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Interpleader -- Judgments.
seeks to recover from the defendant on the same debt or obligation. Con. necticut Mut. Life Ins. v. Lea. 39
When such conflicting claims have been presented it is the duty of the plaintiff, in asking for an interpleader, to set forth generally in his petition the nature of the claims that have been made to him, so that the court can determine from the petition itself if an interpleader is proper.
Ib. The true foundation for such a bill is that two parties have presented to the plaintiff claims for the same debt or obligations, which claims are antagonistic to each other, and that the plaintiff is unable to determine which claim, as a mat. ter of fact, is, and which is not well founded. And unless such claims have actually been presented the plaintiff has no right to ask the parties to interplead.
Ib. It is not the duty of the plaintiff in such case to determine for himself which claim is sustained in fact, but if either claim is not well found in law there is no right to an interpleader. Thus if the plaintiff has become obligated to either party by an independent undertaking so that he does not stand perfectly in. different between them, he cannot maintain an interpleader.
Ib. A petition in a suit by a bank as assignee of contractors to recover money due from a municipal corpo. ration, in which the corporation has filed an affidavit for interpleader, is not subject to demurrer by one of the impleaded defendants, holder of a mechanic's lien, on the ground that such petition does not state a cause of action against him. Such suit, being originally a simple action at law, was, by the action of the city in demancing interpleader, converted into an equitable action wherein all parties are actors and all parties defendants, seeking rights in a common fund. Bank v. Cincinnati, 545
Where, in such a case, there is nothing in the petition which shows any claim against defendant to the fund in controversy, the court, on his demurrer, has nothing
to pass upon, but must overrule the demur. rer and leave the question to be settled upon future pleadings and the evidence.
Ib. The proper way to set up the fact that the subject of plaintiff's ac
tion is not claimed by one who has been made a defendant by interpleader, is by answer, disclaimer or failure to plead at all, not by mo tion to set aside or modify the order of interpleader. Such order may be made by the court on the affidavit of the principal debtor and it is not for any alleged claimant to question that order.
Ib. The subject of an action is not necessarily
specific amount sought to be recovered by the plaintiff; it is the amount due on the contract itself. Therefore, where there are conflicting claims to the whole amount due, which render it unsafe for the party liable to determine whom to pay, he may avail himself of the statute of interpleader, even though plaintiff claims only a part of the amount due under the contract involved.
Ib. The costs of interpleader, brought by the company for whom the building was being erected, to determine to whom a balance due should be paid, the money being claimed by the contractor and the corrugating iron company, should, under the facts stated, be borne by the corrugating iron company. Block-Pollak Iron Co. v. Iron Co 51
In addressing interrogatories to a defendant corporation it is not necessary to designate by what of. ficer of the company they shall be answered. Carter v. Enquirer Co.
119 Interrogatories attached to a pleading are required to be answered and verified by the party to whom they are propounded. They cannot be answered by his attorney. Went. zel v. Zinn.
JOINDER OF CAUSES
It is proper to unite legal and equitable causes of action, or one sounding in tort and another in contract, if included in the same transaction, and connected with the same subject matter. Murphy v. Cincinnati.
A judgment for money cannot be taken against an unincorporated church as such. Males v. Murray.
Judgments - Landlord and Tenant.
A decree which merely finds that plaintiffs have a valid claim against an incorporated church congregation, without sentence of judg. ment that they shall recover, does not constitute a judgment and is not a sufficient basis for a proceeding in aid of execution under sec. 5464, Rev. Stat.
Ib. The fact that an agreement is offered to the sheriff by the assig. nee that in consideration of the delivery of such goods to him to be sold, the lien of the judgment shall attach to the proceeds as to the original goods, and the proceeds be applied on the execution, and that such goods are of greater value than the amount due on the execution, and can be sold to better advantage by the assignee, is not sufficient for enjoining the judgment creditor and sherift from selling the goods. Mack v. Steinau.
701 A judgment recovered before a justice of the peace for balance due on a purported chattel mortgage covering goods the title to which it is claimed by the vendee remained in the vendor, is res adjudicata in a subsequent suit to enjoin the sale of the goods upon execution. Cavanaugh v. Bloom.
222 Where justice win be promoted thereby, a case will be sent back for retrial on account of an error that is purely technical. Thus, where a petition blended in one count two cases of action, one at law and one in equity against different defendants, a judgment in favor of both defendants, on demurrer to such petition, should be reversed. Hare Brahm.
nien may be right in their convictions, it is safer for them to consider well the sources of their convictions before they finally decide against an agreement.
Ib. A disagreement should not be had when an agreement can be reasonably secured by an impartial, candid and fair concurrence of the individual judgment of each juror.
Ib. A jury in an action for personal injuries may well remember that if they disagree that the contention must be settled finally by a jury of twelve men no better qualified to try the issues of fact and upon no better presentation of the case. Ib.
The object of a view by the jury of the premises in dispute is for the purpose of affording them a better understanding, appreciation and application of the testimony submitted at the trial, and not, for the purpose of gathering facts therefrom upon which to make up their judgment. Gilchrist v. Weil.
See New TRIAL.
JUSTICES OF THE PEACE
Section 591, Rev. Stat., providing that justices of the peace shall not have jurisdiction of any action in which the title to real estate is sought to be recovered, extends to actions in which title is involved in the construction of a will, and to determine which we justice would be required to exercise equity jurisdiction. Schaupp v. Jones.
Both parties are entitled to the independent and best judgment of each juror, therefore it is the duty of a juror not to yield well grounded conviction because it does not accord with the convictions of his fellow jurors. Dussel v. Street Rd. Co.
See CONSTITUTIONAL LAW.
631 Experience shows that the can. did, impartial judgment of ten or eleven intelligent men is a safer guide than of one or two equally candid, intelligent and impartial men. Therefore, while one or more
48 S. & C. P. Vol. 10
LANDLORD AND TENANT
If the results of a fire were such as to render a whole building leased untenantable, it would make no
difference where the fire occurred to .. take advantage of sec. 4113, Rev.
Stat., but if it rendered only a small part of the premises untenantable, and the remainder of the premises were not affected so as to render it impracticable to prosecute the business in the remaining premises, without serious or substantial interruption, it would not terminate the lease as a whole but would leave the lessees liable to pay a proportionate
Landlord and Tenant.
LANDLORD AND TENANT-Con.
part of the rent for the premises left in a rentable condition. Gilchrist v. Weil,
687 To justify a lessee abandoning premises or insisting upon termination of a lease under sec. 4113, Rev. Stat., the injury must go to the extent of rendering the premises unfit for occupancy; that is, the injury must go so far toward total destruction as to be no longer suitable to be used for commercial purposes, or such as it was fairly and reasonably designed to accommodate in its orig. inal construction.
Ib. A covenant in a lease to deliver up premises in as good condition and repair as the same shall be put in by the lessor at the commencement of the term, the natural wear and decay excepted, is a covenant to make such repairs only as would ordinarily arise under their occupa. tion, and does not include extraordinary conditions resulting from fire or the elements, and does not prevent application of sec. 4113, Rev. Stat.
Ib. Whether premises occupied under a lease containing a covenant to make the ordinary repairs resulting from occupation were without fault or negligence of the lessees destroy. ed or so injured by fire or the elements as to be unfit for occupancy, so as to relieve them from payment of rent, under sec. 4113, Rev. Stat., providing that lessees shall not be liable to pay rent under such circumstances, is a question to be determined by the jury and the burden is on the lessees to prove by a preponderance of proof the extent of injury or destruction.
Ib. A wetting of the walls, and floors, merely putting out a fire in the furnace by flooding the cellar, if it could be removed and effects overcome in a short time, or mere cessation or interruption to business for a day or two would not alone constitute such destruction or such injury, as would justify a lessee in terminat. ing a lease under sec. 4113, Rev. Stat.
Ib. If the premises in question were so injured by fire, without the fault or negligence of the lessees, as to render them untenantable and unfit for occupancy, the lessees would have the right to terminate the lease notwithstanding the lessor offered to restore and repair them.
Notwithstanding the defendants had the right to sub-let premises occupied hy them under a lease, they would not, by sub-letting release themselves from the payment of rent under their own lease, and inquiry as to whether they were undertaking or seeking to lease other premises, get out of and relet the premises occupid by them and into others, before the former were injured by fire, was permissible only to test the credibility and character of the witnesses interrogated.
Ib. Under a lease, of a building to be used for operating heavy machinery, wherein it is provided that lessors shall keep the walls (which, when the lease was made and to the 'knowledge of both parties, were bolted together), in repair and it appears that, upon being notified and finding that the walls were insecure, lessees were ready and willing to repair them, even to the extent of rebuilding, but were prevented from carrying out plans, prepared by an architect, for doing so. by lessees, in the first instance, claiming that the plans were insufficient, and then prevented from making repairs by the city, such lessees are lia. ble for the stipulated rent during the time they retained possession of the building, notwithstanding the fact that it was insecure and untenanta. ble. Sibley v. Ross.
683 Where the lessors of a building under contract to repair its walls negligently or perversely refuse to perform the obligations of the contract, they not only can recover no rent but wouid be liable to the lessees for damages sustained by breach of the contract.
Ib. The grantee of a lessor who had previously granted an estate for years, takes the fee limited by such estate and the right of election to declare the lease forfeited if premises are occupied for gaming purposes, does not pass under the general terms of the lessor's deed. Such grantee cannot assert the forfeiture or maintain an action in forcible de tertion to recover the premises. Ackerman v. Thompson.
361 The provisions of the statute above referred to do not amount to covenants running with the land; nor is the statute a limitation on the fee. It constitutes a condition attached to the estate for years and is
Landlord and Tenant - Libel and Slander.
a condition subsequent, not prece-
LIBEL AND SLANDER-
Words capable of a construction
That where the publication of li-
Nominal damages may be pre-
Where the plaintiff has suffered
cial orders, but rejected because of
The law presumes every man's
Lible and Slander - Mayors.
LIBEL AND SLANDER-Continued.
It is a good defense to an action
Where a master has a duty to
A principal is bound to concede
A larceny of the servant not au-
LIMITATION OF ACTIONS-
A cause of action arising from
MASTER AND SERVANT-
The test of liability of a mas-
The mayor of a municipal cor-