the rights of the parent organization to the property involved in this controversy; nor do the facts justify the court in decreeing a dissolution of Klan No. 27 and distributing its funds and property.

We also agree with the finding of the lower court that:

"There were on September 18, 1926, about 4,300 members of Summit County Klan, and that, assuming there were at the meeting 3,500 who assented to the action taken, there still remained about 800 members not participating or giving their assent.

"Now, considering the nature of the organization, being composed of a voluntary membership accepted as individuals, and with the right to remain or withdraw as individuals, and having individually assented to the provisions of the charter and so accepted same, can a majority disband the organization, leaving a remaining membership of about 800, not actually assenting, without standing as members, and without an organization? I do not think so. No such conditions attach to the granting of the charter as to empower a majority to cancel it, or surrender it. The charter itself contains no such condition or authority. No doubt in many matters the majority may control the action of the klan. But the majority may not say to the minority you cannot longer be klansmen under the existing charter, and if you wish to continue to be klansmen, you must apply for and obtain a new charter, and form a new society or organization. Clearly such is in contravention of the scheme and plan on which the order is based and conducted. It is contrary in principle and practice to the method of existence and operation of all similar bodies or societies. It is my judgment that the action of September 18, 1926, did not effect a disbandment of the klan."

This, then, brings us down to the crux of the controversy, and that is, What was the legal effect of the resolution as passed by members on the evening of September 18,

1926?

The resolution by its terms designated and appointed "the Protestant Service League,” a corporation not for profit and not connected with the local klan, with its principal place of business in Akron, trustee of all of the funds and property of Klan No. 27 for a period of six months, with the power to dispose of the income during such time for charitable purposes, and then it attempts to authorize two members to dispose of all of the principal of this fund as directed by 40 per cent. of the members present at the meeting on Sep tember 18, 1926.

This resolution, as a matter of law, constituted the league a trustee for Klan No. 27, with the implied power in the klan to cancel

or recall the trust thus created and to require the property to be returned to the real owners upon demand.

The attempted grant of power of disposition of the principal of this trust property, which continued to belong to the organization as such and not to its members, to "40 per cent. of those present at this meeting," was of no effect, as those present could not affect the power of the members in good standing, at a subsequent meeting, to dispose of klan property in accordance with the rules and regulations of the order; nor could they transfer the power to handle and control the klan property to others than the regular officers of the klan and the members in good standing at the time the disposition was attempted to be made.

Approximately four-fifths of the members voted to surrender the charter and to transfer possession of the property to trustees for the purpose of having it turned over to a new organization then being formed by the said four-fifths; they did send the charter back, and they did transfer possession of the property, and they have since taken no part as members of Klan No. 27 and are not now claiming to be such members. They had a right voluntarily to withdraw and cease to be members, and the court must find that they did so. They could withdraw singly or collectively, but they could not take with them any of the property, whether they left individually or collectively.

We are therefore unanimously of the opinion that the action of September 18, 1926, was ineffectual to deprive Klan No. 27 of the title to the property which was transferred to the Protestant Service League, as trustee, and that said klan has the right to have said property now returned to it; it having exercised its undoubted legal right to terminate the trust made voluntarily for its own benefit.

We do not make any finding as to the parent organization, as it is not in court and of course is not making any claims of any kind.

The plaintiffs not being entitled to the relief prayed for, their petition is dismissed, and an order may be drawn in accordance with the prayer of the cross-petition of Klan No. 27, directing all of said property to be returned to the proper officers of Summit County Klan No. 27, and they are ordered to give their receipt therefor.

Decree accordingly.

WASHBURN, P. J., and FUNK and PARDEE, JJ., concur.

BALIND v. LANIGAN.

(159 Ν.Ε.)

Court of Appeals of Ohio, Cuyahoga County.

1. Judgment

Dec. 6, 1926.

143(14)-Absence of defend ant's lawyer on business out of town on day of trial held insufficient to vacate default.

Absence of defendant's lawyer because he had some business out of town on day of trial held insufficient reason for motion to vacate default.

2. Judgment 163-Motion for rehearing of motion to vacate default, filed after court had lost jurisdiction, held ineffectual.

Where motion to vacate default was overruled on May 19, 1925, motion for rehearing, filed on June 30, long after court had lost jurisdiction, was ineffectual.

3. Judgment143(14)-Setting aside default because defendant's counsel was out of town at time of trial held abuse of discretion (Gen. Code, §§ 11636, 11637).

Where default was rendered April 10, 1924, and motion to vacate judgment was filed on April 25, 1925, and overruled on May 19, 1925, order of trial court in October, 1925, under Gen. Code, §§ 11636, 11637, on rehearing of motion vacating judgment because defendant's attorney was out of town on other business at time of trial, held abuse of discretion.

Action by David Balind against Albert V. Lanigan, doing business as the East Side Coal Company. Default judgment for plaintiff was vacated, and plaintiff brings error. Reversed and remanded.- [By Editorial Staff.]

Rocker & Schwartz, of Cleveland, for plaintiff in error.

James T. Cassidy, of Cleveland, for defendant in error.

VICKERY, J. This action comes into this court on a petition in error to the common pleas court of Cuyahoga county.

In the court below the plaintiff in error, David Balind, was plaintiff and brought his action against the defendant in error, who was defendant, to recover a judgment for personal injuries growing out of an automobile accident. Service was duly had upon the defendant, who in due course and with in the rule filed an answer, which purported to set up a defense. Subsequently in the regular order of the trial of cases this suit came on the assignment list and was ultimately sent into a room. The plaintiff with his witnesses was present, ready to proceed to impanel the jury and try the case. Neither the defendant nor his counsel put in an appearance. The court having waited one hour for the defendant or his counsel to put in an appearance, and they not doing so, the plaintiff then waived his right to a trial by

jury, and the court heard the evidence and rendered a judgment for the plaintiff in the sum of $5,000.

This was on the 10th of April, 1924. On the 25th of April, during the same term, the defendant, through his counsel, filed a motion to vacate the judgment, a judgment having been entered prior thereto. The reason set up in the motion does not, in our judgment, amount to such a casualty as would warrant the court in setting aside the default judgment, but, however that may be, nothing further was done with this motion than to refer it to the trial judge, as is shown by the docket entries and the transcript. For some reason this motion was not called up by the party, nor acted upon, until the 19th day of May, 1925, about 13 months after the motion to vacate was filed. On the 19th of May, 1925, the court overruled this motion. Nothing further was done until the 30th day of June, 1925, 41 days after the overruling of the motion to vacate, and then a motion for a rehearing was filed. Nothing was done then until the September term of court, when, on the 20th day of October, during the September term, 1925, the court granted a motion for a rehearing; and at the same time the entry of May 19, 1925, was vacated and the motion to vacate the default judgment, filed on April 25, 1924, was granted. This was done, as the record shows, without any hearing of evidence to show whether there was a proper defense or not. Exception was taken and error prosecuted to the ruling of the court, and that is how the case gets into this court.

[1] The record is silent as to what, if any, defense there was other than is contained in the answer, which, it must be remembered, was on file at the time the court heard this case and found for the plaintiff. In our judgment there was no sufficient reason advanced in the supporting affidavit for the motion to vacate the judgment to justify the court in granting this motion, as what was set forth was not a thing such as to induce courts to set aside a solemn judgment obtained by a party in the regular way, without any deceit or overreaching.

It seems that the lawyer went out of town, and that he had asked a subordinate in his office to see that his name was substituted for the name of the lawyer that was to have defended the suit. He admits in the affidavit that at least a slip had been put in once at his request for a continuance of this case and that there had been a telephone communication with him and the lawyer on the other side. The sole reason was that he had some business out of town that day, and so went out of town and was not in court when his case was called.

We recognize the right of the court to have control of its docket during the term, and

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we have gone as far as any court in sustaining that doctrine. If the motion on April 25th was filed, and was based upon a sufficient reason, which would give the court a right to act under the motion, and that motion was filed during the term, even if it was not acted upon until several terms thereafter, and at the hearing a proper defense was offered and the court had decided that there was a defense, then, we think everything would be regular, and the court would have jurisdiction over the matter to render such judgment as he did render finally in this lawsuit.

But a recitation of the dates again is important. April 10, 1924, the judgment was entered. April 25 the motion to vacate was filed. On May 19, 1925, that motion was overruled. Now for all intents and purposes that ended the court's jurisdiction over this matter, assuming it had jurisdiction up to that time.

[2] Now there was nothing filed, as shown by this transcript, until June 30, when a motion for a rehearing of the motion to vacate was filed. We know of no such procedure as this. There was a period of time, 41 days, where there was nothing pending in this court, and we think that a motion for a rehearing filed long after the court had lost jurisdiction was ineffectual and of no moment.

[3] Eliminating this motion for a rehearing, filed June 30, 1925, the next step is in October, when the order of the court over ruling the motion of May 19, 1925, was vacated, and then the court proceeded to vacate the judgment upon the motion that was filed on the 25th day of April, 1924. This, as the record shows, without evidence, without a sufficient reason why a judgment was taken in the manner that it was; that is, without a sufficient reason as to why the defendant was not present, we think is clearly beyond the power of the court, and it is an abuse of discretion to say the least. Now, remember that without the motion for a rehearing filed on the 30th of June, 1925, there was nothing pending, and the action of the court on October 20, 1925, related to transactions in some prior term, and they could not be reached by a motion, and the court could not, of his own motion, take such step because at least more than one term had elapsed between the entering of the judgment and the final action of the court.

We think a reading of the statutes (sections 11636 and 11637 of the General Code) marks out the power and method of the court in granting a motion such as the one in the instant case.

There is a case exactly in point, City of Cincinnati v. Archiable, reported in 21 Ohio Cir. Ct. R. (N. S.) at page 582, where the Court of Appeals of Hamilton county learnedly dis

cusses this question and comes to the same conclusion to which we have come, to wit, that it was without the power of the court to make this order vacating the judgment, and that to do so was an abuse of discretion, for which the judgment should be reversed.

The judgment of the court is reversed and the cause is remanded to the common pleas court for further proceedings according to law.

Judgment reversed, and cause remanded.
LEVINE, P. J., and SULLIVAN, J., concur.

BARROW v. McCANN et al.

Court of Appeals of Ohio, Lawrence County.
June 19, 1927.

1. Wills 211-Statute, requiring devisee to
probate will within three years after knowl-
edge thereof, prevents estate from passing to
negligent devisee (Gen. Code, § 10542).

Gen. Code, § 10542, providing that estate devised to devisee shall descend to heirs of testator, if devisee fails to probate will within three years after knowledge of its existence, does not provide for forfeiture of interest that has vested, but prevents any estate from passing to negligent devisee.

2. Wills 211-Devisee, failing to probate will in his possession within three years after testatrix's death, took nothing under will, and land passed to heirs (Gen. Code, § 10542).

Where devisee of land under will was in possession and control of will for more than three years after death of testatrix, but neglected to offer same for probate, as required by Gen. Code, § 10542, such devisee took nothing under the will, and land described therein passed to heirs.

Action for partition by Susan McCann Barrow against Simon McCann and others. Heard on appeal. Decree for plaintiff, and cause remanded to court of common pleas for execution.- [By Editorial Staff.]

Corn & Jenkins, of Ironton, for plaintiff. A. R. Johnson, of Ironton, for Margaret McCann's heirs.

Irish & Riley, of Ironton, for John McCann and others.

MAUCK, J. This is an action in partition, the land in question being that originally owned by Margaret McCann, who died March 19, 1886, testate. By her will the testatrix devised the land in question to John McCann. This will was not filed for probate with the probate court of Lawrence county until March 4, 1890, at which time that court found the will entitled to probate, but that the same had been in the possession and control of John McCann for more than three years after the death of the testatrix, and that John Mc

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(159 Ν.Ε.)

Cann, with full knowledge of the will, had during that period neglected to offer the same for probate. The question now raised is whether under these admitted facts the will of Margaret McCann vested in John McCann any title to the property in question.

Section 10542, General Code, reads:

"No lands, tenements, or hereditaments, shall pass to any devisee in a will, who for three years knows of its existence and has it in his power to control it, unless, within that time, he causes it to be offered for, or admitted to, probate. By such neglect, the estate devised to such devisee shall descend to the heirs of the

testator."

which the will may attempt to devise to her; but the long delay in offering the will for probate does not prejudice the rights of others to whom property is devised by the will if they have not been personally derelict in respect to such delay."

[2] We find, accordingly, that John McCann took nothing under the will of Margaret McCann and that the land described in the petition passed to her heirs.

A decree in partition may be entered in accordance herewith, a motion for a new trial will be overruled, and the cause remanded to the court of common pleas for execution. Decree accordingly.

CUSHING and MIDDLETON, JJ., concur. CUSHING, J., of the Fifth District sitting in the place of SAYRE, P. J.

[1] This statute has received scant judicial consideration. In Loos v. Buffalo-Springfield Rubber Co., 32 Ohio App. 443, the Court of Appeals of the Fifth District held that the effect of the statute was to prevent a devise from becoming operative, so far as vesting title to real estate is concerned, where the devisee has by his neglect offended against the provisions of the statute referred to. The statute is clear, and, as we view it, clearly warrants the conclusion reached in the Loos Case. The terms of the statute do not provide for the forfeiture of an interest that has 1. Appeal and error 100, 1011(1)-Decivested, but, on the contrary, by its terms prevents any estate from passing to the negligent devisee. Mitchell v. Long, 9 Ohio N. P. (N. S.) 113, disapproved.

So far as we can ascertain Kansas is the only other state in which a like statute is to be found. Section 11785 of the General Statutes of that state is almost identical with our section 10542. The Supreme Court of that state has had this section under consideration three times. In Allen v. Allen, 28 Kan. 18, and in Chandler v. Richardson, 65 Kan. 152, 69 P. 168, the court held that the property involved in those two cases passed by virtue of the will because the devisee did not in fact withhold the will from probate, but in neither case did it intimate that any proceeding to forfeit would be required to determine that question. In Moore v. Samuelson, 107 Kan, 744, 193 P. 369, the court found that the will of Charles Samuelson was not. of fered for probate until three years, three months, and eighteen days after his death, and that during that time it was under the power and control of his wife, Christine. The court concluded:

"In view of this statute, Christine, the mother, could not acquire any interest in her husband's property under the will."

The syllabus prepared by the court is as follows:

"A person who has knowledge of the existence of a will and has it under her power and control for over three years after the death of the testator and who fails to offer it for probate within that time loses any rights of property

CLEVELAND AKRON BAG CO. v. RODATT.
Court of Appeals of Ohio. Cuyahoga County.
Νον. 16, 1926.

sion of court or jury on conflicting evidence must be against weight of evidence before reviewing court will disturb It.

A decision of the court or jury on conflicting evidence must be clearly and overwhelmingly against weight of evidence before reviewing court is warranted in disturbing it.

2. Master and servant 412-Trial court's finding that minor had not made "election," under Compensation Act, held not reviewable as against weight of evidence (Workmen's Compensation Act).

Trial court's finding that there was no "election," meaning a choice, by minor 17 years of age, who signed application for compensation under the Workmen's Compensation Act (Gen. Code, § 1465-37 et seq.), two days after very serious injury, and without explanation that he had legal right to sue for the injury, held not so manifestly against weight of evidence that reviewing court is warranted in disturbing it.

.

Action by Edward Rodatt, a minor, etc., against the Cleveland Akron Bag Company. Judgment for plaintiff, and defendant brings error. Affirmed.-[By Editorial Staff.]

G. A. Boone, of Cleveland, for plaintiff in

error.

Payer, Winch, Minshall & Karch, of Cleveland, for defendant in error.

VICKERY, J. This cause comes into this court on a petition in error to the common pleas court of Cuyahoga county.

Edward Rodatt, a minor of the age of 17 years, through his next friend, his father,

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