Andrews Asphalt Co. v. Middletown.

[14 Ohio the court was wrong in his conclusions in this case, and the judgment, for that reason, will be reversed and the cause remanded for further proceedings according to law.

Judgment reversed, and cause remanded. WASHBURN, P. J., and INGERSOLL, J., concur.

THE ANDREWS ASPHALT PAVING CO... THE CITY OF MIDDLETOWN.

Court of appeals-Jurisdiction on appeal-Accounting of trust funds-Income from money retained by municipality for performance of contract - Failure of clerk to deliver transcript Section 12236, General Code-Right to appeal unaffected, when.

1. A city having retained as a guaranty under the terms of a contract certain money due a contractor for the payment of contract work, an action by the contractor demanding an accounting of the earnings and income derived from the use of the money so retained, claiming the money was held in trust and used by the city and an income derived therefrom, is an action based upon an accounting for the use of trust funds and is cognizable in a court of equity and appealable as a chancery

case.

2. The fact that the clerk of the court of common pleas fails to deliver the transcripts and records of a cause at the office of the clerk of the court of appeals by the first day of the next term, as provided by Section 12236, General Code, will not deprive the appellant of his right to appeal.

(Decided May 23, 1921.)

APPEAL: Court of Appeals for Butler county.

ON MOTION to dismiss appeal.

Messrs. Andrews & Andrews, for plaintiff.

Mr. G. W. A. Wilmer, for defendant.

App.]

Andrews Asphalt Co. v. Middletown.

HAMILTON, P. J. The plaintiff moves to dismiss the appeal on the ground that appeal was not perfected within the time required by law, that the case was not docketed or filed in this court within the time provided by law, that the court has no jurisdiction to try the cause on appeal, and that the cause is not appealable to this court.

The action grows out of the retention by the city of Middletown as a guaranty under the terms of a contract of certain sums of money due in payment of contract work.

The claim is that the money was held in trust for the purpose above stated and was used by the city and an income derived therefrom by the city, and the action is for an accounting of the earnings and the income derived from the use of the money.

The action is based upon an accounting for the use of the trust funds and was properly cognizant in a court of equity. The cause is appealable as a chancery case. (Section 6, Article IV of the Constitution of Ohio, 1912.) Notice of the intention to appeal was properly given and the appeal bond was filed within the time prescribed by law. This was all the law enjoined upon the city. Its appeal was perfected. Section 12236, General Code, provides:

"Forthwith, upon the perfecting of an appeal, the clerk of the common pleas court shall make a true transcript of docket and journal entries, including the final judgment in the cause, which, with the original pleadings and other papers he shall deliver at the office of the clerk of the court of appeals not later than the first day of its next term thereafter.

Andrews Asphalt Co. v. Middletown.

[14 Ohio

At his own costs, either party may require a full record of the case in the court below, to be made.”

It appears that the clerk of the court of common pleas failed to deliver to the office of the clerk of the court of appeals the transcript and journal entries, including the final judgment in the case, with the original pleadings and other papers, prior to the first day of the next term of court, but delivered the same one day after the first day of the next term of the court of appeals. For this failure on the part of the clerk, we are asked to dismiss the appeal.

This question has been squarely before the court in two cases, Hirsh v. Kilsheimer, 12 C. C., 291, and Broerman v. Townsend, 6 W. L. B., 722. In Hirsh v. Kilsheimer, the court says:

"Where the clerk files the paper several days after the expiration of the thirty days [which was then under the statute the time limit], his failure in this regard cannot prejudice the appellant."

And in the case of Broerman v. Townsend, the court held that an appeal to the district court would not be dismissed because of the neglect of the clerk of the court of common pleas to file the transcript within the time fixed by law.

We are content with this view of the law, and will sustain the appeal.

Motion to dismiss appeal overruled.

CUSHING and BUCHWALTER, JJ., concur.

App.]

Gibbs v. U. C. T.

GIBBS V. THE UNITED COMMERCIAL TRAVELERS OF AMERICA.

Insurance - Construction of contract - Notice of accident or death -Injury results in death - Notice of accident unnecessary, when -Notice of autopsy unwarranted.

1. The requirements in an insurance policy, under which a certificate of insurance is issued to a member, are that in case of an accident he "shall, within ten (10) days after the date of such accident, send a notice in writing" to the officers of the company, and that in case of death "notice of said death must be given in writing * * within ten (10) days after said death, which death notice shall be in addition to the notice of the accident:" Held, the giving of the notice of the accident by the insured was not a condition precedent to the right of the beneficiary to recover in case of the death of the insured.

2. A condition of forfeiture, in case of an autopsy not requested by the company, worded "notice thereof being first given to the Supreme Secretary at least seven (7) days in advance of the intended autopsy,” is unreasonable and unwarranted, and a forfeiture of the policy will not be declared on account of failure to give such notice.

(Decided November 20, 1920.)

ERROR: Court of Appeals for Stark county.

Messrs. Herbruck & Black and Messrs. McCarty, Armstrong & Rainsberger, for plaintiff in error. Messrs. Webber & Turner, for defendant in

error.

PATTERSON, J. The parties in this court stand in the same relation as they did in the court below.

The plaintiff in her petition alleges that William H. Gibbs was her son, and that on the 13th day of July, 1917, he became a member of the defendant order, in good standing, and that the defendant

issued to him its certain certificate or policy of insurance, thereby agreeing to pay to the plaintiff, as the beneficiary, in case of his death from bodily injury through external, violent and accidental means and independent of all other causes, the sum of $6300, $5000 of which was to be paid within ninety (90) days from the receipt by the supreme executive committee of satisfactory final proofs of the death of William H. Gibbs, and $1300 to be paid in weekly installments of $25 each, beginning within ninety (90) days from the receipt of such final proofs, said certificate or policy being for such period of time as said William H. Gibbs might be a member of said order in good standing and should pay when and as the same became due and payable all dues and assessments charged and levied against him; that at all of the times hereinafter mentioned William H. Gibbs was a member of the defendant order, in good standing, and that he had paid when and as the same became due and payable all dues and payments charged against him.

Plaintiff further alleges that while this policy was in full force, and on or about the 8th day of October, 1917, said William H. Gibbs, on account of an accident, was bodily injured in his abdomen, from which bodily injury, effected through external, violent and accidental means, and independent of all other causes, the said William H. Gibbs on the 17th day of December, 1917, died; that this plaintiff was named in the policy, at the request of William H. Gibbs, as the beneficiary thereof, and that by reason thereof the sum now due on the policy is payable to her.