Memoranda of causes not reported in full.
THE MERCHANTS' NATIONAL BANK v. WEHRMANN, EXRX., ET AL.
(Decided February 3, 1905.)
ERROR to Circuit Court of Hamilton county.
Messrs. Herron, Gatch & Herron, for plaintiff in
Mr. Joseph B. Kelley; Messrs. Kelley & Hauck; Messrs. Schwab & Merrill; Mr. D. S. Oliver; Mr. Gideon C. Wilson; Mr. James J. Muir; Messrs. Harmon, Colston, Goldsmith & Hoadly; Messrs. Wilson & Wilson; Messrs. Knight & Jones; Mr. Jacob Schroder and Mr. C. B. Matthews, for defendants in
Mr. E. R. Donohue and Mr. C. Hammond Avery, attorneys for receivers of The Emperor Building & Loan Company.
DAVIS, SHAUCK, PRICE and SUMMERS, JJ., Concur.
HICKEY, ADMR. v. CONINE ET AL.
(Decided February 3, 1905.)
ERROR to Circuit Court of Allen county.
Messrs. Watts & Moore; Messrs. Bailey & Bailey and Messrs. Handy & Unverferth, for plaintiff in
Messrs. Cable & Parmenter, for defendants in
DAVIS, SHAUCK and PRICE, JJ., concur.
Mandamus will not be awarded to compel a present auditor,
in making up annually the delinquent tax duplicate required
by section 2855, Revised Statutes, to bring upon the current
delinquent duplicate delinquent personal taxes omitted by
his predecessors. See State v. Smith, 13.
Section 5227, Revised Statutes, as amended by act 95 O. L., 66,
respecting notice of intention to appeal from the common
pleas to the circuit court, with a view to a trial de novo,
relates to the remedy, and a party may appeal in the mode
prescribed by the statute in force at the commencement of
the original petition. See Charles v. Fawley, 50.
Purchaser at private or judicial sale of interests of heirs of
mortgagor of realty may plead statute of limitations in bar
of foreclosure proceedings, notwithstanding such heirs are
made parties and neglect to interpose the plea. See Hopkins
v. Clyde, 141.
Where several complete defenses have been pleaded, and de-
murrer to each has been overruled, and judgment rendered
for defendant, and on error the circuit court finds error in
overruling the demurrer as to one defense only, the judg-
.ment should be affirmed. See Canton (Bd. of Ed.) v.
Walker, 169.
Privity of contract upon which an action can be based for
breach, does not exist between an individual citizen and
water company under a contract by which the latter agrees
to furnish a municipality adequate fire protection.
Blunk v. Dennison Water Supply Co., 250.
Where defendant appeals to common pleas from adverse judg-
ment in action for money only and sets up note not due at
time of original action, he is entitled to judgment for differ-
ence in his favor and his costs in both courts. See Gordon
v. Steinmetz, 372.
Controversy between parties to contract as to respective rights
cannot be determined in mandamus. See Mt. Vernon v.
State, 428.
Oleomargarine-Restrictions in sale of-Sections 4200-7 and
4200-16, Revised Statutes-Sale for analysis comes under the
Adulteration of Food-Age of Consent.
ADULTERATION OF FOOD-Continued.
statute-Adulteration of food-A person who sells or delivers
oleomargarine containing coloring matter to any person in-
terested or demanding the same, for analysis as provided in
section 4200-7, Revised Statutes, is guilty of a violation of sec-
tion 4200-16, Revised Statutes. State v. Rippeth, 85.
Section 2966-23, Revised Statutes, does not constitute the chief
deputies and clerks a board with continuing functions, or
board in any sense. When the chief deputy state supervisor
and clerks have been called together to consider objections
concerning nominations and have acted and adjourned sine
die, their decision is final and their functions are at an end.
Section 2966-23, Revised Statutes, construed. See State v.
Stewart, 55.
Where several complete defenses have been pleaded, and de-
murrer to each has been overruled, and judgment rendered
for defendant, and on error the circuit court finds error in
overruling the demurrer as to one defense only, the judg-
ment should be affirmed. See Canton (Bd. of Ed.) v.
Walker, 169.
Contract for railroad improvement providing that all altera-
tions, etc., thereof, must be made in writing, does not au-
thorize engineer to waive orders for extra work, when. See
Baltimore & O. Rd. Co. v. Jolly Bros., 92.
A chattel mortgage to secure purchase notes given for store
goods and fixtures; retaining possession and title in the
mortgagee; empowering the mortgagor as agent to sell
goods, account for and turn over the proceeds of sales to
mortgagee; providing a weekly compensation for the mort-
gagor as such agent, and extending the mortgage lien to
cover goods purchased to replace stock sold, creates, limits
and defines the agency of the mortgagor to sell the mortgaged
goods but does not authorize the mortgagor, expressly or
impliedly, to purchase other goods on the credit of the mort-
gagee. See Kelly v. Tracy & Avery Co., 220.
Under an indictment for carnally knowing and abusing a
female person under sixteen with her consent in violation
of section 6816, Revised Statutes, evidence that the act was
committed without her consent does not constitute a fatal
variance. See State v. Carl, 259.
ALTERATIONS OF CONTRACTS-
Contract for railroad improvement providing that all altera-
tions, amendments or modifications thereof must be made in
writing, etc., does not authorize engineer to waive written
orders for extra work, or make allowances for loss for doing
work for which the price is specially fixed therein, nor to
bind his principal by any parol modifications. See Baltimore
& O. Rd. Co. v. Jolly Bros., 92.
Section 5227, Revised Statutes, as amended by act 95 O. L., 66,
prescribing the statutory requirements as to notice of appeal
from the common pleas to the circuit court, relates to the
remedy, and a party may, under section 79, Revised Statutes,
give notice of appeal in the mode prescribed by the statute
in force at the commencement of the action. See Charles
v. Fawley, 50.
ANALYSIS OF OLEOMARGARINE-
A person selling oleomargarine containing coloring matter to
any person demanding the same, for analysis within section
4200-7, Revised Statutes, violates section 4200-16, Revised
Statutes. See State v. Rippeth, 85.
1. Judgments and orders may be entered nunc pro tunc, when
-Petition in error for reversal may be filed in Supreme
Court-When-Judgments and orders may be entered nunc
pro tunc in furtherance of justice only, and when an order
dismissing an appeal is so entered by the circuit court, a
petition in error for its reversal may be filed in the Supreme
Court at any time within four months from the date or its
actual entry. Charles v. Fawley, 50.
2. Act to amend requirement in appeal relates to remedy, when
-Section 79, Revised Statutes-Court procedure-Effect of
amendment of statute upon pending action-An act to amend
the statutory requirement respecting notice of an intention
to appeal from the judgment of the court of common pleas
to the circuit court, with a view to a trial de novo, relates
to the remedy, and, unless the amending act expressly pro-
vides otherwise, a party may, under favor of section 79,
Revised Statutes, give such notice in the mode prescribed
by the statute in force at the commencement of the original
action. Ib.
Where defendant appeals to common pleas from adverse judg-
ment in action for money only and sets up note not due at
time of original action, he is entitled to judgment for differ-
ence in his favor and his costs in both courts. See Gordon
v. Steinmetz, 372.
Prosecuting attorney may waive issuance of summons and
enter appearance of state upon petition in error for reversal
in criminal case. See Nichols v. State, 335.
APPOINTMENT TO OFFICE-
"Classified list" in section 149 of the municipal code means the
register prescribed by section 164. See State v. Wyman, 1.
Section 6451, Revised Statutes, taxing jurors' fees and mileage
in appropriation proceedings by corporations as costs is
constitutional and requires them to be so taxed and paid.
See Detroit Southern Ry. Co. v. Lawrence Co. (Comrs.), 454.
County commissioners are without authority to locate a county
ditch within municipal limits, except as provided by sections
4483, 4485, Revised Statutes. See Pleasant Hill v. Miami
Co. (Comrs.). 133.
Assessments upon the sale of intoxicating liquors are a lien
upon the property, superior to that of a mortgage entered
prior to the entry of the tax and prior to the commencement
of the traffic. Liquor laws. See Pioneer Tr. Co. v. Stich, 459.
Where the assignee of an equitable right in a mortgage fails
to have his assignment entered on the marginal record as
provided by section 4135, Revised Statutes, and a senior
mortgagee of the same premises brings foreclosure, he is,
in the absence of notice or knowledge that the junior mort-
gagee has parted with his interest justified in regarding the
record as showing that the junior mortgagee remains the
absolute owner of the mortgage, and in bringing him in as
a party to the action-Rights of bona fide purchaser. See
Pinney v. Bank, 173.
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