Hamilton County Appeals.

This voucher was approved and ordered paid, by a majority vote of said board.

The final estimate as prepared by the engineer and ordered paid, amounting to $7,034.15, was duly paid by the city, but the additional voucher in settlement of claim of A. J. Henkel & Brother "being in excess of final estimate for work done as submitted by the engineer" amounting to $500, on being presented to the city auditor for payment was refused by him and never paid by the city.

This action was therefore brought to recover $2,090.40, being for 1072 cubic yards of broken stone which plaintiff below claimed to have been furnished in excess of the amount as computed by the city engineer, and said plaintiff claimed that the engineer did negligently, arbitrarily, unreasonably and in bad faith certify that the amount of broken stone was 2,228 cubic yards, when plaintiff had actually furnished 3300 cubic yards.

The defendant denies bad faith or mistakes on the part of the engineer, and asserts that the amount certified was the correct amount of broken stone furnished, and pleads full payment in accordance with the final estimate, and sets up the contract provision which provided that the certificate of the engineer shall be the account by which the amount of work done should be computed.

In the trial of the case plaintiff was permitted to offer in evidence the unpaid voucher for $500 which had been prepared and allowed by the board of public service in favor of the plaintiff below by way of compromise, as well as the extract from the minutes of the board of public service showing its action in regard to the proposed compromise. This evidence was admitted over the objection of the defendant and its exception noted.

There can be no question, under the rule laid down in Sherer v. Piper, 26 Ohio St. 476, that this evidence which on its face is shown to be entirely a matter of compromise and settlement, was incompetent, and it could not be otherwise than prejudicial. Defendant in error, however, contends that it was offered only to show a declaration against interest on the part of

Cincinnati v. Henkel.

the city and was competent for that purpose. We do not understand under what rule this claim could be upheld. It is the action of one board, on behalf of the city, and it does not appear to be authorized by the contract itself, and on its face shows that it is entirely by way of compromise. There is no finding by the board that the estimate of the engineer was in any way incorrect or improper, but on the contrary it was approved and confirmed by the board and the payment ordered under it, the additional payment being, as shown on its face, to settle an additional claim made by the contractor. If the board had intended to find that more stone had been delivered than were included in the engineer's estimate, they should have so stated, or should have ordered a remeasurement and computation.

The attempt made by the trial judge to limit the effect of this improper evidence in his general charge to the jury, does not in our opinion cure the error of its admission. ffl

Judgment below is therefore reversed and cause remanded for a new trial.

Swing and Jones, E. H., JJ., concur.

ERROR.

[Hamilton (1st) Court of Appeals, June 3, 1914.]

Swing, Jones and Jones, JJ.

Emma E. Harding V. C., C. & St. L. Ry.

Statute Limiting Time for Bringing Proceedings to Seventy Days Applies to Cases In Which Judgment Has Been Rendered Since the Law Went Into Effect.

A proceeding in error is an independent action, and jurisdiction
in such a proceeding is not acquired under the present stat-
ute, in a case in which it is sought to reverse a judgment
rendered since the law went into effect, unless commenced
within seventy days after the entering of such judgment.
[Syllabus by the court.]

error.

Hamilton County Appeals.

MOTION to dismiss petition in error.

Geo. W. Harding, for plaintiff in error.

Harmon, Colston, Goldsmith & Hoadly, for defendant in

SWING. J.

This is an action from the court of common pleas, brought in this court on March 4, 1914. It was heard in this court on motion to strike the petition from the files for the reason that it was not brought within the time limited by the statute for the filing of petitions in error. Trial was had in the court of common pleas on October 21, 1913. A verdict was rendered for defendant on October 23, 1913, and judgment entered on the verdict November 17, 1913.

On May 9, 1913, the legislature amended Sec. 12270, G. C. so as to read as follows:

"No proceeding to reverse, vacate or modify a judgment or final order shall be commenced unless within seventy days after the entry of the judgment or final order complained of; or in case the person entitled to such proceedings is an infant, a person of unsound mind, or imprisoned, within seventy days exclusive of the time of such disability."

The section before it was amended provided four months as the time within which such action might be brought. The question presented to us therefore is whether the old or the amended section applies.

The present law applies by the force of the words of the statute, unless Sec. 26 of the general provision of the statutes exempts it from the operation of the amended law. This section reads as follows:

"Whenever a statute is repealed or amended, such repeal or amendment shall in no manner affect pending actions, prosecutions or proceedings, civil or criminal, and when the repeal or amendment is related to the remedy it shall not affect pending actions, prosecutions or proceedings unless so expressed, nor shall any repeal or amendment, affect causes of such action, prosecution or proceedings existing at the time of such amend

Harding v. Railway.

ment or repeal, unless otherwise expressly provided in the amending or repealing action."

The law of May 9, 1913, by force of law went into effect ninety days from that time, August 8, 1913. The action of Harding against the railway company was pending at the time of the passage of the act, and of course was pending in the court of common pleas at time the law went into effect. Whether or not this act is saved by this general provision of the code must be determined.

The action pending in this court was pending in the court of common pleas when the act of May 9, 1913, went into effect. The Supreme Court in the case of Charles v. Fawley, 71 Ohio St. 50, 54 [72 N. E. Rep. 294], in the opinion of the court, speaking of proceedings in error, said:

"Such proceedings recognize the termination of the original case. To institute them it is required that a petition in error be filed in the reviewing court, and to acquire jurisdiction of the person of the adverse party there must be the issuance and service of summons; whereas, the steps necessary to effect an appeal are taken in the court having jurisdiction in the original action and the adversary party is bound thereby without summons. An obvious analogy is found in the doctrine of lis pendens where the distinction between appeals and proceedings in error, in this respect, is recognized. The property which is the subject of a suit is bound by its event not only while the case is pending in the court of first resort, but also while it is pending in a court to which it may be taken by appeal; but where a review of the judgment is sought by proceedings in error, the suit is regarded as ended by the judgment of the court of first resort. This distinction was recognized in Ludlow v. Kidd, 3 Ohio 541, where Sherman, J., speaks of an appeal as a proceeding in the original cause, and concludes that its effect is to continue the cause and suspend the decree of the inferior tribunal until the judgment of the tribunal to which the appeal is taken."

We have carefully gone over the cases cited by counsel in argument, as well as others that we have found, in the Supreme

Hamilton County Appeals.

Court and circuit courts, especially the case in Hays v. Park, Co., 24 O. C. C. 354 (1 N. S. 101), and the case in Oskamp, In re, 49 Bull. 568 (1 N. P. N. S. 195), and have arrived at the conclusion that the proceeding in error is an independent action, and that the statute limiting the time in which such proceeding may be brought, to seventy days, applies in a case where a judgment was rendered after that law went into effect and which judgment is sought to be reversed in a proceeding in error, which is the case here, this action in this court having been brought 107 days after the rendition of the judgment in the court below. The judgment of the court of common pleas was rendered after the law of 1913 went into effect, and it must apply.

We think the motion was well taken, and the petition is therefore stricken from the docket.

Jones and Jones, JJ., concur.

INSURANCE—WORK AND LABOR.

[Hamilton (1st) Court of Appeals, October 24, 1914.]
Swing, Jones and Jones, JJ.

•Washington T. Porter, Et Al, Tr. V. Wm. A. Hopkins, Treas.

Et AL.

Cincinnati (bd. of Ed.) V. Hopkins.

State Ex Rel, Pogue Pros. Atty. V. Hopkins.

Cincinnati (city) V. Hopkins.

Jurisdiction not Conferred upon Courts to Enjoin Payments under Workmen's Compensation Law.

The authority conferred by Sees. 2921 and 4311 G. C. on the prosecuting attorney of the county and the city solicitor to bring actions for the purpose of restraining the illegal payment of money from the public treasury do not give jurisdiction to a court to entertain an injunction proceeding contrary to the provisions of Sec. 58 of the workmen's compensation act. ♦Affirmed, Porter v. Hopkins, 91 O. S. 000. (51 Bull. 478).