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In Re Assignment of Abram Bell.

sold. See Kelly v. Duffy, 31 Ohio St., 437 and Jackson v Reid, 32 Ohio St., 443. But in the case at har there was no such surplus and the question is, can they have the allowance from other property held by the assignee for distribution. It is true that Bartram v. McCracken, 41 Ohio St., 377, holds that where a person is the owner of a homestead, incumbered by liens to an amount more than its value, he can ot, while he is the owner of such homestead (as he really is, though so incumbered), have an exemption in lieu of his homestead out of his chattels levied on by an officer. But the case here is a very different one. Bell had assigned to Mr. Spiegel, all of his property, real and personal, not exempt from execution. The homestead property was sold by the assignee, and the family deprived of it. The whole proceeds of the estate was then in the hands of the assignee for disposition under the order of the court. The assignor stands without a homestead, and why should he not have an allowance from the personal estate in lieu of it. If the real estate sold by the assignee had not been the family homestead, and the proceeds had all been exhausted in the payment of liens thereon, there would, we think, be no doubt but that the assignor would have been entitled to the $500, from the personal estate, because that amount of it, under the provisions of Sec. 6348, Rev. Stat., would not be deemed as having been assigned. And in view of the acknowledged and settled principle that the homestead laws being "designed for the benefit of the debtor and it should be so construed as to effectuate and not to thwart its object and policy," (Colwell v. Carper, 15 Ohio St., 279, 285) we are of the opinion that at the time the probate court and common pleas court on appeal were severally called on to act as to the distribution of the money in the hands of the assignee, Bell's homestead having been sold, he was entitled to the $500 in lieu thereof, out of the personal estate, unless at the time the wife was the owner of a homestead, which, of course, under the provision of the statute would defeat it. And the case of Niehaus v. Faul, 43 Ohio St. 63 [1 N. E. Rep. 87], seems to be strongly in support of this claim.

The remaining question in the case is, was Mrs. Bell the owner of a homestead at the time of her right thereto was finally disposed of by the court? As has been said, it was shown by the evidence that the time of the adjudication of the question in the probate court, Mrs. Bell held the title to two lots heavily encumbered by mortgage, on one of which was a house in which she was living with her family, that this occupation was temporary only, and that the house was built for sale. Whether this made her such an owner of the homestead as would prevent a successful claim to an allowance in lieu of a homestead is a question of doubt. We do not deem it necessary to decide as to this for this reason: It is admitted that prior to the hearing of the case in the court of common pleas, she had sold this property, and was not then the owner of a homestead. We think it is expressly held in Cooper v. Cooper, 24 Ohio St., 488, and in Niehaus v. Faul, supra, that the question of an allowance in lieu of a homestead is to be determined by the state of facts at the time the question of allowance was finally made by the court.

And when the final judgment in this case, which was that of the common pleas court, was rendered, neither Bell or his wite was the owner of a homestead, and the wife in the absence of a claim by her husband thereof was entitled to receive the $500 from the personal property in the hands of the assignee. The judgment of the court of common pleas will therefore be reversed.

Hamilton Circuit Court.


[Hamilton Circuit Court.]



A nunc pro tunc entry correcting the incorrect copying of a judgment as actually made, while relating back to the date of the judgment as between the parties thereto, will not operate to deprive persons not parties of rights acquired before it was made.

Wm. Disney, for plaintiff in error.
M. Rogowskie, contra.

SMITH, J. (Memorandum of decision.)

The motion for the recall of the mandate heretofore issued in this case, August 15, 1893, is overruled. It correctly states and cites the judgment as actually rendered by the court, as appears from the nunc pro tunc entry subsequently made, and as between the parties the judgment is valid and proper as of the day it was rendered, though not correctly copied upon the journal.

We suppose this ruling will not operate to the prejudice of a person not a party to the judgment. The nunc pro tunc entry, we suppose, will not operate to deprive persons not parties to the suit of rights acquired before such order was made. See case of Mather v. Tunnel Co., 2 Circ. Dec. 161 (3 R. 284, 286).


[Hamilton Circuit Court, July 1895.]

Swing, Cox and Smith, JJ.



Assessment for sidewalks constructed under the provision of Secs. 2334a, 2334b, 2334c, Rev. Stat. passed April 2, 1889, 86 O. L., 175, known as the "Richardson law," on lots abutting such improvements, for the one-half of the cost thereof, is limited in amount by Secs. 2271, 2283 Rev. Stat.


A corner lot in the village of Norwood, which had within five years next preceding the construction of a sidewalk, been assessed for the improvement 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 "Richardson law."


W. E. Bundy, for plaintiff in error.

A. C. Shattuck, for det endant in error.


The question presented to us by counsel is this: Whether when sidewalks are constructed under the provisions of Sec. 2334a, 2334b, and

Norwood v. Building Association.

2334c, Rev. Stat., known as the "Richardson law," passed April 2, 1889, 86 O. L. 175, assessment therefor on the lots abutting such improvement for the one-half of the cost thereof is limited in amount by the provisions of Secs. 2271 and 2283 Rev. Stat., that is, whether the case of a corner lot in the village of Norwood, which had within the five years next preceding the construction of this particular sidewalk been assessed, for the improvement of the two streets upon which the lot abuts, for more than twenty-five per cent. of the value thereot after such improvement had been completed, could be made liable for an additional assessment for the construction of such sidewalk under the provision of the "Richardson law.'

We are of the opinion that it can not legally be so assessed. By Secs. 2271 and 2283, Rev. Stat., the general assembly, in providing for the assessment of property in municipal corporations for improvements for public purposes, has undertaken to discharge the duty imposed uponit by Sec. 6, Art. 13, of the constitution, viz., to restrict the power of taxation and assessment by cities and incorporated villages, so to prevent the abuse of such power. Sections 2334a, 2334b, and 2334c, Rev. Stat., appear in the same subdivision with Secs. 2271 and 2283, Rev. Stat., under the general head of assessinents; and though they contain no reference to the limitation of twenty-five per cent., yet as there is nothing any where to show that this limittion does not apply to improvements of sidewalks, it must be held that such limitation applies to such improvements, as to those made under the other sections of the law. They are, in fact, improvements of the street as much as those made in the driveway, and so far as we can see there is the same reason and necessity for the limitation of the amount of an assessment for improving the one as the other.

It is very questionable whether the question is properly raised by the record. We do not understand that the judgment of the court in the case was one in which, under the provisions of Sec. 5205, Rev. Stat., the conclusions of fact have been found separately from the conclusions of law; and there was no bill of exceptions containing the evidence or the agreed statement of facts. But we have not placed the decision of the court upon this ground, but have decided the question argued as if it was properly raised. The judgment of the common pleas will be affirmed.


[Hamilton Circuit Court.]



If, when the board of education of Cincinnati, when advertising for bids for school supplies, thereby reserve the right "to reject any and all bids,” a bidder whose bid is rejected has no right to the contract.

APPLICATION for an alternative writ of mandamus.
C. W. Baker, and Bromwell & Bruce, for relator.
C. B. Matthews, contra.

Hamilton Circuit Court.


Without expressing any opinion now, on the question whether the board of education was required to advertise for bids for the 5,000 tons of coal, and to further proceed in regard thereto, under the provisions of Sec. 3988, Rev. Stat., or whether a contract as proposed with Mr. Black, under his bid, would be legal, we hold that an alternative writ of mandamus should not be allowed in this case, for the reason that, by the advertisement made for bids, the right was reserved to the board "to reject any and all bids," and that in fact it did reject the hid of the relator, and he has no right to the contract. If an advertisement was necessary, the statute gives the board such right. If it is not required, it had the right to make such stipulations as it chose. In this, the case differs from those decided in Beaver v. Trustees, 19 Ohio St., 97, and American Clock Co. v. Licking Co., 31 Ohio St., 415, in which the statutes under which the proceedings was had, required the contract to be made with the lowest bidder.

Writ refused.


[Hamilton Circuit Court.]


PARTITION Affirmed When Record Does NOT SHOW ERROR.

Unless the record in a partition suit shows that the commissioners have not acted in conformity to law or have acted, in prejudice of the rights of any of the parties, or that the testimony taken clearly showed that the partition made as unfair or unequal, the order of common pleas confirming the partition will be affirmed."


L. C. Black, for plaintiff in error.

C. W. Baker, contra.

The matters complained of were: (1.) Want of equity in the partition reported. (2.) The value of the property on the corner of Vine and Fourteenth streets is unnecessarily reduced by dividing the tract, when it is of much greater value as a whole, and should not be set off to one party as a single tract. (3.) The said tract was so divided as to leave the property assigned to Robert Kirby encumbered by a wall which supports the building on the property set off to the other party, thus leaving the property set off to Robert Kirby encumbered.


We are of the opinion that the record in this case does not show that in any respect the commissioners appointed to make a partition of the lands held by the parties hereto, as tenants in common, have not acted in conformity of law or in prejudice of the rights of any of the parties, or that the testimony taken clearly showed that the partition made was unfair or unequal. To justify us in holding, it must be manitest from the evidence that such was the case, and it does not so appear. The order of the common pleas court confirming the partition made will therefore be affirmed.

Weitzel v. Village.


[Hamilton Circuit Court. ]




In an action for injunction which was denied, a supplemental petition asking for another injunction and for damages, does not alter the nature of the


2. SAME-NON APPEALable Decree.

In an action for an injunction and also demanding a money judgment, a de cree dismissing the action is not appealable.

MOTION to dismiss appeal.

The original petition of the plaintiff in this case filed September 14, 1891, avers that she is the owner of a certain lot in the village of Delhi, abutting upon the extension of the Lower River road, and that she and her grantors had for many years a stone wall six feet high, two and one-half feet thick and three hundred and fifty feet long, entirely on her own ground along said road; and that it was necessary to the protection of her lot and buildings, which stood twenty-five feet higher than the wall; that the defendants, under pretense that the wall was on the street, had torn down a small part thereof, and were threatening to tear down more of it, which would result in irreparable injury to her said premises, and an injunction was prayed for. A temporary injunction was allowed, but was afterwards dissolved, and on February 1, 1892, a supplemental petition was filed, alleging that on December 1 and 3, the defendant had unlawfully taken possession of a part of her ground for a street, and that by reason of the destruction of the wall and the other acts of the defendants complained of, she was damaged to the amount of $2,000. She therefore prayed for an injunction against the defendants to prevent further encroachment by them upon her said lands, and from the continued occupancy of her land, and asks that her damages be assessed and that she might have judgment against them for the


The defendants denied the allegations of the petitions, and on the trial a decree was rendered in their favor, dismissing the action, from which the plaintiff appealed, and a motion is made to dismiss the appeal on the ground that an appeal will not lie in such case.

There can be no question but that the case made in the original petition was an equitable one. Does the allegation made in the supplementary petition as to the claim for damages alter the case? We think not. It is substantially like Rowland v. Entrekin, 27 Ohio St., 47, which substantially holds that where the tacts stated in the petition, and the nature of the relief primarily demanded, are within the sole jurisdiction of a court of equity, the fact that the plaintiff also demands a money judgment by way of damages, to which he may be incidentally entitled, as a result of his obtain:ng the equitable relief sought, will not affect his right to appeal. Such, we understand, to be the settled law, and the motion will be overruled.

47 O. C. D. Vol. 12

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