Zurhorst v. Judson

29 Ohio C.C. Dec. 528, 23 Ohio C.C. (n.s.) 299, 1912 Ohio Misc. LEXIS 354

• Court: Erie Circuit Court
• Decided: September 27, 1912
• Status: Published

Opinion

RICHARDS, J.

The defendants in error filed a cross-petition in error. In the year 1905, Judson brought suit against Zurhorst for the purpose of enjoining him from circulating a certain pamphlet entitled “A Biographical Sketch of a Few Short Skate Politicians.” A temporary injunction was granted in the court of common pleas upon the execution of a bond in the sum of one hundred dollars. On the trial of that ease in the common pleas court, judgment was rendered in favor of Zurhorst. Thereupon Judson appealed the case to the circuit court, in which court one of the judges granted a temporary injunction upon the execution of an injunction bond in the sum of $250. The circuit court on the trial of the case found in favor of Zurhorst, which judgment was affirmed by the Supreme Court. Thereafter Zurhorst brought an action in the common pleas court of Erie county on the $100 injunction bond given in the court of common pleas, and recovered a verdict and judgment on said bond in the amount of $300, which judgment was affirmed by this court.

The present action was brought in the court of common pleas by Zurhorst upon the $250 bond given in the circuit court. In the court of common pleas, in this last case, a jury was waived and the court found the issues with the plaintiff and assessed the amount of his recovery at five cents, and ordered that each party should pay his own costs.

The bill of exceptions contains all the evidence offered on the trial, and includes also the evidence which was offered on the trial of the action brought upon the $100 bond. It appears from the evidence that in the action on the first bond the plaintiff introduced evidence tending to show all of the damages sustained by him, not only in the common pleas court but in the circuit court and in the Supreme Court, and it is insisted by counsel for the defendants in error that the adjudication in that case is conclusive upon the rights of the plaintiff that he was entitled to recover the sum of $100 and no more, and that said amount is the entire damage suffered by him.

It may be somewhat difficult to state any sufficient reason why this contention is not well taken. Clearly all damages which the plaintiff had suffered were incurred before that action was brought, and may have been found and assessed by the jury in that action, and for aught that appears all damages suffered were assessed in that action.

The burden of proof rests on the plaintiff to show any separate damages suffered by him after the execution of the bond in the circuit court, but the evidence gives the amount of damages in a lump sum, so that the trial court was not furnished with evidence which would enable it to ascertain any amount of damages recoverable under the second bond, if there were such damages.

We find no error in this case to the prejudice of the plaintiff in error.

So far as the cross-petition of the defendants in error is concerned the amount adjudicated against, them is the nominal sum of 5 cents, and the costs made by tbem amounting to some two or three dollars, a sum which would he too trifling to justify the court in reversing the ease and remanding it for further proceedings by reason of that portion of the judgment.

We affirm the judgment on the ground that on the whole, substantial justice has been done by the trial in the court of common pleas.

Wildman and Kinkade, JJ., concur.