Cleveland morning leader. [volume] (Cleveland [Ohio]) 1854-1865, 1858-12-28
supreme Court of Ohio.

THURSDAY, Dec 3D. 1903.
No. 49, Elijah BocOck and others vs. Henry
s. Pavey and others. In Chancery. Reserved
in Fayette county
SUTLIFF, J., delivered the opinion Of the
Court.
In the year 1916, A, and B , his wife, being
seized in fee of lands in Ohio, executed power
of attorney in Virginia, acknowledged by A
but not by B., empowering G. to sell said lands.
In 1918 c. duly executed power of attorney
to ID. to sell these lands. In 1919 D., under
this power of attorney from c., made written
contract of sale of the lands to E and received
his obligations, with security, for the purchase
money. A. accepted the contract and ob1iga-
tions, and in 1920, received more than half the
purchase money, and gave possession. F. hav-
ing an equitable interest in the lands in 1922,
instead OF taking decree for the lands, as he
might have done, finding them sold at high
price, procured the Court to enter decree in
his favor, for money, against A. and B based
upon the price and fact of q valid sale to E.,
and afterwards told G the trustee of E., to pay
up the purchase money, and that his title, under
the contract, would be good. In 1929 Z. died,
having made valuable improvements. In 1880,
F., upon execution on his judgment, bought in
the lands, but did not give notice to, or require
possession OF G , who continued to hold the
lands, and in 1887, paid the residue of the pur-
chase money, and, in 1910, got decree against
A. and B. for the title. Held:
lst That the power of attorney from A.
and B. was not obligatory upon B., not being
acknowledged by her.
%. The contract made by D. was not, when
made, obligatory upon A, c. having no power
to delegate his authority; but the contract be-
came obligatory upon A. by his acts under it.
Sd. That after the decree of 1910, F. held the
title acquired at the sale on his judgment, in
trust for G. or the heirs of E., and that F. was
in equity, estOpped from asserting said title
against the title acquired by G. under the decree
of IS4O.
No. 25. G. W Norton, vs. Edward NC
Cleary. In error to the District Court OF Lucas
county.
Scott, J. delivered the opinion of the Court.
Held l. The right of appeal to the District
Court, from final judgments of the Common
Pleas, in civil cases, in which the Common
Pleas has original jurisdiction, extends only to
cases in which that Court had actual original
jurisdiction; and not to suits brought originally
before a Justice of the Peace, and appealed to
the Common Pleas, although falling within the
class of cases in which concurrent original ju-
risdiction with Justices of the Peace is given to
the Common Pleas.
2. That the act of May l, 1854, to extend
the jurisdiction of justices of the peace in civil
cases." DC, is not unconstitutional, although it
makes no provision for the trial by a jury of
twelve men, of actions commenced in virtue oe
such extended Jurisdiction.
3. Where case is dismissed for want of ju-
risdiction Of the subject matter, the court can
only strike the case from the docket, and can
render no judgment for costs.
f. Where, in such case, the court errone-
lr A.. j..
against each party for his own costs, such judg-
ments and the proceedings to reverse them are
er paTte in their character; and the statutory
provision as to costs upon reversal in error does
not apply. The statutory rule (Cods, sec. 527,)
mnst be held to apply only to proceedings of
an adversary character, and such judg nsnts
will, therefore, only be reversed at the costs of
the plaintiff in error.
No. 80. E. Sturges ct al vs. Marshall Bur-
ton ct. al. On error District Court of Erie
county.
J. R. Swan, j., delivered the opinion of the
Court
l. When the plaintiff has but one cause of
action, the facts cannot be subdiyided, so as to
present, fctitiously, as might have been done
under common law pleading, two or more causes
Of action.
2. When one cause of action is set forth in
two counts, as at common law, the Court may,
on motion Of the defendant, require the plaintiff
to elect upon which count he will proceed.
3. Where 1t appears, on the face of the petit
ton, that the cause of action accrued at such
period, that under the statute of limitations, no
action can be brought, the defendant may de-
muir to the petition, on the ground that the pc
tition does not state facts sufient to constitute
cause of action. But if the objection does not
appear on the face of the petition, and the an
swer does not set up the limitation, it must be
deemed waived.
a. The following provision in the charter of
the Bank of Sandusky makes the directors of
the Bank personally liable to an action of debt,
at the suit of any creditor, for penalty, meas
ured by the amount of the ereess therein men
toned