Bechtold v. Fisher. commencing an action; and the time fixed is very much less than that directed by plaintiff in error and used by the sheriff. Section 4988, Revised Statutes, provides: "An attempt to commence an action, shall be deemed equivalent to the commencement thereof within the meaning of this chapter, when the party diligently endeavors to procure a service; but such attempt must be followed by service within sixty days." If a good faith attempt to commence an action is made and is followed by service of summons within sixty days, an action is, in law, commenced, and the bar of the statute defeated. This provision is quite liberal, to parties who are in good faith and diligent in endeavoring to procure service so as to have a case pending, and makes it possible, by such exercise of diligence and good faith, to extend the time of the running of the statute of limitations nearly two months. The law always invariably rewards the vigilant and diligent man; but it has no favors for the negligent and dilatory one. Applying the provisions of the two sections named, 4987-8, to the facts appearing here, we find the service of the summons ineffectual. The facts show an attempt to commence an action in error on the 6th of June, 1896, by the filing of a petition, and the issuing of a summons; but that attempt is not to be regarded as equivalent to a commencement of an action, for the reason the party did not diligently endeavor to procure service, and did not procure service within sixty days, as the law requires. On the contrary, the plaintiff was amiable and complacent, and so much at leisure in proceeding in the premises that ample time was afforded the limitations statute to fully finish its running and interpose its bar, before even an attempt was made to secure service of the summons. The conclusion seems inevitable. There was no such service of summons as the law regards sufficient to cause the case to be pending in the circuit court. The service was ineffectual in law, and is quashed. The question raised is not a new one, but has been noticed by the supreme court a number of times, notably in the 36 Ohio St., 312, where it is held on somewhat similar facts, that a motion to strike the case from the docket is the proper mode of procedure, and should be sustained. Following this indication, counsel for defendant in error may file a formal motion to dismiss the action, and, treating it as filed, the motion is sus tained, and the petition dismissed. Enos & Johnson, for Plaintiff in Error. Harris & Cameron, for Defendant in Error. Hamilton Circuit Court. BILL OF EXCEPTIONS-JUDGMENT. [Hamilton Circuit Court, February, 1893.] REUHL V. SPERRY & MASSET. FAILURE OF BILL OF EXCEPTIONS TO CONTAIN ALL THE EVIDENCE. A reviewing court will be warranted in reversing the judgment of the lower court when the bill of exceptions fails to contain all the evidence and when it appears that the verdict, so far as the amount of the judgment is con. cerned, is not supported by the evidence appearing in such bill of exceptions. ERROR. SMITH, J. The only question in this case is, whether the court of common pleas erred in refusing to grant a new trial based on the ground that the verdict was not supported by the evidence. The controversy in the case was as to the amount of excavation done by the plaintiff below for the defendant in making additional excavation in a cellar, and building a wall therefor. Reuhl had contracted with Weiber & Lieman to build a house for him, the cellar of which was to be seven feet deep, and to be walled in a certain way by the contractors. Reuhl, however, was to have the option of having the cellar go deeper if necessary, in which event he was to pay a certain sum per yard for the additional excavation, and a certain sum per perch for the additional wall. It was found necessary to go deeper than seven feet, and this required additional wall, and the claim is that Reuhl agreed directly with Sperry & Masset to do this at the agreed price, and they did so. They differed as to the quantity of this additional excavation and stone work, and Reuhl, having paid what he admitted to be due therefor, Sperry & Masset sued for the additional sum they claimed to be due. To maintain their case, the plaintiffs offered evidence tending to show that after the completion of the work, that by a measurement made by them from the curb on the street in front of the lot on which the house was built, the depth of the excavation below that point was a given distance, and that on this basis the excavation was so much below the depth of seven feet, originally provided for, and consequently that so much additional wall was built. The measurements made by the defendant from the surface of the ground to what was claimed to be the bottom of the wall, should make less excavation and wall. The jury adopted the measurement of the plaintiffs, and returned a verdict accordingly. As suggested by us at the argument of the case, we have not, though aided by counsel, been able to find anything in the bill of exceptions (which contains all of the evidence), which tends to show the relative position of the curb with the surface of the ground on which the excava tion was made, or anything whatever to show that it should be taken as a point from which the measurement should be made to ascertain the amount of the extra excavation or wall, or that it had anything to do with it. For all that appears, the surface of the lot there may have been sev eral feet below this curb. There was then no evidence to support the verdict so far as the amount of it was concerned, and the motion for a new trial should have been granted. For the error in refusing it the judg ment must be reversed. J. H. Chas. Smith, for Plaintiff in Error. Search, Adm'r, v. Pence, Adm'r. APPEAL. [Miami Circuit Court, October Term, 1893.] *SEARCH, ADM 'R, V. PENCE, ADM'R. WHEN CASE COMES TO CIRCUIT COURT BY APPEAL, HOW TRIED— When a case comes to the circuit court by appeal it must be tried upon the pleadings as they stood when the trial was had and judgment rendered in the court below, unless the court permits or orders other pleadings or amend ments to be filed. Hence when an answer was filed containing four defenses, to three of which a general demurrer was sustained and the parties afterwards went to trial upon the issues made by the remaining defense and the reply thereto, and a decree was rendered in favor of the plaintiff, and defendant appealed, the appeal must be conducted upon the latter issue. ON APPEAL from the Court of Common Pleas of Miami county. BY THE COURT. We are now asked to hear counsel upon the demurrer to the three defenses which was passed upon by the court below. This is not proper practice in this court. The manner of conducting trials in this court is prescribed by Revised Statutes, section 5225, as follows: "The trial therein shall be conducted in the same manner as in the common pleas court, and upon the same pleadings, unless amendments are permitted or ordered by the court." The terms of this statute are plain and must mean that when a case comes into this court by appeal it must be tried upon the pleadings as they stood when the trial was had and judgment rendered in the court below, and that the appeal suspends that judgment only. Our attention has been called to the case of Wanzer v. Self, 30 Ohio St., 378, the first proposition in the syllabus of which is as follows: "Where an appeal is taken from a final judgment in an action, to one count of which a demurrer is sustained and the others tried on issues of fact, the appeal vacates the ruling on the demurrer, as well as the final judgment, and the appellate court may try again the question of law made by the demurrer, and also the other issues made by the pleadings in the case." While this case seems to sustain the views of counsel as to the proper practice in this court, it is not clear but what all the rulings were made at one time and the case must be considered in connection with the statutes in force at that time. Day, chief judge, in his opinion gives two reasons for the holding, first, because "the appeal vacated the findings and judgments of the court below on all the issues of law and fact made by the pleadings in the case." He cites no authority in support of that proposition, and the statute in force at that time provided only that when an appeal was granted and bond given "the judgment or decree rendered in such case in the court below shall thereby be suspended." 2 S. & C., 1168. But whatever may be said of that reason in view of the provisions of the statute, the other reason given, also founded on the statute, seems to us to show why this case cannot be authoritative in the decision of the case at bar. That is, that the statute then provided that, "the action so appealed shall be again tried, heard and decided in the district court, in the same manner as though such district court had original jurisdiction of the action." S. & S., 489. This the court held *Affirmed by Supreme Court, unreported, 54 O. S., 641. 5 C. C. 44. Hamilton Circuit Court. to mean that on appeal every step from the beginning of the case could be re-heard exactly as if the action had been originally commenced in the district court. There was in force at that time another provision of the statutes which the court did not refer to, and therefore we may assume did not regard as bearing upon the question, which is as follows: "That when any cause is removed by appeal into the district court, the appeal shall be tried on the pleadings made up in the court below, unless, for good cause shown, the said court shall permit either or both parties to alter their pleadings, in which case such court shall lay the parties. under such equitable rules and restrictions as they may conceive necessary to prevent delay." 2 S. & C., 1169. In 1878 the section of the statute last quoted, and the one found at S. & S., 789, supra, were combined in one section (75 Ohio Laws, 648), which afterwards received the sectional numbering 5225. While this change was made at the time of the revision of the statutes, we think it is apparent from the elimination of one provision of the then existing statute and the retention of the other, that the legislature intended to change the rule of practice laid down in Wanzer v. Self supra, by striking out the provision which is referred to in the opinion in that case as controlling the decision. Of course if the only issues made in a case were issues of law and judgment was rendered upon such issues, upon appeal the case would stand for trial in this court upon such issues. Rush v. Rush, 29 Ohio St., 440. Nor does this statement or the practice under it prevent or prohibit any party who is in default for a pleading in the court below from obtaining leave in a proper case to file such pleading after appeal perfected. It follows then that the only pleadings in this case in this court are the petition, the answer as amended after the sustaining of the demurrer, and the reply thereto, and unless the parties desire leave to amend, the cause must proceed to trial upon the issue so made. Johnston & Johnston and Davis & Hoskins, for Plaintiff. EVIDENCE-EXCEPTIONS. [Hamilton Circuit Court, January, 1896.] Smith, Swing and Cox, JJ. * C. & H. Turnpike Co. v. Hester. ADMISSION OF INCOMPETENT EVIDENCE. It is not error for a court to allow a witness to answer a question which calls for the personal knowledge of such witness on the subject, without first requiring a preliminary examination of the witness to be made as to her knowledge and ability to answer such question, the defendant not having excepted to the introduction of such evidence. *This case was taken to the Supreme Court on error, and on May 16, 1893, the judgment of the circuit court was affirmed without report. EXCEPTION Too General. Turnpike Co. v. Heste::. It is the rule in this state that a general exception to the reversal of the court to give to the jury the whole of a series of propositions will not avail where one of the propositions is unsound. ERROR to the Court of Common Pleas of Hamilton county. SMITH, J. It is claimed that the court of common pleas erred in its rulings as to the admission of evidence; in the charge given to the jury; in refusing to charge as requested by piaintiff in error, and in overruling a motion made for a non-suit and for a new trial. We notice, briefly, in this order, such matters as were insisted upon and called to our attention at the argument of the case. First. It is said that the court erred in allowing the counsel for the plaintiff below to ask his client, while she was being examined as a witness, the amount that her husband was making a year, at the time of his death, and in answer to which she said, "about $1,500.00." The question called for the personal knowledge of the witness on the subject. She might have been able to answer fully and completely. If it had been objected by the attorney of the defendant at the time, that it did not appear how the witness could know this, the court would doubtless have permitted him to make a preliminary examination of the witness, as to her knowledge and ability to answer the question, and if her answer was founded on hearsay, or was mere guessing, she would have not been qualified to speak. This course was not adopted by the defendant's counsel, but he proceeded to cross-examine the witness on the point, and made no further exception to her evidence. We see no error in the action of the court in this behalf. Second. It is further claimed that the court in the charge to the jury, in effect withdrew from its consideration a large amount of evidence, offered by both parties, and which was entirely competent. Testimony had, in fact, been so received as to the experience of persons traveling this turnpike road, with teams and vehicles, while passing the place where the deceased met his death, while it was in substantially the same condition as at the time of the accident, and showing how the attention of such parties had been called to the obstruction in question; and this was admitted without objection. The plaintiff, in addition to this, however, sought to show by the testimony of Mr. Reemelin and a Mr. Johnson, what happened to them severally when each was driving. along the turnpike at this point. To this the attorney for the defendant objected, and the court having allowed the evidence to be given, exception was duly taken. Just after the noon recess of that day, however, the judge instructed the jury that he had been wrong in his prior ruling; that the evidence so objected to was incompetent, and must be disregarded by them, and further stated that if counsel would call his attention to it, he would in his charge to the jury specially instruct them to disregard it. This he did. But it is urged that the language then used was so broad and indefinite in its character that the jury might well have supposed that thereby the court excluded all the evidence as to the experience of other parties at that point, though received without objection. But we are of the opinion that the fair interpretation of the language is that it referred only to the evidence which had once been received and |