Sears v. Walker

85 Ohio St. (N.S.) 490

• Court: Ohio Supreme Court
• Decided: January 30, 1912
• Docket: No. 12324
• Status: Published

Opinion

Judgment reversed and judgment for plaintiff in error.

Davis, C. J., - Spear, Shauck, Price, Johnson and Donahue, JJ., concur.

The journal entry heretofore made and entered in this cause is hereby modified so as to read as follows, to-wit:

This cause came on to be heard upon the transcript of the record of the circuit court of Crawford county, and was argued by counsel. On consideration whereof, it is ordered and adjudged by this court that the judgment of the said circuit court be, and the same hereby is, reversed for error of the circuit court in its conclusion of law that the judgment of the common pleas court of Crawford county in cause No. 9364, setting aside the last will and testament of L. L. Walker, deceased, is null and void as to the parties to that suit, and in adjudging that said will is in full force and effect in so far as it affects the rights and interests of the parties thereto, and in its holding that this action in partition was prematurely brought. And it appearing from the record and by consent of counsel in open court that $1,080.30 of the money borrowed by Sarah L. Walker from Frederick Gehret was applied by said Sarah L. Walker to the payment of a ditch assessment duly levied by the commissioners of Crawford county against the real estate described in the petition, and that said assessment was a valid and subsisting lien against said real estate, and therefore the judgment of the circuit court in favor of said Mary Gehret, as administratrix of the estate of Frederick Gehret, deceased, to the extent of $1,080.30 with interest thereon from the 21st day of December, 1906, and that the same is a first and best lien upon said portion of the premises described in said answer and cross-petition of Frederick Gehret is affirmed, and all the rest and residue of said judgment of the circuit court for the errors above stated is reversed and vacated, and said cause is remanded to said circuit court for further proceedings according to law.