Memoranda of

No. 4594.

BOARD OF EDUCATION v. STATE EX REL. BOARD OF EDUCATION.

(Decided December 17, 1895.)

ERROR to the Circuit Court of Warren county. Clark & Cunningham, for plaintiff in error. W. C. Thompson and W. F. Eltzroth, for defendant in error.

Judgment affirmed.

No. 3153.

LIFE INSURANCE COMPANY v. HORN.

(Decided December, 20, 1895.)

ERROR to the Circuit Court of Hardin county.

Charles M. Melhorn and Ramsey, Maxwell & Ramsey, for plaintiff in error.

George II. Phelps, for defendant in error.

Judgment affirmed.

SHAUCK and SPEAR, JJ., dissent.

No. 3243.

RAILWAY COMPANY ET AL. v. RAILROAD COMPANY.

(Decided December 20, 1895.)

ERROR to the Circuit Court of Mahoning county.

J. T. Brooks, Carey & Boyle and A. W. Jones, for plaintiffs in error.

T. W. Sanderson, D. B. Kurtz and D. T. Watson, for defendant in error.

Judgment affirmed; the questions argued are not so presented by the record as to be capable of consideration by this court.

Causes not reported in full.

No. 3563.

HANEY V. BURNS, EXECUTOR.

(Decided December 20, 1895.)

ERROR to the Circuit Court of Ross county.

James H. Moore and William H. Safford, for plaintiff in error.

J. C. Douglas, for defendant in error.

Judgment affirmed.

No. 3567.

RAILWAY COMPANY v. WARTENBEE.

(Decided Décember 20, 1895.)

ERROR to the Circuit Court of Muskingum county.

Frank A. Durban and Frank II. Southard, for plaintiff in error.

Power & Power, for defendant in error.

Judgment affirmed.

No. 2451.

THE ISAAC HARTER COMPANY v. EDWARDS.

(Decided June 25, 1895.)

MOTION by defendant to strike from the files bill of exceptions in cause No. 4361. on the general docket.

Brown & Guernsey, for plaintiff in error.
George II. Phelps, for defendant in error.

Motion overruled for the reason that it involves the merits of the case on error.

INDEX.

ABANDONED GAS OR OIL WELLS-

Abandoned gas or oil wells—Filling same-Form of petition—Act
of February 9, 1893 (90 Ohio Laws, 24)-When an oil or gas
well is about to be abandoned, or operation thereof cease,
the statute (90 O. L., 24) requires, that before drawing the
casing therefrom, it shall be securely filled in such manner
as shall prevent the surface or fresh water from penetrating
to the oil or gas bearing rock, and also as shall prevent the
gas and oil from escaping therefrom. To comply with this
statute, it is required that the necessary filling be done while
the casing yet remains in the well; and a petition for the
violation of this statute need not aver that the casing has
been drawn. The State of Ohio ex rel. v. The Oak Harbor
Gas Co., 347.

ABSTRACT OF TITLES-See EXECUTION OF DEED.

ACTION AGAINST COUNTY TREASURER-See CONSTITU-
TIONAL LAW, 11, 12, 13.

ACTION BY GUARDIAN-See IMBECILE.

ACTION BY STOCKHOLDER-See PRIVATE CORPORATION, 2,
3, 4.

ACTION FOR DAMAGES-See COAL MINE OWNER, 1, 2, 3, 4;
PENDING ACTION FOR DAMAGES; STREET RAILWAY CROSSING
RAILROAD TRACK.

1. Action for damages-Protection to miners—Admission and ex-
clusion of testimony-Rule as to contributory negligence-Where,
at the trial of an action for alleged wrong-doing of the
defendant, a question arises as to whether the petition makes
a case for negligence, which is decided for the plaintiff, and
testimony offered by him bearing upon that issue is, against
the objection of defendant, admitted, it is not error to
admit appropriate testimony offered by defendant bearing
on the same question even though, upon a proper construc-
tion of the pleadings, the issue is not made. Krause et al. v.
Morgan, 26.

2 Assuming voluntary risk may waive statutory protection-Con-
tributory negligence-One who voluntarily assumes a risk,
thereby waives the provisions of a statute made for his pro-
tection. And where a statute does not otherwise provide,
the rule requiring the plaintiff in an action for negligence to

Action for Wages-Appeal from Interlocutory Order.

ACTION FOR DAMAGES-Continued-

be free from fault contributing to his injury, is the same,
whether the action is brought under a statute or at common
law. Id.

3 Duty of coal mine operator-Employe cannot maintain action,
when-Sections 298 and 301, Revised Statutes-Under the sec-
tions 298 and 301, of the Revised Statutes, which require the
operator of a coal mine to keep the same free from gas, and
to have the working places examined every morning with a
safety lamp before workmen are allowed to enter, and give
a cause of action to a person injured for direct damage oc-
casioned by any violation or wilful failure to comply with
the requirements of the statute, an employe cannot maintain
an action against his employer for an injury following such
violation, unless at the time he was injured he was in the ex-
ercise of due care. Id.

ACTION FOR WAGES—See CONSTITUTIONAL LAW, 1.

ACTION OF COURT NOT REVIEWABLE-See NUNC PRO TUNC.

ACTION IN COUNTY, WHERE PROPERTY IS NOT SIT-
UATED- See JURISDICTION.

ALLOWANCE TO ASSIGNOR-See PROBATE COURT JURIS-
DICTION.

ANNUAL REPORT-See COUNTY COMMISSIONERS.

APPEAL BY DEFENDANT-See CONSTITUTIONAL LAW, 1.
APPEAL FROM INTERLOCUTORY ORDER-

1. Appeal from interlocutory order-Does not transfer case to
appellate court for trial of issues-Jurisdiction of appellate
court-An appeal from an interlocutory order of the court of
common pleas, or a judge thereof, dissolving a provisional
injunction, allowed in an action, does not transfer the case
to the appellate court for trial of the issues joined by the
pleadings; the jurisdiction of the appellate court, on such
appeal, is limited to the hearing and decision of the motion
to dissolve, although the ultimate relief demanded in the ac-
tion is a permanent injunction of like purport with the pro-
visional one which was dissolved. Trustees v. McClanahan
et al., 403.

2. Dismissal of plaintiff's action in common pleas court leaves
nothing for appellate court-Where, after such appeal, the
plaintiff dismisses his action in the court of common pleas,
the provisional injunction and motion to dissolve go with it,
and nothing remains for the appellate court to hear and de-
termine. Id.