Lumber Co. v. Railroad Co. sulting from such a crossing I do not think they will be greater or more dangerous or hazardous, than many other crossings used constantly by steam railroads, or electric or other street railroads. It is a matter of common knowledge that many crossing are used in many cities for the purposes of general trafic, where cars pass fully as frequently, if not more frequently, than is shown by the testimony of these witnesses or where they cross many more tracks than those which would be necessary to be crossed at or near the point which I have indicated. The common observation of any one who shall observe the frequency of the running of electric cars on the Cherry street, Adams street and Monroe crossings in this city and of the amount of traffic that is going on at those points, must, in my judgment, necessarily conclude that such a crossing here would have less elements of danger than those well-known public crossings. While engines and cars are moving at the points here named with greater frequency than trains upon either single or double tracks of railroads in the open country, still they are necessarily moved much more slowly, and when they should be and in fact must necessarily be, and are, held in close control by those operating them, the dangers either to the public or those using the private crossing, are, in many respects, less than those to persons crossing in the open country. This crossing should be, of course, carefully constructed, and by a person skilled in the business and at a point where the fewest rumber of tracks are required to be crossed, in order to enable the plaintiff to have reasonable access to its property upon the north side of the road. Taking the blue print as a guide, while the court cannot fix this exact point, I think it might be substantially at the point where there are, as shown by the blue print, but three tracks of the railroad. I do not, however, undertake to fix this point, and only hold that the plaintiff has the right to such crossing at the best practicable point, concluding that the parties can mutually agree upon this point; and if they should not so agree, I will appoint competent engineers, as referees or commissioners, to determine it. With this provision I grant the prayer of the petition for injunction, and refuse that of the cross-petition. J. W. Cummings, for Plaintiff A. L. Smith, for Defendant. Hamilton Probate Court. WILLS. [Hamilton Probate Court, March, 1897.] IN RE FRANCES E. STACEY. 1. Probate of Will Refused, EffecT. A will once offered for probate, and probate refused, may be subsequently repropounded by parties interested in the will, notwithstanding such refusal, where it appears that no notice was served upon such parties that the will would be offered for probate. 2. EFFECT OF SECTION 5934, Revised STATUTES. Section 5934 does not destroy the right to repropound a will. Parties aggrieved have concurrent remedies either by appeal or by reoffering the will for probate upon new evidence. FERRIS J. This matter comes before the court on an application to repropound the will of Frances E. Stacy, deceased, which will was offered for probate in the year 1894, and such proceedings were afterwards had that a commission issued to one J. C. Tubbs, at Sacramento, state of California, to take the depositions of the two subscribing witnesses to the last will and testament of Frances E. Stacey, deceased, which testimony is on file in this court. For reasons that appeared satisfactory at that time, this will was refused probate, and counsel, representing a legatee, now files an application for leave to offer again the will to probate, and for the issuing of a commission to retake the testimony of certain witnesses. Objection is raised that, under the provisions of section 5934 of the Revised Statutes, the person aggrieved should have prosecuted an appeal from the decision to the next term of the common pleas court by filing notice of his intention to appeal within ten days from such refusal, and, therefore, the remedy is not in this forum, but that the action should be prosecuted elsewhere. The supreme court of Ohio, in a decision announced in 480. S. 357, Feuchter v. Kyle, in syllabus second, holds, that where admission of a will to probate has been refused by the probate court, persons having no notice of the proceedings and refusal until too late to perfect an appeal to the court of common pleas from the order of refusal, are not concluded thereby, but may repropound the will notwithstanding the former order of refusal has not been vacated. Section 5917 of the Revised Statutes determines that no will shall be admitted to probate without notice to the widow or husband, and next of kin of the testator, if any, resident in the state, in such manner and for such time as the probate court shall direct or approve. It is urged that the party complaining was not notified of the fact that the will would be offered for probate. Practically the same questions involved in this application were passed upon by the supreme court, and although a dissenting opinion was filed by Justice Minshall, the majority of the court hold, that the doctrine laid down in 8 Ohio, page 19, that where a will is once rejected, it may still be repropounded for probate, and reaffirmed the doctrine laid down in 6 Ohio, page 502, that the order of probate is not conclusive upon the subject of it, for the statute law expressly provides a way in accordance with the common usage of chancery to contest and vacate the probate if allowed; if rejected another application may be made and probate established on new and better proof. This was the doctrine held prior to the organization of probate courts under the constitution of 1851, and the section of the statute that has heretofore been referred to, section 5934, is held in that case not to have destroyed the right to repropound the will. Justice Bradbury, in speaking of the rights under this section, says that it contains a new remedy to enforce an existing right, and neither in the language Beetz v. Strobel. selected by the legislature in giving the remedy nor in the circumstances that attended its adoption is there any indication of a purpose to make it exclusive. The new remedy is consistent with the continued existence of the old one; they are concurrent remedies to enforce the same right, and the rule is that a new remedy provided by statute does not destroy or take away the old one, if the two are compatible. I see no reason therefore, why, under the law of Ohio, parties who are aggrieved and who, under the statute, are not required to be notified of the offering of a will to probate, whose title depends upon such will and whose interests are at stake, having in law no notice, may not at any time file an application for the repropounding of a will that has been refused probate. The law favors wills. The right to make one is derived from the statute, it did not exist at common law and I therefore am of the opinion that the application, under the circumstances, should be granted, and that a commission should issue for the taking of such testimony as may be necessary in the premises. Chas. IV. Baker; Howard Douglass and Geo. W. Harding. JUDGMENTS. [Hamilton Common Pleas, March 1897.] BEETZ V. STROBEL. JUDGMENT NON OBSTANTE VEREDICTO. After verdict for defendant on the cause of action set out in the petition, plaintiff can not have "judgment non obstante veredicto" on a new and different cause of action disclosed in the answer, heard on motion for judgment non obstante veredicto, JELKE, J. Plaintiff originally filed his petition herein setting out two causes of action : On a contract. 1. 2. For use and occupation. On motion of defendant, and order of court, plaintiff struck the second cause of action out of his petition, so that at the time of going to trial the petition stood as an action for rent on a contract. At the conclusion of the first trial, and before going to trial for the second time, defendant filed by leave an amended answer, a narrative sort of pleading, containing a general denial, setting up the "statute of frauds," and in addition thereto stating facts which, if properly pleaded by the plaintiff, would have constituted a cause of action for use and occupation. Issue was joined on the contract and the jury found a verdict for the defendant. Whereupon plaintiff files his motion for judgment notwithstanding the verdict, claiming that on the admissions in defendant's answer he is entitled to recover two dollars per month for use and occupation. "Judgment non obstante veredicto is rendered in cases where, after a pleading by the defendant in confession and avoidance, as, for example, a plea in bar, and issue joined thereon, and verdict found for the defendant, the court, on retrospective examination of the record, finds that such plea was bad in substance, and might have been made the subject of demurrer on that ground." Freeman on Judgments, section 7; Black on Judgments, section 16; Andrews Stephens on Pleading, p. 186. In all the cases cited in these text books, and in every case cited to the court, such judgment has been founded on the cause of action set out in the declaration, confessed to by defendant's plea, the avoidance of which has been insufficient. Hamilton Common Pleas. Counsel have been unable to cite to the court, and the court has been unable to find, a single case where such judgment has been rendered upon a new and different cause of action developed from allegations contained in a plea or answer. The statutory provision of the Code, R. S. 5328, is manifestly intended to be a statement of the common law, and wherever our courts have been called upon to apply it they have followed the common law procedure. In view of the large number of reported cases wherein judgment non obstante veredicto has been rendered, and of the fact that not one case can be found where such judgment has been founded on a different cause of action developed in the plea from that set out in the declaration, I conclude that judgment cannot be so rendered. In Marsh v. Bu teel, 5 Barn & Ald., 507, Abbot, C. J. remarked: "It never has been held that a plaintiff who seeks to recover damages for one ground of action stated in his count is entitled to recover in respect of another, disclosed by the defendant's plea. I am of opinion that a plaintiff can recover only in respect of of the ground of action stated in his declaration." Stephens' Pleading (9th Am. El.). 144; Head v. Baldrey, 6 A. E., 468. I am confirmed in my conclusion as to the case at bar by two considerations. When the court on motion ordered plaintiff to strike out his second cause of action for insufficiency, there was nothing to prevent his amending and perfecting this count for "use and occupation." Plaintiff, however, saw fit to proceed on his count on contract only. Further, on a motion of this kind the court can only look at the pleadings. 40 O. S. 113. In an action for use and occupation plaintiff can recover a reasonable rental. This cannot be determined from the pleadings, but must be a finding of fact by the court or jury from the evidence. It is admitted in the answer that defendant for a time paid two dollars per month, and plaintiff's counsel contend that under Thompson v. Sanborn, 52 Mich., 141, that establishes the rental. Such admission is but evidence, and is not an essential part of a cause of action for use and occupation. Moreover such statement is coupled with the further statement that the right of way was not worth and defendant would not pay two dollars per month, and that he would not pay to exceed five dollars per year. It would certainly require the production of evidence to establish the reasonable rental value of said right of way, and non constat it might be found to have but a nominal value or to be worth nothing. At common law plaintiff's remedy would be "new assignment," which under the code practically means a new suit. Motion overruled. Heilker & Heilker, for Plaintiff. 1.. H. Pummill, for Defendant. Clark v. Commissioners. COUNTY CLERKS-FEES. [Lucas Common Pleas Court, January 6, 1897.] CLARK V. BOARD OF COUNTY COMMISSIONERS OF LUCAS COUNTY. 1. FEES FOR INDEXING JUDGMENTS. Under the provisions of section 1263. Revised Statutes, the clerk of the common pleas court is entitled to receive compensation from the county treasury, for making up and completing the general indexes, both direct and reverse, of all judgments, and such clerk is entitled to eight cents for indexing a judgment, no matter how many parties there may be to such judgment. 2. FEES FOR KEEPING INDEXES OF PENDING SUITS. Under the provisions of sections 1255-67 of Revised Statutes, the clerk is not entitled to receive pay out of the county treasury for making and continuing indexes to pending suits. PUGSLEY, J. This is an appeal from an order of the county commissioners, rejecting certain claims against the county that were presented by the plaintiff, who is clerk of the courts. One claim is for fees in indexing judgments on the general indexes of judgments, direct and reverse, at the rate of eight, cents for each time the name of each defendant is entered on the reverse index; the other claim is for fees in indexing pending suits and living judgments and executions on the pending suit indexes, at the rate of eight cents for each entry. The services rendered, for which these. claims are made, were not for making up the original indexes, but for continuing or keeping them up; and for all these services fees are charged by the clerk to the litigants as part of the costs in each case. The question submitted is, whether, under the law, he is also entitled to compensation for the same services from the county treasury. The circuit court for the first circuit passed upon similar claims in the case of The Commissioners of Butler Co. v. Welliver, 5 O.C. D., 569, and that decision will be followed in this case. First, as to the claim for fees in indexing judgments on the general indexes: Judge Smith, in delivering the opinion of the circuit court, says on page 570: "We are of the opinion that item 26, for general index of 147 cases, of judgments in common pleas, is payable from the treasury under the provisions of sec. 1263 which allows the clerk for making up and completing general indices direct and reverse of all judgments, eight cents for each cause; that the law does not limit this payment to cases under sec. 5339, which provides for the making of such index, where it had not before been done. And though the clerk does receive pay for this service also from litigants, it may well be that the legislature inten led the county also to assist in keeping it up after it is once made up. It is not entirely clear that this is so, but we are disposed to so hold in this case." After carefully examining the legislation on this subject, I feel reasonably certain that a proper construction of the laws, as they now exist, supports the decision rendered. Sec. 5339, Revised Statutes, requires the clerk to keep an index direct and reverse of all judgments, and specifies the manner in which it is to be kept. Substantially the same provision was in force for many years prior to the revision of 1880. On May 1, 1852 (Laws of 1852, p. 218), an act was passed which in sec. 8 provides that the clerk shall receive from the county treasury a certain fee for making up and completing general indexes of all judgments and decrees. This act was repealed by the act of May 1, 1854 (Laws of 1854, p. 117), which in sec. 5 made a similar provision for compensation to the clerk, payable out of the treasury. The said fifth section of the act of May 1, 1854, was repealed by the act of May 1, 1862 (Laws of 1862, p. 116), and no pro 6 Dec. 10 |