ABANDONMENT
Nonuser of easement may or may not work abandonment. Facts constituting an abandonment of easement for roadway given. Tudor Boiler Mfg. Co. v. Greenwald Co. 556
Six months' lease at monthly rental is entire contract and will support but one breach and recovery only. Burckhardt v. Greene.
City solictor may commence proceedings in mandamus to compel officer to perform duty enjoined upon him under Sec. 1777 Rev. Stat. and 96 O. L. 65, Sec. 137, Sec. 1536-655 (4 ed.) Rev. Stat., without action of council. State v. Bowers. 326
Mere collector of subscriptions is not a "managing agent" of foreign corporation upon whom process may be served, under Sec. 6480 Rev. Stat. Foote v. Commercial Co. 378
Suit for recovery of money judgment is a legal action, notwithstanding incidental equitable questions. v. Anthony.
Where sheriff neglects to levy execution, action on official bond lies. "Adequate remedy at law" defined. State v. Chambers.
In an action for personal injuries, a minor plaintiff cannot recover for mother's services as nurse, in the absence of special contract between them, or proof of manumission. Neither can such minor recover for wages when not emancipated. Bowe v. Bowe. 409
A railroad corporation may be sued as such after the appointment of a receiver. Monnett v. Railway. 469
An action at law for damages or an action in equity for specific performance are the proper remedies for failure to perform a covenant. Ib.
The legal effect of the dismissal of an action "without prejudice," is ma- terially different from a dismissal with- out qualifications, or with prejudice. Akron (City) v. Railway. 525 Action to enforce vendor's lien is barred in six years, when. Callender v. Basquin. 540 Abandonment and adverse posses- sion are properly liable to a jury. Tudor Boiler Mfg. Co. v. Greenwald Co. 556 Appraisement and award are not condition of right to action on fire in- surance policy unless demanded by in- surer. German Ins. Co. v. Kistner. 569
Sureties signing note upon represen tation of payee that the entire indebt- ness of the maker is covered cannot interpose a defense of additional lia- bility of the maker growing out of a prior fraudulent transaction. Harter v. Pearson. 601
After satisfaction of judgment in as- sumpsit action for tort will not lie. Ib.
Notes treated as advancements will not bear interest after the ancestor's death. Ib.
ADVERSE POSSESSION-
Adverse possession by abutter of land belonging to railroad right of way must be inconsistent with rail- road's right and not permissive. Smith v. Railway. 44
Evidence of common user or mixed possession of a railroad right of way between an adverse claimant and the company is competent evidence to rebut a claim of adverse possession and to strengthen the company's title. Ib.
Record of deed for fee to railroad right of way and entry thereunder are evidence of adverse claim and contin- uous; hostile possession for twenty- one years grants a title by prescription therein.
Plaintiff out of possession who has or claims an estate, or interest in re- version or remainder, may maintain an action to remove a cloud or quiet title against an adverse claimant. Sec- tion 5779 Rev. Stat., construed. Mon- nett v. Railway. 469
Nonuser of easement may or may not work an abandonment. Facts con- stituting an abandonment of easement for roadway given. Tudor Boiler Mfg. Co. v. Greenwald Co. 556
The owner of a fee in highway has all the uses incidental to the property not inconsistent with the dominant es- tate, and until the exercise of the ease- ment is asserted, any use of the owner of the fee is not in itself adverse. Ib.
Adverse possession is shown by the exercise of dominion over a strip of land over which another claims a road- way, treating it as an appurtenant to adjoining property, erecting permanent buildings thereon, enclosing part of the way with a fence and paying no re- spect to its use as a roadway, for more than twenty-one years. Ib.
is given, the judgment of the trial court is final. Ib.
APPROPRIATION PROCEEDINGS— See EMINENT DOMAIN.
APPURTENANCE-
See REAL PROPERTY.
ASSESSMENTS-
Evidence as to special benefits from street improvement is admissible in suit to enjoin collection of assessments therefor. Benham v. Cincinnati. 17
Finding of benefits by assessing board held prima facie correct.
Constitutional limitations as to street assessments may be waived. Abutters signing petition for street improvement "irrespective of the num- ber,* signing this petition" are estopped to deny that assessments ex- ceed benefits. Thornton V. Cincin- nati. 33
Construction of tile drain not sep- arate and distinct improvement. Tay- lor v. Wapakoneta. 285
Life tenant paying assessments not a volunteer, and is entitled to subroga- tion against the land. Eddy v. Leath. 645
Failure of a council to fix valuation of property in advance in making a sewer assessment is not fatal. If a just and equitable assessment is made and other statutory requirements are complied with. Ayres v. Toledo. 767
No presumption that an assessment is equitable through failure to record valuation of property assessed. Ib.
The report of the assessing com- mittee is not conclusive as to the own- ers of the property, but an assessment based upon such report will not be set aside in the absence of proof that in- justice or inequality has been done. Ib.
Where the statutory limitation of an assessment against property is fixed at 25 per cent of the value of the prop- erty, which valuation shall not exceed a fair market value of such property after the improvement is made, an alle- gation of defendant, in an action to collect the assessment, that the assess- ment against her property exceeded 25 per cent of its general taxable value, is immaterial and should be stricken out. Ib.
City clerk without authority to cer- tify an appointment under Sec. 2601-1 Rev. Stat. (Rep. 96 O. L. 96), before the city engineer has proceeded there- under. Bloch v. Godfrey. 781
Assessment should be apportioned among all lots under Sec. 2601-1 Rev.
Owner of tract acquiescing in an irregular apportionment of an assess- ment is estopped from objecting. Ib. ASSIGNMENT
Jurisdiction of probate court is not interferred with by garnisheeing legacy in hands of administrator. Orlopp v. Schueller. 127
Common pleas cannot order admin- istrator to pay money into court in garnishee proceedings, when. Ib. Affidavit in attachment not insuf- ficient by reason of confiicting dates in amended petition. Ib.
The provision of Sec. 5522 Rev. Stat., as to setting forth nature of plaintiff's claim in affidavit for at- tachment, is to determine whether the claim is of such a character as will entitle him to an attachment. Ib. Undetermined legacy in hands of ad- ministrator may be garnisheed under Sec. 5531 Rev. Stat.
An attachment may be issued in an action commenced on a promissory note when any of the statutory grounds for attachment exist. Ib.
Failure to give notice to debtor of as- signment of chose in action is imma- terial as against attaching creditor. Milligan v. Bank. 136
Garnishee is not proper party in attachment but he may interpose want of notice of assignment of chose in action. Ib.
Payment by garnishee after notice of assignment of nonnegotiable note is
not a defense pro tanto against as- signee thereof.
Evidence sufficient to sustain attach- ment. Goodyear T. & R. Co. v. Rubber Tire Co.
A plaintiff in attachment is en- titled, under Sec. 6496 Rev. Stat., to obtain service by publication, upon a showing that summons cannot be served upon defendant within the county. Common pleas court is not authorized by Sec. 6733_Rev. Stat. to discharge attachment. Foote v. Commercial Co. 37S
Foreign corporations engaged in in- terestate commerce business, voluntar- ily complying with Secs. 148c and 148d Rev. Stat., are entitled to exemption from attachment under the provisions of Sec. 6521 Rev. Stat., upon the ground that they are foreign_corpora- tions. Armour Car Lines v. Fruit Co. 496 ATTORNEY AND CLIENT—
It is improper for counsel to assume facts not in evidence in malicious pros- ecution. Lieblang v. Railway. 30
Executor entitled to reasonable coun- sel fees not successfully defending will, notwithstanding judgment was based on compromise. Union Sav. Bank & Tr. Co. v. Smith. 317
Order dismissing action at cost of attorney because commenced by him without authority is not appealable. Capaul v. Railway. 578
The question whether or not the finding of the trial court that an action was commenced by plaintiff's attorney of record without authority, was sus- tained by the evidence, will not be con- sidered in the absence of a bill of ex- ceptions setting forth the evidence. AUDITOR OF COUNTY-
County auditor is a public officer and is responsible to public for neglect of duty. He is not a mere clerk to board of county commissioners. Kloeb v. Mercer Co. (Comrs.). 152
County auditor entitled to be re- imbursed his costs in bona fide resist- ing mandamus proceedings to compel issuance of warrant, notwithstanding he was mistaken in judgment in re- fusing to pay same. Ib.
Auditor should protest against and object to drawing warrants which he deems unlawful, Ib.
County auditor must act faithfully. prudently and exercise judgment, to a degree commensurate with his responsi- bility to the public, in drawing war- rants on the treasury. Failure to so
Auditor of county-Bills and Notes.
By-law denying benefits to a delin- quent member, who pays arrears after becoming sick and continues to pay thereafter during sickness, is unrea- reasonable. Phoenix Council v. Ben- nett. 110
A member of a beneficial associa- ation is conclusively presumed to know constitution and laws of the order when the application refers specifically to same. Irregular acts of agent con- trary to laws of association not bind- ing upon latter. Payment of over- due assessments by a son of delinquent after fatal injury comes too late. eral calls for assessments does not waive an ipso facto suspension of member. Local agent cannot suspend constitution of association. Pete v. Woodmen of the World. 653
that certain evidence submitted to jury on trial is not made part thereof. Ib.
Question raised by motion to strike bill of exceptions from files of circuit court is whether bill is part of record of court below. Strauck v. Stoneware Co. 73
Order of trial court making bill of exceptions part of record is necessary under Secs. 5302 and 5334 Rev. Stat. Merely filing, and allowing, settling and siguing by trial judge is not suf- ficient. Ib.
Amendment, 96 O. L. 17, dispensing with necessity of entry upon court journal, and providing that signature by trial judge shall be sufficient evi- dence of settling and allowance, etc., does not dispense with order to make bill of exceptions part of record. Ib.
Bill of exceptions not containing all the evidence, certain exhibits not being attached, held sufficient, the weight of evidence not being involved. Union Sav. Bank & Tr. Co. v. Smith.
Cause of action on promissory note accrues upon death of payee. Tobias v. Richards. 81
Failure of action on promissory note for want of title is not failure be- cause of defect in jurisdiction. Ib.
A written instrument in the form following is a joint and several prom- issory note: "I hereby certify to have received of Mr. Dan. Deiss as a loan for three months $500. Columbus, Ohio, August 12, 1872, Oscar Orlopp, Emillie Orlopp ;" and an action thereon may be maintained against one of the makers. Orlopp v. Schueller. 127
Payment by garnishee after notice of assignment of nonnegotiable note is not a defense pro tanto against as- signee thereof. Milligan v. Bank. 136
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