Gregg v. Hammon.

ADMINISTRATORS AND EXECUTORS-LIENS-TAXATION.

[Pike Common Pleas, 1900.]

*JOHN W. GREGG, ADMR. V. PHILIP HAMMON ET AL.

FUNDS DERIVED FROM SALE OF DECEDENT'S PROPERTY, TAXABLE IN HANDS OF ADMIN. ISTRATOR, EVEN THOUGH HE IS UNDER ORDER TO PAY SAME TO CERTAIN MORT GAGEES.

The administrator of an estate is not bound by order of court to pay the lien of certain mortgagees out of the particular fund derived from the sale of the mortgaged premises; hence, Rev. Stat. 2734 (Lan, 4047), which provides that moneys belonging to the estate of a deceased person depos ited subject to order, check, or draft, shall be listed for taxation by the administrator, comprehends within its purview, a deposit of the proceeds from such a sale of mortgaged premises, even though the administrator has been ordered to pay the same to the mortgagees of the intestate to satisfy their liens.

INJUNCTION.

J. A. Eylar, for plaintiff.

F. E. Dougherty, for defendants, cited:

Treasurer v. Bank, 47 Ohio St. 503 [25 N. E. Rep. 697; 10 L. R. A. 196]; McNeill v. Hagerty, 51 O. S. 255 [37 N. E. Rep. 526; 23 L. R. A. 628]; Robb, In re, 5 Dec. 381 (5 N. P. 52).

COLLINGS, J.

There is no serious dispute between the parties as to the facts of the case. It appears that the plaintiff administrator had sold certain real estate of the intestate for the purpose of paying debts, which sale was confirmed April 2, 1895, and on that day about $30,000 of proceeds were ordered paid to the mortgagees of the intestate who were ascertained to have valid liens upon the premises. The money was not in fact paid over under the order of distribution but remained in bank to the credit of the administrators. The assessor returned the money as belonging to the mortgagees and subject to taxation as theirs. The auditor seeks to list it as taxable in the hands of the administrators and this proceeding is to enjoin the auditor from such listing. The exact question presented for decision, as I understand it is, were these moneys so held by the administrators assets of James Emmett's estate and as such subject to taxation in the hands of the administrators!

The statute provides, Rev. Stat. 2734 (Lan. 4074), that "moneys deposited subject to his order, check, or draft" shall be listed for taxation; that belonging to the "estate of a deceased person, by his executor or administrator."

The money arising from the sale in this case was deposited in the bank and was there subject to check of the administrators, so that it *Affirmed by Pike circuit court, without report, May 23, 1900.

Pike Common Pleas

comes literally under the designation of the statute, but it is contended that it was not in fact assets of the estate, because it was in fact the proceeds of property the title to which was in the mortgagees and the fund simply substitutes the property.

After a good deal of consideration I am not able to assent to this reasoning. It is true that an order of distribution had been made, and these administrators are required to pay this amount of money to the owners of the mortgage. It does not appear to me that they were necessarily bound to pay it out of this particular fund, although in this instance it is probably all the fund from which they had to pay it, but it was not designated any way in bank as differing in any way from other funds which they might have had in their hands. It was, as I think, assets of the estate and they could check upon it for the purpose of carrying out the order of distribution to the mortgagees, and so far as I can see, they could have checked from any other fund which they might have had belonging to the estate.

It seems to me that McNeill v. Hagerty, 51 Ohio St. 255, 265 [37 N. E. Rep. 526; 23 L. R. A. 628], virtually decides that this fund is taxable. In that case the Supreme Court draws a distinction between the case of an assignee and that of an administrator holding that the former need not list simply because he is not required to by the terms of the statute, but at the same time points out that an administrator is required to list and then says that "As to administrators, it is true that property in their hands is subject to the payment of the debts of the decedent, and that creditors are expected to list their claims as credits, and often it happens that the debts consume the entire assets. But usually there is in fact, as well as in contemplation, a residue going to widows and legatees or heirs, and they are not required to list for taxation any amount until it is actually received."

The effect of this whole case, as I understand it is, that if an assignee were included in the category of administrators, and the other trustees enumerated in the statute, he would have to list, hence it follows that the administrator being named, must list.

The case of Stone v. Strong, 42 Ohio St. 53, does not seem to hold any contrary doctrine. The judgment and finding must be for the defendant.

Fouts v. Price.

COURTS-ERROR.

[Paulding Common Pleas, February 2, 1906.]

*H. FOUTS v. S. T. PRICE & COMPANY.

JURISDICTION OF COMMON PLEAS TO CONSIDER ERRORS NOT APPEARING ON RECORD LIMITED.

The common pleas court has jurisdiction, under Rev. Stat. 6708 (Lan. 10298), to consider errors of fact not appearing on the record from the court below. This jurisdiction is limited to facts of which the record may not be compelled to speak, and when the challenge is as to facts which should appear in the record, recourse should be had to correct the record in the court making it.

[Syllabus by the court.]

ERROR to mayor's court, in civil action.

J. W. Zuber, for plaintiff.

Waters & Spriggs, for defendant.

KILLITS, J.

Plaintiff in error, defendant below, prosecutes error claiming that judgment for money only was taken against him by default in the court below, upon a service of a summons, which he admits receiving, but which was not endorsed, as he claims, with the amount for which judgment might be taken by default, Rev. Stat. 6475 (Lan. 10052). The record shows that summons was duly served by copy, personally, but it is silent as to whether or not it was such as the statute required. Ordinarily, on error, we would be called upon to presume that all things required to be done to acquire jurisdiction were done, if the contrary did not appear by record, and we are compelled to and do hold that the record, as it is, sustains the judgment it recites. The original papers filed with the transcript contain a summons properly endorsed, as to the amount claimed, for which judgment might be taken, and that original summons bears the return of the serving officer showing that a true copy was served upon the plaintiff in error, personally. The plaintiff in error files a verified petition in error, setting up as an error in fact, not appearing on the record, that the original summons, when issued and served, did not contain the endorsement, and that the endorsement now appearing thereon was placed upon it after judgment was taken. Plaintiff in error contends that this assignment should be considered in this court, citing Shreve v. Parrott, 4 Dec. Re. 373 (2 Clev. L. Rep. 52; 4 Bull. 39).

The cause comes to be heard upon a motion to dismiss. We are of the opinion that this motion should prevail. The record, especially when re-enforced by the original papers, shows that every jurisdictional

Affirmed by circuit court March 16, 1906.

Paulding Common Pleas.

fact was present when judgment was taken. This record speaks for itself, and cannot be corrected in these proceedings. The place to challenge the correctness of the record is in the court making it. Cleveland & M. V. Ry. v. Wick, 35 Ohio St. 247, 252.

1

While this court may consider errors of fact not appearing of record in the proceedings of the courts inferior to it, in this respect its jurisdiction in error, conferred by Rev. Stat. 6708 (Lan. 10298), being broader than that of the circuit court under Rev. Stat. 6709 (Lan. 10300), Shreve v. Parrott, supra; we are of the opinion that only such facts dehors the record may be considered by this court as the record, properly made up, should not have disclosed, and that when the challenge is as to facts which the record, properly made, should have exhibited, such challenge should be first prosecuted to the court below for a correct record. As to the matter below, if plaintiff in error is right, the record is wrong, and the court making it should be first invoked for a true record. We cannot presume that the court below would refuse to do its duty when its attention is called to a defect such as is alleged here.

In this case, plaintiff in error admits having received summons that an action of some kind was begun against him in the court below, and it was his duty to proceed in that court if he intended to complain as to the sufficiency of the notice.

The remaining assignments of error were not argued, but the court has considered them, and finds them to be harmless, and not prejudicial.

Motion to dismiss is sustained and petition in error dismissed, with judgment against plaintiff in error for costs. Exceptions to plaintiff in error.

Hynicka v. Insurance Co.

PLEADINGS.

[Superior Court of Cincinnati, Special Term, January, 1906.]

RUDOLPH H. HYNICKA, TREAS., V. UNION CENTRAL LIFE INS. Co.

AMENDMENT OF PLEADING TO CONFESS PARTIAL JUDGMENT NOT ALLOWABLE AFTER SUBMISSION OF AGREED STATEMENT OF FACTS.

An amendment to the answer of defendant, after a cause has been finally submitted to the court on an agreed statement of facts, cannot be permitted for the purpose of allowing such defendant to confess judgment for a portion of the plaintiff's claim, thus depriving plaintiff of the advantage of certain admissions of the agreed statement of facts which might have some bearing on, or relation to, the other issues before the court for decision.

[Syllabus approved by the court.]

A. R. Benedict, for plaintiff.

Maxwell & Ramsey, for defendant.

HOFFHEIMER, J.

When this cause came on to be heard by agreement between all the parties a jury was waived, and the cause was submitted to the court on an agreed statement of facts and the argument of counsel.

It was evident at the outset that unless the facts should be agreed upon, the production of testimony would involve considerable time and necessitate, in court, a tedious examination into a prodigious mass of checks, books, and papers of the defendant company for the years for which plaintiff claimed taxes were owing.

Counsel and the parties were quick to recognize the feasibility of an agreed statement of facts, and therefore, and in open court, it was agreed by and between the parties to submit the cause on such a statement of facts.

Counsel, in the presence of officers of the company, thereupon proceeded to dictate the facts to the official stenographer in open court. And it was further agreed that certain matters dictated as facts were to be corrected in accordance with the true condition of affairs.

This agreement had reference particularly to checks of defendant company claimed to have been outstanding on the respective tax days in the years in question, and particularly with reference to certain checks or drafts which in the agreed statement it was admitted were never presented for payment but cancelled.

Now comes counsel for plaintiff, treasurer, and asserts by motion. "that investigation of the books and papers of the company conclusively establishes that no one of said unpresented and unpaid checks and drafts ever left the home office of the company or was ever issued or ever became a check. The company refuses to correct the agreed state