Springfield Fire & Marine Insurance v. Wagner , 74 Ohio St. (N.S.) 484 ( 1906 )

It is ordered and adjudged by this court that the judgment of said circuit court be and the same hereby is reversed for error in affirming the judgment of the court of common pleas of said Seneca county, and the judgment of said court of common pleas is reversed for error in overruling the motion for a new trial on the grounds that the court erred in the admission of evidence, in refusing to charge, and in its general charge to the jury; it appearing from the plaintiff’s evidence that Lillis, the mortgagee, is a real and not a fictitious person, he is a necessary party to the action or a valid release of the mortgage must be proven. It appearing from the plaintiff’s evidence that the mortgagee neither signed the release nor 'authorized it, it was error to admit in evidence the release on the mortgage record. The verdict is set aside and the case is remanded to the said court of common pleas for a new trial.

Shauck, C. J., Crew, Summers, Spear and Davis, JJ., concur.