(146 N.E.)

judgment entry, in which it clearly appears that it followed the instructions of the Court of Appeals without the slightest deviation therefrom. The trial court having followed the instructions of the Court of Appeals on the first review, the Court of Appeals on the second review was limited to a consideration of legal questions not covered by the mandate of the former review. The doctrine of "the law of the case" clearly applies to this situation.

accept a conveyance which did not include, amination of the per curiam opinion of the a release of the inchoate right of dower, and Court of Appeals of the Eighth district upon therefore claimed damages in the sum of the first review, it clearly appears that the $7,500. The lease was signed by Mrs. Mc- court decided that the petition contained a Carty, and her husband did not join therein. good cause of action, and that the purchase A demurrer was filed to the petition, and clause in the lease implied that Mrs. Mcthe demurrer was sustained by the court of Carty should convey a merchantable title, common pleas. The plaintiff not desiring free from incumbrance, with release of into further plead, judgment was entered and choate dower of her husband, and that the error prosecuted therefrom to the Court of sum of $7,500 should be payment in full for Appeals, which court reversed the judgment such title. Upon the remand, the trial court and remanded the cause, for further pro-in entering judgment rendered a short opinceedings. Mrs. McCarty did not prosecute ion, which was not incorporated into the error to this court from that judgment of reversal, but filed an answer denying that she connived with her husband to induce him to refuse to release his dower, and alleging her willingness to carry out the terms of the option and to make a conveyance of the property without release of inchoate dower. The answer further denied that plaintiff was ready, willing, or able to carry out the terms of the offer in said option contained. The parties went to trial before the court; a jury having been expressly waived. At the trial there was conflicting evidence as to whether there was connivance and fraud, and there was undisputed evidence that there was an incumbrance upon the property in the sum of approximately $2,600. It further appeared that the deed tendered by Mrs. McCarty contained no covenants of warranty. It was further shown that, after the refusal by Mr. McCarty to join in a deed, thereby releasing his dower, the property was sold to other parties for a larger sum of money, in which conveyance Mr. McCarty joined, releasing his dower. No interrogatories were submitted to the trial judge; no request was made for findings of facts; and the entry of judg-court, it follows that the judgment of the ment does not disclose the grounds of judgment, and contains no declaration upon the legal principles involved. The judgment was in the sum of $3,500, without interest. Error being prosecuted to the Court of Appeals, the judgment was affirmed.

That doctrine has received full consideration in another case decided by this court this day, entitled Gohman v. City of St. Bernard, 111 Ohio St. -, 146 N. E. 291. That case differs from this only in the fact that the trial court after the first review did not faithfully follow the principles declared by the reviewing court. This case therefore presents a situation where the principle may be clearly and unequivocally applied.

Having found that the appellate court upon the first review laid down the principles which should govern a trial of the case, and that the trial court faithfully followed the mandate of the reviewing court, and no other elements having been brought before this

Or

appellate court on the second review, affirming the judgment of the court of common pleas, must be affirmed by this court. dinarily, it would not be necessary to give further consideration to the legal principles involved. The Court of Appeals has, howThe second hearing in the Court of Ap- ever, under authority of section 6, art. IV, peals was by the Court of Appeals of the of the Ohio Constitution, certified this case Sixth district, sitting by designation, and in to this court for review and final determinaentering judgment that court certified the tion. It is therefore obligatory upon this cause to this court for review and final de- court to consider the legal principles intermination, on the ground that it was involved, and to determine which of the conapparent conflict with a judgment as an-flicting decisions of the Court of Appeals cornounced by the Court of Appeals of the rectly states the law. Fifth district, in the case of Edmund v. Boring, 30 O. C. A. 238.

Wilkin, Cross & Daoust, John H. Schultz, and Sydney A. Davies, all of Cleveland, for plaintiff in error.

The Court of Appeals very properly certified the cause to this court, because there is a clear conflict between its decision and the decision of the Court of Appeals of the Fifth appellate district, in the case of Edmund v. Boring, 30 O. C. A. 238. That court held that, where a contract for the sale of real estate is signed by the owner, a wife, but the husband does not join in the conMARSHALL, C. J. We have before us tract, and the contract contains no mention the opinions of the Courts of Appeals on of a covenant against liens and incumbranc the first and second review, and, upon ex-es, the purchaser will be held to have agreed

Bulkley, Hauxhurst, Jamison & Sharp, and Francis X. Cull, all of Cleveland, for defendant in error.

146 N.E.-5

to take the land subject to such liens and in- [ [2-4] As to what constitutes a marketable cumbrances as existed at the time the con- title no hard and fast rule can be declared to tract was executed, and the seller will be govern every state of facts which might be entitled to receive the full amount named in presented in the numerous controversies the agreement without deductions for liens which are likely to arise where such a title and incumbrances, and without abatement is implied in a sale contract drawn in genfor the value of the inchoate contingent eral terms, and each case is therefore sui right of dower of the husband. It only remains to determine which decision correctly states the law.

(146 N.E.)

lease the contingent dower, and thereby to defeat the consummation of the conveyance. The answer joins issue on this allegation. Evidence was received upon this issue, but the opinion of the trial judge does not deal with this feature. It will not therefore be assumed that it entered into his deliberations.

In the case of People's Sav. Bank v. Parisette, supra, it was decided that specific performance would not be decreed against the husband in the absence of fraud and connivance. It was not affirmatively declared that if connivance had been an ele ment relief would have been granted. The instant case not seeking specific performance, we have not considered that issue, being of the opinion that it does not affect an action for damages either way.

We have therefore reached the conclusion that the decision of the Court of Appeals of the Fifth district, in Edmund v. Boring, supra, is unsound, and that the declarations of the Courts of Appeals of the Sixth and Eighth districts, which are in perfect harmony with each other, declare the true rule. It being established that the contract in this instance was a fair one, that the parties were competent to make it, and that the price named in the purchase clause was $7,500, and there being evidence to the effect that the property advanced in value after the execution of the lease, and the court having found that the fair market value in 1920 was $11.000, the judgment rendered in the sum of $3,500 was a logical deduction

from that evidence. Judgment affirmed.

4. Criminal law 1168(2)-Witnesses ~221 -When husband waived statute prohibiting privileged testimony, stated; admission of privileged testimony after waiver held not reversible error.

Where, in a prosecution for crime, the wife of the defendant is called by the state to testify, and gives testimony material to the indictment, which testimony consists in part of a communication made by the husband to the wife during coverture, not in the known presence or hearing of a third person competent to be a witness, and no objection is made by the defendant or his counsel thereto, and no motion to exclude the testimony, and no request to instruct the jury not to consider such testimony, and the attention of the trial court is not called thereto at any time during the trial, the defendant will be held to have waived the provisions of section 13659, General Code, in his

ROBINSON, JONES, MATTHIAS, DAY, behalf, and the admission of such testimony un

ALLEN, and CONN, JJ., coneur.

RUCH v. STATE. (No. 18643.) (Supreme Court of Ohio. Dec. 23, 1924.)

(Syllabus by the Court.)

1. Indictment and information 34 (2) Printed indorsement on indictment subscribed by foreman of grand jury is sufficient.

Section 13571, General Code, provides that, when an indictment is found the foreman of the grand jury shall indorse on such indictment the words "A true bill," and subscribe his name as foreman. It is a sufficient compliance with that statutory requirement that the indictment have the words "A true bill" printed thereon, and that the foreman of the grand jury subscribe his name thereto as foreman.

2. Indictment and information 32(3)-Indictment not invalidated by blank space between typewritten matter and required concluding words.

Section 20, article IV, of the Constitution of Ohio, provides that all indictments shall con

der such circumstances will not constitute reversible error.

5. Perjury 6-Proceedings, under order to show cause, "proceeding" within statute.

Where in a divorce and alimony action, the court upon the petition of the wife grants an order restraining the husband from disposing of his property during the pendency of the action, and upon trial of the cause awards the same property to the wife as alimony, but, beceives information that the husband has disfore the decree is spread upon the journal, reposed of the property in disobedience of the restraining order, and thereupon the husband is cited and summoned to show cause why an attachment should not issue against him, and responds to such summons, and without objection receives the administration of oath as a witness, and though represented by counsel makes no objection to testifying, and does in fact give testimony, all of which is in open court, and the court having jurisdiction of the subject-matter of the action, it will be held to constitute a "proceeding" within the meaning of section 13587, General Code.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Proceeding.]

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

Error to Court of Appeals, Ashland County. Į sheriff of the county to be served upon Ruch, commanding him to appear forthwith before the judge of the court of common pleas to give testimony, and to show cause why an attachment should not be issued against him for contempt. This writ was duly servappeared before the court and gave testimony. In this hearing, and as a part of his testimony, all of which was given under oath duly administered by the clerk, Ruch presented an alleged receipt for the sale of the personal property, which receipt was dated November 8, 1923, this being prior to the service of the injunction. He further testified that the goods were in fact sold to Rollie Maxheimer for the sum of $75, and that the sale took place prior to November 10. Ruch did not at that time or at any time question the regularity of the contempt proceedings, did not object to testifying, did not except to any action of the court in that proceeding, and did not prosecute error from the judgment rendered. It was claimed that this testimony was false, and the indictment for perjury followed.

Herman G. Ruch was convicted of perjury, and on error to the Court of Appeals the judgment was affirmed, and defendant brings error. Affirmed.-[By Editorial Staff.] Plaintiff in error was convicted of per-ed upon Ruch, and in obedience thereto he jury in the court of common pleas of Ashland county, the indictment being drawn under section 12842, General Code, and omitting the formal parts, in the following language:

"That Herman G. Ruch, late of said county, on the 12th day of January in the year of our Lord one thousand nine hundred and twentyfour, at the county of Ashland aforesaid, in a certain proceeding for contempt of court for the violation of an order of the common pleas court of Ashland county, Ohio, in a certain divorce and alimony action then pending in the court of common pleas in said county, wherein Helen Ruch was plaintiff, and Herman G. Ruch was defendant, did appear in said court, which was then and there open for the transaction of business, and then and there was solemnly sworn, in said open court by Cloyd M. Scott, clerk of said court, who then and there was duly empowered and authorized by law, as such clerk, to administer said oath, and so being sworn then and there in said cause and in a matter material thereto, did corruptly and willfully depose and declare certain matters then and there to be fact, to wit, that the date of a certain receipt marked 'Plaintiff's Exhibit 1' was correct, that he sold certain household fur

Counsel for defendant urged many technical objections by plea in abatement, motion to quash, and demurrer, all of which objections were overruled. At the trial many other technical objections were urged. It was claimed that the state failed to prove niture to Rollie Maxheimer for $75; that said that any contempt proceeding was in fact furniture was sold before the 10th day of No-pending at the time the alleged false testivember, whereas in truth and in fact the said Herman G. Ruch did not sell said furniture to the said Rollie Maxheimer on said date or for said sum of money as set forth in said receipt, and whereas said receipt was fraudulently and corruptly executed at a later date for the purpose of defrauding the said Helen Ruch, the

said Herman G. Ruch then and there well knowing the said matters so as aforesaid by him deposed and declared to be true, then and there to be false."

Ruch had theretofore been the defendant in a divorce and alimony suit in which the petition prayed and the court granted a temporary injunction to restrain Ruch from disposing of his property until final hearing of the cause. The order of injunction was made by the court, and a copy of the petition and summons were served upon Ruch personally on November 13, 1923. The divorce case was heard January 5, 1924,

and on the same date the court announced that judgment would be rendered for plaintiff, the wife, and that she would also be awarded the household goods referred to and covered by the injunction. The journal entry was prepared, but before being filed and journalized it was found that Ruch had removed the household goods and placed them beyond the process of the court, and thereupon a rule for contempt was made by the court and a writ issued under the signature

mony was given; that the defendant was an involuntary witness; that his wife testified against him contrary to the provisions of section, 13659, General Code; and that incompetent testimony was admitted on behalf of the state, and competent evidence offered by the defendant was rejected. It was also claimed that the corpus delicti was not proved, and that the defendant was not convicted by that degree of proof required in criminal cases. The jury returned a verdict of guilty, judgment was entered thereon, and upon error prosecuted to the Court of Appeals the judgment was affirmed. The cause has been admitted to this court, motion for leave to file petition in error having been sustained.

Walter R. East, of Akron, for plaintiff in

error.

J. F. Henderson, Pros. Atty., of Ashland, and C. C. Crabbe, Atty. Gen., for the State.

MARSHALL, C. J. [1] The grounds set forth in the plea in abatement are no longer urged in this court, but two of the grounds set forth in the motion to quash are urged. The first of these contends that the indictment is insufficient because the foreman of the grand jury did not indorse the indictment "A true bill." The indictment was the usual printed form, which has those words

(146 N.E.)

merely signed his name thereto. Section | been examined and we find no substantial 13571 provides: "The foreman shall indorse error or error which could be regarded as on such indictment the words 'A true bill,' | prejudicial. We do not deem any of these and subscribe his name as foreman." The matters of sufficient importance to justify other ground of the motion to quash is discussion, except the testimony given by that the indictment failed to set forth that Helen Ruch, the wife of this defendant. This the matters therein stated are "against the entire matter developed out of a divorce peace and dignity of the state of Ohio." and alimony proceeding, and it was at least These are formal matters required by law, a serious question at the time of giving the but they are of an exceedingly technical na- testimony which is the basis of this perture, and it is difficult to see how in any jury prosecution whether Helen Ruch was event the defendant has been prejudiced, divorced from the defendant, and although even if his contentions are proven. Upon there seems to be no question from this recthe first ground the case is not dissimilar ord that the divorce had become effective from Whiting v. State, 48 Ohio St. 220, 27 before the time of trial of the perjury case, N. E. 96, and upon the authority of that the testimony of Helen Ruch related back case defendant's motion was properly over-to a time when the entry of the decree of ruled.

divorce had not yet been spread upon the [2] As to the second ground, defendant's journal. The divorce had been orally grantcontention is even more technical, because ed by the trial judge, a notation made upon the words referred to were not omitted from his trial docket, and the entry prepared but the indictment, and it only appears that there probably not yet filed with the clerk. We was a blank space left between the type- will give the defendant the benefit of the written matter and the printed words. These doubt on this point, and assume for the purlegal requirements must not be construed as poses of this discussion that the divorce had being so essential as to nullify a conviction not yet become effective, and that Helen otherwise regularly obtained. The same Ruch was in fact his wife at the time of the power which requires these technical formal- occurrence of the communications testified ities has provided in section 13581, General to by her in the perjury case. An examinaCode, that certain technical defects and omis- tion of the bill of exceptions discloses that sions of statement in an indictment shall her testimony was given without any obnot invalidate the same unless they "prej-jection whatever on the part of defendant's udice the substantial rights of the defendant upon the merits." It requires no argument to show that these matters could not have prejudiced the defendant and the court was therefore not in error in overruling the same.

counsel. It is true that some question had been made at the time of her qualifying as a witness as to her true and correct name, but during the course of her examination on the part of counsel for the state, when the communications were testified to, no ob

counsel for the defendant cross-examined Mrs. Ruch further questions were propounded by counsel for the accused and answered by her relative to the same matters. Section 13659 provides:

[3] The demurrer was based upon sev-jection was made, but, on the contrary, when eral grounds, two of which were urged in the motion to quash, which has already been disposed of, and we will therefore direct our attention to that ground which states that the indictment does not show that the defendant was sworn as a witness at the time he gave the alleged false testimony. This is a question of little difficulty, because the Legislature has particularly set forth the requirements of an indictment for perjury, in section 13587, General Code, the pertinent part of which is as follows:

"It shall be sufficient to set forth the sub

stance of the offense charged, and before what court or authority the oath was taken, averring such court or authority to have full power to administer such oath, with the proper averments to falsify the matters wherein the perjury is assigned."

This provision, taken in connection with that already quoted from section 13581, leaves no doubt of the sufficiency of this indictment, and the court was therefore not in error in overruling the demurrer.

[4] Many objections were made during the trial to the introduction of testimony on the part of the state, and all these matters have

"Husband or wife shall not testify concerning a communication made by one to the other, or act done by either in the presence of each other during coverture, unless the communication was made or act done in the known presence or hearing of a third person competent to be a witness.

*

Unless it be conceded that this language is absolutely prohibitory and that it utterly disqualifies the wife from testifying as to such communications under any and all circumstances, and unless it further be conceded that permitting her to testify even in response to questions propounded by the defendant's attorney is error, then the court of common pleas was correct in refusing a new trial on this ground, and the Court of Appeals was correct in affirming the judg ment. It was stated in argument that this question was raised in this court for the first time, and it is quite certain that the opinion of the Court of Appeals does not