Carter v. City of Zanesville

• Decision Date: 01 November 1898
• Citation: 52 N.E. 126,59 Ohio St. 170
• Parties: CARTER v. CITY OF ZANESVILLE et al.
• Court: Ohio Supreme Court

52 N.E. 126

59 Ohio St. 170

CARTER v. CITY OF ZANESVILLE et al.

Supreme Court of Ohio.

November 1, 1898

Error to circuit court, Muskingum county.

Action by Sarah S. Carter against the city of Zanesville and others. Judgment for defendants was affirmed by the circuit court on error, and plaintiff brings error. Affirmed.

The plaintiff in error filed in the court of common pleas of Muskingum county the following amended petition: ‘The state of Ohio, Muskingum County, Court of Common Pleas. Sarah S. Carter, as Administratrix, etc., v. The City of Zanesville, Wm. Morrison, George Kerner, John Nepp, C Stolzenbach, and David Hahn, Defendants. Amended Petition. The plaintiff, for her amended petition, says: That she is the administratrix of Alice T. Carter, deceased, duly appointed by qualified by the probate court of said county. That one Jehu W. Carter, late of said county, deceased, was the father of said Alice T. Carter, and he died on May 27 1880, intestate, leaving said Sarah S. Carter his widow, and the following children, Charles R. Carter, James W. Carter Mary I. Carter, and Edward S. Carter, who still survive, and together are the sold next of kin of said Jehu W. Carter and said Alice T. Carter, who died, intestate and unmarried, on July 16, 1852. That, about said lastnamed date, said Juhu W Carter purchased from said city of Zanesville, for a valuable consideration then paid, lot No. nine (9) in the twelfth (12) tier of the east center square, in what was then called the Zanesville Cemetery, which is the same as is now called Greenwood Cemetery. Said grant of said lot was to Jehu W Carter, his heirs and assigns, to be held and used as a burial place. On the 18th of July, 1852, the body of said Alice T. Carter was buried in said lot No. nine (9), and remained there till about the 1st of June, 1890, when it was, by the said city of Zanesville and said Stolzenbach and said Hahn, and their superintendent, agents, and employés, and who (with Thos. Lindsay, who is now deceased) composed the then board of trustees of said cemetery, and represented said city in the management of the same, none of which acts were within their statutory powers as such trustees, unlawfully and forcibly and fraudulently taken up and taken into their possession, and, by their carelessness and negligence, commingled with many other remains, so as to make identification impossible, and carted off to some unknown spot in said cemetery, and is now still held by defendants, said city, and said Morrison, Kerner, and Nepp, who are now the trustees of said cemetery, and represent said city in its management. Said unlawful having of the possession of said body and remains, and the said disinterring and removal thereof, and all of said acts, were done when defendants had the means of identifying said remains, and without any notice whatever to the said owners of said lot and next of kin of said descendants (although they or some of...