Cotton, Ex'x v. Ashley.

person had been employed in consequence of his being an attorney, though not in an action, the court would interfere summarily to compel him to do what was right. In that case the attorney had received money under a power which described him as a counselor and attorney, and the court said it was otherwise manifest that the employer contemplated the party's professional character, and he was ordered to account and pay over the money.' The rule was well stated. by Abbott, Ch., J., in the matter of Aitkin (4 Barn. & Ald. 47): 'Where,' he says, 'an attorney is employed in a matter wholly unconnected with his professional character, the court will not interfere in a summary way to compel him to execute faithfully the trust reposed in him. But where the employment is so connected with his professional character as to afford a presumption that his character formed the ground of his employment by the client, there the court will exercise this jurisdicion.' The defense of the attorney in that case was put wholly on the ground that he had not been employed to prosecute any suit; and as that position was untenable, the motion was granted. In ex parte Staats, 4 Cowens, 76, a like objection by the attorney was overruled."

In ex parte, Staats, supra, 'it is stated: "The relator, Staats, had left a bond with J. W. Edmonds, Esq., an attorney of this court, to the end that he should write the obligor to pay him (Edmonds) for the use of Staats who was the obligee, the money due upon the bond; but he did not direct Mr. Edmonds to commence a suit upon it, in case the obligor should make default in paying it according to such written request. The obligor paid the money to Mr. Edmonds, who had neglected to pay it over to the obligee, though repeatedly requested by the obligee to do this. **"

Upon these facts the court held, "Curia, the motion must be granted. It is plain that this bond was left with Mr. Edmonds in his character of attorney, though no specific directions were given to bring a suit, it turned out there was no need of a suit. The money was paid in; and the relator is entitled to our aid in obtaining it, in the same manner as if collected by suit."

We hold that the court of common pleas of this state being a court of general jurisdiction and proceeding according to the course of the common law, has, inde

Cotton, Ex'x v. Ashley.

pendent of and without the aid of statute, the right to compel an attorney who has received money or papers be longing to his client, by reason of his employment as attorney, which he wrongfully withholds or refuses on demand to pay over or deliver to the client; and upon his refusal to hand over when ordered to do so, may punish him as for contempt. And such right does not depend upon the fact that the money was collected upon a judgment, or received upon a claim upon which suit has been brought; it is sufficient if it was received by reason of his employment as attorney. Has such right been superseded or taken away by section 564 of the Revised Statutes? We hold it has not.

Birchard, J., in Darling v. Peck, 15 Ohio, 71, says: "Where a statute gives a new remedy without impairing or denying one already known to the law, the rule is to consider it as cumulative, allowing either the new or the old remedy to be pursued at the option of the party seeking redress, which has been followed and approved in State ex rel. v. Railroad Co., 36 Ohio St. 442, and in Commissoners v. Zeigelhofer, 38 Ohio St. 528.

We

We do not say the court of common pleas could have granted the relator all the relief asked in her motion. think the weight of authority is that the court upon such summary proceeding could only compel the attorney to pay over the money he has received, and to deliver the papers in his possession; and that for his wrongs, or any failure to perform his duties as an attorney, she is remitted to her action at law, and after the court has granted all the relief in its power, the relator to obtain full relief may still be compelled to seek her remedy by action.

It has been intimated in argument that the defendant claims to be the owner of the mortgage in question, instead of the attorney employed to collect it. We do not say that if the defendant in answer to the rule issued should make such a showing, the court in its discretion might not refuse the summary remedy and compel the plaintiff to seek her

State ex rel. v. The Central Union Telephone Co.

remedy upon proper issues in an action to be tried by a jury. We do not desire in this to be understood as holding that the mere denial of employment as attorney, or the claim of ownership, would take from the court the right to hear the motion, or make the order; nor as holding that the relator in a doubtful case, may in this form of procedure upon affidavits taken ex parte, deprive the defendant of the right of trial by jury in the ordinary forms of procedure.

It appears from the record that the court, in the absence of any showing against the rule or claim of plaintiff by answer or otherwise, and with the apparent or implied admission of the plaintiff's claim, held it had no jurisdiction to hear the case or make the order.

In so holding and deciding, we hold the court of common pleas erred, and the cause is reversed and remanded.

Northway & Perry, Wade & Betts, for plaintiff in error. Newton Sawyer, L. S. Sherman, Hoyt & Munsell, and Charles Sawyer, Jr., for defendant in error.

(Second Circuit-Montgomery Co., O., Circuit Court-Dec. Term, 1895. ) Before Shearer, Summers and Wilson, JJ.

STATE ex rel. v. THE CENTRAL UNION TELEPHONE CO.

The right to occupy the streets of a municipal corporation by a telephone company for its use is conditioned upon its agreeing with the municipal authorities as to the mode of use; or, failing so to agree, upon the direction of the probate court of the county as to the mode of use, in a proceeding instituted for that purpose; and such agreement or direction is inseparable from such right, and such right terminates with such agreement or direction.

SUMMERS, J.

The petition in this case is filed by Charles H. Kumler, prosecuting attorney for Montgomery county, state of Ohio, and upon the relation of Edwin P. Matthews, city solicitor of the city of Dayton, in said county, and states, in sub

State ex rel. v. The Central Union Telephone Co.

stance that the telephone company is a corporation of the state of Illinois, and is exercising a franchise, privilege and right in contravention of law and without authority, in that it is occupying and using sundry of the streets of said city with its poles, wires, etc., and by means thereof is carrying on the telephone business in said city; that in 1883 the city passed a certain ordinance to control and regulate the use of its streets by telephone companies, in which ordinance it was provided that, before any corporation should enter upon any of the streets of said city for telephone purposes, an ordinance should be passed by the city council granting it such right subject to such rules and regulations as might be therein prescribed; that in 1884 said city, by ordinance passed by its council, granted said telephone company the right to use certain of its streets for telephone purposes for the period of ten years, subject to the provisions of both of said ordinances, and that said company, under said ordinances, entered upon said streets and used them for such purposes; that said term of ten years has long since expired; that no other ordinance has been passed by said council, or any agreement entered into between the city and said company, extending the grant or giving it any rights or privileges in said streets, and that no such proceeding as is authorized by section 3461 of the Revised Statutes has been had; that on the 15th day of November, 1895, the council of said city, by resolution reciting said facts as to the expiration of said term, directed its city solicitor to commence such proceedings as would oust said company from such occupancy and use of its streets, and the prayer is for such ouster.

To the petition the defendant filed a general demurrer. Without undertaking to notice all of the many questions ably considered in the briefs of the learned counsel for defendant, we may say they are, if we understand them, in substance to the effect: that the right to use the streets of the city for telephone purposes is a franchise which can be con

State ex rel. v. The Central Union Telephone Co.

ferred only by the legislature; that the legislature has conferred the right or franchise to so use the streets, by sections 3454 and 3456, and that section 3461 authorizes or prescribes an agreement with the city only as to the mode of use; that, being in possession, the telephone company holds under the state; and that the city has no right to interfere with its occupancy, but is limited or restricted to an effort to direct or control the mode of use.

The right to use the street by the company for telephone purposes is a franchise, and as such can only emanate directly or indirectly from the sovereign power of the state. State ex rel. v. Cincinnati Gas, Light & Coke Co., 18 Ohio St. 292.

Section 3461 reads: "When any lands authorized to be appropriated to the use of a company are subject to the easement of a street, alley, public way, or other public use, within the limits of any city or village, the mode of use shall be such as shall be agreed upon between the municipal authorities of the city or village and the company; and if they cannot agree, or the municipal authorities unreasonably delay to enter into any agreement, the probate court of the county, in a proceeding instituted for the purpose, shall direct in what mode such telegraph line shall be constructed." **

The words "When any lands authorized to be appropriated,' etc., imply that the authority has been previously conferred; but, in our opinion, this is of little if any significance, for the sections are in pari materia, and the franchise to so use the streets, conferred by the state, is upon the express condition that the mode of use shall be such as shall be agreed upon between the city and the company, and in the event they cannot agree, that the probate court shall direct in what mode the telephone line shall be constructed along such street. This cleary contemplates an agreement as to the mode of use prior to any occupancy of the streets by the company, and such agreement with the council or direction by the probate court as to the mode of use is insep