페이지 이미지
PDF
ePub

Schubert v. Taylor.

JUDGMENTS_EQUITY-INJUNCTION.
[Superior Court of Cincinnati-General Term, 1900 ]

Murphy, Dempsey and Smith, JJ.
JOHN SCHUBERT v. THOMAS S. TAYLOR, SHERIFF.
EQUITABLE LIENS-EXECUTION AGAINST OWNER OF FEE-INJUNCTION.
A person holding an equitable lien on real estate cannot enjoin a sheriff from

proceeding to sell the property upon a judgment and execution against the owner of the fee, the judgment creditor rot being made a party to such proceeding. HEARD ON ERROR. James N. Ramsey and James D. Ermston, for the sheriff.

Florence A. Sullivan and Shay & Cogan, for plaintiff in error. MURPHY, J.

This is a proceeding in error to reverse a judgment of this court in special term, which judgment of the special term was to sustain a demurrer filed to the petition below.

In the petition below John Schubert, the plaintiff, averred that Catherine Schubert, who is a sister of the plaintiff in error, was the owner of certain real estate therein described ; that in the year 1893, John Schubert commenced advancing money to his sister Catherine for the improvement of the said real estate, and to enable her to pay the taxes, and that the amount so advanced amounted to $1,520.

The plaintiff further avers that at the time the first money was advanced Catherine Schubert entered into a contract with the plaintiff whereby the legal title to the said real estate was to remain in Catherine Schubert, but that she was to hold it in trust for the plaintiff for the amount advanced by him for the erection of buildings and improvements on said real estate ; and it was further agreed that Catherine Schubert should in no way transfer, assign or encumber the said real estate, but that she should hold the legal title as trustee for the benefit of plaintiff "to the extent of the amount advanced by him, with interest upon the same."

Plaintiff further avers that, in violation of this agreement, Catherine Schubert, on March 19, 1900, permitted one Anna Flagg to recover a judgment against her in the court of common pleas of Hamilton county, Ohio, said action being numbered 116,677 of said court ; that an execution was issued in said cause, directed to Thomas S. Taylor, sheriff, who, in obedience to the order of the court of common pleas, levied upon the real estate and improvements before mentioned, as the property of Catherine Schubert, and is now proceeding to advertise the same for sale on execution.

Plaintift further avers that on April 3, Catherine Schubert, at his request, conveyed to him the legal title to the premises aforesaid by a deed, which deed was duly recorded, on April 3, 1900, in deed book 843, page 406, of the Hamilton county records.

Superior Court of Cincinnati.

[ocr errors]

The prayer of the petition is that by an order of this court the defendant, Thomas S. Taylor, sheriff, be restrained from further proceeding with said advertising of said premises; that a receiver be appointed to take charge of and collect the rents of said premises; and that upon the final hearing the legal title to the said premises be declared to be in the plaintiff clear and free of any incumbrances under and by virtue of the levy made in said cause No. 116,677, common pleas court of Hamilton county, Ohio ; and that the defendant, Thomas S. Taylor, be perpetually enjoined from further proceeding in said cause.

In the court below a motion was filed by the sheriff “ to vacate ” the temporary restraining order, which motion was, by the consent of the parties, made in open court, to be regarded as a general demurrer; and on consideration thereof the court granted said motion, regarded as a demurrer and dismissed the petition.

In the hearing of this case in general term the parties consented in open court that the said motion was to be here treated as if it were a general demurrer to the petition.

It will be noted that the execution creditor in the proceedings in the court of common pleas is not made a party to this action ; thạt no relief is sought against Catherine Schubert, and, indeed, no averments are contained in the petition upon which any relief as to her could be predicated, so that the action is, in fact, one against the sheriff of Hamilton county, and against him only.

The plaintiff below seems to have acted upon the assumption that he held the legal title to the real estate against the claim or claims of all persons whomsoever; but this was not the fact. If the contract he describes in his petition existed between him and his sister, it gave him an equitable lien upon the said real estate, and the deed conveying to him the legal title to the said real estate can be treated as no more than an equitable mortgage.

Plaintiff seeks to divest Anna Flagg, plaintiff in the cause tried in the court of common pleas, of the lien which she obtained by virtue of her levy of execution in that action, although she is not made a party to the action in which that is attempted to be done. Plaintiff seeks to restrain the sherift from performing a plain legal duty imposed upon him by law. The court has no power to do that, for he could not be restrained in an action where the title or rights of Anna Flagg were concerned.

The plaintiff in error asks for the appointment of a receiver to take charge of and collect the rents of the premises described in the petition, but by his own averments he shows that the legal title was conveyed to him, and presumably he is in possession of the property; therefore, the appointment of a receiver is manifestly unnecessary.

We see no error in the action of the court below, and its judgment is affirmed.

Loewenstein v. Rheinstrom Bros.

ERROR.

[Superior Court of Cincinnati, General Term, 1900.]

Smith, Dempsey and Murphy, JJ.

DANIEL LOEWENSTEIN V. RHEINSTROM BROS.
PARTIES IN ERROR CANNOT BE ADDED AFTER TIME FOR FILING.
All the parties to a joint judgment are necessary parties to a petition in error

by one of them; and while omitted parties may be brought in by amendment,
such parties must nevertheless be brought in within the period for filing
petitions in error or the reviewing court will have no jurisdiction.
D. Thew Wright, Jr., for Loewenstein.

Jacob Shroder, for Rheinstrom Bros.
DEMPSEY, J.

On May 26, 1900, Rheinstrom Bros. recovered at special term a judgment against Jennie Steinau and Daniel Loewenstein jointly for the sum of $993.57, with interest thereon from April 2, 1900; to this judgment Daniel Loewenstein alone excepted. On August 15, 1900, Daniel Loewenstein filed in the general term his petition in error to reverse the aforesaid judgment. Rheinstrom Bros., the plaintiffs in the cause below, were alone made defendants in error, and were duly served on August 17, 1900. On September 26, 1900, Rheinstrom Bros. filed their motion in this court to dismiss said petition in error, for the reason that the said Jennie Steinau, one of the parties below, is not made a party to said petition in error, and as a consequence this court is without jurisdiction to entertain such petition. On October 6, 1900, Jennie Steinau entered her appearance to the petition in error herein and consented to be made a party thereto.

On October 9, 1900, an amended petition in error was filed setting forth certain facts as to the nature of the judgment against said Jennie Steinau. On the same day a motion was filed to make Jennie Steinau a party defendant in error because she had been omitted by mistake and inadvertence. On October 12, 1900, Rheinstrom Bros. filed their motion to strike from the files the amended petition in error for various reasons therein set forth. These various motions are now before us for decision.

The limitation for filing petitions in error is four months from the date of the judgment or order complained of.

In Smetters v. Rainey, 14 Ohio St., 287, it was settled that all the parties to a joint judgment are necessary parties to a petition in error by one of them. And while it was held that in cases of omission of parties amendment might be allowed, it was further held that such omitted parties must be brought in within the period allowed for filing petitions in error; otherwise the reviewing court would have no jurisdiction. Smetters v. Rainey has been severally criticized in three subsequent ases, but it has never been overruled.

Superior Court of Cincinnati.

In Abair v. Bank, 2 Circ. Dec., 165, in an exhaustive opinion by Scribner, J., all of the cases up to that time are collected, analyzed and reviewed and the conclusion reached that Smetters v. Rainey was still law in Ohio.

In 1877, in Burke v. Taylor, 45 Ohio St., 444, and subsequent to Judge Scribner's decision, Smetters v. Rainey was again distinctly approved and followed.

In view of this line of authority we feel that we have no independent judgment in this question, and that we are bound by the rule as laid down in Smetters v. Rainey. As a consequence it follows that the motions of Rheinstrom Bros., to dismiss the petition in error and to strike the amended petition in error from the files, must be granted. The motion to make Jennie Steinau a party defendant in error must necessarily be denied.

ESTOPPEL.

[Superior Court of Cincinnati, General Term.]

Smith, Dempsey and Murphy, JJ.

HERMAN EGGERS V, CLARA M. REEMELIN. ESTOPPEL-MISTAKE OF LAW.

Estoppel in pais does not arise against one who seeks to recover expense incurred in shoring up his building to protect it against an excavation by his neighbor to a depth of twelve feet, said shoring up having been done and paid for by plaintiff before the twelve-foot excavation law was declared uncoustitutional, and in the belief that it was a valid law. F. T. Cahill, for plaintiff.

Louis Reemelin, for defendant. SMITH, J.

The plaintiff is now and long prior to 1894 was the owner of real estate on the west side of Elm street in this city, and the defendant is now and during the same period of time has been the owner of real estate next adjoining that of plaintiff on the north side. The house of plaintiff was built up to the north line, and the house of defendant was built up on its south side to the same line. The foundation of plaintiff's house extended nine feet below the curb.

In the year 1894, defendant began the erection on his lot of a house whose foundation was to be twelve feet below the curb, as was allowed by the law in force at that time.

Both the plaintiff and defendant knew of this law at the time defendant erected this building, and as the wall of plaintiff only extended to a depth of nine feet below the curb, and as it was necessary in order to protect the building of plaintiff that his building should be shored up and his wall extended from pine feet to twelve feet, both parties sup

Eggers v. Reemelin.

posed it was the duty of plaintiff to shore up his building and extend
his wall and to pay

the
expense

of the same. Plaintiff therefore did the work required, and the amount paid therefor was $250.

After the work was done the twelve-foot law was declared unconstitutional by this court on the ground that it was special legislation; Emery v. Coles, 7 Dec., 414; and then for the first time the parties hereto learned that the work done by plaintiff, and the expense borne by him, should have been done and borne by the defendant.

Thereupon plaintiff brought suit against the defendant to recover the sum of $250, with interest from November 1, 1894, the date of the completion of the work done, and payment made by him. Upon the hearing in the court below the court gave judgment for the defendant and dismissed the case. Plaintiff prosecutes errror to this court to reverse that judgment.

It is apparent from the statement of facts that the plaintiff has done work and incurred an expense for the same which it was the duty of defendant to do and pay. It is also apparent that if plaintiff had not done the work and paid for it, the defendant would not, and the house of plaintiff would have fallen down. Is the defendant relieved from liability to reimburse plaintiff for this expense to which he has been put by reason of defendant's act of building his house, simply because both parties believed that the law imposed upon plaintiff the duty of doing the work and paying for it?

The defendant contends that the plainciff is estopped now to assert that it was the duty of the defendant to do the work.

It is difficult to see a basis for an estoppel against the plaintiff. He made no statement of fact to the defendant. If he made any statement at all it was that the law allowed the defendant to dig twelve feet below the curb, but the plaintiff no more made this statemeut to the defendant than the defendant made the same statement to the plaintiff. In truth neither can be said to have made a statement to the other. Both believed the law allowed the defendant to dig twelve feet below the curb. The statute did give the defendant such a right, but the law was unconstitutional. Neither party being a constitutional lawyer they acted under a mistake of law. Surely under such circumstances natural justice would seem to dictate that the obligation of the defendant to pay should not be changed by this mutual mistake of the parties.

And if we look at the question solely from the legal point of view, oes it not resolve itself into this: that the defendant refused to do work hich he should have done, and the plaintiff did it believing it was his uty to do it, and the question therefore is, does the mere belief of plainff deprive him of his right to reimbursement against the defendant? Ve think it does not.

« 이전계속 »