Meyer v. Lipski. RELIGIOUS SOCIETIES-JUDGMENTS. Jackson, Smith, and Dempsey, JJ. *JOSEPH A. MEYER, ADMR., V. REV. LADISLAUS LIPSKI ET AL. PERSONAL JUDGment-MEMBERS OF AN UNINCORPORATED RELIGIOUS SOCIETY. A member of an unincorporated religious society who sues the other members on a note in which there is a clause pledging the property of the church in payment, is not entitled to a personal judgment against the defendant members nor to a decree declaring the debt a lien, but there must be a reference of the cause for an accounting and a finding as to the circumstances under which the church property was bound for the debt. JACKSON, J. This case was reserved to this court on plaintiff's motion for judgment on the pleadings. The plaintiff seeks, as administrator of Valentine Bucheit, to recover from the defendants, as members of the congregation of the Polish Catholic Church of St. Stanislaus, on a certain promissory note for $500, dated August 12, 1896. On said note there was paid by the church on December 9, 1898, the sum of $100. The note declares on its face that all the property of the church is held for the payment thereof. The plaintiff therefore prays to recover from the defendants the sum of $400, with interest, and also prays that he may be adjudged to have a lien on all the property of the church, and that said property may be sold to satisfy his claim. An answer is filed by Rev. Ladislaus Lipski, the other defendants being in default. The answer is quite lengthy and is of such a nature that it is impossible to make a condensed statement thereof. Suffice it to say that in our opinion it does not set forth a matter of defense to plaintiff's action. On the pleadings, we think the plaintiff is entitled to relief. inasmuch as the defendants are members of an unincorporated religious society, of which the plaintiff's intestate was also a member, the plaintiff is not entitled to a personal judgment herein. Inasmuch as the plaintiff's intestate as a member of such society must have received some part of the benefit arising from the money loaned to the congregation, the plaintiff must have an accounting in order to determine who are the members, and what proportion of the amount loaned, the members other than himself, must pay. This has been held in the case of German Catholic Church v. Kaus, 6 Ohio Dec. Re., 1028. The plaintiff is entitled to an order of reference to determine this. question, and also the question as to whether under the facts and circumstances the church property is bound for the payment of the debt. W. M. Eames, for plaintiff. E. C. Pociey, contra. *For opinion of the superior court in special term in this case, see 8 Dec., 584. Superior Court of Cincinnati. RECEIVERS. [Superior Court of Cincinnati, March, 1900.] ROSA WEBER V. EDWARD A. NALTNer, Admr., ET AL. 1. POSTPONEMENT OF CLAIMS BY RECEIVER. A receiver cannot be compelled to postpone present cla ms, properly incurred by him, in order to meet old claims incurred under a prior receivership. 2. WHEN RECEIPTS OF PROPERTY ARE INSUFFICIENT TO MAINTAIN THE TRUST. When the receipts of property under a receivership are not sufficient to maintain the trust, it is the duty of the receiver, or his own protection, to apply to the court for instructions, instead of voluntarily continuing the trust and allowing necessary claims to accumulate. 3. A RECEIVER SHOULD BE JUDICIOUS IN PAYING OUT PROFITS. A receiver should not pay out money as profits arising from the receivership, without retaining a sufficient amount to meet future fixed charges and allowing for possible contingencies, such as a falling off of future receipts. HEARD ON MOTION to require the present receiver to pay certain insurance premiums contracted by the previous receiver. JACKSON, J. In as much as there is at present no surplus in the hands of the present receiver out of which the old claims for premiums on insurance, which occurred under the prior receivership, can be paid, the motion must be overruled. The present receiver can not be compelled to postpone present claims properly incurred by him in order to meet old claims incurred under the former receivership. Especially is this so, since in order to meet the old claims for premiums, the present receiver must neglect to pay the rent due the landlord, a claim for which he would be personally liable. The personal liability of the receiver for rent under such circumstances is declared in Cincinnati v. Goodhue, 10 Ohio Dec. Re., 345. When the receipts under the prior receivership were not sufficient to maintain the trust it was the duty of the receiver, for his own protection, to apply to the court for instructions, instead of voluntarily continuing the trust and allowing necessary claims to accumulate. no circumstances should the first receiver have paid to the plaintiff sums of money as profits arising from the receivership without retaining sufficient to meet future fixed charges and allowing for possible contingencies. such as a falling off of future receipts. If in the future there should be a surplus (after paying all necessary and proper charges) to meet this claim for premiums, a motion like the present one would be sustained. At present the motion must be overruled. Clyde P. Johnson and Jones & James, for the motion. Wentzel v. Zinn. PLEADING-INTERROGATORIES. [Hamilton Common Pleas, May, 1900.] JOHN WENTZEL, GUARDIAN, V. ELIZABETH ZINN. 1. MATERIAL Averments-ENTIRE Causes-Demurrer, Material averments and entire causes of action can not be stricken out on motion. They must be met by demurrer or answer. 2. WANT OF Knowledge of RECORD Matters CannOT BE PLEADED. A party cannot allege want of knowledge of matters of record. These should be ascertained and definitely set out, 3. RIGHT OF TRIAL BY JURY. In the absence of defendant's admission that he has no defense, or where there remains a scintilla of proof in his favor, the court cannot strike the answer from the files as sham or frivolous, and thus deprive the party of trial by jury on the merits. 4. INTERROGAtories CannoT BE ANSWERED BY ATTORNEY. 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. PFLEGER, J. Plaintiff sued to recover from the defendant, a doweress, the amount of taxes and assessment unpaid by her and to forfeit her life estate by reason of such non-payment. She answered, admitting specifically certain facts, denying certain allegations for want of sufficient information and defending on certain other grounds. Plaintiff moved (1) to strike out the entire answer after the first sentence in second paragraph as "irrelevant and immaterial," (2) to strike out the clause as to want of knowledge and sufficient information because it was "sham" and an abuse of the right, (3) to strike out the entire answer as to the second cause of action as "sham and false," and (4) to strike out the answers to the interrogatories because they were given under the oath of the attorney instead of the party and were not properly answered. 1. The first motion is directed against the entire answer as irrelevant. This is not the purview of a motion. Matters are relevant when they pertain to the cause of action or defense. Fastnacht v. Stehn, 53 Barb., 650; Estee on Pleadings, sec. 4459. Nor is it competent by motion to strike out material averments and in this way defeat a right of recovery. Such matters must be met by demurrer or answer, Long v. Newhouse, 57 Ohio St., 367. It is also evident that the matter sought to be stricken out together with that which would remain could be met by demurrer. Motion overruled. 2. Defendant answers that she is not informed of the amounts of taxes and assessments unpaid by her and set up in the petition, and, therefore, denies same. Technically, this defense is not a sham because "false," inasmuch as she may never have examined the records. Where a party is not chargeable with knowledge such an allegation is 7 Vol. 10 S. & C. P. Hamilton Common Pleas. permissible. Ohio v. Commissioners, 11 Ohio St., 188; McKenzie v. Ins. Co., 2 Disn., 223. Where, however, this knowledge is applicable to matters of record of which the defendant could have been informed, she could shield herself behind a failure to investigate. This is practically false. It is certainly evasive. In either case, it must be stricken out, Bliss on Code Pleading, sec. 421 and note, p. 642; Ib., sec. 326; Wertheimer v. Morse, 10 Dec. Re., 814. Motion granted. 3. To strike out the entire defense to the second cause of action. When the defenses are clearly two separate and distinct causes of action a demurrer thereto would be proper, notwithstanding the rule that a demurrer, ordinarily good as to any part "within its four corners," is good as to the whole. Such a motion usurps the province of a demurrer. The ground that it is sham and false, because there was offered a letter written by an attorney representing defendant, which, in terms is inconsistent with her defense, is not well taken. In the absence of defendant's admission that she had no actual defense, or where there is but a scintilla of proof on her side, the court cannot weigh the testimony and dismiss her answer, as this would preclude a right to a trial by jury or on the merits before the court. The motion on this ground is not well taken and is overruled. 4. The motion to strike the answers to the interrogatories from the files because verified by the attorney, is answered by the defendant claiming that the interrogatories are demurrable and immaterial as they are for "fishing" purposes. Defendant has attempted to answer them and the rule in pleading applies, namely, that an answer waives the right to demurrer. Section 5099, Rev. Stat., provides that interrogatories "shall be plainly and fully answered under oath, by the party to whom they are propounded." Section 5101, Rev. Stat., makes these answers competent testimony against the party. Section 5102, Rev. Stat., for the verification of pleadings, provides that it may be done by the affidavit of "the party, his agent or attorney." Section 5109, Rev. Stat., providing that the attorney may verify the pleading if "founded upon a written instrument for the payment of money only," when such instrument in his possession, has been strictly construed by the Supreme Court in Purdon v. Carrington, 31 Ohio St., 168, and as not including a right to verify a pleading when based on a mortgage, because a mortgage is not a written instrument within the terms of that section. The same point was decided in Kerns v. Roberts, 2 Dec. Re., 537, in a well considered case, in which it is held that an attorney may verify a pleading for "the reasons, and no other, enumerated in the four specified classes of cases, and in those cases and no other." If the answers to interrogatories may be made by attorneys they might be made on mere "belief," and if the facts on the trial developed differently it could not serve the purpose designated by sec. 5101, Rev. Stat., such as non Wentzel v. Zinn. suit, judgment by default or evidence against either party. In thus designedly omitting from sec. 5099, Rev. Stat., the right to verify interrogatories by an attorney, and in view of the strict constructions given to the rights of counsel to verify pleadings under sec. 5102 and 5109, Rev. Stat., it follows that we can not legislate into sec. 5099, Rev. Stat., and that an attorney has no authority to verify answers to interrogatories. The motion is overruled on the first and third grounds and sustained on the second and fourth. John Wentzel, for motions. Aaron A. Ferris, contra. MAYOR'S COURT-ERROR-BOND. [Harrison Common Pleas, February Term, 1900.] SCIO (VIL.) V. HARRY HOLLIS et al. 1. APPEARANCE BOND ON PETITION IN Error. The mayor of a municipal corporation has no authority to take a bond and release the de endant from custody after conviction and sentence, except upon the order of the court of common pleas or a judge thereof, on granting the defendant leave to file a petition in error in said court. 2. PETITION TO RECOVER THEREON. A petition to recover on a bond taken from such defendant by the mayor, after conviction and sentence for a violation of an ordinance, for the appearance of the defendant before the court of common pleas, must aver that such bond was taken pursuant to an order of the common pleas court or a judge thereof. 3. BOND TAKEN WITHOUT AUTHORITY. A bond taken in a criminal case and approved by an officer without authority of law, does not constitute a common law obligation. MANSFIELD, J. In this action the plaintiff seeks to recover from the defendants the sum of $300.00 on the following bond or undertaking: State of Ohio, Harrison county, ss. Be it remembered that on the 25th day of August, A. D., 1899, personally appeared, Harry Hollis and Mary Hollis and Paul O. Reyman by J. H. Garrison, his agent, and J. H. Garrison, and jointly and severally acknowledge themselves to owe the village of Scio, the sum of three hundred dollars ($300.00) to be levied of their goods and chattels, lands and tenements if default be made in the condition following, to wit: Whereas, the said Harry Hollis has given notice to the court of his intention to apply to the court of common pleas of Harrison county, Ohio, for leave to file a petition in error against the village of Scio to obtain a reversal of a judgment rendered against him in the mayor's court of the village of Scio, Harrison county, Ohio, on the 25th day of |