Reports of Cases Argued and Determined in the Ohio Circuit Courts...

Husband and Wife.

her husband to manage or control
it.
Ib.

Where an old man, having no
children, and being possessed of
considerable property, sold a farm
to his niece, she agreeing to pay him
a certain amount in cash and an
annuity for his life, the income of
the farm being sufficient to pay the
latter, and on his death the payment
of certain amounts to other heirs,
and the niece went upon the land
and paid for and improved the same,
the transaction constituted a valid
sale to the niece, and she is properly
the owner of the property, and the
creditors of her husband have no
rights therein by reason of his be-
ing employed by his wife to look
after her business interests, and as
such entitled to the profits thereof
which went to pay for such prop-
erty.
Ib.
The fact that the wife of a grantor
does not sign a deed from her
husband to her father in payment of
her husband's debts, casts no re-
flection upon the validity of the
transfer or bona fides of the trans-
action.
Ib.

Relations between husband and
wife which do not give his individ-
ual creditors any right to subject
the earnings of the business to the
payment of his debts.
Ib.

Since the act of March 19, 1887,
Sec. 3114, Rev. Stat., a married
woman has had power to contract
which she would have if unmar-
ried and for any debt contracted by
her after that date, her property ac-
quired after that date, and while a
feme sole, is liable to be seized as
her general property and subjected
to the payment of her debts.
Klinckhamer Brew. Co. v. Cassman.
141

A chose in action in the nature of
a right of action against a railroad
company for damages for personal
injuries sustained by a married
woman, is not such property as to
which debts could attach. Nor can
it be considered such separate es-
tate as to give her the right to sue
for care and physicians' bills on ac-
count of such injuries, particularly
where it does not appear that she
expressly contracted and intended
to charge her own estate therewith.
New York, L. E. & W. R. R. Co. v.
Harber.
648
Section 3108, Rev. Stat., et seq.,
93 O. L., 132, expressly declares

that the husband shall support his
wife and provide her with neces-
saries, and though the wife may
enter into contracts for her own
benefit, or in regard to her separate
property, she can only do so when
it is shown that at the time of en-
tering into the contract, she so in-
tended, and had a separate estate
to charge.
Ib.

A husband is entitled to recover
damages for expenses of care and
physicians' bills incurred by reason
of injuries sustained by his wife
through the negligence of others.
Ib.

Section 3108, Rev. Stat., et seq., as
amended in 1887, 93 O. L., 132, plac-
ing a married woman on the plane
of a feme sole, cannot be given re-
troactive effect or applied to causes
of action which arose prior to its
enactment.
Ib.
Where a husband intends to
abandon his wife, and, for the pur-
pose of depriving her of alimony,
procures her signature to a mort-
gage upon his property upon repre-
sentations that it is necessary to
secure an indebtedness to his
father, which the latter had not de-
manded, and of which he had no
knowledge at the time of its execu-
tion, and four days after the execu-
tion of the mortgage abandons his
wife, such mortgage is a fraud up-
on her marital rights and is invalid
as against her claim for alimony,
whether the son was indebted to his
father or not. Chittenden v. Chit-
tenden.
526
The obligation of a husband to
support and maintain his wife is
not only a common law obligation,
but is fixed by express statute, Sec.
3110, Rev. Stat. The wife is to that
extent a creditor of the husband
and may enforce such right against
his property unless the rights of
others have intervened to exclude
her.
Ib.

A husband, soon after marriage,
conveyed to his wife the homestead
property which thereafter was al-
ways treated and spoken of by him
as her property, but four years
later, and a week before he sep-
arated from his wife, he filed for
record a quitclaim deed by his wife
to himsel for tne same property,
claiming that the quitclaim deed
was executed by her simultaneously
with his deed to her for the prop-
erty, but she denied the execution

Husband and Wife-Insolvency.

HUSBAND AND WIFE-Continued.
of such quitclaim deed and in fact
knew nothing of having executed it:
Held, that she never having know-
ingly signed and executed such deed,
the property in equity is still hers
and is to be subjected last to the
payment of mortgages given upon it
and other property by her husband
before marriage.
Ib.
Mortgages executed by the hus-
band on part of his property, to his
father, before his marriage, and four
years before the separation from his
wife took place, will not be set aside
as far as the wife's right to alimony
is concerned, although these mort-
gages
executed voluntarily
without request therefor from his
father and although it seems prob-
able that in executing them he was
looking forward to a time when he
might be expected to respond in
alimony to his intended wife. Ib.

were

Circumstances under which the
father is bound, the fraud of his son
and mortgage obtained is invalid as
against the rights of the wife. Ib.

See also DOWER.

INJUNCTION-

A motion to dissolve an injunction
restraining the county auditor and
county treasurer from paying a cer-
tain warrant will not be granted
when the questions involved are all
of sufficient importance to await the
final disposition of the case, espe-
cially where some of the questions
depend upon testimony that may be
given on the final hearing to deter-
mine whether the injunction shall be
permanent. State v. Cuyahoga Co.
(Comrs.).
328

It is not necessary that the affi-
davit for an attachment for a viola-
tion of the order of injunction
should state the pendency of the or-
iginal action, the orders made, etc.;
all that is required, in addition to
what is already upon the record, is
the affidavit of the violation of the
order which occurred out of e pres-
ence of the court. Ray v. Railway
Co.
793

The assessment of the fine, under
Sec. 5581, Rev. Stat., for a violation
of the order of injunction, to the
effect that "such party may be re-
quired by the court or judge to pay
a fine not exceeding $200," is an in-
dividual matter, and where there are
several defendants each must re-

spond for himself for the wrong he
has done and the limit applied to
each and not to the defendants col-
lectively.
Ib.

It is not necessary that persons
accused of violating an order of in-
junction, and brought before the
court upon attachment, should be
served with a copy of the affidavit or
the order which they have dis-
obeyed. Upon being served with the
injunction they were supposed to
inform themselves at once of what
they were enjoined from doing. And
where the record discloses, that in
the contempt proceeding, that the
charges were read to defendants in
open court, it is sufficient.
Ib.

Where there has been a violation
of the order of injunction, it is not
necessary to docket an independent
action in contempt or proceed by an
independent prosecution, to enforce
the order made in the civil action.
The court continues to hold and have
control to enforce the order under
Sec. 5581, Rev. Stat., providing that
an attachment may be issued upon
affidavit, etc.
Ib.

An action for injunction in the
superior court will bind both of two
defendants united in interest, al-
though only one is served; and such
action speaks from the giving of the
bond under the temporary restrain-
ing order. Totten v. Hall. 724
See also CONTRACTS.
INSANE-

See TRIAL.

INSOLVENCY-

A corporaton doing business at a
profit whose available assets were
practically equal to its indebtedness,
and in such condition financially
that had a sale been made of all its
property at a fair market value it
would have paid the debts of the
concern with some profit to its mem-
bers, is solvent, and the property
transferred by a stockholder of such
corporation cannot be followed into
the hands of bona fide purchasers
and subjected to the payment of the
debts of the corporation which after-
wards became insolvent. First Nat.
Bank v. Rice.
121
Where an assigner 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

Insolvency-Insurance.

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 as-
signed estate in une probate court.
Bonham v. Rempe & Son.
725

In assignments for the benefit of
creditors, dividends are made only
with respect to funds going to gen-
eral creditors under Sec. 6356, Rev.
Stat. Therefore, an order by the
probate court that the assignee pay
the proceeds of a sale of property
encumbered by mortgage to the
mortgagee in satisfaction of his
claim, is not an order for payment
of a dividend. Reed V. Terhune.
829

The fees and allowances of an as-
signee for the benefit of creditors,
for services rendered to the general
estate, and for the benefit of the gen-
eral creditors, are not to be paid
from funds or property subject to
specific liens which rest upon the
property at the time the assignment
is made.

Ib.

In an assignment for the benefit
of creditors where the assignee has
sold property encumbered by mort-
gage, it would be reasonable and
perhaps lawful to allow to the as-
signee fair compensation for such
services as he might perform of
benefit to the mortgagee in bring-
ing the property to sale and in bring-
ing the proceeds applicable to the
mortgage debt into court, but where
it appears that the assignee has
been allowed full compensation for
that service, he is not entitled to
further compensation from this
fund for services to be rendered in
winding up the estate, and services
for the benefit of the general cred-
itors.
Ib.

In an action by an assignee to set
aside an order of the probate court
directing the application of a por-
tion of the rents of certain mortgaged
property coming into the assignee's
hands to the payment of the mort-
gagee's claim, the proceeds of the
sale not being sufficient to extin-
guish the lien, the burden is on the
assignee, having received full com-
pensation for services with respect
thereto of direct benefit to the mort-
gagee, to show that such rents are
subject to the claims of general cred-
itors.

Ib.

See also COURTS.

INSURANCE-

The fact that an insurance com-
pany was doing business in this
state when Secs. 3631-11, Rev. Stat.,
et seq., 92 O. L., 360, was passed, and
continued to do business thereafter,
but had failed for some time to file
its annual report with the state in-
surance commissioner, as required by
Sec. 3631-12, Rev. Stat., will not in-
validate a certificate of insurance
in the hands of a beneficiary, and
falling due before the statute was
complied with. Klinckhamer Brew.
Co. v. Cassman.
141

Section 2 of the act of April 25,
1898, making provision for the pro-
tection of policy holders of life in-
surance companies organized upon
the stipulated premium plan, and
Sec. 6 of the same act making pro-
vision for a reserve fund, clearly
show the intention of the legislature
to compel policy holders and bene-
ficiaries thereunder to trust to the
companies and the protection af-
forded them under the act itself,
without making the trustees person-
ally liable for losses thereunder.
Kelley v. Bender.

181

Section 3 of the act of April 25,
1898, Sec. 3631, Rev. Stat., provid-
ing that life insurance companies
organized without any capital stock,
upon the stipulated premium plan,
shall be subject only to the provisions
of such act excepting certain provi-
sions of Chap. 8. Tit. 3, part 1. and
Chap. 10. Tit. 2. part 2, Rev. Stat.,
applicable thereto. does not include
Sec. 3261. Rev. Stat., relating to the
liability of trustees of corporations
not for profit.

Ib.

A condition in a policy of insurance
that if the property insured becomes
unoccupied without the assent of the
company the policy shall be void, is
not in conflict with Sec. 3643, Rev.
Stat.. limiting the extent of liability
upon policies, provided such condi-
tion increases the risk, but the fact
that premises are unoccupied does
not in itself raise to any degree the
presumption of increase of hazard
of the risk. Security Fire Ins. Co.
v. McFarland.
591

Allegations in the answer of an
insurance company in an action for
indemnity for loss by fire, that the
insured suffered the premises to be-
come vacant and unoccupied with-
out defendant's consent, and thereby
increased the risk, without allega-
tion of fact to show how or in what

Insurance-Judgments.

INSURANCE-Continued.

manner such risk was increased, are
not sufficient and do not raise such
a presumption as will amount to a
defense.
Ib.

No personal privilege is conferred
upon the insured under Sec. 3643,
Rev. Stat., defining the extent of lia-
bility of insurance companies under
their policies, which he may waive
or qualify by agreement. The stat-
ute is a part of the policy and is read
into the contract of insurance there-
in. Hence a company is bound to
pay the loss whether total or partial
and can not rebuild or replace. Ib.

Where the assured stated in the
written application to the company
for a policy of life insurance that he
did not use intoxicating liquor at
all, but was a total abstainer from
the same, which statements were un-
true, such statements, under Sec.
3625, Rev. Stat., will not defeat the
right to recover unless it be clearly
proved that the statements were not
only wilfully false and fraudulently
made, but that the same were ma-
terial and induced the company to
issue the policy. Northwestern Life
Ins. Co. v. Risley.
186

The question whether or not such
answers were wilfully false and
fraudulently made, and were mater-
ial, and induced the company to is-
sue the policy, is a question of fact
to be determined by the jury under
proper instructions from the court.
Ib.

Where the assured answered in
the application that he did not use
intoxicating liquor at all, any quan-
tities or of any character, which an-
swers were untrue, it was error for
the court to charge the jury "That
for a man to occasionally use intoxi-
cating liquor or to use it in modera-
tion and an occasional indulgence to
excess does not render a person an
Intemperate man."
Ib.

INTEREST-

Where an officer of a bank entered
into a contract with a merchant by
which the latter was to purchase a
stock of goods against which bank
and the merchant both had claims
which they desired to secure, and
providing that the officer should pro-
cure a loan from his bank for the
merchant, in consideration of stip-
ulated interest and payment of the
bank's claim against the goods, the
contract should be treated as an in-

JUDGMENTS-

A finding by the tribunal created
by Sec. 1545-24, Rev. Stat., 92 O. L.,
446, the federal plan law of Cleve-
land, consisting of the mayor, di-
rector of law and president of the
city council, that a 'police officer was
guilty of using his influence in se
curing votes for a certain candidate
at an election, is conclusive and the
circuit court will not, in a mandam-
us proceeding seeking to reinstate
such officer, go into the evidence as
to what the real fact is as to the
conduct of the officer, nor into facts
as to what was done before such
tribunal. State v. Barrett.
231

The fact that the evidence, as it
appears in the reviewing court, is
sufficient to arouse a strong sus-
picion of fraud against a defendant
in attachment, is not sufficient to
warrant that court in disturbing a
judgment discharging the attach-
ment. Bernhard v. Schwartz. 183

A court would be justified in refus-
ing to set aside a judgment by de-
fault where the reason given for not
filing an answer was that defend-
ant's attorney was busy in attend-
ing to professional business and by
mistake of a clerk in his office, de-
fendant's case was not called to his
attention so that he did not know
he was in default until after judg-
ment was taken. French Wax Fig-
ure Co. v. Baxter Co.
76

A judgment in an action against
an estate based upon an agreement
between a mother and sons, by which
the latter were to work her farm
and after the expenses were paid to
have all the proceeds, is not res ad-
judicata of a claim for compensa-

Judgments-Judicial Sales.

tion for services for working the
same farm under an agreement, ex-
press or implied, to pay for the
same; the claims are separate and
distinct, notwithstanding they are
inconsistent. Ward, Est. of. 44
Judgment will not be reversed for
sustaining an objection to a ques-
tion asked in the direct examination
of a witness, where the exception
does not show what testimony was
expected of the witness, and partic-
ularly when the answer if given
I could not have been competent or
of any benefit to the party asking it.
Shadle v. Illuminating Co.
37
Judgment will not be reversed on
account of the admission of irrele-
vant testimony where it cannot be
said to have been prejudicial. Thus
the admission of testimony of an
agent of a lessor concerning a sur-
render of leased premises, but which
failed to establish a release, and
therefore became irrelevant, is not
ground for reversal. Price v. Cob-
litz.
34
Where a judgment on a note is
taken not only for more than is due,
but against parties not liable, they
are not confined to the remedy to
open and vacate when a good de-
fense is first established, but may
appeal. Snyder v. Bank. 623

A judgment may be set aside for
fraud although defendant was prop-
erly served with summons, by copy
left at her usual place of residence,
and made no defense to the action,
where a good and valid excuse is
shown for not defending. Ullman
Einstein & Co. v. Effinger. 746

A judgment procured against a
party on account which she never
vowed nor became either directly
or indirectly liable for, may be set
aside in a proper proceeding brought
for that purpose.
Ib.

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

734

Where a judgment is substantially
correct and it appears that the
judges who heard the case are not
exactly agreed as to the points in-
volved, the judgment is affirmed.
Miller & Tafel v. Mannix.
536

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Reports of Cases Argued and Determined in the Ohio Circuit Courts ..., Том 12