ERROR to Circuit Court of Fairfield county. Mr. Thurman T. Courtright, prosecuting attorney, and Mr. M. A. Daugherty, for plaintiff in error. Messrs. Brown, Geddes, Schmettau & Williams, for defendant in error. Judgment of the circuit court reversed and cause remanded with directions to overrule the motion and for further proceedings. SPEAR, PRICE, JOHNSON and DONAHUE, JJ., con
Where the construction of railroad tracks in a street will ma-
terially impair the only reasonable means of access to property
which abuts upon such street, although not upon that portion
in which the tracks are to be laid, the owner may enjoin the
construction until the railroad has procured the right by
appropriation proceedings. See Hall v. Railway Co., 148.
Where the construction of railroad tracks in a street will ma-
terially impair the only reasonable means of access to property
which abuts upon such street, although not upon that portion
in which the tracks are to be laid, the owner may enjoin the
construction until the railroad has procured the right by appro-
priation proceedings. See Hall v. Railway Co., 148.
Where, in an action in the common pleas court for settlement of
mutual accounts, it appears by the pleadings that the parties
agreed to an account stated, alleged to have been induced by
mistakes, and the parties are unable to agree because of such
mistakes, etc., an appeal will lie to the circuit court. See Bank
v. Jahn, 406.
In an action for partition when the commissioners report that the
estate cannot be divided without manifest injury to the value
of the estate and the common pleas court approves the return, if
no party elects, before an order for sale is made, to take the
estate or any part thereof at its appraised value, under the
statutes no party can so elect after such order has been made,
without notice to or consent of the other co-tenants. See
Darling v. Darling, 27.
In an action on a foreign judgment the defendant having been
personally served with process and having unsuccessfully chal-
lenged the jurisdiction in the foreign suit, will not be permitted
in this state to challenge the validity of such service. The defendant cannot plead rights which were existent when original suit was brought, whether they were pleaded or not. See Albright v. Boyd, 34.
Under Section 6113, Revised Statutes, a suit upon the claim of a creditor against an administrator, due at death of decedent, cannot be commenced two years from the giving of bond by the administrator, due notice of his appointment having been given, although such suit is commenced within six months after the rejection of the claim and it was presented to the administrator within two years from the time of giving of his bond. See Harris v. O'Connell, 136.
Either husband or wife may maintain an action for damages against anyone who wrongfully and maliciously interferes with the marital relationship, and deprives one of consortium of the other-One who sells morphine to a husband who becomes insane from the use thereof, is liable to the wife, when. See Flandermeyer v. Cooper, 327.
Where, in an action in the common pleas court for settlement of mutual accounts, it appears by the pleadings that the parties agreed to an account stated, alleged to have been induced by mistakes, and the parties are unable to agree because of such mistakes, etc., an appeal will lie to the circuit court. See Bank v. Jahn, 406.
The act passed May 31, 1911 (102 O. L., 524), for the creation of a state insurance fund for injured, and the dependents of killed, employes, is constitutional and valid. See State, ex rel., v. Creamer, 349.
The requirements that physicians and midwives shall certify certain items specified in section 14 of the act to establish a bureau of vital statistics, etc. (99 O. L., 296), is an unreasonable exercise of the police power, and sections 13, 14, 17 and 21, so far as they apply to physicians and midwives, are unconstitutional. See State v. Boone, 313.
Limitations of actions by creditors-Provisions of Section 6113, Revised Statutes-Suit against administrator-Must be within two years-After his giving bond, etc.-Though commenced within six months after rejection of claim-The provision of Section 6113, Revised Statutes, to the effect that an adminis
Administrator-Appropriation of Property.
trator who has given due notice of his appointment cannot be
held to answer the suit of a creditor unless it be commenced
within two years from the time of his giving bond, applies
to a case where the claim, if owing, was due at the death of
the decedent, and has not been allowed by the administrator,
but has been rejected; and a suit upon such claim will be
defeated by a plea of the two years' statute of limitations if
not commenced within two years from the giving of such bond,
although it may have been commenced within six months after
the rejection of such claim, and although the claim was pre-
sented to the administrator within the period of two years
from the time of his giving bond. Speidel v. Phillips, 78 Ohio
St., 194, distinguished. Harris v. O'Connell, 136.
Where a husband by fraud, obtains a decree of divorce and a
decree barring the wife of dower, alimony, etc., the divorce is
conclusive; but, if the court lacked jurisdiction of the wife's
person, she may have the decree opened so far as it relates to
her interest in his property and defend. See Bay v. Bay, 417.
Mutual accounts-Settlement of in court of common pleas-Agree-
ment by parties to account stated-Under mistake of facts-
Appeal by either party-Will lie to circuit court, when-Where,
in an action in the court of common pleas, for the settlement
of mutual accounts, it appears by the pleadings that the par-
ties had agreed to an account stated, which one of the parties
now alleges was induced by mistakes of fact, and the parties
are unable to come to an agreement because of such mistakes
of fact, said mistakes consisting of one party giving credits to
which the other party is not entitled, and which he denies, and a
settlement cannot be reached without the correction of the
mistakes and restating of the account stated, an appeal will lie
to the circuit court by either party to the controversy. Bank
v. Jahn, 406.
APPROPRIATION OF PROPERTY-
Under Section 3283, Revised Statutes, a railroad has not the abso-
lute right to appropriate streets of a municipality for an unlim-
ited number of tracks-Said section does not confer power to
appropriate such streets for a railroad yard-Evidence that
tracks proposed to be located over streets are necessary in
Appropriation of Property-Automatic Couplers.
APPROPRIATION OF PROPERTY-Continued.
cperation of switching yards of the railroad does not authorize
a finding of court that such tracks are necessary within the
meaning of said section. See Rockport v. Railroad Co., 73.
The amendment in parenthesis to Section 4567c, Revised Statutes,
passed March 23, 1893, authorizes the taking of private property
in the improvement of a living stream without compensation
to the owner, and is unconstitutional. See Kiser v. Commis-
sioners, 129.
Where the construction of railroad tracks in a street will ma-
terially impair the only reasonable means of access to prop-
erty which abuts upon such street, although not upon that
portion in which the tracks are to be laid, the owner may enjoin
the construction until the railroad has procured the right by
appropriation proceedings. See Hall v. Railway Co., 148.
Stipulations in promissory notes for the payment of attorney fees,
if the notes are not paid at maturity, are void-Sections 8106
and 8107, General Code, do not validate such stipulations, but
provide only that they shall not destroy the negotiability of the
instruments. See Miller v. Kyle, 186.
1. A derrick or crane operated by railway company-For unloading
materials in construction of dock-And not employed-While
company is operating as common carrier-Machine not required
by Sections 8950 and 8952, General Code-To be equipped with
automatic coupler-A whirley, derrick or locomotive crane built
upon car trucks, and equipped with a boiler and engine fur-
nishing the power to operate the crane, and to move the machine
about upon the railroad tracks in the vicinity where it is being
operated by a railway company for the purpose of unloading
heavy materials to be used in the construction of docks, and
not employed by the railway company in its business as a com-
mon carrier in moving state traffic, is not, while being so
operated a "locomotive, car, tender or similar vehicle used in
moving state traffic," required by Section 8950 (3365-27b, Re-
vised Statutes) and Section 8952 (3365-27d, Revised Statutes)
of the General Code to be equipped with an automatic coupler
and provided with drawbars of standard height. Railway Co.
v. Benson, 215.
2. Use of said machine in shifting cars on dock-Does not bring
machine under provisions of said sections-Where a railway
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