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(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

Error to Court of Appeals, Monroe County. charge upon the issue of contributory negli

Action to quiet title by Charles W. Murphy gence raised by the evidence.

and others against W. C. McBride, IncorpoIn its general charge to the jury the court rated, and others. Judgment for defendant said:

named was reversed on appeal to the Court "The defendant, in his cross-petition, raises a of Appeals, and judgment rendered, and it claim of contributory negligence on the part of brings error. Modified, and as modified afthe plaintiff.”

firmed.-[By Editorial Staff.] We are unable to find any prejudicial error

The Murphys, defendants in error here, In this statement. While the court may have brought suit in the common pleas court been inaccurate in calling the answer a cross

against McBride, Incorporated, and others, petition, and in stating that it raised the seeking to quiet their title to fifteen-six. issue of contributory negligence, there could teenths of all the oil and gas produced from be no prejudicial error intervening for the certain premises described in their petition. reason that such an issue not only was raised the petition alleged that McBride, Incorby the pleadings but was presented to the porated, took possession and was operating court by counsel for the railway company in the premises for oil and gas and appropriatthe requests asked, upon the theory that that ing to its use the oil and gas produced there issue was in the case under the holding of from; that it had no lease, claim, or title to

the oil and gas produced, nor any right to the McFadden Case, supra. [3] In the Court of Appeals counsel for hold and use the premises for the production

of the same. In a second cause of action a Gibbs excepted to the entry of reversal and remand. Such exception was sufficient upon fendant, McBride, Incorporated, in the sum

money judgment was sought against the dewhich to base a review in this court. However, it seems an exception to a reversal of a and sold by it. The petition further alleged

of $952.48, on an account for oil produced 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

he be required to set up the same. Plaintiffs nati v. Buckingham, 12 Ohio St. 402; Justice prayed that the claims of W. C. McBride, v. Lowe, 26 Ohio St. 372. The judgment of the Court of Appeals is that their title to the oil and gas produced

Incorporated, be declared null and void and reversed and that of the common pleas af

be quieted against that defendant. There firmed.

was also a prayer for the money judgment Judgment reversed.

referred to and for an order against a pipe MARSHALL

line company restraining it from running C. J., and ROBINSON,

the oil produced from the premises to the JONES, MATTHIAS, DAY, ALLEN, and

credit of McBride, Incorporated, and for CONN, JJ., concur.

other relief.

The defendants Harper and McBride, Incorporated, both answered, each claiming to

be the owner of the oil and gas produced W. C. McBRIDE, Inc., V. MURPHY et al. (No. 18381.)

from the real estate, and each praying that

the title thereto be quieted in him. McBride, (Supreme Court of Ohio. Dec. 16, 1924.)

Incorporated, filed a cross-petition in which

it claimed to be the owner of the oil and (Syllabus by Editorial Staff.)

gas lease in question, which it alleged was 1. Appeal and error w 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 cery.

lease had been transferred by mesne assignNotwithstanding petition to quiet title to oil ments to it, the answering defendant. The and gas and recover damages for removal al

cross-petition further alleged that the deleged that plaintiffs were out of possession, where cross-petition alleged possession in de- fendant McBride, Incorporated, was in posfendant and that plaintiff's claimed title and session of the real estate described in the asked that such claim be adjudged null and petition and was operating the premises for void and defendants' title quieted, cause be- oil and gas purposes; that the plaintiffs, the came one in chancery and was appealable to Murphys, claimed an estate or interest thereCourt of Appeals.

in adverse to the rights of the cross-petition2. Quieting title Owl-Action to quiet title is er. The cross-petition prayed that the equitable in character.

plaintiffs be compelled to set up any adverse Action to quiet title, authorized by Gen. claim they might have; that the same be adCode, & 11901, by one in possession against judged null and void ; that the answering

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

error.

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. 1 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. (1.2) The petition of plaintiffs below alThis defense denied each and every alleza- leged they were out of possession. However, tion contained therein.

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, Me- 21 Corpus Juris, 506. This was in substance Bride, Incorporated, plaintiff in

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 judg. miss 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 Ap was due plaintiffs from McBride, Incorporat-peals did not err in overruling the motion to ed, the sum asked for in plaintiffs' 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

as to whether there was any amount due for proceedings in error in this court.

oil produced and sold. The defendant trarMoore, De Vaul & Moore, of Woodsfield, ersed the allegations contained in the petifor plaintiff in error.

tion 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. plaintiffs below, we find no proof in the rec

ord as to what amount, if any, was due. In PER CURIAM. On the issues joined by that respect we find no evidence supporting the pleadings the Court of Appeals found in the recovery for money. In view of this asfavor of the plaintiffs, the defendants in pect of the case, we affirm the judgment of error here, and with that finding we are not the Court of Appeals' upon the legal phases disposed to interfere.

and remand the case to that court for the This cause was certified to this court be- purpose of ascertaining the amount due de. cause of the claim made by plaintiff in er- fendant in error. ror that the action instituted in the court of Judgment modified, and affirmed as modicommon pleas was not a chancery case, and fied.

(145 N.E.) MARSHALL, O. J., and ROBINSON, Subsequently the prosecuting attorney said: JONES, MATTHIAS, DAY, ALLEN, and “The state expects the evidence to further CONN, JJ., concur.

prove that at the September term an indictment was returned against Earl Stanley, charging him with aiding and abetting B. B. Barger and Bonnie F. Barger in the commission of blackmail

against C. C. Heath." STATE v. BARGER et al. (No. 18502.)

Later the prosecuting attorney said: (Supreme Court of Ohio. Dec. 16, 1924.)

“The state expects the evidence further to (Syllabus by the Court.)

prove that this intimacy had gone to such an

extent that the people of Pickreltown set out Threats ami(1) - One supporting demand to horsewhip Earl Stanley if he didn't cease pay

against wrongdoer by charge and threatening ing attention to Mrs. Barger."
prosecution, if demand is not met, held not
guilty of blackmail.

The defendants interposed an objection, One who, having sustained an injury growing whereupon the court said: out of a tort which constitutes a crime, demands of the wrongdoer what the demandant in good to be material, what he expects to prove, as he

“The prosecutor may state what he expects faith believes is a reasonable compensation may believe is material to the issues presented therefor, and supports his demand by charging by the indictment and the plea. The questions the wrongdoer with having committed a crime

on introduction of testimony will arise at the our of which arose the injury, and threatens to time and will be ruled upon then.” prosecute the wrongdoer therefor if the demand be not coinplied with, does not thereby violate

The prosecuting attorney further said: the provisions of section 13384, General Code. Mann v. State, 47 Ohio St. 556, 26 N. E. 226, "We expect the evidence further to prove 11 L. R. A. 656, approved and followed. that some gentlemen in that part of the country

told Earl Stanley of this intimacy; that it was

known; that he deserved to be whipped, and Error to Court of Appeals, Logan County. they would assist in whipping him if he didn't

B. B. Barger and another were charged stop paying attention to Mrs. Barger." with blackmail. Judgment of conviction was

The prosecuting attorney also made this reversed by the Court of Appeals and the

statement: State brings error. Affirmed.-[By Editorial Staff.]

“We expect the evidence further to prove

that in some manner the story leaked. The Defendants in error, B. B. Barger and

news got out, and it was brought to the attenBonnie F. Barger, were indicted in Septem- tion of the grand jury, and that testimony was ber, 1923, by the Logan county grand jury, introduced looking toward the indictment of Mr. charged with the crime of blackmail; the in- c. C. Heath for assault with intent to commit dictment averred that defendants, with intent rape." to extort money, unlawfully threatened one

Still later the prosecuting attorney made C. C. Heath by delivering to him a written

this statement: communication setting forth that Heath had committed an assault with intent to commit

"We expect the evidence further to prove that

since this indictment was returned, or these rape on Bonnie F. Barger. A plea of “not guilty" was entered, and indictments, Mr. Earl Stanley has been to Mr.

C. C. Heath in the courthouse, in the presence on trial to a jury, resulting in the convic of the sheriff, and the other deputy, and asked tion of both defendants, sentence was pro- that this case be postponed and postponed and nounced. On error to the Court of Appeals | postponed until it was finally forgotten.” the judgment of the common pleas was reversed.

During the course of the statement the This court ordered the record certified for prosecuting attorney told the jury evidence review.

would be offered to prove that the intimacy

between Stanley and Mrs. Barger had gone Edward K. Campbell, Pros. Atty., and John- to such an extent that a relative of Stanley, son E. West, both of Bellefontaine, for the

a woman, “mostly out of regard for Earl State.

Stanley's wife," wrote to a brother of Earl W. Clay Huston and Miller & Middleton, Stanley, charging that he and Mrs. Barger all of Bellefontaine, for defendants in error.

were living in open adultery. Defendants,

by objections and motions, properly saved the CONN, J. The jury having been impan- questions. eled and sworn, the prosecuting attorney, in The statements of the prosecuting attorney the course of the statement of the case, said, as to these several matters were prejudicial among other things:

to the rights of defendants. "The state expects the evidence to prove that

Whatever properly might have been shown in at the same sitting of the grand jury an in- evidence to connect Earl Stanley with an acdictment was returned against Earl Stanley." tive participation in the matter, certainly the

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fact that a grand jury had indicted him in a "Q. Do you recall now, Mr. Swallow, that the separate indictment presented nothing for the first time you saw him, subsequent to the 20th jury to consider in the case against the Bar- day of July, 1923, there was a conversation rel. gers. Nor was it proper for the prosecut- ative to this case ? A. Well, I don't know what

the date was. ing attorney to inform the jury that the peo- but, as I stated before, Mr. Stanley told me

I am not positive about the date, ple of Pickreltown set out to horsewhip Stan- the circumstances. I don't remember the date. ley; because, first, unless some positive ac- Mr. Stanley and I met-I don't remember tion was taken against Stanley, such state- whether it was down on the street or whether ment would be purely hearsay and highly it was in the hall, I don't recall-and Mr. Stanspeculative; and, second, anything done in ley relatedthe absence of the Bargers and without their

"Q. Was the conversation you had with Mr. participation or acquiescence could not bind Stanley relative to this case? A. Yes. them. It is not apparent how the threats of to see the prosecuting attorney? A. It was."

"Q. Was it at that time that you advised him third parties to commit a crime, wholly unrelated to the crime of blackmail, could have had any possible probative effect in this case. An objection was noted to each inquiry,

Prosecuting attorneys, along with their and each question was properly saved. other duties, are charged with seeing that It is impossible to see how a conversation the defendant on trial is given a fair trial between the deputy sheriff and Stanley could Their duty in this respect is subordinate have any probative force against the Bargers, only, if at all, to that of the trial judge. as the record affirmatively shows the Bargers Matters such as those above referred to, in- were not present at the time of the conversa. jected into a record at the initial steps of the tion, and there was nothing to show Stanley proceeding, are almost certain to deprive a was acting for them, nor was the latter (Standefendant of that fair trial which is guar- ley) a witness in the case. anteed to every accused.

Later, the prosecuting attorney asked this Our attention is called to the fact that question: _“State, Mr. Swallow, whether or more than 1,000 objections to the admissibil. not Mr. B. B. Barger is a member of the ity of evidence were made on behalf of de same organization,” referring to the organ. fendants during the progress of the trial. ization he theretofore had inquired about. We shall refer to a few matters of evidence, The defendants objected to this question, and upon which the objections complained of as the court overruled the objection. numerous are based, to see whether the ob We have never understood, unless the af. jections are frivolous or substantial:

fairs of a fraternal, religious, or political Charles W. Swallow, a deputy sheriff of society, or of an organization, are involved Logan county, when on the witness stand, in issue, that it is competent to show a witwas questioned as follows:

ness has membership in such organization, “Q. You may state if you are a member of Notwithstanding the ruling of the court, the the Ku Klux Klan ?" (The defendants objected witness properly resolved the objection to the to the question on the ground that it was irrel- question, because the witness answered: "I evant. The objection was overruled, to which object to that. I won't answer that que tion." the defendants excepted.) "A. I would say that So the error committed in overruling the obI am not a member of the Ku Klux."

jection was cured. The defendants moved the court to rule

One L. Edson Stanley was called as a witout the answer. The motion was overruled,

ness, and stated that he had been “interto which the defendants excepted.

viewed" in the absence of the Bargers.

Thereupon the question was asked : “Q. Are you a member of the Invisible Or. der of the Knights of the Ku Klux Klan?"

“You may state, Mr. Stanley, if Mr. Earl (Defendants objected; the objection was over-Stanley advised you that he had been authorized ruled, and defendants excepted.) "A. I will say by the Bargers in this case.” that I am a member of the Invisible Empire, Knights of the Ku Klux Klan of the Imperial

There was an objection, but the trial judge Order of Ohio, and I am proud of it.

"Q. When, prior to the conversation in the said he would permit the question to be anKlan Hall-so-called Klan Hall; I don't know swered with the understanding that it be whether I get the right terminology-(A. I will connected up" later, or be ruled from the prompt you if you go wrong)-had you seen jury. Thereupon the witness testified as to Mr. Stanley? A. Well, I don't know how long the conversation with Earl Stanley, who, as before this that Mr. Stanley told me the cir- heretofore stated, was not a party to nor cumstances connected with this case and asked witness in this case. While the order of my advice. "Mr. Huston: I understand the Bargers were safer practice, especially in a criminal case,

proof is a matter for the court, it is the not there; is that correct, Mr. Swallow, the Bargers were not there? A. No, sir. I

to require proof in the first instance which couldn't say positively just when it was that I makes the evidence competent. Nothing in saw Mr. Stanley. I didn't keep these dates the record has been called to our attention down in my mind; didn't set them down in a which made this testimony competent. book.

On redirect examination this same witness

(145 N.E.) was asked and answered certain questions as ed from the grand jury room? A. I couldn't follows:

say.

*Q. Subsequent to the time that you came in"Q. Did you talk to Mr. and Mrs. Barger be

to the judge's office, Judge Hover's office? A. I fore you saw Mr. Earl Stanley on that Mon- know you came into the office, but whether you day? A. I talked to Mr. Barger Monday

were called from the grand jury room or not I morning in the field.

don't know. "Q. In the field ? A. Yes. "Q. Was this matter mentioned? A. No, sir. that time, you were called as a witness in the

"Q. I will ask you to state if, subsequent to "Q. When was the first time you heard it? grand jury room? A. I was called, I think, the A. Monday about noon. "Q. From whom did you get the information ? next day as a witness before the grand jury.

"Q. I will ask you to state whether or not A. The information concerning what had hap- you were a witness before the grand jury, look. pened?

ing toward an indictment against C. C. Heath?" "Q. Yes. A. From Stanley. "Q. From Mr. Earl Stanley? A. Yes."

There was an objection to each question,

and all objections were overruled, except the Again, this evidence of a transaction in the one to the last question. This testimony was absence of the Bargers was incompetent, un- not admissible. It may not have been highly less Stanley was authorized to speak for prejudicial, for the court ruled against the them. If in a civil action agency may not be most objectionable question, but this evidence proved by the declarations of the agent, it tended to confuse the jury by injecting ancertainly should not be the law that a more other of the many collateral matters. It is relaxed rule will govern in a criminal case. always to be presumed, in the absence of a

Charles F. Wooley, sheriff of Logan county, motion to quash or other special plea, an was called by the state as a witness:

indictment was found and returned accord"Q. You may state, Mr. Wooley, if some time. ing to law. in the last few days, or since this indictment

The defendant B. B. Barger was called as against Mr. and Mrs. Barger has been returned, a witness, and the prosecuting attorney askMr. Stanley, Mr. Earl Stanley, has been in ed him certain questions as follows: your office. A. Yes, he was in the office once, one day.

"Q. Mr. Barger, are you a member of the "Q: State whether or not anything was said Ku Klux Klan? A. I am not. by Mr. Stanley relative to the postponement of of the Knights of the Ku Klux Klan? A. I

"Q. Are you a member of the Invisible Order this case. A. Why, yes, he suggested to Mr. Heath that he would postpone this case from

am not. time to time and after while it would drop out.” der of such as that? A. I am not."

"Q. Are you a member of any affiliated orFor reasons heretofore given this was prej No reason has been assigned which justi. udicial,

fied the asking as to membership in this or C. C. Heath, deputy sheriff, was called, and any organization. testified that Earl Stanley came to the sher

When defendant Mrs. Barger was on the iff's office, and asked him, Heath, to do what witness stand she was asked by the prosecuthe could to get the case postponed, saying, ing attorney whether she had not testified to among other things, that it could be done; certain facts before the grand jury; an objecthat if other cases could be done this could tion was interposed, but the court held that be also. Then, Heath claims, Stanley asked such questions and answers were proper for him to see the judge or somebody and get a the purpose of impeachment, and that unless postponement from one time to another, and they contradicted or impeached other statefinally let it drop out.

ments made by the witness the jury were not Thus again error was committed, because, to consider them. It is quite apparent the if Stanley was referring to his own indict-witness had not denied some of the statement, erroneously brought into the record by ments made, and that by the use of the tranthe prosecuting attorney, it could have no script of her evidence before the grand jury bearing whatsoever upon the indictment her testimony before that body was gone over against defendants in error. If, on the other in detail before the petit jury. hand, Stanley was referring to the indict.

As stated, some of her answers may have ment against the defendants in error, it been in contradiction of her statements bewould be equally improper to bind them by a

fore the grand jury; nevertheless, we think statement made in their absence, or the ab- the court's ruling was erroneous. The court sence of one of them.

should have advised himself whether or not Deputy Sheriff Swallow was again called there had been a direct or a qualified conas a witness, and testified as follows:

tradiction before permitting testimony tend

ing to impeach. This not only would save "Q. Do you recall, Mr. Swallow, when you in

a witness from the possibility of being put formed me of this situation? A. Yes, sir; the first that I informed you of it was in the judge's in a false position, but would tend to exoffice.

pedite 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.

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