Слике страница
PDF
ePub

Columbus v. Schneider.

thereof. The first installment, with interest on the whole amount at seven per cent., became due and payable at the semi-annual payment of taxes, falling due after August 1, 1876. The others fell due annually thereafter, with interest on the installments not due at the time, until all fell due and became payable. Section 18, 72 O. L. 156; Sec. 2358, Rev. Stat.

At the time North High street was improved and the assessment made, Margaret E. Patterson was the owner in fee simple of a parcel of land described in the petition in this case, with a frontage of 265 feet. At the time the street was improved Anna M. Woodruft was the owner in fee simple of a parcel of land, fully described in the petition in this case, abutting on the street so improved, with a frontage of 363.83 feet. Prior to October 16, 1883, George Williams became the owner in fee simple of the two parcels of land owned by Margaret E. Patterson and Anna M. Woodruff aforesaid as their grantee, and subdivided the same into city lots and designated the addition as "Mt. Auburn addition to the city of Columbus, Ohio." At the time Williams became the owner of the Patterson land he made, executed and delivered to Patterson a mortgage securing part of the purchase money, that appears of record prior to the plat of subdivision. Afterward Williams conveyed to William H. Innis lots Nos. 56, 57, 58, 59, 60, 61, 62, 104 and 105 of Mt. Auburn addition, all of which lots front and abut on North High street, and have a depth of 1873 feet. Lots Nos. 56, 57 and the back corner of 58, fronting on High street for a distance of 117.88 feet, were platted from the lands belonging to Margaret E. Patterson, and lot No. 58, excepting the corner off of the back part thereof, and lots Nos. 59, 60, 61, 104 and 105, fronting on High street for a distance of 383.40 feet, were platted from the lands belonging to Anna M. Woodruff.

On February 16, 1890, William H. Innis died testate and his last will and testament was duly admitted to probate, and Adam G. Innis was duly appointed and qualified as his executor and entered upon the discharge of the trust. By the terms and provisions of that last will and testament, the plaintiffs in error became the owners in fee simple of the lots so owned by their father.

On July 15, 1875, Anna M. Woodruf commenced an action in the court of common pleas of Franklin county, Ohio, against the city of Columbus et al., and on December 16, 1878, Margaret E. Patterson com. menced an action in the same court against the city of Columbus et al. In Woodruff v. Columbus et al., the petition shows the passage of the ordinance under which North High street was improved; that the improvement was made under the "Penn Act," 72 0. L., 153, the rate of the assessment per foot front and the aggregate amount of the assessment; that she was the owner of the real estate against which the assessment in controversy rests, and asserted that the assessment was wholly invalid, for reasons in her petition stated. After the decree was entered in that case, it was appealed to the district court, and on March 3, 1884, the case, with others, was referred to a master commissioner who was directed, among other things, to ascertain "which one or more of said plaintifs in the several actions signed the petition to the city council of Columbus for the said improvement of said High street under the act atoresaid." Upon a hearing of that case before the master he made findings, in substance, as follows:

"The following plaintiffs signed the petition to the council for the improvement of said street: Anna M. Woodruff, Z. F. Guerin. *

Franklin Circuit Court.

Said several plaintiffs are liable for the assessment upon the said lots of land owned by them, respectively." Upon the consideration of that report, the court made entry as follows:

"And it is by the court ordered that said report of the master, as hereinbefore modified, and all the matters and things therein contained be, and they are hereby approfied and confirmed, and that the findings of said master, as hereinbetore modified, do stand as the findings of this court, to each and all of which orders the plaintiff excepted.

"And the court find upon the same issues joined, that the equities are with the defendants, to which finding the plaintif excepted. It is, therefore, ordered, adjudged and decreed that the petition of the plaintiff herein be and is hereby dismissed."

In Patterson v. Columbus et al., the petition shows the passage of the ordinance under which North High street was improved, and that the improvement was made under the "Penn Act," 72 O. L., 153, Sec. 2336, et seq, Rev. Stat., the rate of the assessment per foot front, the aggregate amount of the assessment, and that she was the owner of the parcel of land on which the assessment rests, that is in controversy in this case, and asserted that the assessment was wholly invalid for reasons in her petition stated.

At the April term, 1884, the case was referred, with other cases, to a master commissioner for the purpose, among others, of finding which one or more of the plaintiffs petitioned the city council for the improvement of High street under the act of March 30, 1875. Upon a hearing of the case before the master he did find and report, among other things, as follows:

"The following named plaintifs signed the petition to the council. *** Margaret E. Patterson. * * * The undersigned finds that the said several plaintiffs who signed the petition to the council for said improvement, or whose grantors signed said petition, are liable for said several assessments upon the land owned by them respectively. Also, that said several plaintiffs voted at the election for commissioners, or whose grantors voted, are liable for said assessments upon the land owned by them. respectively."

Upon the consideration of that report, the court made entry as follows:

"It is by the court ordered that said report, as hereinbetore modified, and all the matters and things therein contained be, and they are hereby approved and confirmed and that the findings of the said master, as hereinbelore modified, do stand as the findings of the court.

* * *

"It is considered, adjudged and decreed by the court that the assessment mentioned in the petition, on the property described in the petition for the improvement of North High street, is a valid and subsisting lien on said premises, and that the petition of the said plaintiff herein be and is hereby dismissed at the costs of said plaintiff."

On May 7, 1885, Margaret E. Patterson commenced an action against George Williams, Jr., William H Innis et al., in the court of common pleas, Franklin county, Ohio, to recover judgment on two certain promissory notes made by George Williams, Jr., and to foreclose a mortgage securing the same.

On September 25, 1885, Patterson filed an amended petition therein, in which she asked judgment against Williams, and for a decree and order of sale, foreclosing the purchase money mortgage from Williams to her, that is herein before referred to.

Columbus v. Schneider.

On June 6, 1885, William H. Innis filed his answer and cross-petition in the case last mentioned, in which he sets forth a certain indemnity mortgage that was executed and delivered to him by George Williams, Jr., indemnitying him against loss on account of the North High street assessment resting upon lots then owned by Williams, and then conveyed by him to William H. Innis, asking for a foreclosure of the same and for other relief.

On April 9, 1886, George Williams, Jr., filed his answer and crosspetition, joining issue with William H. Innis on his answer and crosspetition.

After the death of William H. Innis the case was revived in the name of Adam G. Innis, as executor, and October 16, 1891, the cause was submitted to the court upon the issues joined between the defendants, William H. Innis and George Williams, Jr., and the court did find that on February 26, 1884, Williams, then being the owner, conveyed to William H. Innis lots 56-61, 104 and 105 of Mt. Auburn Addition, and that said deed of conveyance contained covenants of general warranty, and that the premises were free and clear from all incumbrances whatsoever. Prior to the date of said conveyance North High street, on which said lots abut, had been improved, and the costs and expenses thereof assessed upon the abutting property, attaching as a lien on August 1, 1876, and among other parcels, the assessment attached upon lot No. 10 of Chaffee's subdivision, being the same parcel theretofore owned by Margaret E. Patterson, and also a certain other tract of land abutting on High street, with a frontage of 383.46 feet, theretofore owned by Anna M. Woodruff. Both of the parcels enter into and make a part of lots Nos. 56-61, 104 and 105 of Mt. Auburn addition. And in order to indemnify the said Innis against loss, Williams had executed and delivered to Innis the mortgage deed alluded to in the answer and cross-petition of Innis, and then proceeded with a finding in the following language:

"The court now finds that said assessment, commonly known as the "North High Street Paving Assessment," did attach as a lien on said lots so conveyed by the defendant, George Williams, Jr., to William H. Innis, and that no part of said assessment has been paid, and that there now stands on the tax duplicate of Franklin county, Ohio, charged as an assessment against a portion of said lot 10 in Chaffee's subdivision, of which lots 56 and 57 of George Williams, Jr.'s, said subdivision forms a part, the sum of $1,263.68, with 7 per cent. interest thereon from August 1, 1876, to October 16, 1891, amounting to $1,345.07, making a total of $2,608.75. And on said parcel, taxed in the name of Anna W. Woodruff aforesaid, of which parcel said lots Nos. 58, 59, 60, 61, 104 and 105 of George Williams, Jr.'s, subdivision aforementioned form a part, the sum of $2,752.60, with 7 per cent. interest thereon from August 1, 1876, to October 16, 1891, amounting to $2,930.37.

The total amount of said assessment, with interest, now standing on the tax duplicate, amounts to the sum of $8,291.72, no part of which has been paid."

50 O. C. D. Vol. 12.

To pay for said improvement the city of Columbus, on the first day of August, 1876, issued bonds and converted the same into money, and from the proceeds thereof paid the cost and expense of the improvement, the city to be reimbursed out of the assessment.

No part of said assessment on the lands in controversy has been

paid.

[ocr errors]

Franklin Circuit Court.

STEWART, J.

This case has been submitted to us upon an agreed statement of facts and the pleadings, and the only questions remainingto be determined are:

First. Were the decisions made in the case of Woodruff v. Columbus and Patterson v. Same, adjudications upon the issues presented, and Second. Was the decision in the case of Patterson v. Williams an adjudication against the city, which precludes its obtaining a judgment here.

The question as to the statute of limitations set out in the answer and the rights and privileges of the parties under the "Penn Act,"as that act has been construed by the Supreme Court, were examined by us' and decided upon the demurrer to the petition and we are still of the opinion that they do not constitute any defense to plaintiff's claim. See ante, 000.

As to the first question: Both these cases were brought to restrain the treasurer from collecting these assessments and the final entries show, not a dismissal of the action, but a submission upon the issues, a finding against the plaintiffs and a dismissal of their petitions. This was an adjudication and being unreversed, is conclusive.

As to the second question: Nowhere in the suit of Patterson v. Williams was the validity of this assessment challenged except in the supplement and amendment of George Williams, Jr., to his answer and cross-petition, filed November 28, 1887, and in that only as to the right of the city to enforce that portion of the same, assessed against the portion of the frontage, which after the improvement had been devoted to streets. For the purpose of testing this question and this question only, the city was made a party and its demurrer to this claim was sustained. On the other hand, Williams, the grantor of Wm. H. Innis, and Wm. H. Innis the immediate ancestor of these defendants, averred its validity and called upon the court to order the same paid, though contending as to who was responsible for its non-payment; and in its finding made on the crosspetition of said Innis, the court expressly held it to be a valid and subsisting lien on these lots, stated the amount of the same, and granted to said Innis an order of sale upon the mortgage given by Williams to him to indemnity him against this very assessment, and property to the amount of over $1,400 was sold under that order.

The tax duplicate shows the following amounts as due:

Lot 56..
Lot 57..

Lot 58.

Lot 59

Lot 60

Lot 61.....

Lot 105.....
Lot 104...

This was an adjudication in favor of the lien rather than against it. As it is nowhere claimed in the record that any part of this assessment has been paid it follows that the plaintiff is entitled to a decree for the amount of the same and an order to sell the premises in case of nonpayment.

[merged small][ocr errors]

$1312 35 823 54

823 54

823 54

823 54

533 43

823 54

1349 75

$7313 23

Columbus v. Schneider.

As these figures are different from those set out in the petition they may be subject to correction.

The petition also claims that five per cent. penalty should be added, but as no authority has been cited for making this addition, we will not decide whether it should attach or not, until counsel have an opportunity to express their views. The decree will be for the plaintiff in conformity to the foregoing decision.

NEGLIGENCE-FELLOW SERVANTS.

[Cuyahoga Circuit Court.]

Caldwell, Hale and Marvin, JJ.

*CHARLES L. Selzer, AdmR., V. OHIO & PENNSYLVANIA Coal Co.

1. RELATION OF FELLOW SERVANTS-ENGINEER AND DOCK LABORERS.

A person employed by a coal company to run a stationary engine, to operate its cranes and hoists for loading vessels and whose duties also require him to repair the implements used in removing the coal from the docks is a fellow servant of other employees of the coal company subject to the same control, paid from the same common fund and engaged in promoting the same object, and the company is not liable for his negligence in setting out a bucket for use which was defective and not properly repaired.

2. EVIDENCE-TESTIMONY OF NON-EXPERTS.

An employee of a coal company, who has no knowledge of machinery and appliances for loading vessels, except that acquired by seven or eight years work on the dock, if competent, in an action for personal injuries resulting from coal being prematurely dumped, to testify that "the spring was too weak to hold the bucket" should not have been permitted to add "and that is the reason that it dumped," and at least the latter part of the answer, not called for by the question, should have been stricken out.

8. SAME-ANSWER ASSUMING EXPERt Knowledge.

A non-expert witness should not be permitted to answer questions concerning which he has no more knowledge than men of ordinary information and intelligence. Under this rule, the evidence of a dock laborer for a coal company, having no knowledge of machinery and appliances for loading vessels except that derived from several years' work, as to "what would be the result if a bucket filled with coal and the latch was not in its place when the engineer hoisted away with the bucket," was improper.

4. SAME-IRRELEVANT AND PREJUDICIAL EVIDENCE.

The president of the coal company, in such action, should not have been required to answer an inquiry as to whether or not the wages paid to dock laborers was the result of a combination of the coal companies, where such evidence could have no bearing on the issues of the case and might be prejudicial to the coal company with the jury.

MARVIN, J.

The case of the Ohio & Pennsylvania Coal Company against Selzer, administrator of the estate of Peter Wolf, deceased, is brought here upon

*The judgment of the circuit court in this case was affirmed by the Supreme Court, unreported, 57 Ohio St., 644 [50 N. E. Rep., 1133].

[ocr errors]
« ПретходнаНастави »