(145 N.E.)

The evidence introduced supports the claim another claiming estate in premises, is equitathat the jury might find that the defendant ble in character. and plaintiff were both negligent. In such case it becomes the duty of the court to charge upon the issue of contributory negligence raised by the evidence.

Error to Court of Appeals, Monroe County.

Action to quiet title by Charles W. Murphy and others against W. C. McBride, Incorpo

In its general charge to the jury the court rated, and others. Judgment for defendant

said:

"The defendant, in his cross-petition, raises a claim of contributory negligence on the part of the plaintiff."

We are unable to find any prejudicial error In this statement. While the court may have been inaccurate in calling the answer a crosspetition, and in stating that it raised the issue of contributory negligence, there could be no prejudicial error intervening for the reason that such an issue not only was raised by the pleadings but was presented to the court by counsel for the railway company in the requests asked, upon the theory that that issue was in the case under the holding of the McFadden Case, supra.

named was reversed on appeal to the Court of Appeals, and judgment rendered, and it brings error. Modified, and as modified affirmed.-[By Editorial Staff.]

The Murphys, defendants in error here, brought suit in the common pleas court against McBride, Incorporated, and others, seeking to quiet their title to fifteen-sixteenths of all the oil and gas produced from certain premises described in their petition. The petition alleged that McBride, Incorporated, took possession and was operating the premises for oil and gas and appropriating to its use the oil and gas produced therefrom; that it had no lease, claim, or title to the oil and gas produced, nor any right to hold and use the premises for the production of the same. In a second cause of action a fendant, McBride, Incorporated, in the sum money judgment was sought against the deof $952.48, on an account for oil produced and sold by it. The petition further alleged

[3] In the Court of Appeals counsel for Gibbs excepted to the entry of reversal and remand. Such exception was sufficient upon which to base a review in this court. However, it seems an exception to a reversal of a judgment recovered in the common pleas court is not necessary to be carried into the that one E. J. Harper also claimed some tijournal entry. Commercial Bank of Cincin-tle or interest in the premises, and asked that nati v. Buckingham, 12 Ohio St. 402; Justice he be required to set up the same. Plaintiff's prayed that the claims of W. C. McBride,

v. Lowe, 26 Ohio St. 372.

The judgment of the Court of Appeals is reversed and that of the common pleas af

firmed.

Judgment reversed.

MARSHALL, C. J., and ROBINSON, JONES, MATTHIAS, DAY, ALLEN, and CONN, JJ., concur.

W. C. MCBRIDE, Inc., v. MURPHY et al. (No. 18381.)

Incorporated, be declared null and void and that their title to the oil and gas produced be quieted against that defendant. There was also a prayer for the money judgment referred to and for an order against a pipe line company restraining it from running the oil produced from the premises to the credit of McBride, Incorporated, and for other relief.

The defendants Harper and McBride, Incorporated, both answered, each claiming to be the owner of the oil and gas produced from the real estate, and each praying that the title thereto be quieted in him. McBride, Incorporated, filed a cross-petition in which it claimed to be the owner of the oil and gas lease in question, which it alleged was I. Appeal and error 4-Action held appeal-executed by Murphy and his wife to Harper able to Court of Appeals as cause in chan-on March 22, 1902, and claimed that said

(Supreme Court of Ohio. Dec. 16, 1924.)

cery.

(Syllabus by Editorial Staff.)

Notwithstanding petition to quiet title to oil and gas and recover damages for removal alleged that plaintiffs were out of possession, where cross-petition alleged possession in defendant and that plaintiffs claimed title and asked that such claim be adjudged null and void and defendants' title quieted, cause became one in chancery and was appealable to Court of Appeals.

2. Quieting title 1-Action to quiet title Is equitable in character.

Action to quiet title, authorized by Gen. Code, § 11901, by one in possession against

lease had been transferred by mesne assignments to it, the answering defendant. The cross-petition further alleged that the defendant McBride, Incorporated, was in possession of the real estate described in the petition and was operating the premises for oil and gas purposes; that the plaintiffs, the Murphys, claimed an estate or interest therein adverse to the rights of the cross-petitioner. The cross-petition prayed that the plaintiffs be compelled to set up any adverse claim they might have; that the same be adjudged null and void; that the answering

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

defendant's title to said oil and gas lease and was therefore not subject to appeal; that leasehold estate be quieted as against the the Court of Appeals erred when it overrulplaintiffs and for all proper relief. The an-ed the motion of defendant in error McBride, swer and cross-petition also contained a de- Incorporated, to dismiss the appeal. fense to plaintiffs' second cause of action. This defense denied each and every allegation contained therein.

[1, 2] The petition of plaintiffs below alleged they were out of possession. However, the cross-petition of the defendant was a bill In plaintiffs' reply to the cross-petition 'quia timet, or what is known to our Code as they set up a former adjudication. They an action to quiet title. The cross-petition alleged that the oil and gas lease made by alleged possession in the answering defendthem to Harper, dated March 22, 1902, was ant, and asserted that the plaintiffs claimed set aside on December 5, 1902, by the decree title to and an interest in the premises in of the then circuit court of Monroe county, question. In the case developed by the in a case entitled Charles W. Murphy v. pleadings the claim of title made by the Unity Oil Co. et al.; that by force of such plaintiffs was a cloud upon the title of the decree the title was at that time quieted in defendant, which it had a right to remove. the Unity Oil Company against the plaintiffs If, under the former decisions of this court, and other defendants; that by virtue of that the plaintiffs, because out of possession, could decree the title acquired by McBride, Incor- not have their remedy in chancery, but were porated, from its privies in title was invalid. relegated to an action in ejectment, it ap There are other allegations contained in pears nevertheless that, if the cross-petitionthe pleadings which do not materially affecting defendant interposes a case, chancery in the question under consideration.

|character, touching the subject-matter conThe cause was heard by the common pleas tained in the petition, and relief is granted court, which entered a decree quieting the thereon, the cause becomes one in chancery. title to the premises in the defendant, Mc- 21 Corpus Juris, 506. This was in substance Bride, Incorporated, plaintiff in error. our holding in the case of Kiriakis v. FounThereupon the Murphys appealed the cause tas, 109 Ohio St. 553, wherein the discussion to the Court of Appeals. In that court Mc-upon that subject appears in the opinion on Bride, Incorporated, filed a motion to dis- page 558, 143 N. E. 129. The money judgmiss the appeal. This motion was overruled ment asked for was necessarily incidental to by the appellate court, and thereupon that the relief granted. Had the defendant below court heard the case and found on the is- prevailed, no accounting could be had or sues joined in favor of the Murphys, the money judgment recovered. If the plaintiffs plaintiffs below. It was adjudged by the prevailed on the issues made by the crosscourt that the plaintiffs were entitled to the petition, an accounting followed as a matter relief prayed for; that the oil and gas lease of course. The amount of recovery, if any, of McBride, Incorporated, upon the premises depended upon the equitable relief granted. described in plaintiffs' petition, was null 21 Corpus Juris, 140. An action to quiet title, and void. It was further decreed that plain- authorized by section 11901, General Code, tiffs' title to the fifteen-sixteenths of the oil by one in possession against another claimand gas produced be quieted against the ing an estate in the premises, is equitable claims and demands of McBride, Incorporat-in character and has been considered as an ed, and the court enjoined the pipe line com-action in chancery. See the opinion of Judge pany from running oil produced from the Hitchcock in Clark v. Hubbard, 8 Ohio, 382, real estate to the credit of that defendant. 385.

The decree of the court also found that there It follows, therefore, that the Court of Apwas due plaintiffs from McBride, Incorporat-peals did not err in overruling the motion to ed, the sum asked for in plaintiff's' petition, dismiss the appeal. However, it appears and rendered judgment for that amount. from the pleadings that there was an issue Thereupon McBride, Incorporated, instituted proceedings in error in this court.

Moore, De Vaul & Moore, of Woodsfield, for plaintiff in error.

as to whether there was any amount due for oil produced and sold. The defendant traversed the allegations contained in the petition as to that issue. Although title to the

Wm. H. Cooke and Lynch & Lynch, all oil and gas lease was established in the of Woodsfield, for defendants in error.

PER CURIAM. On the issues joined by the pleadings the Court of Appeals found in favor of the plaintiffs, the defendants in error here, and with that finding we are not disposed to interfere.

This cause was certified to this court because of the claim made by plaintiff in error that the action instituted in the court of common pleas was not a chancery case, and

plaintiffs below, we find no proof in the record as to what amount, if any, was due. In that respect we find no evidence supporting the recovery for money. In view of this aspect of the case, we affirm the judgment of the Court of Appeals upon the legal phases and remand the case to that court for the purpose of ascertaining the amount due defendant in error.

Judgment modified, and affirmed as modi

fied.

(145 N.E.)

This court ordered the record certified for prosecuting attorney told the jury evidence review.

CONN, J. The jury having been impan-questions. eled and sworn, the prosecuting attorney, in the course of the statement of the case, said, among other things:

"The state expects the evidence to prove that at the same sitting of the grand jury an indictment was returned against Earl Stanley."

The statements of the prosecuting attorney as to these several matters were prejudicial to the rights of defendants.

Whatever properly might have been shown in evidence to connect Earl Stanley with an active participation in the matter, certainly the

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

fact that a grand jury had indicted him in a
separate indictment presented nothing for the
jury to consider in the case against the Bar-
gers. Nor was it proper for the prosecut-
ing attorney to inform the jury that the peo-
ple of Pickreltown set out to horsewhip Stan-
ley; because, first, unless some positive ac-
tion was taken against Stanley, such state-
ment would be purely hearsay and highly
speculative; and, second, anything done in
the absence of the Bargers and without their
participation or acquiescence could not bind
them. It is not apparent how the threats of
third parties to commit a crime, wholly un-
related to the crime of blackmail, could have
had any possible probative effect in this case.
Prosecuting attorneys, along with their
other duties, are charged with seeing that
the defendant on trial is given a fair trial
Their duty in this respect is subordinate
only, if at all, to that of the trial judge.
Matters such as those above referred to, in-
jected into a record at the initial steps of the
proceeding, are almost certain to deprive a
defendant of that fair trial which is guar-ley) a witness in the case.
anteed to every accused.

"Q. Do you recall now, Mr. Swallow, that the first time you saw him, subsequent to the 20th day of July, 1923, there was a conversation relative to this case? A. Well, I don't know what but, as I stated before, Mr. Stanley told me the date was. I am not positive about the date, the circumstances. I don't remember the date. Mr. Stanley and I met-I don't remember whether it was down on the street or whether it was in the hall, I don't recall-and Mr. Stanley related

"Q. Was the conversation you had with Mr. Stanley relative to this case? A. Yes. to see the prosecuting attorney? A. It was.” "Q. Was it at that time that you advised him

Our attention is called to the fact that more than 1,000 objections to the admissibility of evidence were made on behalf of de fendants during the progress of the trial. We shall refer to a few matters of evidence, upon which the objections complained of as numerous are based, to see whether the objections are frivolous or substantial:

Charles W. Swallow, a deputy sheriff of Logan county, when on the witness stand, was questioned as follows:

"Q. You may state if you are a member of the Ku Klux Klan?" (The defendants objected to the question on the ground that it was irrelevant. The objection was overruled, to which the defendants excepted.) "A. I would say that I am not a member of the Ku Klux."

The defendants moved the court to rule out the answer. The motion was overruled, to which the defendants excepted.

"Q. Are you a member of the Invisible Order of the Knights of the Ku Klux Klan?" (Defendants objected; the objection was overruled, and defendants excepted.) "A. I will say that I am a member of the Invisible Empire, Knights of the Ku Klux Klan of the Imperial Order of Ohio, and I am proud of it. *

"Q. When, prior to the conversation in the Klan Hall-so-called Klan Hall; I don't know whether I get the right terminology-(A. I will prompt you if you go wrong)-had you seen Mr. Stanley? A. Well, I don't know how long before this that Mr. Stanley told me the circumstances connected with this case and asked my advice.

"Mr. Huston: I understand the Bargers were not there; is that correct, Mr. Swallow, the Bargers were not there? A. No, sir. I couldn't say positively just when it was that I saw Mr. Stanley. I didn't keep these dates down in my mind; didn't set them down in a book.

An objection was noted to each inquiry, and each question was properly saved.

It is impossible to see how a conversation between the deputy sheriff and Stanley could have any probative force against the Bargers, as the record affirmatively shows the Bargers were not present at the time of the conversation, and there was nothing to show Stanley was acting for them, nor was the latter (Stan

Later, the prosecuting attorney asked this question: "State, Mr. Swallow, whether or not Mr. B. B. Barger is a member of the same organization,” referring to the organization he theretofore had inquired about. The defendants objected to this question, and the court overruled the objection.

We have never understood, unless the affairs of a fraternal, religious, or political society, or of an organization, are involved in issue, that it is competent to show a witness has membership in such organization. Notwithstanding the ruling of the court, the witness properly resolved the objection to the question, because the witness answered: "I object to that. I won't answer that question." So the error committed in overruling the objection was cured.

One L. Edson Stanley was called as a witviewed" in the absence of the Bargers. ness, and stated that he had been "interThereupon the question was asked:

"You may state, Mr. Stanley, if Mr. Earl Stanley advised you that he had been authorized by the Bargers in this case."

There was an objection, but the trial judge said he would permit the question to be answered with the understanding that it be "connected up" later, or be ruled from the jury. Thereupon the witness testified as to the conversation with Earl Stanley, who, as heretofore stated, was not a party to nor witness in this case. While the order of proof is a matter for the court, it is the safer practice, especially in a criminal case, to require proof in the first instance which makes the evidence competent. Nothing in the record has been called to our attention which made this testimony competent.

On redirect examination this same witness

(145 N.E.)

was asked and answered certain questions as follows:

"Q. Did you talk to Mr. and Mrs. Barger before you saw Mr. Earl Stanley on that Monday? A. I talked to Mr. Barger Monday morning in the field.

"Q. In the field? A. Yes.

"Q. Was this matter mentioned? A. No, sir. "Q. When was the first time you heard it? A. Monday about noon.

"Q. From whom did you get the information? A. The information concerning what had happened?

"Q. Yes. A. From Stanley.

"Q. From Mr. Earl Stanley? A. Yes."

"Q. Subsequent to the time that you came into the judge's office, Judge Hover's office? A. I know you came into the office, but whether you were called from the grand jury room or not I don't know.

"Q. I will ask you to state if, subsequent to that time, you were called as a witness in the grand jury room? A. I was called, I think, the next day as a witness before the grand jury.

"Q. I will ask you to state whether or not you were a witness before the grand jury, looking toward an indictment against C. C. Heath?"

There was an objection to each question, and all objections were overruled, except the one to the last question. This testimony was

Again, this evidence of a transaction in the absence of the Bargers was incompetent, un-not admissible. It may not have been highly less Stanley was authorized to speak for them. If in a civil action agency may not be proved by the declarations of the agent, it certainly should not be the law that a more relaxed rule will govern in a criminal case. Charles F. Wooley, sheriff of Logan county, was called by the state as a witness:

"Q. You may state, Mr. Wooley, if some time! in the last few days, or since this indictment against Mr. and Mrs. Barger has been returned, Mr. Stanley, Mr. Earl Stanley, has been in your office. A. Yes, he was in the office once, one day.

"Q. State whether or not anything was said by Mr. Stanley relative to the postponement of this case. A. Why, yes, he suggested to Mr. Heath that he would postpone this case from time to time and after while it would drop out."

For reasons heretofore given this was prejudicial.

C. C. Heath, deputy sheriff, was called, and testified that Earl Stanley came to the sheriff's office, and asked him, Heath, to do what he could to get the case postponed, saying, among other things, that it could be done; that if other cases could be done this could be also. Then, Heath claims, Stanley asked him to see the judge or somebody and get a postponement from one time to another, and finally let it drop out.

Thus again error was committed, because, if Stanley was referring to his own indictment, erroneously brought into the record by the prosecuting attorney, it could have no bearing whatsoever upon the indictment against defendants in error. If, on the other hand, Stanley was referring to the indictment against the defendants in error, it would be equally improper to bind them by a statement made in their absence, or the absence of one of them.

Deputy Sheriff Swallow was again called as a witness, and testified as follows:

"Q. Do you recall, Mr. Swallow, when you in

formed me of this situation? A. Yes, sir; the

first that I informed you of it was in the judge's

prejudicial, for the court ruled against the most objectionable question, but this evidence tended to confuse the jury by injecting another of the many collateral matters. It is always to be presumed, in the absence of a motion to quash or other special plea, an indictment was found and returned according to law.

The defendant B. B. Barger was called as a witness, and the prosecuting attorney asked him certain questions as follows:

"Q. Mr. Barger, are you a member of the Ku Klux Klan? A. I am not.

"Q. Are you a member of the Invisible Order of the Knights of the Ku Klux Klan? A. I am not.

der of such as that? A. I am not."
"Q. Are you a member of any affiliated or-

No reason has been assigned which justified the asking as to membership in this or any organization.

When defendant Mrs. Barger was on the witness stand she was asked by the prosecuting attorney whether she had not testified to certain facts before the grand jury; an objection was interposed, but the court held that such questions and answers were proper for the purpose of impeachment, and that unless they contradicted or impeached other statements made by the witness the jury were not to consider them. It is quite apparent the witness had not denied some of the statements made, and that by the use of the transcript of her evidence before the grand jury her testimony before that body was gone over in detail before the petit jury.

As stated, some of her answers may have been in contradiction of her statements before the grand jury; nevertheless, we think The court the court's ruling was erroneous. should have advised himself whether or not there had been a direct or a qualified contradiction before permitting testimony tend

ing to impeach. This not only would save a witness from the possibility of being put in a false position, but would tend to expedite the trial. Likewise defendant Barger, "Q. Do you recall whether or not the grand when on the stand,' was asked as to certain jury was in session then? A. It was. matters testified to by himself before the "Q. Do you recall whether or not I was call- | grand jury. The same observations apply.

office.