Bridge Co. v. Railroad Co.

RAILROADS-HIGHWAYS.

[Hamilton Circuit Court.]

BATAVIA TURNPIKE AND MIAMI BRIDGE Co. v. C. P. & V. R. R. Co. RIGHT TO MAINTAIN SPUR TRACK ACROSS TURNPIKE.

When, after a railroad spur track was constructed, with full knowledge of the railroad company, and maintained across a turnpike for five years, the turnpike company tore up the track, the railroad company will not be enjoined from relaying the track, and the turnpike company, having tacitly acquiesced in laying the track and having an adequate remedy at law, may be enjoined from tearing it up when relaid.

APPEAL.

Edward Colston; W. W. Prather and Wm. Hartley Pugh; Thomas Hollister and Walter A. De Camp, attorneys.

The defendant laid a spur track across plaintiff's pike to reach a sand bank. Five years later the turnpike people tore up the track, claiming it was laid without consent or right. In the present suit the turnpike company sought to enjoin the relaying of the track, while the railroad company asked for an injunction against the tearing up of the track after it was relaid. At the trial below the finding was in favor of the turnpike company, which was given an injunction. Cox, J. (Memorandum of decision.)

Contra view, and grants an injunction to the railroad company. This is done upon the finding that the track was laid with the full knowledge of the turnpike company, and with its tacit it not actual acquiescence; and at this late date, with an adequate remedy at law, an injunction against the maintenance of the track will not lie.

ASSESSMENT.

[Hamilton Circuit Court.]

JOHN H. CARson v. Delhi (VIL.) ET AL.

ESTOPPEL CONTAINED IN STREET IMPROvement PetITION.

A petitioner for street improvement is estopped, after the improvement has been ordered and the work done, to claim that he has a less number of feet subject to assessment than he signed for in the petition.

APPEAL.

Charles F. Droste, tor plaintiff.

James B. Matson, contra.

SMITH, J. (Memorandum of decision.)

In our opinion the holding of the Supreme Court in Cincinnati v. Manss, 54 Ohio St., 257 [43 N. E. Rep. 687], is directly opposed to the plaintiff in this case. In this case, as in that of the plaintiff, the owner of the property on a street united with others in a petition for the improvement of such street, stating therein substantially the number of

Hamilton Circuit Court.

feet his property abutted on the street proposed to be improved This was that the council of the village might be informed as to the interest of the petitioners, and he thereby, as held in Cincinnati v. Manss, supra, represented to the council that he had the number of assessable teet stated in the petition; and after the improvement has been ordered and the work done, he is estopped to say that he has a less number of feet subject to assessment.

The petition will there'ore be dismissed with costs.

INJUNCTION-PARTIES.
[Hamilton Circuit Court.]

GEORGE W. and Carrie E. TOTTON V. J. B. Hall et al.

INJUNCTION Binding on Defendants JOINTLY INTERESTED.

An action for injunction in the superior court will bind both of two defendants united in interest, although only one is served; and such action speaks from the giving of the bond under the temporary restraining order.

error.

HEARD ON ERROR.

Wiiby & Waid; N. Wright and W. O. Mussey, for plaintiff in

W. E. Bundy, contra.

SMITH, J.

The superior court dissolved the temporary injunction on the ground that a magistrate obtained jurisdiction by the bringing of a replevin suit before him and the obtaining of service subsequent to the filing of the suit in the superior court but before service had been obtained on all the parties. The reviewing court holds, however, that the action in the superior court spoke from the giving of the bonds under the temporary restraining order, and that was prior to the bringing of the suit before the magistrate. It is also held that one of the parties served in the superior court case before the bringing of the suit before the magistrate was united in interest with the other defendant and both are therefore bound. Judgment reversed.

ASSESSMENTS.

[Hamilton Circuit Court]

FARRELL V. CINCINNATI.

RIGHT OF SIGNER for STREET IMPROVEMENT TO INJUNCTION for Damages. Failure of a full three-fourths of abutting property holders to sign for a street improvement, does not give one who did sign the right to enjoin the assessment or to claim damages.

F. C. Ampt and Corporation Counsel, attorneys.

The plaintiff signed as an abutting property owner for a street improvement, and then obtained temporary injunction against the collection of the assessment; Held, that failure of a full three-fourths of the abutting property holders to sign did not give the plaintiff the right to enjoin the assessing or to claim damages.

Bonham v. Rempe & Son.

INSOLVENCY-COURTS.

[Hamilton Circuit Court.]

SCOTT BONHAM, Assignee, v. F. Rempe & SON ET AL.

ASSIGNMENT for CreditoRS-How Claim Enforced.

Where an assignor for creditors had previously assigned a part of his claim against a party and his assignee for creditors collects the whole claim, judgment cannot be had against the assignee for the part of the claim assigned, but the rights of the claimant must be worked out through the settlement of the assigned estate in the probate court.

Scott Bonham and Healy & Brannan, for the assignee,

Burch & Johnson, for Rempe; C. D. Robertson, for Mersman.

The court below gave J. H. Mersman a judgment against F. Rempe & Son for $3,000 on a claim assigned to Mersman, which constituted part of an indebtedness from Rempe & Son to Keeveny, collected by the plaintiff assignee. The court ordered the assignee to satisfy the judg ment thus rendered from the fund received by him from Rempe. SWING, J.

We are of the opinion that the court of common pleas erred in rendering judgment against Bonham, assignee, in favor of Mersman. The right against Rempe et al. was in favor of Bonham, assignee, and the rights of Mersman to participate in the distribution of this fund must be worked out through the settlement of the estate in the probate court. For this reason and to this extent the judgment will be reversed and cause remanded for further proceedings.

VERDICTS.

[Hamilton Circuit Court.] *EISLEIN V. Palmer.

VALIDITY OF VERDICT DIRECTED BY COURT.

When the court directs the jury to return a verdict for defendant, and on the jury being polled one juror said the verdict was not his verdict, the verdict is invalid.

HEARD ON ERROR.

Burch & Johnson; John S. Conner and Chas. J. Hunt, attorneys.

The plaintiff sued for damages on account of the leaving of a piece of broken needle in her body by the defendant during a surgical operation. The trial judge directed a verdict for the defendant, but a demand was made that the jury be polled and one of them when thus inquired of stated that the verdict which had just been returned was not his verdict.

*For decision of the court of common pleas in this case, see 7 Dec. 365.

Hamilton Circuit Court.

SWING, J. (Memorandum of decision.)

The verdict of the jury, which is to become the foundation of the judgment, must be the verdict of all the jury; and as the verdict in this case, notwithstanding the direction of the court was not the verdict of all the jury, it was not a valid verdict.

Furthermore, the reviewing court holds that there was evidence respecting the alleged negligence of the defendant, in not informing the plaintiff of the broken needle having been left in the incision, which should have gone to the jury.

Judgment reversed and cause remanded.

ATTACHMENT.

[Hamilton Circuit Court.] WINTERING V. CORRIGAN.

ATTACHMENT WILL NOT LIE FOR INJURY BY DOG.

In a suit for injuries by a vicious dog, an attachment will not lie on the ground that the harboring of a vicious dog is in violation of a criminal statute.

Healy & Brannan, attorneys.

The plaintif sued for damages on account of a dog bite, and obtained an attachment on the ground that the harboring of a vicious dog by the defendant was in violation of a crimina statute: Held, that the injury complained of did not fall within the scope of the statute in question. Attachment discharged.

CORPORATION-PARTIES.

[Hamilton Circuit Court, January Term, 1901.]

Swing, Giffen and Jelke, JJ.

BARTELS BREWING Co. v. AUGUST SCHUMACHER.

CORRECTION OF NAME OF PLAINTIFF.

Omission of an initial letter from the name of a plaintiff corporation in a petition may be corrected although the time within which proceedings in error may be commenced has expired.

HEARD ON ERROR.

Theodore Horstman and George H. Kattenhorn, for the motion.
Robertson & Buchwalter, contra.

PER CURIAM.

The record in this case shows a mistake in omitting the initial letter "P" from the name of the plaintiff corporation, which may be corrected although the time within which proceeding in error may be commenced has expired. Secor v. Witter, 39 Ohio St., 218.

Motion to strike petition in error from the files overruled.

[Hamilton Circuit Court, Novenber Term, 1901.]

Smith, Swing and Giffen, JJ.

GEORGE C. H. KREIS V. JOHN DROTT.

PARTIES IN Error From JOINT JUDGMENT—

One of two defendants in a joint judgment cannot alone prosecute error.

HEARD on ERROR.

Goebel & Bettinger, for plaintiff in error.

Daniel T. Wright, for defendant in error.

PER CURIAM.

The pleadings in this case authorized a joint judgment against both defendants, and such judgment was rendered by the court of common pleas. One of the defendants can not alone prosecute error in this court. Smetters v. Rainey, 14 Ohio St., 287; Burke v. Taylor, 45 Ohio St., 444 [15 N. E. Rep. 471].

Motion to dismiss petition in error sustained.

EVIDENCE-CARRIERS.
[Hamilton Circuit Court.]

J. & S. EMISON V. OHIO & MISSISSIPPI RAILROAD CO. ET AL.

1. EVIDENCE OF RECEPTION OF GOODS BY CARRIER.

In an action against a common carrier for loss of grain in transit, the testimony of a witness who has no independent knowledge of the weight of grain shipped, except what was contained in the certificates of weight, is inadmissible to prove the quantity of grain shipped.

2. CERTIFICATE OF WEIGHT.

In such an action a certificate of weight not shown to be an exact copy of the book of original entries, or that it was given in the regular course of business, by one authorized to do so, is inadmissible to prove the delivery of the grain to and reception thereof by the carrier.

& LIABILITY OF COMMON CARRIER-CONNECTING LINE.

Where one railway company received grain at a certain place and agreed to deliver it to a connecting line, which it did, when by the terms of the contract its responsibility was to cease, and such connecting line was to be responsible for loss on its own line, in the absence of evidence showing that the grain was lost by the connecting road, no action lies against either road for the loss of the grain.

HEARD ON ERROR.

G. W. Baker, for the plaintiffs in error.

Ramsey, Maxwell & Ramsey, for the railroad companies.

The suit is for the value of corn shipped from Vincennes to Lockland, and lost in transit.