Hamilton Common Pleas Court.

CORPORATIONS-STATUTES-APPEARANCE.

[Hamilton Common Pleas Court, July, 1897.|

GEORGE KINSEY V. THE Burgess Steel & Iron Works.

1. AN OHIO CORPORATION CAN BE SUED, Where.

Au Ohio corporation can be sued only in the county in which such corporation is situated or has its principal place of business, or in which an office or agent is maintained.

2. CONSTRUCTION OF SECTION 5026, REVISED STATUTES.

The word "may" in section 5026, should be read "must."

3. APPEARANCE IN AN ACTION.

The appearance of a defendant in court for the sole purpose of objecting, by motion, to the jurisdiction of the court over his person, is not an appearance in the action.

JELKE, J.

Plaintiff, a resident of Cincinnati, Hamilton county, brings this action against defendant, a corporation organized under the laws of the state of Ohio, and having its plant and principal place of business in Portsmouth, Scioto county, this state.

It appears that for some years past defendant has been accustomed from time to time, to send its officers and agents to this city for the purpose of doing business, but that defendant has no agent resident in this county, and has no office or agency established here.

On the 23d day of April, 1897, summons herein was served on L. L. York, the president of defendant company, who happened to be in this city and county on that day on business, by leaving a copy of said summons with him personally.

A motion is subsequently filed, as follows:

"The defendant, a corporation doing business in and with its principal and only office in Scioto county, Ohio, appearing solely for the purpose of this motion, and not intending thereby to enter its appearance, moves that the sheriff's return of service of summons be set aside, for the reason that said court has no jurisdiction of the person of defendant."

Plaintiff claims that a corporation created under the laws of this state may be sued in any county where service of summons can be had on any of its chief officers.

Defendant claims that a corporation can only be sued in the county in which such corporation is situate, or has or had its principal place of business, or in which any corporation has an office or agent.

Section 5026, Revised Statutes, provides:

"An action other than one of those mentioned in the first four sections of this chapter, against a corporation created under the laws of this state may be brought in the county in which such corporation is situate, or has, or had its principal office or place of business, or in which any corporation has an office or agent."

I am of opinion that the word "may" in this section should be read "must." The Legislature of the state has undertaken to enact and provide where actions in this state are to be brought, and actions can only be brought where it is prescribed by statute they may be brought. This word "may" is used in an exactly similar manner in section 5027, Revised Statutes. And the supreme court, in the case of the Railroad Company v. Morey, 47 O. S., 207, 210, in construing that section said:

"This section, like the other sections of chapter 5 of the Code of Civil Procedure, that merely prescribe a county in which a defendant may be sued, relate only to the jurisdiction over the person. Neither a railroad company nor other

Osseforth v. Schroder et al.

corporation, nor even a natural person, is bound to appear in an action in obedience to a summons served out of the prescribed county."

An examination of sections 5026, 5027, 5028 and 5031, shows that this construction must obtain. A reading of section 5026 shows that in the latter half of it the legislature, realizing how by the first half it had restricted the jurisdiction as to where suits could only be bought against corporations created under the laws of this state generally, and desiring to enlarge the scope of such jurisdiction as against insurance and mining companies, specially enacted the further clause: "But if such corporation is an insurance company, the action may be brought in the county wherein the cause of action, or some part thereof, arose; and if such corporation be organized for the purpose of mining, either exclusively or in connection with other business, the action may be brought in any county where such corporation owns or operates a mine or mines, and the cause of action, or some part thereof, arose.'

Section 5027 further specially provides that "An action against a railroad company may be brought in any county through or into which such road or line passes."

If plaintiff's construction that section 5026 is permissive only, and not mandatory, is correct, then the enactment of section 5027 would be entirely superfluons. The same would be true of section 5028 also.

Plaintiff contends that there should be no distinction between a corporation organized under the laws of this state and a natural person, as to where they are to be sued. But this contention can not be maintained in view of section 5031. It is only by virtue of this section that a natural person can be sued in any county in which he may be summoned.

The point made by the plaintiff that the defendant, by filing this motion has voluntarily entered its appearance, is not well taken. "The appearance of defendant in court for the sole purpose of objecting, by motion, to the jurisdiction of the court over his person is not an appearance in the action." Elliott v. Lawhead, 43 O. S., 171.

The defendant expressly reserves and disclaims entry of its appearance, ana moves that the sheriff's return of service of summons be set aside, for the reason that said court has no jurisdiction of the person of the defendant. Had the motion been upon any other ground, or had it been made to the jurisdiction over the subject matter, or to any of the merits of plaintiff's case, it would have been otherwise, and appearance entered.

The motion is granted.

Philip Roettinger, for Plaintiff.

Judge Holcomb and A. C. Thompson, of Portsmouth, for Defendant.

PLEADING-MOTION.

[Superior Court of Cincinnati, Special Term].

MOTION TO STRIKE OUT.

OSSEFORTH V. SCHRODER et al.

A motion to strike out must be specific in its terms to invoke the consideration of the court.

HUNT, J.

This is a motion to strike out from the amended petition all the matter and allegations not contained in the original petition for the reason that they are refundant and irrevelant.

The court held that good pleading requires that a motion should state definitely and specifically the objectionable matter in the petition. It should not be left

Hamilton Court of Insolvency.

to conjecture and speculation. The court is not called upon to determine what allegations are redundant and irrelevant from a general reading of the pleading. This rests with the pleader.

The motion in its present from will be overruled. Carr, Dengler & Speiser and Frank Moorman.

Shay & Cogan and Lowrey Jackson.

STATUTES.

[Hamilton Court of Insolvency, July, 1897.]

IN RE THE ASSIGNMENT OF THE DUHME Co.

CONSTRUCTION OF SECTION 6355, REVISED Statutes.

Employees about a jewelry store whose duty it is to sell goods and care for the stock are entitled to the protection of section 6355 making labor claims preferred lieus.

MCNEILL, J.

An application has been made by the assignee herein for the instruction of the court as to whether certain claims for wages, earned within twelve months prior to the assignment, come within the provisions of section 6355, Revised Statutes. The parties asking payment of their claims were all in the employ of the assignor as salesmen, two of whom also acted part of the time as foremen in the factory. The duties required and performed by the parties were the taking of customers about in the jewelry store of the assignor, taking out goods from cases, showing them to the customers, making sales, returning goods to their proper places, and keeping the stock under their care in good, presentable condition.

The provision in section 6355, for the payment of labor claims is as follows: "And every person who shall have performed any labor as an operative in the service of the assignor shall be entitled to receive out of the trust fonds, before the payment of the other creditors, the full amount of the wages due to such person for such labor performed within twelve months preceding the assignment, not excee ling $300."

In the case of Davis v. Greenlee 7. Dec. 111,112 our circuit court states that the purpose of the legislature in enacting this provision of our statute was "to protect and prefer the claims of those who, as workmen or laborers, serve their employer in the house, field, factory or mine, or in other like service," and indicate that the language of the statute should receive a liberal construction.

The parties whose claims for wages are now under consideration were all employed by the Duhme Co. Their duties required them to take customers about in the store, take out goods from the cases, etc, show them to customers, make sales, return goods to their cases, etc, and keep the stock in good, presentable condition. This was work that was necessary to the carrying on of the business, and for which they were paid weekly wages. It seems clear to me that they come within the purpose of the act as declared by our circuit court, and they need the protection of the law as much as the man who works in the factory; and, in my judgment, it would be the reverse of a liberal construction, of the statute that would exclude them from its protection.

An order will be made directing the assignee to pay the claims.

Hilliard, Adm'r. etc. v. Sanford et al.

LIFE INSURANCE.

[Licking Common Pleas Court, April Term, 1897.]

JONATHAN V. HILLIARD, ADMR., ETC. V. CARRIE SANFORD, ET AL., JONATHAN V. HILLIARD, ADMR. V. JACOB ROBERTS.

1. A GRANDFfather has AN INSURABLE INTEREST In the Life of HIS GRANDSON. A grandfather has an insurable interest in the life of his grandson, because the relationship is such that it constitutes a good and valid consideration in law, in that it will support a deed, or a gift, or a grant, and such policy will not be subject to the charge of being a wagering policy.

2. RELIEF AGAINST A POLICY WHICH MAY, U:,DER CIRCUMstances be a DEVICE FOR COM.. PASSING USURY.

The requirement of an insurance company, that a policy of insurance be taken out as a condition precedent to the obtaining of a loan from the company, may, under certain circumstances, be a device for compassing usury, and may be relieved against by applying the premiums paid, as payment upon the principal of the loan.

JONES, J. (orally).

In the case of Jonathan V. Hilliard, as administrator of the estate of John Strawn, deceased, v. Carrie Sanford et. al., No. 9703, and the case of Jonathan V. Hilliard, Adm'r. v. Jacob Roberts, No. 8972.

The first case is on appeal here from the probate court. The second is a suit brought in this court originally. The second case-the one of Jonathan V. Hilliard v. Jacob Roberts, is brought in this court upon promissory note. dated April, 1892, originally for $2,281, being balance of purchase money of the sale of sixty-nine and one-half acres of land by John Strawn to him. Such payments have been made on the note as to leave a balance due of $1,603.60, with interest at seven per cent. from August 28, 1894.

In the answer, Jacob D. Roberts alleges that this note was given for the purchase money of sixty-nine and one half acres bought from John Strawn, conveyed by warranty deed, containing covenants against incumbrances and warranty. That at the time of the execution of the deed there were on this sixty-nine and one-half acres, and four other parcels containing 173 acres, three mortgages, executed May 30, 1889, by Strawn, to secure to The Union Central Life Insurance Company the payment of four principal notes, one for $10,500, due in five years, and four for $500, due in one, two, three and four years from May 30, 1889, with interest coupons attached to each for the annual interest, being interest on the principal sums at seven per cent.; and the other mortgage to the insurance company, on the same land, to secure the payment of four notes of $532. due successively each year, and to bear interest after maturity at eight per cent. The third mortgage, to Jonathan V. Hilliard for $450, with interest. That the existence of these mortgages were breaches of the above named covenants; that John Strawn died seized of 173 acres; and that it had been sold by proceedings by Strawn's administrator in the probate court, the proceeds of which sale were insufficient to pay the mortgages. That he is entitled to have the moneys arising from the sale of 173 acres applied to the payment of the mortgages, and that any amount remaining unpaid thereafter, and which he would be compelled to pay to discharge the mortgage lien, should enure as a counterclaim to him against the note. That is, the note sued on in this suit of Jonathan V. Hilliard v. Jacob D. Roberts. And that defenses have been made by him and the heirs of Strawn affecting the amount due the insurance company in the case in the probate court, which case was in this court by appeal from the probate court, and that judgment should not be rendered in this case until the

Licking Common Pleas Court.

amount due should be ascertained in the other case.

And asks that the insurance company and Hilliard, personally, be made parties in this case.

In the case in the probate court, being the case to sell the lands of Strawn, to pay debts, the insurance company and Hilliard answered, setting up the notes aforesaid, except those which had been paid. They set up the $10,500 note, and parts of two interest coupons, and two of the premium notes; and Hilliard alleges his $450. It appears that the two mortgages of the insurance company are anterior in date of record to Hilliard's.

Roberts and others in that case and in this answer to the cross-petition of the insurance company, alleging substantially that the mortgage given to secure the four premium notes and the notes themselves was but a trick or aritifice for the purpose of compassing usury. That the insurance for which they were given was upon the life of Edward L. Roberts, a minor seventeen years of age at the time. That Edward was the grand-son of John Strawn and that although the policy was issued to Edward, yet Strawn paid the premium and it was issued for his benefit, and that the assignment of the policy made by Edward to the insurance company (which assignment was made at the same time the policy was delivered or about that), to be held as collateral for the payment of the mortgage notes, was but a method for Strawn taking out insurance upon the life of Roberts for his own benefit. That he had no insurable interest in the life of Edward, and the policy was void, and a wagering policy, as the insurance company well knew, and the notes were without consideration, and being merely a devise to compass usury they became as far as paid, payments on the principal, and the interest being thereby reduced to six per cent. instead of seven per cent., as is provided in the notes and mortgage; and that all payments made on account of the interest, in excess of six per cent., should be also applied to reduce the principal as of the time the payments were made.

The insurance company reply, denying any scheme to obtain usurious interest, and any want of consideration.

The facts, so far as they are in controversy, are about as follows:

The matter in controversy relates to the payment of $532, paid at the time the policy was issued, and the four notes for the annual premiums subsequently. The policy was issued upon the application of Edward, and although, in the application, it was stipulated that it should be payable in case of death to John Strawn, yet the policy made itself payable to Edward. Edward never received the policy into his manual possession; but while it was in the company's hands, and at the date of its issue, Edward assigned it to the company, as collateral for the loan. John Strawn and Edward signed the premium notes, and John Strawn executed the mortgage security.

The result of the testimony is that there were no special matters by which it would appear that John Strawn had any insurable interest in the life of Edward. No special dependence upon Edward for support by John Strawn. No special regard as a favored grandson is shown; but the insurable interest, if it existed at all, is merely in the act that Edward was the grandson of John Strawn.

Now, the question is whether a grandfather has an insurable interest in the life of his grandson, without showing anything more. It is claimed that these notes were, without consideration, because the company knew that John Strawn had no insurable interest in the life of his grandson.

The question resolves itself into this-that is, this is the question: Does a grandfather have an insurable interest in the life of a grandson, so as to relieve the contract of insurance from the charge of being a wagering policy, or a wagering contract?

Now, it is not disputed, and could not be, that the party who insures the life of another, must have an insurable interest in that life. Now, this interest may arise from the relationship of blood or from pecuniary interest in another.