City of Wellston v. Morgan.

A

the district court a larger sum was recovered. motion for new trial was made on the ground that the finding was not supported by the evidence. A bill of exceptions was taken containing all the evidence. The errors assigned in this court by the administrator were that the petition does not show a cause of action, and that the evidence does not support the finding. the latter being the principal ground. The court found the judgment excessive and reduced it, and rendered judgment for the proper amount. The court also found that the case was one of a legal, and not an equitable, nature, but, inasmuch as the case was tried on its merits in the district court without objection, this court did not feel called upon sua sponte, to consider the question of error in entertaining the appeal. That point does not appear to have been presented by the plaintiff in error, but seems to have been first noticed by the court here, and the statement of it made as an explanation of the court's ruling in affirming the judgment notwithstanding the nature of the action.

Clearly this holding does not cover the case at bar. In this case the defendant interposed a motion to dismiss the appeal at the threshhold on the ground that the case is at law and not in equity, and excepted to the order overruling it. True upon the face of the record as it then stood, the motion was properly overruled. But it was probably the best the defendant could do to express its objection to the effort to try the case over again in the circuit court. At least it showed that the City did not intend to give away its rights; and had the petition contained a true and full statement of the exact case as it existed, and of the ground

City of Wellston v. Morgan.

on which the plaintiff must finally rest his claims, the motion to dismiss would have properly raised the real question of jurisdiction, and, in such condition of the record, would have been well taken. The answer followed setting up the invalidity of the ordinance. The City also excepted to the second conclusion of law. It then moved for a new trial because the judgment was contrary to law, and error is urged here because the circuit court erred in the particulars named and because of error in rendering judgment for the plaintiff. Just what argument was made to the court we cannot know, as of course the record does not disclose that. But, inasmuch as the answer pleaded that the ordinance was invalid, which the court found, and that, therefore, there was no contract, it may be inferred that the point was made by counsel in argument also, and its legal effect pointed out. However, this matter of argument is not of much consequence. Suffice it to say that we cannot find from this record that the City's action was such as to estop it from now questioning the jurisdiction of the circuit court. We think that court was without jurisdiction and that its judgment should be reversed and judgment entered for plaintiff in

error.

Reversed.

City of Piqua v. Geist, a Minor.

CITY OF PIQUA v. GEIST, A MINOR.

County commissioners-Not required to construct or repair bridges on city streets not part of state or county road-Duty of cityAct of February 8, 1894-Construction of law.

Under the amendment made February 8, 1894, of section 860, Revised Statutes (91 Laws, 19), county commissioners are not required to construct and keep in repair bridges over natural streams and public canals, on streets established by a city or village for the use and convenience of the municipality, and not a part of a state or county road, though the city or village receive no part of the bridge fund levied on the property within the same. It is the duty of the city or village to construct and keep in repair such bridges, and is liable in damages to one injured by its neglect to do so.

(Decided November 1, 1898.)

ERROR to the Circuit Court of Miami county.

D. S. Lindsay and M. H. & W. D. Jones, for plaintiff in error.

Long & Kyle, for defendant in error.

BY THE COURT:

The plaintiff below sued the city of Piqua by her next friend for an injury received by reason of a certain bridge in the city being out of repair, and recovered damages. The bridge was over a natural stream of water, but not on a state or county road, free turnpike, improved road, abandoned turnpike or plank road, in common public use. It was simply on a street that had been laid out and established for the use and convenience of the municipality. The city for a defense, claimed that, under section 860, Revised Statutes, as amended February 8, 1894 (91 Laws, 19), it was the duty of the commissioners of the county to keep the bridge in repair, as it received no portion of the bridge fund;

City of Piqua v. Geist, a Minor.

and that it cannot, for this reason, be made liable to any one for the bridge being out of repair. The court below held otherwise. We are of the opinion that there is no error in the judgment. amended section reads as follows:

The

"Section 860. The commissioners shall construct and keep in repair all necessary bridges over streams and public canals on all state and county roads, free turnpikes, improved roads, abandoned turnpikes and plank roads in common public use, except only such bridges as are wholly in such cities and villages having by law the right to demand, and do demand and receive, part of the bridge fund levied upon property within the same; and when they do not demand and receive said portion of bridge tax the commissioners shall construct and keep in repair all bridges in such cities and villages. Provided, that in all cases, except counties containing a city of the first grade of the first class, the granting of the demand, made by any city or village for its portion of the bridge tax, shall be optional with the said board of commissioners." (The italics are ours for the purpose of indicating important words.)

It was not, as we think, intended by this amendment to extend the duty of county commissioners to the construction or repair of bridges which before the amendment they were not required in any case to construct or keep in repair. The phrase "all bridges" employed in the amendment, simply relates to and includes all the necessary bridges over streams and public canals, on all state and county roads, etc., first enumerated in the section, being the bridges that it is the general duty of county commissioners to construct and keep in repair, except where a city or village receives a por

Keefer et al. v. Myers et al.

tion of the bridge fund authorized to be raised by section 2824, Revised Statutes; and the only change intended by the amendment was to give an option to the commissioners to allow or not, a demand made by a city for a portion of the bridge fund, except in counties having a city of the first grade of the first class. In so construing this amendment, we but follow an established rule of construction, which requires the intent of a statute to be gathered from all the language employed, in connection with its apparent object and purpose; and, in doing this, it not infrequently happens, that words of a general sense must be restrained to a more limited one, or the real intention of the legislature will be defeated.

Judgment affirmed.

KEEFER ET AL. v. MYERS ET AL.

Printed record-Jurisdiction in error-Section 6711, Revised Statutes -Court will not, on motion, consider merits of case, whenSupreme Court practice.

When a printed record has been filed with the clerk of this court for the purpose of complying with the requirements of section 6711, Revised Statutes, that " so much of the record to be reviewed as will show the error complained of shall be printed," the court will not, on motion of the defendant in error, enter upon a consideration of the merits of the case to determine whether enough of the record has been printed, for a failure in that regard can in no event operate to his prejudice.

(Decided November 1, 1898.)

ERROR to the Circuit Court of Stark county.

The defendant in error files a motion to dismiss the printed record filed in this case by the plaintiff in error for the following reasons: