of common pleas. The plaintiff, Edwin S. Chittenden commenced his action to foreclose certain mortgages of which he claimed to be the owner, and which had been executed by Herbert J. Chittenden and Mary S. Chittenden, his wite. Three of these mortgages bore date July 1, 1896, and they purported to secure two notes of $1,000 each, and one note of $2,455, all running for the period of five years. The other mortgage bore date April 18, 1900, and purported to secure a note of $6,500.

The petition is in the ordinary form for the foreclosure of mortgages and for personal judgment upon the notes against Herbert J. Chittenden, one of the defendants. Herbert J. Chittenden and Mary S. Chittenden are husband and wife, and Edwin S. Chittenden, the plaintiff, is the father of Herbert J.

Mary S. Chittenden fiied her separate answer to this petition, and she admits therein the execution by Herbert J. Chittenden of the notes set forth in the petition, and denies all other allegations. And she alleges, by way of defense that the three notes which bear date July 1, 1896, were given by Herbert J. Chittenden to Isaac S. Baldwin, without consideration, and that he thereafter assigned them to Edwin S. Chittenden. All these notes and mortgages were given originally to Isaac S. Baldwin, and assigned to the plaintiff, Edwin S. Chittenden.) And she avers that Herbert J. Chittenden received nothing from the said Isaac S. Baldwin or any other person for the execution of said notes or any of them, "and all the mortgages securing the same were executed by said Herbert J. Chittenden for the purpose of apparently incumbering his property for motives and reasons unknown to this defendant."

In her third defense she answers the petition as to the last note and mortgage, the one bearing date April 18, 1900, for $6,500, and she avers that that also was executed by Herbert J. Chittenden without any consideration, and that nothing passed from Baldwin to him therefor, or from any other person. She alleges further as to this note and mortgage:

That at the time of the execution of said note, the said Herbert J. Chittenden was planning and contemplating the abandonment of his lawful wife, this defendant, Mary S. Chittenden, and said note and mortgage were executed by him to prevent this defendant from collecting any alimony and defrauding her in the premises. That said Herbert J. Chittenden procured the signature of this defendant to said mortgage by representing to her that the same was a mortgage to secure $3,000 to another person, and without the knowledge of this defendant procured her signature to the said mortgage to the said Isaac S. Baldwin, without her knowing that it was a mortgage to him."

She avers in her fourth defense that she did not acknowledge or sign or execute the $6,500 mortgage before any notary public or other officer, and that it was not witnessed in the presence of two witnesses. She alleges that this mortgage is not a lien upon the premises described. A reply is filed denying these allegations that are set out in the answer by way of defenses.

Herbert J. Chittenden and Mary S. Chittenden were married on July 30, 1896. The three notes, one for $1,000, another for $1,000, and

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