Martin v. Eaton. METCALFE, J. This case comes before us on demurrer to the second amended petition. This pleading avers, in substance, that the plaintiff and defendant are the joint owners of 122 bushels of wheat, and that each is entitled to an undivided half interest therein, that the defendant has taken possession of the wheat and refuses to make a division thereof, claiming that he is entitled to more than one-half; and that it is the plaintiff's desire to have his share of the wheat set off to him in severalty, and he prays that partition be made of the joint property. A demurrer is filed to this petition on the ground that the facts stated do not constitute a cause of action, and it is argued that under the law of Ohio no partition can be made of personal property, and that is the only question we have to decide on this demurrer. It is true there is no statute authorizing this proceeding, at least our attention has been called to none, and so far we have been unable to find one. But in the absence of such statute does it necessarily follow that such an action can not be maintained? It is the province of equity to deal with the rights of parties upon principles of natural justice, and when the right ought to be enforced, is clearly just and contravenes no statute or principle of law, surely the absence of a statute specifically defining such right, or establishing some particular method of procedure in obtaining it, or the want of a precedent, should not prevent the court from doing what seems to be equal and exact justice between the parties. When two parties own personal property in common, and it is easily susceptible of division, and the share of each is ascertainable, what more appropriate method can be conceived of disposing of a controversy about it than to divide it between them, and what sound principle can be urged against it? On principle we think the right to partition is clear, and we are not entirely without light from the authorities. 21 Am. & Eng. Enc. Law (2 ed.) 1160; Weeks v. Weeks, 5 Ired. Eq. (N. C.) Ill [47 Am. Dec. 358]; Pell v. Ball, Cheves Ch. (S. C.) 99; Robinson v. Dickey, 143 11 O. C. C. Vol. 35 Harrison County Circuit. Ind. 205 [42 N. E. Rep. 679; 52 Am. St. Rep. 417]; Pickering v. Moore, 67 N. H. 533 [32 Atl. Rep. 828; 31 L. R. A. 698; 68 Am. St. Rep. 695]; Wetmore v. Zabriskie, 29 N. J. Eq. 62; Terry v. Smith, 42 N. J. Eq. 504 [8 Atl. Rep. 886]. The demurrer is overruled. Fillius, J., concurs. Norris, J., not sitting. Note--Upon the trial of this case on the merits, at a subse quent term before Norris, Pollock and Metcalfe, JJ., the same conclusion was reached as to the right to partition as announced in the above opinion, and partition of the property was ordered. APPEALS—BONDS. [Meigs (4th) Court of Appeals, December 12, 1914.] Walters, Sayre and Jones, JJ. Henry Shires V. Lydia And Robert Fesler. Appeal Bond, Regular Except Signed by Party and not Surety Amended or Renewed. Where steps have been taken by a party to give an appeal bond which is in proper form in every respect except that the same is signed by a party and not by a surety, and where such bond has been approved by the clerk, the court has authority to permit its amendment or renewal. [Syllabus by the court.] Appeal from common pleas court. Plaintiff filed his motion to dismiss the appeal upon the ground that the defendants filed no appeal bond, as required by law. The defendant, Lydia Fesler, also files her motion in this court for leave to amend the appeal bond filed in this action, or for permission to give a new one to be approved by the clerk, and in connection with her motion makes profert of an appeal bond, in proper form and with sureties approved by the clerk. Shires v. Fesler. The first bond was in proper form and was signed by Lydia Fesler, one of the defendants, but was not signed by any surety. It was, however, approved by the clerk. R. J. Mauck and Ervin & Crow, for plaintiff. J. H. Hunt and A. D. Russell, for defendant. JONES, THOMAS A., J. The sole question is: whether this bond can form a basis for a new or amended bond; or whether this court has jurisdiction to permit an amendment or to require a new appeal bond. Section 12226, G. C., provides that the appellant, "shall give an undertaking, with sufficient surety, to be approved by the clerk of the court," etc. Section 12232, G. C., as amended (103 O. L., 429) provides that, "When a surety in an appeal bond has removed from the state, or is not sufficient, or in form or amount the bond is insufficient, on motion, the court of appeals may order its change or renewal or that a new one be given, to be approved by the court or its clerk." Inasmuch as strict compliance was not had with this section, by the failure to have a surety sign the bond, it is claimed that the foregoing section having dealt particularly with the subject, we are confined to this section in the determination of our jurisdiction to allow the change or renewal of the bond. In view of the decisions of our courts, we do not agree with that insistence. It has been repeatedly decided that steps taken in giving an appeal bond constitute a "proceeding," and that as such it is amendable to Sec. 11363, G. C., permitting its amendment. Negley v. Jeffers, 28 Ohio St. 90; Johnson v. Johnson, 31 Ohio St. 131; Irwin v. Bank, 6 Ohio St. 81; Ireland v. Ireland, 5 Circ. Dec. 277 (11 R. 565). Section 11363, G. C., provides that, in furtherance of justice, before or after judgment, the court may amend any "proceeding" by adding or striking out the name of any party or by correcting a mistake in the name of a party or a "mistake in any other respect." Meigs County Appeals. It is not the appeal bond, but "the steps taken by filing an appeal bond" that constitute the proceeding. Irwin v. Bank, supra. The mistake occurring in the steps so taken may therefore be subject to amendment. Our courts have exercised great liberality in construing these remedial statutes, and especially in permitting amendments of appeal bonds, in furtherance of justice. In the case of Shamokin Bank v. Street, 16 Ohio St. 1, there was not even an attempt to give an appeal bond. Here the bond was perfect in every respect, except a party signed it instead of a surety. The party attempted to file a proper bond and it was approved by the clerk as an undertaking. It has all the earmarks of an undertaking. Applying the dicta of Welsh, J., in Shamokin Bank v. Street, supra, to such a state of facts the court would have undoubtedly held that, where a bona fide attempt had been made to give an undertaking, valid in every respect except as to the absence of a surety, there was such a proceeding that could be amended. The motion to dismiss will be overruled, and the new bond tendered will be permitted to be filed. Walters and Sayre, JJ., concur. Mayer v. Brudno. EXPLOSIVES—NEGLIGENCE—TRIAL. [Cuyahoga (8th) Circuit Court, January 25, 1909.] Marvin, Winch and Henry, JJ. *Martin J. Mayer V. Isaac Brudno. Danger to Persons Outside From Explosion in Torpedo Factory, Question for Jury. A torpedo factory exploded, blowing out a window in a neighboring building and Injuring the plaintiff. In an action against the lessor of the building in whch the torpedoes were being manufactured, Held: It was for the jury to say whether the business of manufacturing torpedoes was dangerous and such that an explosion might reasonably be anticipated, and whether the defendant had such knowledge of the nature of the business carried on that reasonable prudence on his part would have anticipated that an explosion might occur. [Syllabus Vy the court.] Error to common pleas court. Walter D. Meals, for plaintiff in error. MARVIN, J. The parties here stand related to each other as they did in the court below. The suit was brought to recover damages for personal injuries said to have been received by Mame S. Mayer, an infant, by reason of a broken piece of glass striking and cutting into her eye, which glass was a part of a window in the house in which she was, and which was caused to be broken by an explosion occurring in the building owned by the defend ant. This injury was received by Mame May 2, 1903. That the injury was received is clearly shown and not denied; that the cause of the injury was the explosion of something in the building named is clearly shown; that the property was at the time owned by the defendant is clearly shown, and that it was under lease at the time to firm, the name of which *Affirmed, no op., Brudno v. Mayer, 82 O. S. 436. |