Pray v. Oliver (5 Ohio 326, 1832)

John Pray v. W. Oliver and M. Baum. W. Oliver and M. Baum v. John Pray. John Pray v. W. Oliver and M. Baum.

Case of practice and of facts.

These cases came before the court, by adjournment from the county of Wood. By an agreement of counsel they were submitted for a final decision upon the merits of the whole matter in controversy.

The first was an action of assumpsit, the object of which was to recover back purchase money paid for land, alleged to have been sold to Pray, by Oliver and Baum. In this action, in the court of common pleas of Wood county, May term, 1828, Pray obtained a verdict and judgment for three thousand two hundred and twenty-six dollars and ninety-six cents. Notice of aj>peal was given, and an appeal bond executed. But by the mistake of the clerkj the penalty of the appeal bond was fixed at only double the amount of the damages for which judg•ment was rendered, and did not cover the costs. For this defect of the bond, on motion of Pray, the Supreme Court quashed tho appeal.

*The second case, Oliver and Baum against Pray, is a bill in chancery, brought by the complainants against Pray to obtain a new trial, upon the ground of the mistake of the clerk in preparing the appeal bond. The bill sets out the whole matter in dispute, making a case of strong equity for the complainants. Pray answered this bill, and a great deal of testimony was adduced on both sides. The court of common pleas of Wood county awarded a perpetual injunction against Pray, taking execution upon his judgment. From this decree Pray appealed to the Supreme Court. That court, in special session at Columbus, December term, 1829, awarded a new trial of the suit at law, upon terms which were acceded to by the parties. This new trial was had before the Supreme Court of Wood county, at July term, 1830, when Pray became nonsuit. A motion was then made by Pray’s counsel to set aside the nonsuit and direct a new trial. The decision •of this motion was adjourned to the special session at Columbus, where, at the December term, 1830, it was overruled, but no final judgment rendered, and the cause was again remanded to the Supreme Court of Wood county, where the chancery cause was still pending.

At the July term, 1831, of the Supreme Court, in Wood county, the counsel upon both sides entered into an agreement to submit the whole matter to the decision of the court, with leave for Pray, to file a cross bill, and with an understanding than an issue out of chancery should be made, if deemed necessary by the court, to determine any material fact in the cause. The cross bill was filed, .answers put in, and further testimony taken; upon all which matters the case now was heard and decided.

The final decision of the court was in favor of Oliver and Baum : but that decision being predicated altogether upon the facts, as made out by the proofs in the cause, which could not be made intelligible, but by a most voluminous report, which would be of little value to the profession, it is omitted.

T. W. Powell and O. Parish, for Pray.

•C. Hammond and P. B. Wilcox, for Oliver and Baum.