Hamilton Circuit Court. MANDAMUS-TAXATION. [Hamilton Circuit Court.] STATE EX REL. MULLIKAN V. AUDITOR. 1. MANDAMUS AGAINST AUDITOR TO CORRECT TAX DUPLICATE. Mandamus will lie to require the county auditor to correct his tax duplicate of an error in taxable property of relator and to require him to submit to the county commissioners relator's claim for taxes erroneously paid on account of such erroneous duplicate. 2. PRESUMPTION AS TO TAX APPRAISEMent. There is no conclusive presumption that all appraisements of real estate in the decennial year were made as of the second Monday in April. MANDAMUS. Fred Hertenstein, for the relator. Rendigs, Foraker & Dinsmore, for the auditor. This was a suit to require the county auditor to correct his duplicate as to the relator's property in Clitton by deducting $2,000, which, it was claimed, was added to the taxable value of the property by a clerical error, and to require the auditor to submit to the county commissioners the relator's claim for the taxes erroneously paid on the $2,000 addition since 1890. SMITH, J. (Memorandum of decision.) The relator's claim is an equitable and just one, and that the $2,000 addition was wrong, and the relief prayed for is granted. The court holds that the claim of counsel for the auditor that it must be conclusively presumed that all appraisements of real estate in the decennial year were made as of the second Monday in April is not well founded, and particularly when it is shown as a matter of fact that the valuation was made at a different time. ADVERSE POSSESSION. [Hamilton Circuit Court.] *VANDUZEN V. SCHRAFFenberger. ADVERSE POSSESSION. Adverse possession may be claimed of property covered by an encroaching and overhanging wall. APPEAL. John M. Fitzgerald, for the plaintiff. Howard Douglass and George W. Harding, for the defendant. The wall of defendant's building on the west side of Broadway encroaches upon and overliangs the lot of the plaintiff from two to six inches, and the present suit for an injuncton and $2,000 damages was For decision of the court of common pleas, Sayler, J., see 2 Dec. 468. Vandusen v. Schraffenberger. brought on that account. It was claimed by the plaintiff that adverse possession did not begin until knowledge of the encroachment was brought home to him, and so far as that part of the encroachment due to bulging is concerned, title could not be obtained by adverse possession. The defendant claimed by adverse possession, not by grantors, but upon his own part, for more than twenty-one years before plaintiff acquired title to the lot upon which the encroachment extends. The common pleas court found for the defendant. The circuit court made the same holding and dismissed the petition. ERROR. [Hamilton Circuit Court.] GEORGE W. BURNS V. CHARLES H. DATER, Assignee. TIME IN WHICH TO BRING PROCEEDings in Error. Proceedings in error must be commenced within six months from the rendition of the judgment, and are not governed by the time when a motion for new trial is overruled. Blackburn & Rhyno, for plaintiff in error. Davidson & Conway, contra. SWING, J. Judgment was rendered in this cause in the court of common pleas on June 5, 1895. The petition in error was filed in this court December 14. 1895. This was more than six months from the rendition of the judgment. The fact that a motion for a new trial was filed within the proper time and was not overruled until October, 1895, can make no difference as to the time within which proceedings in error must be commenced. It must be from the time of the rendition of the judgment. See Brown v. Coal Company, 48 Ohio St., 542, and Young v. Shallenberger, 53 Ohio St. 291. This action not having been commenced within the six months allowed by statute, the case will be stricken from the docket. CHARGE TO JURY. [Hamilton Circuit Court.] WILSON, ADMR,, v. MAGGIE Brown. CHARGE INVADING PROVINCE OF JURY. A charge, in an action for board, lodging and washing, that “I believe there is one witness who testifies as to the value of services for board, lodging and washing, in which she testifies that the same are worth four dollars per week, you are, therefore, in the absence of other testimony, bound to consider that as the value of the services," invades the province of the jury to give the evidence such credence and weight that under all the circumstances it was entitled to and is erroneous. HEARD on ERROR. Wilson & Herrlinger, for plaintiff in error. Wm. S. Little, contra. The plaintiff below sued for $72.00 for board, lodging and washing for the intestate. The verdict upon which judgment was rendered was for the full amount with interest. Hamilton Circuit Court. SWING, J. One of the The case is here on error to the court of common pleas. grounds of error was that the court erred in its charge to the jury. The court gave the following charge, to which plaintiff in error excepted: "As to the value of the services that were rendered by plaintiff, that depends very largely upon their quality. I believe there is one witness who testifies as to the value of services for board, lodging and washing, in which she testifies that the same are worth four dollars per week. You are, therefore, in the absence of other testimony, bound to consider that as the value of the services." It seems to us that this is clearly erroneous. It took away from the jury the province and right of the jury to weigh the evidence, and to give to it such credence and weight that under all the circumstances it was justly entitled to. It virtually said to the jury you are bound to bring in a verdict as to the amount, because a certain witness has testified so, whether yon believe the witness or not; and whether in your judgment you think it right or not. For this error we think the judgment must be reversed. We find no other errors in the record. The cause will be remanded to the court of common pleas for further proceedings. WILLS. [Hamilton Circuit Court.] Fugmann et al v. ChrysTOMUS THEOBALD. 1. SECTION 5915, Rev. Stat., EXTENDS TO Designated Heirs. Section 5915, Rev. Stat., providing that if any testator die having issue of his body, or an adopted child, living, bequests to religious, educational or charitable purposes within a year of testator's death shall be void, extends to all whom the law classes as issue and is not limited to those who are issue in fact. Therefore as to children designated as heirs at law, by proceedings in the probate court, under Sec. 4182, Rev. Stat., such bequests are void. 2. BEQUESTS FOR MASSES NOT WITHIN SEC. 5915, REV. STAT. A bequest to the pastor of a Roman Catholic church "for the saying of masses for the repose of my soul and the soul of my husband," are not within Sec. 5915, Rev. Stat., as being to benevolent, educational or charitable purposes. APPEAL. Goebel & Bettinger and Arnold Speiser, for plaintiffs. Stephens & Lincoln, contra. SWING, J. We are of the opinion that the same decree should be rendered in this court that was rendered in the court of common pleas decided by Judge Wright, 4 Dec. 65 (2 N. P. 390), with the exception that we think item 18 of the will is a valid provision, and does not come within the provision of Sec. 5915, Rev. Stat., as to its being a benevolent, religious, educational or charitable purpose. *J. H. DEGLOW'S EXECUTOR v. Henrietta Kruse et al. DIVIDED CIRCUIT COUrt. A divided circuit court, only two judges sitting, on error sustains the judgment of the court below. E. M. Garrison, tor the plaintill. A. H. Bode, for Mrs. Kruse. This was a suit on a note for $2,300, secured by a mortgage given by Mrs. Kruse in settlement of an indebtedness of the firm of F. Kruse & Son, F. Kruse being the husband of Mrs. Kruse. She claims that when she signed the note it was with the distinct understanding that she was doing it merely as an accommodation to Mr. Deglow, and that she should never be called upon to pay it. The court below, Sayler, J., held that as to Mrs. Kruse there is no liability. SMITH, J. This cause was heard some time ago by two of the judges of the court. Judge Swing is of the opinion that the evidence offered did not show that the defendant was liable upon the note and mortgage sued on. Judge Smith is of the opinion that it did. As a result of this decision the petition will be dismissed at the costs of the plaintiff. MARKETS-APPROPRIATION. PRUDEN V. CINCINNATI. ESTABLISHINg Market-COMPENSATION TO PROPERTY OWNERS. A market can not be established and maintained in a public street without com pensation to abutting property owners. APPEAL. Wm. L. Dickson, for Pruden. Fred Hertenstein, contra. This is a suit by A. J. Pruden, a property owner, abutting on Plum street, for an injunction restraining the maintenance of a market on that street. Judge Hollister held, upon the presentation of the case below, that council can not, without legislative authority (as in this case) or with such authority, designate a particular street for use for market purpose without payment to the abutting property owners of any damages they may suffer thereby. SWING, J. This cause was heard in this court on the evidence submitted in the court of common pleas, the substance of which is fully stated by Hollister, J., in his opinion, found in 2 Dec., 200 (1 N. P., 340). We think the law applicable to this case is very clearly and fully stated in this opinion, and the judgment of this court will be in accordance therewith. * Reversed by the Supreme Court, 57 Ohio St., 434, that court holding that two judges of the circuit court form a quorum, but if they are divided in opinion, no valid judgment can be rendered. 46 O. C. D. Vol. 12. Hamilton Circuit Court. PARTNERSHIP NAMES. [Hamilton Circuit Court.] M. DOOB & BRO. v. LOVELL MANUFACTURING CO. FICTITIOUS NAMES IN PartnershiPS. Two brothers doing business as Mr. Doob & Brother, must register under th statute relating to the use of fictitious names in partnerships. HEARD ON ERROR. Clement Bates, for plaintiffs in error. Wilson & Herrlinger, contra. Judgment of court of common pleas affirmed without report. For opinion in the court below, which was by Judge Hollister, see 4 Dec. 189 (3 N. P. 169), the holding being that two brothers, named Doob, doing business as M. Doob & Brother, must register under the statute relating to the use of fictitious names in partnerships. INSOLVENCY-COURTS. [Hamilton Circuit Court.] CUNNINGHAM. EXR., V. JACKSON ET AL. JURISDICTION to Sell Real Estate Assigned for Creditors. The probate court alone has jurisdiction to administer and sell mortgaged real estate after an assignment thereof for the benefit of creditors. C. W. Baker, for plaintiff. Channing W. Richards, contra. MOTION for judgment on the pleadings. The plaintiff sued on notes and for foreclosure of mortgage on realty. Before the case came to a hearing the defendant made an assignment for the benefit of her creditors. Thereupon Judge Jelke, in the common pleas, granted a decree finding that there was due the plaintiff $2,271.66, and to Ella C. Bell, a party defendant, the sum of $1,158.67, and that these amounts are respectively first and second liens on the same property, and further that this defendant had assigned all her property including this real estate to Channing W. Richards for the benefit of her creditors, and ordering the said Richards to allow these claims in the settlement of his trust. From this an appeal was taken. SWING, J. Upon the authority of Sayler v. Simpson, 45 Ohio St., 141, 147 [12 N. E. Rep. 181]; Barr v. Chapman, 3 Circ. Dec. 36 (5 R. 74), and Callahan v. Ice & Refrigerating Co., 7 Circ. Dec. 349 (13 R. 479), we are of the opinion that when the assignment was made the right to administer and sell the real estate in controversy was vested exclusively in the probate court, and this court will not therefore order a sale of the real estate. The same judgment should be entered in this court as was entered in the court of common pleas. |