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ditor, and not the method of appraisement of the probate judge, must be adopted. In other words, section 5341 is applicable to the instant case instead of section 5342.

5. Trial 259(1)—Trial judge must give written request of law before argument, if it is applicable to issuable facts and proof. Written request of law must be given by

Having come to this conclusion, we think trial judge before argument, if it contains law the judgment should be affirmed. pertinent to issuable facts and proof.

Judgment affirmed.

SULLIVAN, P. J., and LEVINE, J., con


(27 Ohio App. 119)


Court of Appeals of Ohio, Tuscarawas County. July 26, 1927.

1. Jury

132-Refusing examination to determine whether physician or insurance company was actual party in interest so plaintiff could ascertain whether jurors were interested in company held not error (Gen. Code, §§ 1143711439).

In action against physician for alleged negligence in deserting patient dangerously ill, refusal to permit plaintiff to examine physician and other witnesses before jury was called to ascertain whether defendant or some insurance company was actual party in interest, in order that it could be determined in examination of jurors, if jurors were interested in such company, held not error, under Gen. Code, §§ 1143711439, providing rules for impaneling jury and testing qualifications.

2. Jury 131(13)-Proper place to examine prospective juror is on voir dire, and mode of examination or questions cannot be based on previous inquest before trial judge.

Proper place to make inquiry of prospective juror is on his voir dire examination, and mode of examination or questions to be propounded cannot be based on previous inquest had before trial judge prior thereto.

3. Physicians and surgeons

18(7)-In action for abandoning patient ill from appendicitis operation, physician's testimony negativing negligence held admissible.

In action against physician for negligently abandoning patient ill from appendicitis operation, admission of physician's testimony in support of his claim that he was not guilty of actionable negligence held proper; evidence being clearly pertinent to issues raised.

4. Trial 248-Refusal of written request be fore argument, stating physician's duty to patient, but not conforming to facts, held not error, in action against physician.

In action against physician for negligently abandoning patient critically ill following appendicitis operation, refusal to give written request before argument as to duty physician owed patient in case he desired to leave his practice temporarily held not error, where charge was foreign to proven facts.

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Action by Byron Bartolas, as administrator of the estate of Lewis Bartolas, deceased, against H. A. Coleman. Judgment for defendant, and plaintiff brings error. Affirmed. -[By Editorial Staff.]

Stafford & O'Donnell, of New Philadelphia, for plaintiff in error.

Bowers & Bowers, of New Philadelphia, for defendant in error.

HOUCK, J. Counsel for plaintiff below, Byron Bartolas, administrator, base their claim for recovery upon the neglect of the defendant, who is a practising physician and surgeon, to properly care for his patient, the decedent, and for alleged abandonment of him, as a result of which plaintiff prays in his petition for a judgment against defendant for damages in the amount of $20,000. The jury returned a verdict for defendant.

On or about June 8, 1925, plaintiff's decedent was taken seriously ill, and the defendant, who is a practising physician and surgeon, was employed to perform an operation upon him, and to take charge of the case. The patient was a little boy, aged six years. A surgical operation was performed at the Union Hospital by the defendant in error, removing the appendix from the decedent.

The record discloses that it was a very serious case; a large amount of pus having gathered in the abdominal cavity, and peritonitis having already set in prior to the operation. The record shows that the boy, while in a critical condition, was holding his own, and that the defendant visited him every morning regularly, and sometimes oftener, until the morning of the 16th of June, 1925, when defendant went to the hospital, saw the patient, and found that he was still holding his own although not out of danger.

About 10 o'clock the same day the defendant went to the city of Cleveland, intending to return that evening, but met with an accident to his car, and was compelled to have it hauled to the garage, being assured by the man in charge that the car would be ready by 6 o'clock that evening. He went back to the garage at 6 o'clock, and found that the car had not been repaired, and that he would be unable to return in his car. He then called his wife by phone, who lived in New Philadelphia, Ohio, and arranged with her that, if word came that the patient was worse, or there was any change for the worse,

(161 N.E.)

she should call Dr. Shaweker at once, and have him take charge of the case. He later mounted a street car, intending to get home by midnight, but found, after he was on the way, that the car would go no farther than Akron, and that it would be difficult, if possible at all, to get to New Philadelphia, Ohio, until well on to the next morning. He returned to the city of Cleveland, and the next morning drove his car home. During his absence, the boy had departed this life.

The errors relied upon for a reversal of the judgment in the common pleas court are as follows:

(a) Refusal to permit plaintiff to examine the defendant and other witnesses, before the jury was called, to ascertain whether the defendant or some insurance company was the actual party in interest.

(b) Error in the admission of testimony on behalf of defendant.

(c) Refusal to give, in charge before argument, special request No. 1 which was in writing.

(d) Error in the general charge.

[1] 1. The first claimed error does not appeal to us as sound in reason or law. What greater right did plaintiff have to obtain in this more than in any other case advance information as to how to make inquiries of the qualifications of prospective jurors? Counsel say they had this right, for the reason that they wanted to ascertain from the defendant, and possibly other witnesses, if any of the jurors were interested in such insurance, or in any manner related to the local agent in the county.


[2] In sections 11437, 11438, and 11439, General Code, may be found the legislative rules for the impaneling of a jury and testing the qualifications, or lack of qualifications, of persons for duty on same. proper place to make inquiry of a prospective juror is on his voir dire examination, and the mode of his examination or the questions to be propounded to him cannot be based on a previous inquest had before the trial judge prior to, and in advance of, the examination of the juror on his voir dire.

It must be remembered that courts are inclined to, and do, give much latitude in de termining the qualifications of jurors as to their interest, as stockholders, policyholders, or otherwise, in liability insurance companies. Yet such in no wise extends the rule to the degree insisted on by the plaintiff here. We do not agree with plaintiff in error that any prejudicial error intervened in the impaneling of the jury or in the refusal of the court to permit counsel to examine defendant prior to the impaneling of the jury, as requested by them.

[3] 2. We have very carefully read the testimony on behalf of defendant, which plaintiff insists was erroneously admitted.

This testimony is in support of the claim of the defendant that he did not abandon his patient, and that he was not guilty of any actionable negligence on his part. This evidence was clearly pertinent to the issues raised by the pleadings, and was properly submitted to the jury for its consideration. [4] 3. Did the court err in refusing to give the following written request before argument:

"Ladies and gentlemen of the jury, I charge you as a matter of law that a physician has the right to leave temporarily his practice, if he makes provision for the attendance of a competent physician upon his patients. If he indicates who will attend him in his stead, no notifies a patient that he is going away, and neglect can be imputed to him, but a physician who leaves a patient in a critical stage of the disease without reason, or sufficient notice to enable the party to procure another medical attendant, is guilty of culpable dereliction of duty, and is liable to respond in damages."

[5] This needs little or no comment from the court, because it is so well known by judge and lawyer that a written request of law must be given by the trial judge, before argument, if it contains the law pertinent to the issuable facts and the proof. The charge under consideration was properly refused for the following reasons:

(a) While sound as to a particular state of facts, yet an examination of the proven facts clearly indicates that in several respects it is foreign to them.

(b) Several of the facts stated in the charge were not set forth in the pleadings, and no proof offered to establish same.

(c) The law as contained therein is not applicable to the case made in the record.

(d) The charge is not responsive either to the facts or law of the instant case.

4. Did the court below, in its general charge, err? It is urged that error has intervened with respect to the charge as to "proximate cause," "negligence," and "measure of damages." The general charge fully and completely covers each and every issue raised by

the pleadings and the evidence adduced. The issues were stated in a clear and plain language; the law as to proximate cause, negliplaintiff, if the jury so found, were fully, adegence, and the damages recoverable by the quately, and in concise language given to the jury. There is no room for complaint against the learned judge who sat in the trial, if the record is to be taken as our guide.

We are inclined to believe that it is not necessary for us to say more in this opinion. The facts presented to the jury for its solution were two in number:

First. Was the defendant, Coleman, negligent in any or all of the particulars set out in the petition?

Second. If negligent, was such the proximate cause of the injuries and damages to plaintiff, as claimed in his petition?

The jury returned a general verdict for the defendant. This court finds that under the facts, as contained in the bill of exceptions, the jury reached the proper conclusion. We have made, thus far, no citations of law. Nevertheless, we have examined many authorities in this and other states, and a number of them have been helpful to us in arriving at a judgment. It may be as refreshing to counsel as it was to the court to examine and read the following authorities: Gillette v. Tucker, 67 Ohio St. 106, 65 N. E. 865, 93 Am. St. Rep. 639; Palmer v. Humiston, 87 Ohio St. 401, 101 N. E. 283, 45 L. R. A. (N. S.) 640; Hier v. Stites, 91 Ohio St. 127, 110 N. E. 252; Bowers v. Santee, 99 Ohio St. 361, 124 N. E. 238; Manley v. Coleman, 19 Ohio App. 284; McAllister v. Hartzell, 60 Ohio St. 69, 53 N. E. 715; and Ochsner v. Cincinnati Traction Co., 107 Ohio St. 33, 140 N. E. 644. This court, under the record, is bound to affirm the judgment of the lower court. Judgment affirmed.

SHIELDS and LEMERT, JJ., concur.

(27 Ohio App. 116)

WEST SIDE MOTOR CO. v. POLITZ BROS. Court of Appeals of Ohio, Butler County. Oct. 31, 1927.

I. Attachment 14-Attachment based on claim for work, labor, material, and repairs on automobile, should be discharged as not complying with Code, which shall be strictly construed.

Attachment in justice of the peace court, based on single claim for work, labor, material, and repairs on automobile, should be discharged, since the Code provides for the right of attachment only on a claim for work and labor, which cannot be enlarged upon by the courts.

2. Attachment 2-Attachment proceeding requires strict construction of statutes. Attachment proceeding is summary and drastic procedure, and requires strict construction of statutes.

Action by the West Side Motor Company against Politz Bros., a partnership, etc. Motion to discharge attachment was overruled, and appeal was taken to the court of common pleas. To review a judgment there rendered. discharging the attachment, plaintiff brings error. Affirmed.-[By Editorial Staff.]

John A. Crist, of Middletown, for plaintiff in error.

Walter S. Harlan and H. L. Dell, both of Hamilton, for defendant in error.

HAMILTON, P. J. Plaintiff in error brought an action before the justice of the peace on an account for repairs and labor on an automobile, in the sum of $245. An attachment, based on the claim, was levied on the property of the defendant in error. Defendant in error moved to discharge the attachment, and, at the hearing, established the fact, and it was so admitted, that a large part of the bill was for materials furnished. Notwithstanding this fact, the justice of the peace overruled the motion to discharge the attachment. On appeal therefrom to the court of common pleas, the common pleas discharged the attachment. Error is prosecuted here from the judgment of the court of common pleas.

[1] The record and transcript of the evidence taken on the motion before the court of the justice of the peace is filed in the case, and discloses the fact that a large part of the claim was for materials furnished.

Plaintiff in error contends that the attachment should have been discharged as to the amount of the claim based on materials furnished, but held good as to the claim for work and labor.

Attorney for plaintiff in error states in his brief that he is unable to find any authorities on the question, and this court knows of none in the brief that reason and justice would involving the question presented. He argues support his claim, and suggests that, if a claimant had a large claim against a party for work and labor, and a mere nominal claim for material, an attachment, based on the statute authorizing an attachment for work or labor, should not fail because a small, insignificant part of the claim was for material. The reasoning does not establish a statutory right to enlarge the provisions of the statute. Conversely, it might be said that a person could have a claim for a very large sum for material furnished and a mere nominal sum for labor, and would thus succeed in tying up large amounts of property in endeavoring to enforce a settlement.

So that, we are left to the plain provisions of the Code for grounds for attachment, which cannot be enlarged upon.

[2] A proceeding in attachment is a summary, drastic procedure, and requires a strict construction of the Code. The Code provides for the right of attachment on a claim for work and labor. This attachment having been levied on a single claim for repairs, work, labor, and material, and such not being provided for in the statutes, we are of opinion that the court was correct in discharging the attachment, and that judgment will be affirmed.

Judgment affirmed.

MILLS and CUSHING, JJ., concur.

(2. uno App. 125)

(161 N.E.)


Court of Appeals of Ohio, Lucas County. Feb. 14, 1927.

Taxation 642-Decree foreclosing tax lien held nullity as to persons not shown or found to have been served with notice by publication (Gen. Code, § 11295).

Decree foreclosing lien for taxes held a nullity as to intervening defendants in suit to quiet title, where notice by publication contained no summary statement of object and prayer of petitions, as required by Gen. Code, § 11295, in that it did not describe or refer to land owned by such defendants, nor indicate that action concerned them, and decree found merely that service by publication was made on "large number of defendants and unknown heirs of deceased persons."

Action to quiet title by Millie Balsmeyer against Richard H. Lansdale and others, in which Matilda G. Campbell and others intervened as parties defendant. From a decree for interveners, plaintiff appeals. Petition dismissed, and title quieted in interveners.-[By Editorial Staff.]

Edward H. Ray, of Toledo, for plaintiff.
Ralph Emery, of Toledo, for defendants.

LLOYD, J. This action comes to this court on appeal by the plaintiff, Millie Balsmeyer, from a decree of the common pleas court of Lucas county, Ohio, quieting in the defendants, Matilda G. Campbell, Alice Campbell, and Julia Campbell, the title to all that part of the westerly one-half of the original lot 1 in section 24, township 6 north, range 9 east, which lies south of the canal in Waterville township, Lucas county, Ohio.

The facts, as they appear from the pleadings and from the evidence submitted, are that one James H. Campbell originally held the title to the land in question, and that whatever title, if any, the plaintiff or the defendants Campbell at any time acquired therein, is derived from and through the title so held by him; that the plaintiff claims to now own this land by virtue of a warranty deed therefor executed and delivered to her by one Jessie L. Reece, whose alleged title thereto was acquired by deeds therefor from one Delia R. Tucker, to whom the same was conveyed on December 6, 1913, by deed of the then sheriff of Lucas county, pursuant to a decree of the court of common pleas of Lucas county foreclosing a lien for unpaid taxes upon this and various other parcels of land in an action commenced and prosecuted for that purpose by the then treasurer of Lucas county.

The plaintiff, Millie Balsmeyer, in her petition claims to own and be in possession of the land thus alleged to have been acquired by her and seeks to have quieted her alleged title thereto, making a number of persons par

ties defendant, among whom are the original owner thereof, James H. Campbell, his wife, and the unknown heirs and devisees of said

James H. Campbell, service of process upon them having been sought by publication of notice in the Maumee Advance Era, a weekly newspaper published in Maumee, Lucas county, Ohio. While this publication was in progress, and before its completion Matilda G. Campbell, Alice Campbell, and Julia Camp. bell, on their motion, were made parties defendant to this action, and by leave of court therefor filed answers, and later by leave of court filed a second amended answer admitting certain of the facts pleaded by plaintiff in her petition, denying other statements made therein, and praying that the title to the land in question be quieted in them as the heirs at law of James H. Campbell, deceased, to which second amended answer the plaintiff filed no reply.

Whatever title the plaintiff has to the land in question was acquired by the sheriff's deed, to which reference has heretofore been made, and by the deeds subsequent thereto of Delia R. Tucker and Jessie L. Reece.

The plaintiff claims these deeds vest in her the title, and that she is entitled to have the same quieted as against each and all of the defendants. The defendants Campbell claim that the plaintiff never acquired any title to this land and has now no title or interest therein, because, they say, the decree of the common pleas court pursuant to which the deed of the sheriff was executed and delivered to Delia R. Tucker was a nullity, no service of process having been made upon the then owners thereof, the unknown heirs and devisees of James H. Campbell, who, it is now admitted, was at that time deceased.

The record in that action, which was No. 60235 in the common pleas court of Lucas county, and entitled "Thomas Biddle, Treasurer, v. George W. Blake and Others," shows that the petition therein filed related to a great number of parcels of land owned by a large number of different persons who were named as defendants, some of whom were served with summons and others by constructive service of process. Subsequent to the filing by the plaintiff, Biddle, of the petition in that action, by leave of court obtained therefor, he filed on April 26, 1910, a supplemental petition which related to still other parcels of land owned by other persons, who, by leave of court granted on April 10, 1910, were made parties defendant. Among the lands described therein was the land the title to which is in dispute in the instant case, and among those so made parties defendant on April 10, 1910, were James H. Campbell, Campbell, first name unknown, his wife, and the unknown heirs, devisees and legatees of James H. Campbell, if deceased; but no mention is made in the pe

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

tition, supplemental petition, or the captions thereof, of James H. Campbell, Camp bell, his wife, or the unknown heirs, devisees, and legatees of James H. Campbell, if deceased. On April 12, 1913, an affidavit for service of process by publication was filed, and in this affidavit, among many others, appear the names of these so-called defendants, leave of court having been granted to proceed with the publication, and the record of this case shows that notice was published in the Toledo Bulletin, a weekly newspaper printed in Toledo and of general circulation in Lucas county, "beginning on the 15th day of April, 1913, and on each successive Saturday for six weeks consecutively, commencing on that date."

In this notice appear the names of James H. Campbell, Campbell, his wife, and the unknown heirs, devisees, and legatees of James H. Campbell, deceased, with those of a large number of others named as defendants. The notice states that said defendants and each of them will take notice that on the 31st day of March, 1909, Thomas Biddle, as treasurer of Lucas county, Ohio, filed his petition in the court of common pleas of Lucas county, Ohio, being cause No. 60235, and that "on the 26th day of April, 1910, Henry M. Barfield, as successor to Thomas Biddle, by leave of court first obtained, filed a supplemental petition against them, and each of them, to collect taxes, assessments, penalties and interest in the following amounts for the full year of 1909, and previous years, against the following described property." Then follows a description of a number of various pieces of land, with the amount of the delinquencies thereon, but nowhere in the notice is there any description or reference to the land the title to which is in dispute in the instant case.

"That by leave of this court first obtained, said plaintiff has obtained service by publication in a newspaper of general circulation for a period of six consecutive weeks upon a large number of defendants and unknown heirs of deceased persons, after filing the proper affidavits therefor, and said service, together with all the prior proceedings, are hereby approved and confirmed."

This is the only finding in the decree as to service of process either constructive or otherwise, upon any of the defendants.

With these facts before us, it becomes evident that the decree of the court foreclosing the alleged lien for taxes on the land in question was a nullity, because no service of process was had upon Campbell or upon his heirs and devisees. Admittedly the statutes relating to service of process must and should be strictly construed. Section 11295, General Code, provides that, when made by publication, the notice "must contain a summary statement of the object and prayer of the petition, mention the court wherein it is filed, and notify the person or persons thus to be served when they are required to answer." The notice in question did not contain a summary statement of the object and prayer of the petition and supplemental petition, because nowhere therein was there a description of or reference to the parcel of land owned by the Campbells, and nothing therein to indicate to Campbell, or, if deceased, to his heirs and devisees, that the plaintiff treasurer's action in any way concerned any of them. Nor does the decree of the court find that service by publication had been made as to these or any of the defendants so sought to be served. The decree finds merely that service was so made "upon a large number of defendants and unknown heirs of deceased persons." This then is not a case where the service as made is in all respects regular on its face, requiring extraneous evidence to dispute the truthfulness of the facts stated in the notice or in the return of the sheriff, as the case might be, the court having found such service to have been duly and legally made, but one where the notice fails to include the mandatory requisites which the law prescribes. It is not only irregular and invalid on its face, but, as we have indicated, there is no finding by the court that service by publication was made upon these or upon any particular defendant.

After this description of the lands, the notice states that said taxes, assessments, etc., are due and unpaid, and that "said plaintiff in said petition and supplemental petition prays that the court render a decree barring the respective interests of said parties defendant above mentioned and each of them in said property so described and foreclosing the lien for taxes, assessments, penalties and interest aforesaid, and that in default of the payment of the same that said property be ordered sold, and that out of the proceeds of said sale said decree be first paid, after the costs of this action, and for other relief which may be just. Said defendants, and each of them, are required to answer by the 14th day of June, 1913, setting forth their respective interests in said above described property, or in default thereof their interests be barred as prayed for above, and the allegations of said petition will be by them confessed to be true." The decree entered by the common pleas and Erie Canal. There is no access thereto

It is apparent, therefore, that these proceedings did not divest the Campbells of their title to this land, nor vest in Delia R. Tucker, by the deed of the sheriff, any interest or title therein. This strip of land, the evidence shows, has never been improved in any way. It lies along the northerly bank of the Maumee river, near Waterville, and between the river and the southerly side of the Miami

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