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character or in the circumstances, to indicate STREET ASSESSMENT-FAILURE TO PERthat the slide in the land would not have OC- FORM CONTRACT-INJUNCTION TO curred as it did if they had not been there. The

ENJOIN COLLECTION additional weight which they imposed cannot reasonably be supposed to have contributed ma

SUPREME COURT OF OHIO. terially to the giving away of the soil. The case of Gilmore v Driscoll, (122 Mass.

NELSON B. STONE, 199), relied upon by the defendant fully supports the verdict in this case, and would have war

HENRY C. VIELE. ranted the jury in allowing the damages to the improvements as well as to the land, where the

June 20, 1882. plaintiff is not chargeable with negligence in Where a contractor for paving a street has inaking them. On page 205, refering to the failed to perform his contract, so that there is case of Foley v. Wyeth, it is said, “that "a substantial defect in the improvement," withthe right of support from adjoining soil for in the meaning of Revised Statutes, $ 2289, and land in its natural state stands on natural an assessment against the abutting lots has been justice, and is essential to the protection and placed on the tax duplicate, and the county enjoyment of property in the soil, and is a right treasurer is taking the necessary steps to sell of property which passes with the soil without such lots, under authority of the duplicate, the any grant for the purpose. It is a necessary owners of such property may, in an action consequence from this principle, that for any in- against the the treasurer and the municipal corjury to his soil, resulting from the removal of poration, enjoin such proceeding, unless it apthe natural support to which it is entitled, by pear that it would be inequitable to do so. Secs. means of excavation of an adjoining tract,' the 1777, 1778, Rev. Stats., have no application in owner has a legal remedy in an action at law

such case. against the party by whom the work has been Error to the District Court of Summit County. done and the mischief thereby occasioned. This On December 20, 1881, Nelson B. Stone com does not depend upon negligence or unskilful- menced an action in the Court of Common Pleas ness, but upon the violation of a right of pro

of Summit County, against Henry C. Viele, perty which has been invaded and disturbed. treasurer of that county. The cause was apThis unqualified rule is limited to injuries caus- pealed to the district court, where a demurrer ed to the land itself, and does not afford relief to the petition was sustained on the ground for damages by the same means to artificial that sufficient facts were not set forth to constistructures, for an injury to buildings, which is tute a cause of action, and the action was disunavoidably incident to the depression or slide missed by the court. The question arising on of the soil on which they stand, caused by the the petition in error filed by Stone in this court excavation of a pit on adjoining land, an action is, therefore, whether the petition of Stone filed can only be maintained when a want of due

in the court below, contains facts sufficient to care or skill, or positive negligence, has con

constitute a cause of action against Viele. tributed to produce it.'”

The action was brought by the plaintiff in It is upon this principle that the City of his own behalf and in behalf ofother designated Cincinnati v Penny (21 Ohio S. 499), was de persons and it is stated in substance in the petition cided. The city in that case was held exempt that the following are the facts: The plaintiff from liability for damages to buildings, because

and the persons so named are owners of lots abutit was free from negligence in making the

ting on East Market Street, between the original excavation. The same rule of liability from

west line of the corporation of Middlebury and the want of proper care and skill is held in City

east line of High Street, in Akron, which is a of Quincy v Jones, 76 Ill. 232.

city of the third grade of the second class. On The evidence in this case would have June 27th, 1881, the city council having deterwarranted the jury in finding that the city,

mined to pave, gutter and curb with stone the failed to exercise such care and skill in mak

part of East Market Street above mentioned, to ing the avenue in question; and hence the

the width of thirty feet, and having taken the judgment of the court of common pleas ought proper preliminary steps, assessed in due form not to have been reversed.

upon the abutting lots,three dollars and sixty-two Judgment of the district court reversed;

and one-half cents on each front foot thereof, and that of the common pleas affirmed.

being the estimated cost of the work and maLONGWORTH J. did not sit in the case.

terials, payable in five annual installments, and, [This case will appear in 38 0. S.)

under appropriate resolutions, the council authorized the city to and it did issue its bonds, and the proceeds thereof, 840,854.56, were placed in the hands of the defendant, as treasurer, for the purpose of paying for the improvement. Notice having been given, the bid of the Austin Flag Stone Company was accepted, and on August 16th, 1881, a contract was entered into in lue form, between the city and the company, by which the company agreed to furnish the ! a remedy, the defendant insists that relief material and do the work according to the plans should have been sought by requesting the city and specifications, and to the acceptance of the solicitor to bring suit (R. S. $ 1777), and that on street committee and the civil engineer, at spec- his failure to comply with the request, there ified prices.

would have been a right of action at the suit of The contract contained, among others, the the plaintiff (R. S. $ 1778). But these sections following stipulation : "The party of the sec- have no application. Section 550 of the muniond part further covenants and agrees that cipal code of 1869, as amended in the revision all of said material shall be of the best of their (R. S. S 2289), provides that in an action by the several kinds and qualities, and that all of said city (R. S. S $ 2286, 2294, 2303), to enforce an work shall be performed in a thorough and assessment, “a substantial defect in the conworkmanlike manner, and that all of said work, struction of the improvement shall be a complete labor and materials shall be subjected to the defense.”

defense." Doubtless the same rule would apply inspection and approval of the city civil engin- in a suit by the treasurer to collect the assesseer, and in case any of such material and work ment. (77 Ohio L. 13; R. S. S S 1102, 1103.) shall be rejected by the said engineer, as defect- But a treasurer may collect taxes or assessments ive or unsuitable, then the said material shall by distraining goods and chattels (R. S. $ 1095), or be removed and replaced with other materials, he

may sell the land upon which taxes or assessand the said work shall be taken down and done ments have been levied, the duplicate having anew, to the satisfaction and approval of the the force of an execution, (R. S. § 2870); and said city engineer, at the cost and expense of the latter, it is fair to say from the averments of the said party of the second part.”

this petition, was the mode intended to be purThe terms of the contract as to work and ina- sued by this defendant. Where the proceeding terial were not complied with, and the repeated is by distraint, or the treasurer is proceeding to protest of the civil engineer, and his orders sell under the authority conferred by the duplithat portions of the pavement should be taken cate, the provision of section 2289, above quoted, up and relaid, were disregarded. The agents of will not in terms apply; but by confining it to the company, after laying one hundred feet of actions brought by the city or the treasurer, we the pavement, informed the civil engineer and would place upon the provision a construction city council that the company did not intend to which is wholly unwarranted. Such a conconstruct the pavement in accordance with the struction would enable the city and treasurer to terms, conditions or specifications of the con- render the provision wholly nugatory. We are tract; and with respect to that part of the work, satisfied that whether a question arises upon it is alleged that the pavement was "com- that provision at law or in equity, the rule ought paratively worthless." It is also alleged that at to be the same (31 Ohio St. 450), and that where this point, the committee on streets entered into the treasurer, as here, is enforcing an assessment a parol contract with the company for the con- of the character claimed, without suit, he may struction, by the company, of a pavement of an be restrained. True, it is a well known maxim, entirely different character, and of greatly in that he who seeks equity must do equity; but ferior quality to the one contracted for origin- we are unable to say, looking to the averments ally; and that, under this agreement, two thou- of this petition, and giving to them the liberal sand feet of pavement have been constructed, construction required (R. S. $ 5096) that relief the same being" greatly inferior to and in- nó should be denied by the application of that wise corresponding with the one contracted for rule. by the said city council.” Against all.this action, It is urged that the improvement contemplathe plaintiff and those for whom he sues have ted in the proceedings of council, and contracted repeatedly protested to the company and the for between the city and the company, was encity council. No part of the remaining portion tirely abandoned, and hence that the assessment of the work has been completed.

is illegal and may be enjoined. (R. S. Pt. 3, Tit. The plaintiff further avers that the clerk of 1, Div. 7, ch. 13.) . No doubt an assessment not the city has certified the assessment to the based on proper preliminary steps is illegal. county auditor, who has placed the same on the (R. S. $ 2264 et seq.; Folz v., Cincinnati, 2 Handy, tax duplicate for collection by the defendant in 261. And where proceedings for an improvethe usual mode. The plaintiff and those in ment are abandoned, and a contract for a new interest with him are ready to pay and have and wholly different improvement is substituted tendered all taxes due on their lots, but they for the former contract, without the proper preare unwilling to pay this assessment or any part liminary steps, an assessment against abutting of it. They, therefore, pray that the defendant, lots, to pay the cost of such new improvement, as treasurer, may be restrained from proceeding to would be equally illegal. Whether the petition collect the assessment.

presents such a case, we need not now determine. HALL V. WATERS, E. W. STUART, and W. W. We are of opinion that the petition is suffiBoynton, for plaintiff in error.

cient, and that the district court erred in sus C. S. Cobbs, and E. P. GREEN, for defendant in taining a demurrer to it, and in dismissing the error.

action. Ti e treasurer was a necessary party, OKEY, C. J.

and as to h.m a cause of action was stated. Admitting that the plaintiff was not without But we are also of opinion that it is the duty of

the court to require the city to be made a party, tenced in the Common Pleas Court of Butler and that a failure to comply with such order County, of shooting one Samuel Montgomery, would be ground for dismissing the action. (R. with intent to naim. The indictment under S. & 8 5013, 5314.) The ground upon which we which he was tried, contained three counts reverse the judgment does not relate to the legality of the assessment. We assume for this charging the shooting to have been with inpurpose that it was not illegal. The question

tent, first to kill, second to wound, and third finally to be determined on this branch of the

to maim. Under the first two counts the priscase is whether there was such a departure from

oner was acquitted. These two counts closed the contract in the performance of the work, as

without alleging that the offence charged, was to afford ground of relief against the enforce- committed "against the peace and dignity of ment of the assessment, and upon that question the State of Ohio.” The third count howthe city is plainly interested and should be ever was not defective in this respect. What heard.

would have been the effect of a conviction We purposely abstain from laying down any and sentence under either of these defective rule by which to determine what is a "substantial defect” within the meaning of section 2289, mine. The prisoner was not prejudiced by

counts is not necessary for us now to deteror what will constitute an abandonment of the preliminary steps and the contract for the con

his acquittal; and such acquittal cured any struction of the work, and the substitution of a

previous errors which may have intervened in new contract. These matters can be more prop

the action of the court touching this objection. erly considered in a case like this, when all the

We can understand that, where evidence has facts are ascertained.

been introduced against the prisoner upon Judgment reversed.

counts, under which no conviction could be [This case will appear in 38 0. S.]

had, and such evidence is incompetent against

him upon the valid charge under which he is CRIMINAL LAW-AVERMENT IN IN- convicted, the prejudice may be such as to warDICTMENT IN THE WORDS OF

rant a reversal of the judgment; but it is THE STATUTE SUFFICIENT.

enough to say that no such case is disclosed by

the record before us. SUPREME COURT OF OIIIO.

II. It is objected further that the third count

of the indictment is insufficient, for the reason RIDENOUR v. THE State.

that it simply charges an intent to maim with

out setting forth what member of the body the June 20, 1882.

prisoner intended to injure, disable or destroy. 1. An indictment for shooting with intent

In this respect we do not consider it defective to maim is not defective for want of averment | Although both at common law and under our as to what member or members of the body the

present more liberal practice, it is necessary accused intended to injure or disable. If in the words of the statute it is sufficient.

in charging the offence of “mayhen” or 2. Where one shot another in the trunk of maining", to set forth what member of the the body and the result was to produce paralysis body was actually injured or destroyed, yet of a leg, causing a permanent disabling of that under a charge of assault with intent to wound member, & verdict of guilty of shooting with

or to maim, it was never necessary to do more iutent to maim is supported by sufficient evi than to allege the intent in the words of the dence. The accused might fairly be presumed statute without setting forth particularly the to have intended the actual and natural re- manner in which it was intended to inflict the sult of his unlawful act.

injury. Any other rule would lead to absurd 3. An indictment contained three counts, results. Suppose a case where one shoots at the first and second did not charge the offense to another, but, not wishing to kill, ins low, 80 have been committed "against the peace and dignity of the State of Ohio," but the third did

that the ball may probably strike anu disable

the leg, it would result from the argument of 80 charge. The accused was acquitted under the first two counts and convicted under the third.

prisoner's counsel, that no indictment would Held: That, where it did not appear from

be valid or conviction legal, unless it should the record that evidence had been introduced be alleged and proved, that the intention was against the prisoner under the first two counts to hit one leg and not the other. which would have been incompetent under the III. The evidence howed that the accused

shot Montgomery in je trunk of the body refusing to grant a motion for a new trial.

near the naval, avd fra h this it is argued that Error to the District Court of Common

the intent, though possibly to kill or to wound Pleas of Butler County.

could not have been to aim. It further apLONGWOR: 1, J.

peared, however, that a erve was destroyed Plaintiff in error was convicted and sen- by the bullet in its cours and that, although


the patient has recovered, his right leg is dis- will be competent to judge, and faithful to adopt, ablecl by paralysis, from which it is said he the best methods for securing a yindication of will never, in all probability, recover. From

his client's rights; with the further presumption this it seems that the result of the shooting abide by the results of his skill and fidelity. It

that the client in selecting him has elected to was actually to minim. Can it be said that the

would be «lifficult to state with too much emphaVerdict, finding that the accused intended the

sis, how the stern severity of the courts has genresult of his criminal act, was not warrantel? We think not. . The law presumes all persons

crally compelled parties to stand by the conse

quences of negligent omission, blundering or to contemplate the natural and probable re

improper management by their attorneys in lesults of their actions: and we camot say that gal proceedings. This severity is generally justhe natural and probable result of such an in- tified by the most important considerations of jury as this is not to cause the loss of the 11sc public policy, as well as by the plain demands of some important member of the body. of justice, its between the parties to the cause.

Unquestionably, upon this state of the evi- In civil cases the rule is broadly laid down, that dence, the accused might have been properly Bension of counsel, not occasioned by the adverse

"neither the ignorance, blunders, nor misappreconvicted, under section 6819 of the Rev. Statutes, of disabling the limili, cor, in other words,

party, is a ground for vacating a judgment or de

Boston v. Haynes, 33 Cal., 31; Farmers' of the ottence of actuullil maiming" the in

Co. v. Bank, 23 Wis., 219; Burton v. Hsynson, 14 jured man; por could lic be heard for it mo

Ark., 32; Burton v. Wiley, 26 Vt., 430; Quinn t. ment to say that hic did not intend to do the Wetherbec, 41 Cal., 247. very thing he did.

But must there be absolutely no limit to the Numerous other errors in the proceelings operation of this rule, even where a human life are alleged which we do not think it desirable is at stake? If an attorney should become insane to consider in detail or notire further than to during the progress of a trial, and should theresay that we are umanimously ot opinion that upon take such steps as would ensure the conno errors intervened at the trial to the prejela i viction of an innocent client, would no relief te dice of the accused.

possible? To say so, would be a libel on the law. Judgment attirmed.

În looking over this record we find in the per

formance of the counsel for the defendant an ex[This case will appear in 38 0. S.]

hibition of ignorance, stupidity, and silliness,

that could not be more absurd or fantastical if it IGNORANCE AND MISMANAGEMENT OF came from an idiot or a lunatic. Among many PRISONER'S COUNSEL-NEW TRIAL. similar examples it was urged that no act of

Congress had ever authorized the State of MisST. LOUIS, MO., COURT OF APPEALS. souri to delegate to the city of Saint Louis the

power of enforcing the laws; and that the State THE STATE V. JONES.

could not offer proof of the killing, without first

proving affirmatively that the deceased was alive, The general rule recognized that a party cannot avail and that he did not kill himself. Objection was himself of the mistakes, ignorance or mismanagement of his own counsel as ground for a new trial; but the

made to an officer testifying, “because he underrule held not to apply in an extreme case, where the takes to testify to a confession which he has alprisoner was convicted of a capital crime and the record ready testified in the other court, and because it showed that he could not have been worse defended if he had been defended by an idiot or lunatic, and that, in

is presumed that he will do the same in this court." consequence of the ignorance of his attorney, he had suf

It was objected that a confession made in Illifered a deprivation of a substantial right.

nois could not be proved in Missouri for want LEWIS, P. J.

of jurisdiction, because "the United States have The defendant was convicted of murder in the made no law” to authorize it. These are only a first degree, and sentenced to death. It is not few of the absurdities with which the record satisfactorily shown to us that any error was painfully abounds. committed by the court in the conduct of the It must be admitted that an attorney who is trial, but our attention is strongly called to its ignorant or imbecile in a general way, may, neverrefusal to sustain a motion for a new trial, based theless, conduct a cause with propriety, and upon the alleged ignorance, imbecility, and in- omit nothing on the trial which would secure competency of the defendant's attorney, and his any right or advantage in his client's behalf. gross mismanagement of the cause.

So much weight at least, must be accorded to the Such a claim for reversal must be considered fact of his admission to the bar. The record before with great caution. The law has provided us would indicate no reason for disturbing the means whereby only persons qualified by learn- judgment, if it contained no evidence of specific ing, intellectual capacity, and good moral char- and gross mismanagement, by which the prisoner acter, may be permitted to defend, in any court was de prived of some essential right guaranteed of justice, the reputation, property or life of a fel- to him by law, necessary for his proper defense, low citizen. This being done, the presumption and inseparable from a fair trial. Such evidence necessarily follows that one who, by such means, is not wanting on the present occasion. has become armed with the proper credentials, No witness saw the fatal shooting. The pris

oner, in aid of his application for a new trial, ing the rigid rule in ordinary civil cases, as befiled an affidavit stating, in effect, that several fore stated, yet there is high authority for the weeks before the trial, he hai informed his at- granting of relief in extreme cases where the torney that he could prove by three several wit- client's loss results not merely from negligence, nesses, naming them, that the deceased had re- but from the gross ignorance, incompetency or peatedly threatened to kill the afliant on sight; misconduct of the attorney. In Sharp . Thi but the said attorney, "by reason of his incompe- Mayor, etc., 31 Barb., 578, il judgment was obtency and imbecility, refused and neglected to tained against the city of New York for over bring said facts before the court.” That the $40,000. The corporation counsel failed to prove facts, as to the homicide were, that when defend- facts in defense, which were known to him, and ant approached the deceased, who was lying in it which it was his plain duty to prove. After the hammock, and requested him to settle certain jncgment, although urged by the proper city aubills, the deceasel arose with an oath, saying he thorities to take an appeal, he refused to do so. would kill defendant, at the same time drawing The Supreme Court, in general terın, set aside a pistol. That defendant thereupon shot in self- the judgment. Said the court: "Courts of law defense. The affiant further stated that he in- are not to be used by parties in effecting, through forned his attorney of these facts, and requested the forms of law, the ruin of a party who has to be put upon the stand to testify to them. employed an incompetent, negligent, or unBut the said attorrey, "y reason of incompe- worthy attorney." tency, imbecility, and ignorance of the law, in- If such considerations can prevail where only formed this alliant that the law was such that ?noney or property is concerned, how much this affiant, being charged with murder, coule weightier should they be, in every rightly connot swear in his own defense.” The attorney stituted inind, where a human life is in the balfiled a counter-affidavit, in which he "denies that ance! Modern civilization stands aghast at the the defendant was not fully informed as to his barbarity of the ancient law which denied to a right to take the stand as a witness," and alleges prisoner the aid of counsel "learned in the law,” that "it was concluded and agreed” that the de- whenron trial for his life. The wisdom and hufendant should not be put upon the stand, for the manity of the present age demand that the reason, in effect, that the testimony of the officer maxim, "Every man is presumed to know the to the defendant's confession would accomplish law” shall be reversed both in theory and in all that was desired.

practice when applied to the legal methods of Considering the existing exigencies, it may be conducting a defense against a charge of felony. doubted whether the reason given by the attor- Our State constitution (Art. 11, $22) commands ney for keeping his client off the stand, was any that "in criminál prosecutions, the accused shall more creditable to his professional discrimina- have the right to appear and defend, in person tion than the one stated by the prisoner. But and by counsel," and the legislative authority has waiving that, and also the seeming impropriety supplemented this with the provision that, "if of an attorneys volunteering an affidavit to pre- any person about to be arraigned upon an indictvent his convicted client from getting a new ment for felony be without counsel to conduct his trial, we think that the general aspect of the defense, and he be unable to employ any, it shall record so far corroborates the affidavit of the be the duty of the court to assign him counsel," prisoner, as to entitle him to the benefit of the etc. (Rev. Stat., $ 1844.) To say that these bedoubt. We feel constrained to act upon the sup- neficent requirements were satisfied in the cirposition that the attorney, ignorantly or other- cumstances of the present case by the share taken wise, advised his client against going upon the in the proceedings by a licensed attorney would stand, on the ground that, under a charge of mur- be a mockery of the purposes of the constitution der, he could not lawfully testify in his own be- and the law. It would be a most unworthy exhalf.

ercise of the judicial function to administer the Of course, we connot assume that the jury shadow of the law but not its substance. We would have believed the prisoner's testimony, if consider that the prisoner here, in effect, went it had been given. But if it could have been to his trial and doom without counsel such as the considered in connection with the proofs of law would secure to every person accused of crime. threats from the deceased by three other witnesss The judgment is reversed and the cause rees, as is alleged, there is at least a reasonable manded. - Western Jurist. probability that the prisoner would have gotten off with conviction of a lower grade of crime, and THE RIGHT TO SELL TICKETS ON THE a lighter punishment than are recorded against SIDEWALK IN FRONT OF OWNER'S him. In any event he has been deprived, in the

PREMISES. manner complained of, of a most important weapon for his defense, and one whose use at his

NEW YORK SUPREME COURT. option was guaranteed to him by law, for whatever it might be worth.

LESTER WALLACK v. CERTAIN TICKET SPECULAWhile it is true, as was held in Bowman v.

TORS. Field, 9 Mo. App., 576, that there can be no relief against a mere negligent omission of an at

June, 1882. torney presumably competent, and notwithstand- The war in behalf of the theatrical managers

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