Hamilton Circuit Court.

In their petition plaintiffs say that to pay the costs and expense of improving McMillan street between said points by grading, etc., the board of public improvements of said city on June 17, 1890, passed an ordinance levying an assessment of $11.08 in cash on each foot of the abutting property, which sum was divided into ten annual assessments, with interest added at the rate of five per cent per annum ; that said assessment included the cost of property condemned to support McMillan street east of Hunt street, and that said property was condemned under ordinance No. 4168 of the city council, passed February 15, 1889, providing that the amount of condemnation and costs be assessed per foot upon the lots and lands abutting on McMillan street from Kibby street to Highland avenue, a distance of over 2,000 feet, while the property condemned fronted only 137 feet on said street, which assessment for this condemnation amounted to $.65943 per front foot.

Plaintiffs further claim that the property condemned lies outside of McMillan street, and that said condemnation was necessary solely for the purpose of acquiring an easement in said abutting 137 feet for the slope of the street at that place, there being a fill of 25 feet or more in the construction of McMillan street; that none of their propery abuts on that part of McMillan street where the condemnation was made, except 137 feet on Fannie C. Metcalf's property, and is therefore not subject to a frontage assessment called for by said ordinance 4168 under Section 2264 of the Revised Statutes.

Plaintiffs say, that after the passage of the resolution to improve McMillan street, between said termini, and the services of notices thereunder to the owner upon the abutting owners, two claims for damages were filed.

The ordinance to improve said street provided that the costs of the improvement and damage to the abutting property owners should be assessed per front foot upon the abutting lots and lands between the termini before named. Said damage claims were inquired into, a d the sums awarded the claimants. together with the costs of suit, and advertising amounting to $1,752.19; that said damages to said claimants did. not arise from a change of grade, but were awarded on account of the appropriation of an easement in the abutting property of said claimants to maintain the sloping fill of said street, said fill being 25 or 30 feet at said points; that the condemnation and appropriation of said easement was not affected through a condemning ordinance passed specially for that purpose, but through the filing of said claims, the determination of the same, the proceedings in the common pleas court, and the occupation by the city of the front of said claimant's property by the sloping fill of said slreet, which was placed on said lots, and has been maintained there ever since.

That said sum of $1,752.19 less 2 per cent, was assessed on all the property on McMillan street, from Highland avenue to Kibby street, the foot front amounted to the sum of .39483, while the abutting property for which said easement was appropriated was 250 feet only, the total number of feet for said appropriation being 4,349.08 feet.

That none of the property of the parties abuted on that part of McMillan street for which said easement was appropriated, and was, therefore, not subject to the frontage assessment called for by said improvement ordinance. That the term "damages" as used in said ordinance to improve McMillan street, did not contemplate the appropriation of an easement in any of the abutting property, and that there was no other ordinance providing for the assessment of the costs of said appropriation

Farwell & Co. et al. v. Findlay Dry Goods Co, et al.

than said improvement ordinance, and that assessment of .39483 was also for this reason, illegal and void.

SWING, J.

The plaintiffs are not entitled to the relief prayed for in this petition.

The case does not come within the principles decided in the case of Batsche v. The City (33 W. L. B., 82). There is no widening of the street here as in that case. What was done there for the purpose of improving the street, and the easement obtained in the adjoining premises outside the limits of the street, was not for the purpose of widening the street, but for the purpose of getting an easement in ground to support the fill for the street, which it was necessary to have in order to make the improvements. The same result could have been obtained by making solid masonry walls, but the expense would have been much greater to the property owners, and the improvements would not have been so satisfactory.

F. C. Ampt, for Plaintiffs.

Wm. H. Whittaker, for City.

JURISDICTION OF PROBATE COURT.

[Hancock Circuit Court, May Term, 1895.]

Seney, Day and Price, JJ.

JOHN V. FARWELL & CO. ET AL. v. THE FINDLAY DRY GOODS Co.,

ET AL.

ASSIGNMENT for Benefit OF CREDITORS.

Where an insolvent or failing debtor makes a general assignment of all the debtor's property to an assignee, in trust, for the use and benefit of all the creditors of the insolvent, and the deed of assignment is filed in the probate court of the proper county, and the assignee has qualified and is proceeding to administer the trust, the probate court acquires exclusive jurisdiction of the subject-matter of the assignment, and has full power to hear and determine all questions properly arising.

APPEAL from the Court of Common Pleas of Hancock county. DAY, J.

The case in the common pleas court, as appears from the averments of an amended petition filed there, was under the provisions of section 6344, Revised Statutes, and was brought for the purpose of avoiding a conveyance or assignment of property by Meyer Kohn to Julius Leon, because, as averred in the amended petition, the said transfer was made without consideration, and with intent to hinder, delay and defraud creditors.

An answer to the amended petition is filed by defendant, Julius Leon, which shows in substance that the assignment averred was made, not in fraud of creditors, but for the benefit of creditors; that the deed of assignment was in due form duly executed and delivered; that it was filed in the probate court of Hancock county long before this action was begun; that the assignee named, qualified as such assignee by giving the bond fixed and required by the said probate court, and was proceeding, under the provisions of the statute, in the probate court, to administer he trust under the direction and guidance of said court, by reason of

Hancock Circuit Court.

which facts it is claimed plaintiffs are not entitled to maintain their suit in the common pleas or in this court. There is no reply to the answer, and the facts therein averred are conceded to be true.

A general demurrer to the amended petition was, we think, properly overruled. The demurrer was not well taken. The facts stated easily constituted a cause of action entitling plaintiffs to the relief prayed, if established on the trial. The question sought to be raised by the demurrer, is not raised, for the reason the amended petition does not show the necessary fact that the transfer, sought to be avoided, was a general assignment for the benefit of all creditors, and then being actively carried into effect in the probate court. This omission, or rather additional fact, is supplied by the answer, which makes the statement that the conveyance in question was a general assignment, made by Kohn, an insolvent debtor, for the benefit of all his creditors, filed in the probate court and being carried into effect in that court under and in pursuance to law. This additional statement of fact is not denied, but is conceded to be true, so that the essential facts are undisputed.

The question presented is one of jurisdiction, pure and simple. Under the facts appearing, has the common pleas court jurisdiction to hear and determine the matter? Has not the probate court exclusive jurisdiction and full power to settle and determine all conflicting claims. of title, liens liens and priorities, and all questions likely to arise in executing the trust created by the assignment? We think in this state the question is no longer an open one. By express provision of the statute and repeated decisions of the court of last resort, it seems to us the question is definitely and properly settled. We deduce the rule to be, and it seems to be of universal application, that in every case of an assignment, which, on its face, is a general assignment, by an insolvent or failing debtor, of all his property to an assignee, in trust for the use and benefit of all the creditors of the debtor, and the deed of assignment is filed in the proper probate court, and the trust is being administered and carried into effect in that court, for the benefit of all the creditors, in accordance with the provisions of law, the probate court is possessed of exclusive jurisdiction, and is clothed with. full power and right to hear and determine all questions properly arising. The filing of the instrument of assignment in the probate court invokes its jurisdiction which, by the law, instantly attaches and excludes the jurisdiction of every other court. It follows that all claimants of liens, rights and interest in the subject-matter of the assignment, of whatsoever character, are required to make their contention in the probate court, and submit to that court all questions and claims arising or growing out of the matter, for its consideration and determination.

court.

If the conclusion reached is correct then the facts disclosed in the answer, and conceded to be true, constitute a complete defense to plaintiff's action, making it clear that it has been instituted in the wrong Under the facts and circumstances appearing, the common pleas court is without jurisdiction of the case. That is in the probate court of Hancock county, to which forum plaintiffs must take their contention if they desire to have it adjudicated by a competent tribunal.

The demurrer to the amended petition is not allowed. There will be a finding for defendant Leon on the pleadings, and the petition dismissed. The plaintiffs are directed to pay all costs.

Geo. H. Phelps, for Plaintiffs.

Ross & Kinder, Pendleton & Whiteley, for Defendants.

Meissner v. Meissner,

ALIMONY.

[Lucas Circuit Court, September Term, 1895.]

Haynes, Scribner and King, JJ.

† MEISSNER v. MEISSNER.

1. POWER OF THE COURTS TO MODIFY A DECREE OF ALIMONY.

It seems to be the established doctrine in this state, that so far as a decree of alimony is concerned, the courts have power, not to change the original order upon the facts that existed at the time the order was made, but to modify it upon any changed conditions occurring after the original decree, which would authorize the court to interfere.

2 COURSE TO Pursue in Modifying a DECREE OF ALIMONY.

The proper course for a party to take, who seeks to have an alimony decree modified, is to file his petition in the common pleas court, in which he asks to have the decree modified for reasons that have arisen since the rendition of the original decree, and such party must join all the proper parties to such proceeding and have the case heard in the common pleas court.

APPEAL from the Court of Common Pleas of Lucas county.

HAYNES, J.

Mrs. Anna Meissner has filed a petition for divorce and alimony against Adam Meissner in the court of common pleas, and a divorce was granted and alimony was allowed, and thereupon the defendant, Adam Meissner appealed to the circuit court upon the question of alimony. The matter came up in the circuit court upon application for alimony pendente lite, and alimony was allowed. Afterwards a final judgment entry was made by consent of the parties, which was substantially the same entry as that made in regard to alimony by the court of common pleas. The substance of it was that the plaintiff was to have allowed her $1,500 in alimony, payable in installments at certain times. Subsequently Anna Meissner died, leaving a portion of the alimony unpaid, and it is claimed that she has assigned that alimony to her daughter, Emma Bergman. Now the defendant, Adam Meissner, comes into court by his attorney, and moves to redocket the case, and to have Emma Bergman made a party to the suit, to the end that he may have modification of the original decree. The motion reads:

"Now comes the defendant, by James E. Pilliod, his attorney, aud moves the court for leave to file a supplemental answer and cross-petition in said cause, and to make one Emma Bergman party to said cause."

The motion brings up an interesting question of practice. We have heard counsel upon the subject, and we have ourselves given the matter quite full attention. Counsel for the motion cited several cases in Ohio in regard to the rights of the parties, to wit: 15 Ohio St., 427; 28 Ohio St., 596; 43 Ohio St., 499; 45 Ohio St., 462; 38 Ohio St., 370; and it seems to be the established doctrine in this state, that so far as a decree of alimony is concerned, the courts have power, not to change the original order upon the facts that existed at the time the order was made, but to modify it upon any changed conditions occurring after the original decree, which would authorize the court to interfere. The query is, how shall the question be raised? In this case the decree was entered here, and a mandate was issued to the court of common pleas to carry that decree into effect. Counsel for plaintiff assumes that this matter is one in + See also ante, 225.

5 C. C. 20

Lucas Circuit Court.

which this court has a continuing jurisdiction, and that he has a right to come in by motion, and ask to have the case reinstated, and a right to file his answer or cross-petition in this court, to have this court modify its original decree. On the other hand, it is contended that if any action can be taken, it must be by a pleading filed in the court of common pleas— an original petition-for the modifying of that decree for reasons that have arisen since the trial of the case in this court.

We think, upon a full discussion of the question, that the better opinion is that the defendant ought to file his petition in the court of common pleas, make the proper parties, and have the case heard there; but we have concluded in order to save the rights of the parties and that no injustice may be done by reason of any action of our own, to grant the motion to redocket the cause, and to file an answer and cross-petition making Emma Bergman a party, but with the statement that we shall not hear the cross-petition or act upon it until such time as he has filed a petition in the court of common pleas, and pressed the case to final conclusion. If it then shall appear by the decision in that case that that is not the proper course to pursue, and that the hearing should be had in the circuit court, then we will be prepared to take up and dispose of the cross-petition in this court.

We do not pass, of course, upon any suggestion that has been made as to the advisability or the propriety of making any change whatever in this decree. We did not hear any evidence upon that question, and it is not adjudicated.

J. E. Pilliod, for Plaintiff in Error.

Kinney & Newton, for Defendants in Error

UNLIQUIDATED ACCOUNT-INTEREST.
[Lucas Circuit Court, September Term, 1895.]

Haynes, Scribner and King, JJ.

THE HOPPE & STRUB BOTTLING Co. v. SACKS.

REFUSING TO Accept a Smaller Sum in FULL SATISFACTION OF A CLAIM. Where a debtor offers his creditor a less sum than the latter claims is due him and which he is asked to accept and give a receipt in full for the amount claimed by him and for all claims that he had upon the former, all of which the latter refused to do, and the jury in a trial subsequently had, find that such creditor is entitled to a larger sum than that offered him: Held, that such creditor would be entitled to such larger sum, together with interest on the same from the time that his original claim became due.

ERROR to the Court of Common Pleas of Lucas county.

HAYNES, J.

A petition in error is filed in this case for the purpose of reversing the judgment of the court of common pleas and to set aside a verdict which was rendered in that case in favor of Casper Sacks against the Bottling Co. There are quite a large number of errors assigned in the petition in error and quite a large number of grounds in the motion for a new trial, why the verdict should be set aside, and why the judgment should be reversed.