Appropriation-Assessments.
act in good faith and receive a fair compensation therefor. Ib.
The probate court has jurisdiction to determine the right to appropri- ate, the necessity for it, and other jurisdictional issues, and its finding is conclusive upon the questions in- volved and cannot be collaterally at- tacked. The only remedy is by pro- ceedings in error. Ib.
The object of Sec. 6416, Rev. Stat., is to compel the railroad to appro- priate such an amount of land as the court shall determine necessary for its purposes, but such rule cannot have much force in a case where a railroad company has taken posses- sion of land and operated its road upon it for several years, and both parties seem to be content, so far as the amount of land taken is con- cerned. Pittsburgh & W. Ry. Co. v. Perkins. 676
Inasmuch as Sec. 6448, Rev. Stat., requires a petitioner in a proceeding to compel a corporation to appropri- ate property in its possession, to which it has no right, legal or equit- able, to allege in his petition that the land has been occupied by par- ties having no legal or equitable title thereto, that notice has been duly served, and the time of limitation under the notice has elapsed, such statements are jurisdictional. The
inference of the whole statute is that possession gives no equitable right nor any legal title to the lands.
A railway company, by taking possession of and constructing its road across the lands of another without appropriating the same, or entering into any written agreement therefor acquires no legal or equi- table title thereto under Sec. 6448, Rev. Stat., authorizing proceedings to compel the appropriation of prop- erty so held. The railroad company, in such case, is a trespasser, and notwithstanding it has held certain lands for fifteen years, the value of the land at the time proceedings were brought, not at the date when it was taken, should govern in es- timating damages for its unlawful appropriation. Ib.
A railroad company having taken possession of lands of another with- out appropriation or written con- tract, the owner does not lose the remedy afforded him by Sec. 6448, Rev. Stat., relative to requiring ap- propriation, by standing by and see- ing a road constructed and operated
on his lands unless he stands by in such manner as to lead the road to believe that it may have the right of way without paying for it and as- sents to their going on the land. Ib. See also PARTIES.
Since the amendment of Sec. 2289, Rev. Stat., omitting the words "A substantial defect in the construc- tion of the improvement shall be a complete defense," the fact that that part of a street where sidewalks are to be laid was not brought up to grade, the grade of the street having been changed in making an improvement thereon, cannot be taken advantage of, as a defect in the improvement, in an attack upon the assessment for the street improvement, unless fraud is alleged. McGlynn v. Toledo,. 15
The fact that a contract for a street improvement provided that the contractor "will keep in good order and repair all the work" there- under for a period of five years after its completion and that ten per cent. of the cost thereof shall be withheld in order to enforce the contract for such period, will not invalidate the assessment. Ib.
Fees for notices served upon non- resident owners of property abutting a street for the improvement there- of, to which it does not appear the mayor's clerk was entitled should be omitted from an assessment against the property owners for the street improvement. Ib.
The rent of a steam roller is prop- erly included in an assessment for a street improvement where it appears that the contractor agreed to do the work for a certain sum and the city agreed to rent the roller for so much per day. Ib.
Property owners signing such a petition are not estopped from en- joining the collection of an assess- ment for damages resulting from a change of grade, unless it appears that they were aware of the fact that the city was proceeding upon the faith of former decisions of the Supreme Court relating to levying assessments. Ib.
Damages awarded to persons ow ing property along a street on ac- count of change of grade affecting their access to their property, are not properly chargeable against such property owners as a part of the costs and expenses of the im. provement of the street.
ASSESSMENTS - Continued.
An action brought by one person against others, in which the city was made a party defendant, on promis- sory notes and to foreclose a mort- gage, in which was litigated and de- cided the question as to the right of the city to enforce a portion of such assessment assessed against that por- tion of the frontage which after the improvement had been made was devoted to streets, when decided in favor of the city upon demurrer, cannot be claim- ed as a bar to an action by the city against other parties to enforce the collection of assessments for such improvement. Columbus v. Schneid-
Under the curative provisions of the statute, sewer assessments, which are illegal for irregularity in the proceedings, are enforcible, to the extent that expense has been in- curred which is properly chargeable against the property assessed, and not in excess of benefits. Osborn v. Huffman. 753
A corner lot in the village of Nor- wood, which had within five years next preceding the construction of a sidewalk, been assessed for the im- provement of the two streets upon which the lot abuts, for more than twenty-five per cent. of the value thereof, after such improvement had been computed, cannot be made liable for an additional assessment under the provision of the "Richard- son law." Norwood v. Building As- 734
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. Farrell v. Cincinnati.
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. Carson v. Delhi (Vil.). 723
Where the house, stable, drive and footways, as well as the use of a cornor lot, show the same to be on the breadthwise front of the prop- erty, the frontage on such side will determine the assessable frontage for an improvement on the street abutting that side, especially where no driveway or walk connect with the street on the narrower side and there is no improvement fronting thereon. Duffy v. Norwood.
Section 2270, Rev. Stat.. prescrib- ing that the maximum of assess- ments for municipal improvements shall not exceed twenty-five per cent. of the property assessed, and Sec. 2284, Rev. Stat., determining what the cost of improvement shall in- clude, where bonds are issued in an- ticipation of the collection of assess- ments, etc., apply in cases where as- sessments for street improvements are payable in installments, and bonds are issued therefor and inter- est thereon is added to the deferred installments so as to increase the assessment to more than twenty-five per cent. of the appraised value of the property. Salem (City) v. Mul- ford. 516 DITCHES
See also AMENDMENTS; AND DRAINS; PLEADING.
On an issue of want of considera- tion for the assignment of a judg ment, if there were benefit to the assignor received from the assignee, viz: by getting means to stop the forced sale of this farm, or if there were benefit or possible detriment to the assignee in the transaction, in either event there is a sufficient con- sideration shown. Wright v. Snell. 308
If such judgment debtor should be innocent of any fraud in the obtain- ing or rendition of such a judg ment, but by permitting the judg- ment to remain of record as subsist- ing and valid, and in permitting the judgment creditor to appear of record as the owner of such judgment, he is estopped by such acts and conduct from setting up any defense which would affect the rights of a bona fide purchaser or assignee from such creditor. Ib.
Where a person procures or as- sists in procuring a judgment to be
taken against him, and a lien is thereby obtained upon his property in favor of another, with intent to cover his property with liens, so as to defeat an anticipated or appre- hended judgment, that may be recov- ered against him, and the person in whose favor such judgment is taken, for a valuable consideration, assigns such judgment to an innocent purchaser, without notice of the fraud in its inception and rendition, such judgment debtor is estopped from assailing the judgment as against such innocent purchaser. Ib.
In an action between a bona fide purchaser or assignee of a judgment and a stranger to the judgment, such purchaser stands unaffected by frauds of which he had no knowl- edge, express or constructive. Ib.
ASSIGNMENTS FOR CREDITORS- See INSOLVENCY.
While a defendant cannot move to vacate an order of attachment on the ground that the property attached does not belong to him, yet if the ground of the motion to discharge is that the affidavit upon the attach- ment issued was untrue, the attach- ment may properly be discharged not- withstanding the fact should appear that he was not the owner of the property levied upon. Bernhard v. Schwartz. 183
An affidavit for attachment, which states that plaintiff has commenced an action in the common pleas to re- cover $5,015, to become due and pay- able at stated times, upon two cer- tain promissory notes, one of which is for $4,000, due in ninety days, and without interest until after maturity, and the other, the principal sum of which is not stated, due in ninety days with interest from date, suffi- ciently shows that the latter is for $1,000 principal and fifteen dollars interest, as required by Sec. 5565, Rev. Stat. Mansfield Bank v. Post. 577
Affidavit for attachment which simply states that "said claim is just, and affiant believes that plaintiff ought to recover thereon the sum of five thousand dollars," without in any way stating when the claim will be- come due, is not sufficient to author- ize attachment under Sec. 5565, Rev. Stat.
The exercise of discretionary power by a judge in allowing a writ of attachment, that is, whether he I will allow or refuse the writ upon the facts and circumstances detailed in the affidavit as justifying a belief of the existence of fraud, cannot be reviewed in that court. Ib.
Under paragraph 7, Sec. 853, Rev. Stat., where, in a civil action before a justice of the peace, brought in the county but not in the township of the defendant's residence, the sum- mons is accompanied by an order of attachment sued out and issued in good faith upon any ground author- izing an attachment against a resi- dent of the county, and the summons is duly served, such justice thereby obtains jurisdiction over the person of the defendant, and may proceed to personal judgment against him, though no property is seized or held under the attachment. Collins v. Bingham Brothers.
The mere fact that an attachment before a justice of the peace was vol- untarily discharged on motion of the plaintiff does not authorize a review- ing court to assume that the order was obtained fraudulently or not in good faith and that the affidavit was insufficient and untrue, so as to de- prive the justice of jurisdiction to proceed to judgment therein. Ib.
A claim for coal used for domestic purposes is within the term "neces- saries," as used in Sec. 6489, Rev. Stat., authorizing attachment in such Ib.
Where the affidavit for attachment states that the claim was for coal sold and delivered, and also states that it was for necessaries and no statement, affidavit or finding ap- pears denying the same or in contra- diction thereof, judgment will not be reversed upon the statement of coun- sel to the court on review that the coal was for fuel fo. a boiler belong- ing to the equipment of an oil lease. Unless it otherwise appears in the record, it will be presumed that the coal was furnished for domestic pur- poses.
Attorneys-Bills of Exceptions.
ATTORNEYS--Continued.
Reasonable attorney fees may be allowed counsel for the general cred- itors of an insolvent partnership in the hands of a receiver for services in an action whereby certain chattel mortgages, given by one partner in the firm name without the knowl- edge of the other, before the appoint- ment of the receiver, were declared invalid and a fund crated for dis- tribution among general creditors.
When an attorney, while conduct- ing a transaction for his client, ac- quires such knowledge as would be a breach of professional confidence for him to disclose and he is subse- quently employed by another person, the latter is not chargeable with the knowledge thus acquired and pos- sessed by the attorney. Wright v. Snell. 308
Attorney fees may be allowed in cases for exemplary damages, that is, when there is malice, insult, op- pression or moral wrong, or wan- tonness, which is equivalent to mal- ice, but such damages cannot be al- lowed as part of the compensatory damages in actions for personal in- juries. Ashtabula Rapid Transit Co. v. Stephenson.
BENEFIT ASSOCIATIONS-
A member of a beneficial associa tion after being illegally expelled therefrom cannot stand by and neglect and refuse to perform any of his duties for an unreasonably long time and still sustain such standing in the order as to entitle his beneficiary to collect the money due thereon. Dimmer v. Supreme Council Catho- lic Knights. 413
When such a length of time has elaspsed that all reasonable men would agree that it was a reasonable or an unreasonable length of time, the question becomes a matter of law for the determination of the court. Ib.
Where a member of a fraternal, beneficial association was expelled, did nothing devolving upon him as a member for a period of about three years, he may be deemed, as a matter of law, to have acquiesced in his ex- pulsion, thereby defeating any re- covery by his beneficiary. Ib.
Where one of the four makers of a note, claiming to be a surety, hav- ing paid the balance due after the death of two of such makers, both of whom he alleges were principals as to him, brings an action against the administrator of one of the alleged principals, and issue is joined as to who were principals and who were sureties, and the other remaining maker, not being a party to the ac- tion, is not incompetent under Sec. 5242, Rev. Stat.. to testify as to the relation existing between the de- ceased and the plaintiff. Worthington.
See also ACCOUNTS.
An affidavit is no part of the record and can only becom so by being incorporated in a bill of exceptions. A verbatim copy thereof, in the record made by the clerk is insuffi- cient. Brock v. State. 467
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 com.
Bills of Exceptions-Bonds.
mon pleas. Germantown v. Basore. 500
Where a bill of exceptions was lost while in the hands of opposing coun- sel to whom it had been submitted in due time, as the statute requires, and thereupon a bill of exceptions prepared by such opposing counsel was submitted as the true bill of ex- ceptions and the court so found, and signed the same, a motion in the re- viewing court, filed by counsel who prepared the substitute bill, to strike such bill of exceptions from the files because not correct, will be overruled where the affidavits filed in support of such motion are not embodied in a bill of exception. Chicago Cottage Organ Co. v. Biggs.
Where a case is submitted in com- mon pleas court on demurrer and an agreed statement of facts, on error to the circuit court, there should be a bill of exceptions containing the facts to be reviewed, or, if not, such facts should be recited in the journal entry. Darling v. Hippel.
A paper containing an agreed statement of facts not included in a bill of exceptions, and not identified in the journal entries of the trial court, cannot be considered by the reviewing court. Ib.
See JUSTICES OF THE PEACE.
BOARDS OF EQUALIZATION—
The appearance of officers of a cor- poration before the board of equali- zation on certain occasions, to make inquiries and having interviews there, is not sufficient to require the jury to say that their returns were not false, where there is evidence tending to show that such corpora- tion had not proceeded with care and diligence in ascertaining what was required of them. In such case the question should be submitted to the jury. Toledo Bridge Co. V. Yost. 448
The jurisdiction of the state board of equalization for banks is acquired by a meeting on the third Tuesday in June, the day specified in Sec. 2808, Rev. Stat., and every bank in the state has notice of such meeting, but where the board meets on that day and adjourns without designat- ing a time to meet again otherwise than upon the call of its president or
secretary, the power of the notice in the statute is lost and the board has no jurisdiction to act in adding to property returned until notice is given to parties interested. Euclid Ave. Sav. & Bànk. Co. v. Hubbard. 279
Notice is necessary in any tribunal where rights are to be adjudicated and courts will not impose a duty upon party or a taxpayer which the law does not intend that he shall bear. Ib.
Reasonable notice as required by Sec. 2804, Rev. Stat., is such notice, under the circumstances as will be likely to reach those interested in the action of the board provided for therein. Notice by publication is sufficient.
A board of the character of the state board of equalization, acting in a judicial capacity, as it does, must be governed by the require- ments of the statutes. It has no power beyond what is given by statute. Ib.
The policy of the law as found in title 13, chap. 4, Secs. 2804-2819, Rev. Stat., relating to boards of equaliza- tion, gives authority to none of the boards therein mentioned to increase the valuation of property without giving the party to be affected notice and opportunity to be heard, and Sec. 2808, Rev. Stat., is within the policy of this chapter and notice of the meeting of such board is thereby required to be given to the banks af- fected by its operations. Ib.
Case in which the liability of the surety company is not determined nor limited by the difference be- tween the penalty named in the bond and the amount which would have been due the original contrac- tor, from the time of abandonment, if he had completed the contract; but where the amount remaining un- paid upon a contract, together with the penalty named in the bond, is more than sufficient to complete the work to be done under the contract, the surety company is entitled to subrogation accordingly. Higgins v. Drucker. 220
A bond setting forth that the prin- cipal therein has entered into a "written contract to erect the build- ing, and finish the carpenter work of a certain brick store building, etc.," said contract being made a part thereof as fully as if set forth at
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