charge is omitted, affirmative errors only will be considered. Sharp v. Cincinnati. 59
Only such original papers as are part of the record in the court below can be filed with a petition in error under authority of Sec. 6716 Rev. Stat. Strauck v. Stoneware Co. 73 Question raised by motion to strike bill of exceptions from files of cir- cuit court is whether bill is part of record of court below. Ib.
The circuit court has jurisdiction only to review, vacate or modify a judgment of the common pleas court for errors appearing upon the record, under Sec. 6709 Rev. Stat. Ib.
Amendment, 96 O. L. 17, dispens- ing 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.
On error to justice of the peace to discharge an attachment common pleas is not authorized by Sec. 6733 Rev. Stat. to discharge same. Foote v. Commercial Co. 378
Reviewing court will consider plead- ings as presenting certain issue not- withstanding failure of averment. Schnitzer v. Cole. 387
Judgment debtor may take full stat- utory time to file petition in error in circuit court. State v. Chambers. 404
To charge in an action for per- sonal injuries that a physician's bill paid by defendant, is an element of damages; or that an unemancipated infant may recover for lost wages. Bowe v. Bowe.
The failure to plead a material fact is cured when the answer puts the omitted fact directly in issue; and
when it appears that substancial jus- tice has been done, the error in the trial court in overruling a demurrer to the petition will be disregarded by a reviewing court under Sec. 5115 Rev. Stat. Clev. C. C. & St. L. Ry. v. Tehan. 437
Record need not show amended peti- tion where the bill of exceptions sets out all the evidence and proceedings. and evidence and proceedings sustain the verdict. Ib.
In such case the amendment wil be implied on error. ib.
But where the verdict is not thus sustained the record must show amend- ment. Ib.
A verdict and judgment for dan- ages upon a cause of action not made an issue by pleading, and which is supported by evidence which is in- cidental only to the cause of action pleaded, will be reversed. Cincinnati Connect. Belt Ry. v. Buski. 486
The reversal and modification of a judgment by a reviewing court is only warranted when based upon the state of the pleadings, a finding of facts by the trial court, or upon facts brought before the court by a bill of exceptions. Akron v. Railway. 525
The rule that a reviewing court may, on reversal and under proper conditions, render such judgment as the trial court should have rendered. has no application where the record only shows that the case was heard, argued by counsel, and a judgment to dismiss without prejudice rendered.
Where the judgment of a lower court in a criminal prosecution is reversed on error because of the im- position of an excessive sentence, the case will be remanded for proper sen- tence only. Dalrymple v. State. 562
The question whether or not the finding of the trial court that an ac tion was commenced by plaintiff's at- torney of record without authority. was sustained by the evidence, will not be considered in the absence of a bill of exceptions setting forth the evidence. Capaul v. Railway. 578
Order dismissing action without prejudice for failure to amend review- able on error. Egan v. Railwg v. 616
Variance between pleadings and proof must be material and prejudicial to disturb verdict and judgment. To- ledo Ry. & Light Co. v. Ketrow. 641
Where the court withdraws the evi- dence from the jury and dismisses the petition of plaintiff for the reason that there is no evidence to support
the claim of plaintiff and upon the same day a motion for a new trial is made which is overruled at a subse- quent term of the court, a petition in error which is filed more than four months from the rendition of the judgment dismissing the petition of plaintiff but within four months from the overruling of the motion for a new trial is too late and the proceed- ing in error should be dismissed. Mc- Callen v. Railway. 710
Charge excluding defendant from re- ducing grade of crime from murder to manslaughter is error. Munday V. State. 712
Evidence of accused's excessive use of absinthe and morphine not "newly discovered evidence" in conviction for robbery. v. State. 723 Fourty-eight hours consideration of criminal case by jury not duress, nor exercise upon streets in sheriff's cus- tody, irregularity. Young v. State. 747 ESTATES-
Judgment in action to recover real estate upon forfeiture of leasehold and mesne profits cannot be pleaded in bar to action for rent accrued prior to forfeiture. Linke v. Walcutt. 10
Constitutional limitations as to street assessments may be waived. Abutters signing petition for street improvement "irrespective of the mem- ber * * signing this petition" are estopped to deny that assessments exceed benefits. Thornton v. Cincin- nati. 33
Heirs sui juris, voluntarily agreeing to sale of mortgaged premises and after payment of mortgage indebted- ness to deliver balance of proceeds to administrator are estopped from denying sale or right of widow to dower and homestead in such balance. Bretz v. Moore.
of remainder-man. Moore v. Idlor. 502
Where by deed an estate in fee simple is granted, the same cannot be reduced to a life estate by an- other instrument executed concur- rently with such deed, purporting to reserve a fee to the grantor in the deed or to convey a fee to another to vest upon the death of the grantor in the deed, unless such other instru- ment shall contain appropriate oper- ative words of conveyance of such remainder or reversion. Lee v. Scott. 799
Owner of tract acquiescing in an irregular apportionment of an assess- ment estopped from objecting. Bloch v. Godfrey. 781
When the present capacity of an oil well was only fifty-three barrels a day, which fact was known to vendor but unknown to vendee, and the for- mer in response to an inquiry from the latter as to its present capacity. replied, "I had run two one-hundred barrel tanks a day," which was the capacity of the property several week previous, and vendee believed from vendor's conduct and words that he was stating the present capacity of the property, and acted upon it to his prejudice, the vendor's reply and conduct, in such case, is tanta- mount to a fraud upon vendee which will entitle him to relief; and vendor will be estopped from resorting to the literal meaning of his words to es- cape liability to the vendee. Jones v. Draper. 785
EVICTION—
See EJECTMENT. EVIDENCE-
Evidence as to special benefits from screet improvement is admissible in suit to enjoin collection of assess- ments therefor. Benham v. Cincin- nati. 17
Finding of benefits by assessing board held prima facie correct. Ib. Parol evidence is inadmissible to es- tablish parol modification of written contract, when. Toledo Paper Box Co. v. Paper Co. 27
Favorable termination of criminal proceeding as by acquittal, dismissal or discharge must be pleaded in peti- tion in malicious prosecution, and es- tablished by evidence. Lieblang v. Electric Ry.
Amendment of bill of exceptions in reviewing court by attaching insuf- ficiently identified exhibits in evidence in trial court is improper, evidence dehors the record is inadmissible to identify such exhibits. Supply Co. v. Cement Co. 49
Evidence of expert as to compara- tive merits of electric insulators is competent where defendant offers evi- dence that insulator used was proper and safe. North Amherst Home Tel. Co. v. Jackson. 89
A reviewing court will not deter- mine whether evidence is competent or not when no proper means was exer- Icised at the trial, by motion or other- wise, to have it taken from the jury. Ib. Evidence of changes subsequent co accident competent, when. Ib.
It is not hearsay evidence for a wit- ness to state that he heard of a cer- tain transaction, when the object of such question is to refresh the witness' memory and assist him in fixing the time of the particular accident which is the foundation of the action. Ib. Evidence incompetent to show dan- gerous condition of electric wires.
A person eligible to appointment as executor may be appointed by proper order of the probate court entered upon its journal without the issu- ance of letters testamentary. Such letters are merely evidence of appoint- ment. Tidd v. Bloch. 113
Persons going upon defective side- walk in daytime must exercise or- dinary care. Preponderance of evi- dence is necessary to establish such fact. Peat v. Norwalk.
extension appropriation proceedings. Clev. C. C. & St. L. Ry. v. Railway.
Promissory note in evidence makes a prima facie case. Bode v. Werner. 206
Court should not direct verdict be- cause of failure of evidence when plaintiff has been deprived of necessary testimony to which he was entitled. 245 Kneipper v. Richards.
Evidence tending to establish terms of incomplete memorandum agreement Ib. is improperly excluded..
Evidence sufficient to sustain at- tachment. Goodyear T. & R. Co. v. Rubber Tire Co.
Evidence of circumstances influenc- ing testator, but unknown to him is 321 admissible. Rapp v. Becker.
Where trustee of express trust with power to sell mortgages instead, evi- dence that trustee and mortgage acted in good faith, admissible. Security Tr. Co. v. Bank. 381
Alleged admission of defendant in- sufficient to establish right to specific performance, when. Schnitzer v. Cole.
Admission of questions as to exper- ience necessary to work at an occupa- tion safely is improper when not di- rected to the particular act. Imma- terial questions concerning master's conduct toward servant is prejudicial error. Bowe v. Bowe. 409
Proof that an employe is a brake- man is not sufficient to hold the com- pany liable for expulsion of a tres- passer from a freight train while in motion. Whistler v. Cowan. 511
Oral testimony is competent to show conditional sale. Richcreek v. O'Don- nell. 528
Courts do not take judicial notice of municipal ordinances. Chittenden v. Columbus. 531
Waiver of conditions in gas and oil lease providing for monthly rental upon failure to drill must be shown by clear and convincing evidence. Meek v. Cooney. 553
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 perman- ent buildings thereon, enclosing part of the way with a fence and paying no respect to its use as a roadway, for more than twenty-one years. Tu- dor Boiler Mfg. Co. v. Greenwald Co. 556
In the absence of evidence to the contrary the presumption is that a
Evidence-Executors and Administrators.
The presumption is that proper peti- tion was filed for Beal law election when election was ordered by the coun- cil. Ib.
The legal presumption is that elec- tion officers will adopt the true con- struction of election laws, and will so conduct elections as to give every elector an opportunity to register and vote. Jeffrey v. State. 591
Rule stated as to burden of proof in case of contributory negligence. Evidence as to plaintiff's location be- fore time of accident not competent, when. Presumption of negligence arises from lack of ordinary care. Green v. Railway. 609 No presumption of negligence from mere happening of accident. Egan v. Railway. 616
Evidence that defendant was negli- gent in a matter other than alleged in the petition as plaintiff's cause of action, and which is also in support of a theory contrary to the one upon which the case is being tried, is in- competent, and should be ruled out. Negligence must be established by di- rect proof or must be reasonably in- ferred from facts proved, etc. Wele- ver v. Williams. 624
Upon an action to collect rent evi- dence is admissible for the purpose of showing that a contemporaneous parol agreement was made at the time a written lease was executed by which the lease was only to be used in organizing a corporation, and trans- ferring the same to it, and under no circumstances to be a valid lease be- tween the original parties. Metzger v. Roberts.
was no negligence, in such case, is on the company. Degree of care re- quired. Ib.
There is no conclusive presumption that one intended to kill, because he purposely struck a blow causing death. Munday v. State. 712
Conduct and responses of accused charged with crime admissible against him. v. State. 723
Where inadmissible evidence has been admitted in behalf of one party, without objection, similar evidence may be admitted to rebut or explain it. Ib.
Evidence of accused's excessive use of absinthe and morphine not "newly discovered evidence" in conviction for robbery. Ib.
Evidence should be limited to time statute, under which indictment found, is in force. Young v. State. 747
Information required by a police officer from a third person as to the amount of nitroglycerine transported over a certain street by defendant, in violation of an ordinance, is inad- missible in evidence under the hear-
say rule. Walter v. Bowling Green.
Executors and Administrators-Fines and Penalties.
TORS-Continued. dence of advancements form no part of the estate. Tobias v. Richardson.
Debtor heir must account to estate to claim distribution. Ib. Issuance of letters testamentary not necessary to appointment as executor. Tidd v. Bloch. 113
Surety company on indemnity bond of executor who is sole residuary lega- tee has a lien on his interest in the estate to the extent of any disburse- ments made by it on behalf of the estate, notwithstanding letters testa- mentary were never issued to him. Ib. Probate court has original jurisdic- tion under Sec. 524 Rev. Stat. as to credits and payment of unsecured claims. Ib.
Jurisdiction of probate court is not interfered with by garnisheeing legacy in hands of administrator. Orlopp v. Schueller. - 127
Common pleas cannot order admin- istrator to pay money into court in Ib. garnishee proceedings, when. Administrators are public officers within meaning of Sec. 5531 Rev. Stat. and an undetermined legacy in such hands may be garnisheed. Ib.
Trust company appointed under in- valid statute is entitled to same com- pensation as administrators when es- tate has been fully administered and received benefits thereof. Bank & Tr. Co. v. Smith. 317
Executor entitled to reasonable counsel fees for successfully defending will, notwithstanding judgment was based on compromise.
Widow not bound to exhaust her separate property or be in actual need before subjecting corpus of life estate to her support. Moore v. Idlor. 502 Application for year's allowance must be made to probate court. Ib.
The relation of debtor and creditor does not exist between the life ten- ant and remainder-man as such; the former holds rather as trustee. Such trust continues in the executor of the life tenant who takes possession of the property after his death. Ib.
Whether the inheritance tax law (97 0. L. 398) applies to the un- distributed estate of a person who died testate prior to its enactment, depends upon when said estate vested under the provision of the will. Hostetter v. State. 702
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