text:
    FEES OF SHERIFFS.
    [Circuit Court of Scioto County.]
    Fred C. Ketter v. The Board of Commissioners of Scioto County, Ohio.
    Decided, March, 1906.

      County Commissioners—^Capacity of, to Sue for Recovery of Money Wrongfully Paid Out of County Treasury—Fees of Sheriffs—For Conveying Prisoners to Workhouse—For Conveying Insane Patients to Asylum—And Committing and, Discharging Prisoners from Jail —Statutes Construed—Section 12306 Unconstitutional for Lack of Uniformity of Operation.

    .lv'-While Section 1230 allows thirty cents for making service and return on each writ in conveying sentenced prisoners to the workhouse in Cincinnati, Ohio, there is no provision therein for payment from the county treasury; hut Section 1536-372 (Revised Statutes 2101), provides for the allowance of such fees, and that the same be paid out of the county treasury.
    2. Section 719 as amended and'appearing on page 296 of 97th Yol. of Ohio Laws, passed April 23, 1904, includes all compensation to which a sheriff is entitled for conveying persons to' the asylum at Athens, Ohio, upon the warrant of a probate judge.
    3. Section 1230 allows thirty cents for committing persons to jail and . discharging them therefrom, but it is not available to the officer for the reason stated in the first clause above. Section 12306 provides for such allowance, an4 that it shall be paid out of the county treasury, hut said sectfon'-ls in conflict with that part of Section 26, Article II of the ’¿'¡‘¿institution which provides that “All laws of a general natjnsei, shall have a uniform operation throughout the state,” and is therefore unconstitutional and void, and the sheriff has no recourse for such services other than is found in Section 1231, Revised Statutes.
    Cherrington, J.; Jones, J., and Walters, J., concur.
    The suit below was by the Commissioners of Scioto County, Ohio, to recover from Ketter, who was the duly elected, qualified and acting, sheriff of this county, certain sums he had collected, viz., fees which were collected and taken from the treasury of Scioto county, claimed to be without warrant or provision of law.
    The petition contains six causes of action. Certain arrangements were made as to three of the causes, after the institution of suit and after disposition of demurrers to them respectively, which are now out of the case, and there are left simply the first, fourth and sixth causes of action.
    The defendant demurred to each of the three causes, assigning two grounds:
    First. That plaintiff had no legal capacity to sue.
    Second. That neither of the causes stated facts sufficient to constitute a cause of action.
    The court overruled the demurrer to each of these causes and entered up judgment for the commissioners. Error is prosecuted here, and it is claimed the court erred in overruling the demurrer on each ground stated in the demurrer.
    And first, as to whether or not the commissioners have capacity to sue, it is sufficient to say that Section 845 expressly confers authority upon the commissioners to sue in this and like cases.
    The next question is, as to whether or not the several causes of action, or either of them, state facts sufficient to constitute a cause of action.
    Counsel have argued at -length, both orally and on briefs, referring to various sections of the statutes, which it is claimed govern this case, but I will not undertake to follow the line of the argument, because it would be very troublesome to do so— to refer to these various sections of the statutes; and it must be admitted that the statutes of Ohio on this subject are in a confused, and I may say, a somewhat incoherent condition, and I will do little more than briefly refer to the sections which we think control in the case; and it will be well in the beginning to bear in mind that the sheriff and other officers of the county are entitled to just such fees and compensation as are provided by statute, and none other.
    Now, the first cause of action was to recover twenty-five cents which the- sheriff had charged on each writ for making service and return thereof in conveying sentenced prisoners to the workhouse in Cincinnati, Ohio.
    Counsel for the sheriff claim that he is entitled under Section 1230, Revised Statutes, to the amount charged. Section 1230 provides that he shall have for levying and serving of each writ, not only twenty-five cents which he has charged, but thirty cents; but when you follow out the section of the statute it wifi be discovered that there is no provision for payment from the county treasury. So this is not an available section as far as payment is concerned to the officer.
    Then the question is, whether there is any other section which provides how the payment shall be made. Section 1536-372 (Revised Statutes, 2101), provides:
    “The officer having the execution of the final sentence of any court, magistrate, or mayor, shall cause the convict to be conveyed to the workhouse as soon as practicable after the sentence is pronounced; and all officers shall be paid the fees therefor allowed by law for similar services in other cases, such fees to be paid when the sentence is by the' court, out of the county treasury, and when by the magistrate, out of the township treasury. ’ ’
    That seems to be a general statute, and we think it gives ample provision for the payment of not only twenty-five cents which he has charged under Section 1230, but thirty cents.M
    Section 6801a, which the prosecuting attorney cites as exclusive of and superseding 1230, allows six cents for’ transporting a prisoner to the workhouse and nothing more. But it will be observed that that section provides for the transportation of such persons where it is done under an agreement between the commissioners of the county where the conviction took place, and where it has no workhouse, and the proper authority in another. county where a workhouse is located. And it seems to provide simply for the transportation and nothing further.
    “And the sheriff, or other officer transporting any person to such workhouse shall have the following fees therefor,” i. e., for transportation six cents per mile, etc. So that is not exclusive. We think, harmonizing and construing Section 1230 and 2101 together, that he is entitled to such service as he has charged, and that the court erred in overruling the demurrer to the first cause of action.
    The fourth cause of action is for serving and returning warrants to convey certain persons to the asylum at Athens, Ohio.
    We think Section 719 as amended and appearing on page 296 of the 97th Yol. of Ohio Laws, passed April 23, 1901, is decisive of and conclusive as to that matter. That provides for payment—“to the. sheriff, or other person other than assistant for taking an insane person to a state hospital, or removing one therefrom upon a warrant of the probate judge, mileage at the rate of five cents per mile, going and returning, and seventy-five cents per day for support, and mileage at the rate of three cents per mile for the railway transportation of each patient to and from the hospital, and to one assistant five cents per mile each way, and nothing more, for said service, the number of miles to be computed in all cases by the nearest route traveled. ’;
    We are satisfied it was'the intention of the Legislature that this section should cover all compensation to which the sheriff was entitled, as stated herein, and that it does not include the charge made in the fourth cause of action, and the demurrer thereto, and judgment thereon was proper.
    The sixth cause of action are charges for committing persons to jail and discharging them therefrom. The only section we can find bearing upon this subject is the original Section 1230. There were others cited, but we do not think they apply.
    Now this Section 1230 allows for such charges, sixty cents, but as in the first cause of action stated, there is no provision as to how it shall be paid. There is no provision that it shall be paid out of the county treasury or otherwise. So that is not available to the sheriff, and we know of no other -valid section allowing and providing for this matter.
    Section 12305' does provide for this allowance and that it shall be paid out of the county treasury, but it will be noticed that it applies to a certain class of counties only, and it is an act attempting to classify counties:
    “In all counties which at the last federal census had a population of twenty-two thousand five hundred or more, and for which there is no provision made by law for the payment of the sheriff, he shall receive the following fees and compensation. ’ ’
    The sheriff is allowed in that twenty-five cents for service charged, or allowed at least what he has charged, and it is provided that that shall be paid out of 'the county treasury. Now, if that was a valid statute, the charge would be a proper one; but we are satisfied that it is unconstitutional and void, and the sheriff will have no recourse except under Section 1231, which provides that:
    “The court of common pleas in each county shall make an allowance of not more than three hundred dollars, per apnum, for the sheriff, for services in, criminal cases, where the state fails to convict, or the defendants prove insolvent, and for other services not particularly provided for; to be paid out of the county treasury.”
    So we are compelled to hold that the judgment in the fourth and sixth causes of action was correct, but in the first being wrong, it will require a reversal of the entire judgment, unless counsel -should prefer that it be modified and affirmed as modified.

      Frank M. Moulton, for plaintiff in error.

      Harry W. Miller, Prosecuting Attorney, for defendant in error.


source: Caselaw Access Project

license: Public Domain

text:
    TESTIMONY AS TO SPEED.
    [Circuit Court of Hamilton County.]
    The Cincinnati Interurban Company v. Samuel E. Haines.
    Decided, March 31, 1906.

      Negligence—Speed' of Interurban Gar—Evidence—Charge of Court-Burden of Proof—Error—Res Gestae—Exclamation of Decedent at Time of the Accident.

    1. While testimony as to speed is always more or less unsatisfactory, yet when the testimony offered on that subject was the best obtainable and was worthy of consideration, the finding ot' a jury made with reference thereto and in the light of the surrounding circumstances should not be disturbed.
    2. A charge of court which dwells upon the subject of contributory negligence as an affirmative defense, when there was ho such defense interposed, and is silent as to the burden of removing a suggestion of contributory negligence found in the plaintiff’s own testimony, is so misleading as to require a reversal of the resulting verdict.
    3. Inasmuch as it is impossible to state all the law in a single paragraph or a single special charge, reversible error can not be predicated upon the criticism of a special charge in this case in that regard.
    4. Expressions or exclamations do not become a part of the res gestae unless they were automatic and involuntary, and involved no intellectual processes or matter oí inference or deduction; and an exclamation by the decedent an instant before the accident occurred is not competent as a part of the res gestae, where the same matter would not be admissible were the party still living and on the stand.
    Jeuke, P. J.; Swing, J., and Gieeen, J., concur.
    Taking- up the grounds of error complained of in the order in which they are presented in the brief of counsel for plaintiff in error:
    I. “(a). The plaintiff failed to show by a preponderance of the evidence that the defendant was guilty of negligence in the matter of speed. ’ ’ •
    Testimony, as to speed, is always somewhat unsatisfactory. While it is a statement of fact, it necessarily involves matter of opinion. It usually must be expressed in various modifications of the adjectives “fast” and “slow,” and these expressions are correlative to surrounding facts and circumstances so that they furnish very little satisfactory information. Definite and exact statements and estimates as to speed are also unreliable, and'are to be scanned with close scrutiny because most witnesses are incapable and unless there is some particular reason, qualified witnesses at the time are not usually making mathematical estimates of speed and particularly directing their attention and exerting their faculties in such determination. It is even then a matter into which error is very likely to creep. This being so, while the testimony on the subject of speed in the record is not of such satisfactory character as we usually look for to make out a preponderance on other clear cut issues of fact, yet it is evidence, the best obtainable and entitled to consideration, and the finding of a jury on this point made iu the light of all surrounding facts and circumstances should not be disturbed. We are, therefore, unwilling to find error in this regard.
    “(b). It is contended that the plaintiff failed to show by a preponderance of the evidence that the defendant was guilty of negligence in that the motorman was not maintaining a proper look-out ahead.”
    If we take the record with all the evidence on this point admitted by the court below, we find no error in this regard. But our conclusion may be affected somewhat by what we decide later herein as to the admissibility of the exclamation of Mrs. Haines to her husband, immediately prior to the accident.
    II. As to the charge of the court, relating to the burden of proof as contributory negligence, it appears that although in its amended answer the defendant company alleged» that the death of Mrs. Haines was caused by the negligence and carelessness of her husband, Samuel E. Haines, at the trial the defendant rested at the close of plaintiff’s testimony and offered no testimony on this point or any other. Whatever issue of contributory negligence there may have been herein must have arisen, therefore, on the plaintiff’s own testimony. The charge of the court was as follows:
    “Upon the question of contributory negligence or want of ordinary care upon the part of the plaintiff as I have stated it to you the burden of proof is upon the defendant who alleges the contributory negligence of the plaintiff, to prove such weight of the evidence just as the plaintiff must prove the negligence of the defendant alleged by him by the greater weight of the evidence, so the defendant alleging contributory negligence must prove such contributory negligence in the same way by the greater weight of the evidence.”
    This is a charge on the subject of contributory negligence only as an affirmative defense, and says nothing whatever about the burden of proof of removing a suggestion of contributory negligence arising from the plaintiff’s own testimony. We think, in view of the condition of the case at the time of its submission to the jury, this was error. It is contended that this is erroneous under the decision of The Traction Co. v. Forrest, 73 O. S., —.
    The case at bar seems to us to be more aggravated than the Forrest case, because here the court not only charged as to the kind of contributory negligence that was not under submission to the jury, but failed to charge as to the only kind of contributory negligence that the jury could consider. This being so the charge in this regard was very misleading, and we think was error requiring reversal.
    As to the third point, we think that the objection taken by counsel for plaintiff is good, but had we not determined to reverse this ease on other grounds, we would hardly find the use of the word “saw” here to constitute reversible error. Of course limiting the charge to the sense of sight; was erroneous, but we believe that a liberal construction might make this charge cover apprehension by all of the senses.
    As to the fourth objection, finding fault with special charge No. 6, the criticism is one which applies to. all special charges and can hardly be avoided. All the law on any point can hardly be stated in a‘single paragraph, nor in a single special charge. We find no reversible error in this regard. .
    V. We are of opinion that the court erred in admitting the testimony of plaintiff as to what his wife said shortly before the accident. Counsel for defendant in error very properly took their stand on the only defensible ground for admission of this testimony, viz.: that it was part of the res gestae. We think this is pressing the doctrine of res gestae too far. It would result in hear-say testimony of opinion of the decedent wife, as to what the.motorman did or failed to do being given by the surviving interested plaintiff husband as to matter and under circumstances as to which it would be absolutely impossible for the defendant railroad to in any way verify or safe-guard itself. We think no case cited justifies the admission of this testimony. If the wife were living, and were upon the stand herself, she could not give this testimony. Taking words from the brief for counsel for defendant in error, and the authorities cited ■by them, expressions to be part of the res gestae must be automatic, involuntary, and must not involve intellectual processes and matters of inference and deduction.
    VI. We find no reversible error in that part of the bill of exceptions where the court permitted a witness to testify as to the difficulty of seeing a vehicle at a reasonable distance.
    VII. Having determined to reverse the case on the second and fifth grounds, there is no occasion for us to express any opinion as to the amount of the verdict.
    Judgment will be reversed and cause remanded for a new trial.

      Ellis Q. Kinkead and H. Kenneth Rogers, for plaintiff in error.

      Peck, Shaffer <& Peck and Samuel-B. Eammel, for defendant in error.


text:
    THE EXERCISE OF EMINENT DOMAIN BY A FOREIGN TELEPHONE COMPANY.
    [Circuit Court of Putnam County.]
    Central Union Telephone Co. v. Village of Columbus Grove.
    Decided, 1905.

      Eminent Domain—Pleading and Proof Necessary to Support Assumption of—Foreign Telephone Company may Exercise Right of, When—Provisions of Charter—Statutory Enactments.

    1. The right of eminent domain, involving as it does an attribute of sovereignty and an interference with private rights, must always be strictly construed; and the petition of a private corporation/ claiming the right to exercise this power, must clearly set forth the grounds upon which its claims rest, and these allegations must be clearly proved.
    2. In the absence of statutory provisions expressly conferring the right of eminent domain upon foreign corporations, interstate comity does not require that this right be extended to a foreign telephone company and there is no inherent power vested in such a company to condemn private property for purely local purposes and not as a part of an interstate system.
    3. In a condemnation proceeding brought by a foreign telephone company, the petition must allege, not only that the petitioner is a corporation of its home state, duly created for the purpose of erecting and maintaining lines of telephone within such state, but also that by its charter it is empowered to appropriate private property therein; and in the absence of such averments the petition is bad on demurrer.
    Vollrath, J.; Norris, J., and Hurin, J., .concur.
    Error to Putnam Common Pleas Court.
    The plaintiff filed its petition in the Probate Court of Putnam County averring corporate capacity in the following language ;
    “The plaintiff, the Central Union Telephone Company, respectfully represents that it is a corporation duly created, organized, and existing under the laws of the state of Illinois, for the purpose of constructing, erecting, operating and maintaining lines of telephone and telephone exchanges within and without said state of Illinois, and that it has likewise been duly authorized and empowered to -construct, erect, operate and maintain lines of telephone and telephone exchanges within the state of Ohio, in accordance with the statutes of the state of Ohio, and it is so constructing, erecting, operating and maintaining lines of telephone and telephone exchanges in many cities and villages in said state of Ohio at this time.
    “That by the statutes of said state of Ohio your petitioner, the plaintiff herein, is given and granted the right to use the lands authorized to be appropriated to the use of telephone companies, which lands are subject to the easement of streets, alleys, public ways, or other public uses within the limits of any city, or' village, in said state of Ohio, and especially the right to use the land subjected to the easement of the streets, alleys, public ways or other public uses, within the incorporated village of Columbus Grove, Putnam county, Ohio, said village of Columbus Grove being a municipal corporation, organized and existing under the laws of the state of Ohio, located in the county of Putnam, in the said state, and being of the class of municipal corporations termed ‘villages,’ by the laws of the said state of Ohio, by entering thereon and therein, in accordance with the laws of said state of Ohio for the purpose of making preliminary surveys and using and occupying said streets, alleys, public ways, with poles, wires-and other necessary appliances for the purpose of constructing, erecting, operating and maintaining lines, telephones and telephone exchanges.”
    The plaintiff further alleges that in the establishment and conduct of its business it is necessary for it to use certain land within the village of Columbus Grove, subject to the easement of the streets, etc., of said village; that some time in July, 1903, plaintiff made application to the council of said village of Columbus Grove for an ordinance granting it the right to use said streets, etc., and presented a form of enactment to said council therefor; said council on September 21, 1903, rejected said ordinance, and that plaintiff and defendant are consequently unable to agree upon terms for such use although plaintiff claims to have made diligent effort to secure such agreement and that said council refuses to pass any ordinance as to the mode of use of said streets by plaintiff and that plaintiff is compelled, therefore, to apply to said court under authority of Section 3461, Revised Statutes, and ask that said court fix, determine and prescribe the mode of use of said streets, etc., by plaintiff, so that plaintiff may be authorized to construct, operate and maintain its said line of exchange over said streets, alleys, etc. Plaintiff, therefore, prays that a proper summons issue out of said court to require defendant to be present at a date named therein and show cause to the court why a finding, order and decree should not be made in the premises and that plaintiff may be authorized and empowered to construct, erect, operate and maintain the telephone line, telephone exchange and toll line in said defendant village as by the statutes of Ohio provided, and for other and further relief.
    To this petition the defendant filed its demurrer upon the grounds:
    1. That the plaintiff has not the legal capacity to sue.
    2. That the court had no jurisdiction of the subject-matter of the action.
    3. That the petition does not state facts sufficient to constitute a cause of action.
    Upon a hearing in the probate court, the demurrer was sustained as to the first and third grounds. Error was prosecuted in the Court of Common Pleas of Putnam County, and upon a hearing in that court the judgment of the probate court was affirmed. Error is now prosecuted here to reverse said judgment of the court of common pleas.
    The error, if any, in this case, arises from the action of the court in sustaining said demurrer and this presents several very interesting questions. As indicated in the petition, the plaintiff is an Illinois corporation and it seeks by the proceeding in the probate court to exercise the right of eminent domain in a municipality in the state of Ohio. This is attempted under Section 3461, Revised Statutes, which reads as follows:
    ‘ ‘ When any lands authorized to be appropriated to the use of a company are subject to the. easement of a street, alley, public way, or other public use, within the limits of any city or village, the mode of use shall be such as shall be agreed upon between the municipal authorities of the city or village and the company; and if they can not agree, or the municipal authorities unreasonably delay to enter into any agreement, the probate court of the county, in a proceeding instituted for the purpose, shall direct in what mode such telegraph line shall be constructed along such street, alley, or public way, so as not to incommode the public in the use of the same; but nothing in this section shall be so construed as to authorize any municipal corporation to demand or receive any compensation for-the use of a street, alley, or public way, beyond what may be necessary to restore the pavement to its former state of usefulness. ’ ’
    The e‘company” mentioned in the above section is defined in Section 3454, Revised Statutes, which reads as follows:

      “A magnetic telegraph company heretofore or hereafter created may construct telegraph lines, from point to point, along and upon any public road, by the erection of the necessary fixtures, including posts, piers, and abutments necessary- for the wires; but the same shall not incommode the public in the use of such road.”
    By the terms of Section 3471, Revised Statutes, the provisions of the sections above named also apply to telephone companies.
    It is claimed, however, that notwithstanding the sections cited, a foreign corporation may not exercise the right of eminent domain in this state, unless the right be expressly conferred by statute, and that the'provisions cited not being; by express terms, made applicable to foreign corporations, they apply merely to local companies. It is claimed that this view is sustained by the act of our Legislature as expressed in Section 3399, Revised Statutes', expressly giving the right of eminent domain to railroad companies extending into, and through, this state even though foreign corporations. It is argued that the fact of such enactment but emphasizes the proposition that without it the railroad company could not exercise such right, and, therefore, as there ys no similar section with reference to telephone companies, the latter also may not exercise this right.
    In the case of State v. Sherman, 22 Ohio St., 411, 434, it is held that the policy of this state has been, and is, not only to permit, but to invite and encourage, ownership of railroads in this state by foreign'companies on an equal footing with domestic companies. It was stated that to invite their co-operation in works of great public concern and then to discriminate against them in point of right to use and enjoy their right to property in the state would not only be unjust to them but unwise for the state.

      “If any discrimination does exist,” saith the court, “it is in regard to the power of condemning and appropriating private property to the use of the roads. In this case we find what we construe to be an express grant of that power. The Pennsylvania act incorporating the defendants [the Pittsburg, Ft. Wayne & Chicago Railroad Company] gives them power to condemn and appropriate private property,” etc.
    It will be noted that while in the above opinion the court places foreign and domestic corporations upon the same basis in all other matters so far as ownership and use of property is concerned, yet while it does not expressly deny, yet it does not concede to foreign corporations the right of eminent domain; in this state where it is not expressiy conferred. In the case, State v. Sherman, supra, the Legislature of Pennsylvania had empowered the defendant company to appropriate private property, and it was held by the court that in view of the provisions of Section 3399, Revised Statutes, above quoted, this power could be exercised by them in this state. This, however, does not answer the question with reference to the plaintiff in this case. There is no express law giving to foreign telephone companies the right of eminent domain in this state and especially for local purposes, and the right of eminent- domain may not be presumed in favor of foreign corporations.
    In the case of Zanesville v. Telegraph & Tel. Co., 64 Ohio St., 67, 68, it is held that—
    “Telephone companies organized under the laws of this state have the right, by virtue of Sections 3454, 3456-1 and 3471, Revised Statutes, to construct their lines along the streets and public ways of municipal corporations, in accordance with the order of the probate court made in pursuance of Section 3461. ’ ’
    Here again it will be noticed that the right to invoke this law, to-wit, Section 3461, Revised Statutes, is limited by this case to telephone companies organized under the laws of this state.
    While the court does not expressly deny the right to foreign ' corporations, yet this decision includes merely domestic corporations.
    The same idea appears in the body of the decision, to-wit, on pages 88 and 89, it is stated:

      “It is competent for the state, through its legislative department, to grant to telephone and telegraph companies organized under its authority, the right to construct their lines in the streets of municipalities, and in the present instance the grant was so made.”
    Here again the line is drawn just this side of foreign corporations and the court apparently made an extra effort to avoid including foreign corporations in its deliberation over the rights of a domestic corporation.
    It is evident from the foregoing that, to say the least, the courts in this state have not only failed to recognize the right of eminent domain in foreign corporations, unless expressly provided by statute, but apparently indicate that the right, if -not absolutely denied, is yet of doubtful propriety-”and an unsettled quantity. The right of eminent domain involving, as it does, an attribute of sovereignty and interfering with private rights, must always be strictly construed and is always subject to the closest scrutiny. Every assumption of this right, where not conferred by statutory enactment with the judicial notice of the court, must be clearly plead and as clearly proven. This has been repeatedly held by our Supreme Court. Moreover, it is held in the case of Atkinson v. Railway, 15 Ohio St., 21, that corporate existence and the right to "exercise the power of eminent domain can only be derived from legislative enactment; and before a company can demand a judgment of con-demnation, it must show that such powers have been conferred upon it by a valid law and that it has substantially complied with the condition which the law has annexed to the exercising of the power.
    It is held in Coppin v. Greenlees, 38 Ohio St., 275, 279, that a corporation possesses no powers except such as are conferred upon it by its charter, either by express grant or. necessary implication; and this principle has been frequently declared by the Supreme Court of this state, and by no court more emphatically than by this court.
    In this connection it may not be amiss to call attention briefly to the matter of the power which plaintiff seeks to exeeise in this case. As stated by' our Supreme Court in Giesy v. Railway, 4 Ohio St., 308, 323:

      “The power itself is an inseparable incident of sovereignty, and its exercise was delegated by the sovereign power to the General Assembly in the general grant of legislative authority. It may be defined to be, the right of the sovereign without the consent of the owner, when necessary, to make private property ‘subservient to the public welfare.’
    “It rests upon the public necessity (subordinates the rights of one to the welfare of all) and is just as broad as that necessity, and no broader. ’ ’
    When, therefore, a private corporation claims the right to exercise such power, its claims must not only be clearly proven but its petition must just as clearly set forth the grounds upon which its claims rest and which it must prove in order to sustain them, else the petition is obnoxious to the demurrer.
    In the case at bar, the petition, while averring that the plaintiff is an Illinois corporation,' created for the purpose of constructing, erecting,' operating and maintaining lines of telephone, etc., within and without said state of Illinois, yet nowhere declares that it is empowered by its charter to condemn and appropriate private property. ■ This seems to have been the saving feature in the case of State v. Sherman, 22 Ohio St., 411. The Pennsylvania act incorporating the Pittsburg, Ft. Wayne & Chicago Railroad Company gave it power to condemn and appropriate private property. Nothing of this kind appears in the petition before us. We consider, therefore, that the petition is defective in this particular and that the demurrer was properly sustained.
    The further averments in the petition that plaintiff is authorized by the laws of Ohio to appropriate streets, etc., is rather gratuitous than otherwise in view of the condition of the laws of our state. We have no law expressly conferring upon foreign telephone corporations the right of eminent domain. Moreover, while the question is, perhaps, not squarely before us at this time, yet we are of the opinion that even if the averment were-properly made, that the plaintiff in this case has the right or eminent domain by the terms of its charter, yet it could not, under the condition of our laws at this juncture, exercise that right in this state in the ease at bar. The purpose for which the use of the streets in question is sought is local in its scope. It does not appear that the extension of lines, poles, etc., to be erected and constructed is part of an interstate transportation system or anything of the kind. It is simply a local telephone exchange. We do not think that the comity between states extends to cases where foreign corporations in this state seek to' assume and exercise the attributes of sovereignty as against the private rights of the citizens of the state.
    Holding these views, it is the judgment of this court that there is no error in the record before us and the judgment of the court of common pleas is, therefore, affirmed with costs.

      Long & Kyle, for plaintiff in error.

      Handy & TJnverferlh, for defendant in error.


text:
    LIABILITY FOR. FALSE IMPRISONMENT.
    [Circuit Court of Muskingum County.]
    Edward L. Tracy v. Edward Coffey.
    Decided, October, 1905.

      False Arrest and Imprisonment—Mistaken Identity■—Arrest Made Without Warrant—Circumstances Rendering Officer Liadle—Facts and not Appearances—Necessary to Justify Officer—Burden of Proof—Charge of Court.

    1. A police officer who believes or has reasonable ground for believing that a felony has been committed may arrest a suspected person without a warrant; but should he discover that he has made a mistake in the identity of the prisoner, he should release him at once.
    2. If the suspect refuses to submit to arrest and compels the officers to use force, he is guilty of resisting officers provided he is aware of their character as officers; and the question whether he knew they were officers, or believed he was being seized by persons with criminal intent or without authority to make an arrest, is one for the jury.
    3. In an action for- damages .on account of false arrest and imprisonment, the burden is on the arresting officer to show that such a state of facts existed as justified him in making the arrest.
    Taggart, J.; Donaiiue, J., and McCarty, J., concur.
    The action in which the judgment was rendered (now sought tb be reversed) was one for causing the false arrest and imprisonment of the defendant in error.

      The record shows that the plaintiff below was a reputable citizen of the city of Zanesville, and on the evening of August 8, 1902, was going from the west side of the Muskingum river to the more central or business portion of the city. The evening was dark and stormy and the plaintiff had taken an unfrequented way to reach his destination.
    The defendant below was the chief of police of the city of Zanesville and on the night in question he, im conjunction with two subordinate officers, were in search of two men, Stevens and Devine, who were charged with a homicide committed in Belmont county. One of the officers discovered Coffey and attempted to arrest him, but he resisted, and thereupon the other officer and Tracy came to the assistance of the officer with whom Coffey was struggling and overpowered Coffey and placed him under arrest. It was claimed by Coffey that the officers were in citizen’s clothes and there was nothing to apprise him of their character. It was claimed by the officers that they informed him that they were officers, and that he was under arrest; that he continued his resistance until struck by Tracy and compelled to yield to superior force; that they believed him to be one of the persons for whom they were making search. The officers had no warrant to arrest Coffey or Devine or Stevens. After Coffey was struck by Tracy one of the officers recognized him, and. informed Tracy that he is not one of the persons they were seeking and “that he is all right.” Thereupon Tracy ordered his officers to take Coffey to the city prison and lock him up and “put a charge of suspicion against him or hold him until we can investigate him.” After the lapse M an hour or-two Tracy goes before the police judge and upon consultation with him files an affidavit charging Coffey with “resisting cm O'fficer.” The next day Coffey is released from prison by Tracy on the promise that he will return the day following and answer the charge of resisting an officer. There is a dispute as to what actually took place before the police judge when Coffey appeared, but Coffey was set at liberty without any fine or costs imposed or he was otherwise held or punished. There is no dispute in this record as to the following facts—
    First. The officers were not seeking to arrest Coffey.

      Second. The officers had no warrant to arrest any one.
    Third. When the officers sought to arrest Coffey they were mistaken in the person of Coffey.
    Fourth. During the melee, the identity of Coffey was discovered and his character as a peaceable citizen vouched for by the officer in the presence of • Tracy.
    Fifth. When the identity of Coffey was disclosed he was within the power of the officers and had surrendered.
    Sixth. Thereafter Tracy ordered his officers to continue the detention and lock him up in the city prison.
    Among the many errors set forth in the motion for a new trial •and in the petition in error, the principal one is to the charge of court to the jury.
    It is urged that the charge does not correctly instruct the jury on the rule of law in' respect to the appearances of the situation as viewed by the officers, and the reasonableness or probable causes which induced Tracy to adopt the course of conduct he did pursue. That is, if the appearances justified him and he acted in good faith and under an honest belief that Coffey ivas resisting an officer, he had the legal right to arrest him without a warrant and detain him until a warrant could be obtained; and that charge failing to contain such instructions is misleading and erroneous.
    It is to be observed that the plaintiff in error remained content with an exception to the charge as given; did not call the court’s attention to the omission to charge the rule of law now claimed and made no request for further instructions in that regard. If the rule contended for was material or involved in the case, it was the duty of the party excepting to call the court’s attention to the omission unless the jury was misled by the omission. The Columbus Railway Co. v. Ritter, 67 O. S., 53.
    Was the charge as given misleading, and did the trial judge err in omitting such an instruction? The court in its charge defined false imprisonment as follows:
    “False imprisonment consists of an unlawful detention by one person of another. It is a trespass committed by one man against the person of another by unlawfully arresting him and detaining him without legal authority.”

      And further in the charge the court instructs the jury as follows:
    “If the officers believed or had reasonable ground to believe that a felony had been committed and that Devine or Stevens had committed the crime and that Coffey was either Devine or Stevens, they had a legal right to arrest him without a warrant, although mistaken as to the identity of Coffey. But it was the duty of the officers to release Coffey on discovering their mistake.” ■
    These instructions are justified by the following authorities:
    An officer who has arrested a party without process or on void process can not detain him on valid process until he has restored such party to the condition he was in at the time of his arrest. The law will not permit him to perpetrate a wrong for the purpose of executing process, nor, to use process for the purpose of continuing an imprisonment commenced without authority and by his wrongful act (6 H. L. Cases, 443; 50 N. Y., 669).
    A person who has wrongfully arrested another without process or on a void process, can not detain him on a subsequent valid process until after he has been set at liberty' (21 Barb., 99).
    As to the right of the officers to further detain Coffey and recpiir'e him to answer the charge of resisting an' officer, we think the instructions to the jury were as favorable to the officer as he was entitled to. The court says—
    “To constitute the offense of resistance of an officer, either under the state law or under an ordinance, the resistance or obstruction must be knowingly and willfully done. That is, if Coffey knew that the persons claiming to be officers, were officers and engaged in some official duty, and then knowingly and willfully violated either the state law or the ordinance of the city, and the officer, Tracy, found the plaintiff in the act of such violation, he could legally arrest him for such offense without a warrant and detain him for a reasonable time until a warrant could be obtained.”
    The court thus submits to the jury the disputed question of fact whether Coffey knew the persons who were detaining him and their character, whether officers or foot-pads. If Coffey knew they were officers, under this charge, .he was guilty of .resisting the officers and his detention was legal; if he did not know their character he was not guilty and he was not lawfully detained.
    The burden of proving the legality of the detention was on the officer Tracy. lie was required to show that such a state of fads existed as justified him in making the arrest, not that the appearances of things so justified him.
    Ih the case of Rinehart v. Oily, 49 O. S., 257, the court says:
    “In an action against the city by the party arrested to recover the money [deposited in lieu of bail] in which the legality of his arrest becomes a material issue, it was incumbent on the defendant to show that such a stale of fads existed as justified the officer in making the arrest without the previous issue of a warrant and that he did not detain the party arrested an unreasonable time before obtaining a legal warrant.”
    On page 266, Judge Dickman uses the following language:
    “Where no affidavit charging the commission of an offense is filed with the magistrate and no warrant or process is issued for the apprehension of the person charged, it will.not be presumed that an officer making an arrest acted under circumstances precluding the necessity of an affidavit and warrant. And in- an action by the party arrested, in which the legality of such arrest is deemed a material issue in the case, it will not be incumbent upon him to establish that the officer was not under the circumstances authorized to arrest without warrant, but it will rather devolve upon those defending the officer to show that such a state of fads existed as justified the officer in making the arrest without the previous issue of a warrant and that he did not detain the arrested party an unreasonable length of time before obtaining a warrant.”
    But it is not claimed that the detention and confinement was for the purpose of procuring a warrant for resisting an officer. All the parties to this transaction unite in saying that Coffey was held until the chief could “put a charge of suspicion against him,” which was subsequently changed to resisting an officer. Pie arrested him for committing a felony, under the mistake that he was either Devine or Stevens, and upon fully ascertaining that he had made a mistake he continues the arrest and locks him' in prison to await a charge of “suspicion” and subsequently charges him with resisting an officer.
    We think there was no place in the charge to the jury for such instructions. Nad such a charge been given, it would have been erroneous, being a mere abstract statement and having no application to the facts in this case ,and not a correct statément of the law. We find no error in the charge of the court, and no errors in the record to the prejudice of the plaintiff in error, and the judgment is affirmed.

      Winn (& Basselt, for plaintiffs in error.

      Andrews &' George, for defendants in error.


text:
    CONVICTION IN PROBATE COURT UNDER BEAL LAW.
    [Circuit Court of Miami County.]
    William Oberer v. The State of Ohio.
    Decided, April 5, 1904.

      Liquor Laws—Statute Giving Jurisdiction to Probate Court in Certain Counties not Unconstitutional—Error Proceedings to Common Pleas—Concurrent Jurisdiction—Services of Stenographer at Trial —Time—A Holiday Counts, When—Affidavit Charging Offense-Negativing the Exception as to Regular Druggists—Sentence.

    1. Section 6454, Revised Statutes, giving the probate court in certain counties concurrent jurisdiction with the common pleas in all misdemeanors and proceedings to prevent crime, is not unconstitutional for lack oí uniform operation.
    2. Inasmuch as the rank of courts and the right of appeal is a matter regulated by statute, the fact of the concurrent jurisdiction of the probate and common pleas courts in certain matters does not require that an appeal from the probate court in any one of those matters should be to the circuit instead of the common pleas court.
    3. Where no demand for a stenographer is made in a criminal trial, but a mere inquiry is made on behalf of the defendant as to whether one would be present, there is no prejudicial error in going to trial without a stenographer.
    4. A holiday counts as one of the three days, allowed for filing a motion ' for a new trial, unless the holiday is the last of the three days.
    5. It is not necessary that the'information, required under Section G455 in prosecutions before the probate court, shall be sworn to, an'd the preliminary affidavit is sufficient to carry the matter through all the courts.
    6. Where an information charges both keeping a place open and selling, the exception of the statute is sufficiently negatived as to the first charge by stating that the place was “not a drug store,” but is not negatived as to the second charge if it is not added that the accused is not “a regular druggist.”
    7. Section 7327 authorizes a commitment until fine and costs are paid; and if such were not the case, the right to complain would be waived by payment.
    Dustin, J.; Wilson, J., and Sullivan, J., concur.
    Plaintiff in error was tried before the probate court for keeping open a saloon on Sunday, in violation of Section 4364-20, Revised Statutes, known as the Beal Law. • He was found guilty and fined $100 and costs, which amount was paid for him by his attorney, who forthwith prosecuted error to the common pleas court. The common pleas court affirmed the judgment of the probate court, and the case is here on proceeding in error to reverse the judgment of the common pleas. The points relied upon are—
    1st. That the law 'giving jurisdiction to the Probate Court of Miami County (Section 6454, Revised Statutes), is unconstitutional because special legislation and in violation of Section 26,. Article II, of the Constitution of Ohio.
    This point, we think, is not well taken, because Section 8, Article IY, of the Constitution, provides that—
    “The probate court shall have jurisdiction in probate and testamentary matters * * * and such other jurisdiction in any county or counties, as may be provided by law.”
    Within the limits of this authority, the Legislature has conferred upon the probate court in certain counties, including Miami, “concurrent jurisdiction with the court of common pleas in all misdemeanors and all proceedings to prevent crime. ’ ’ The offense here charged is certainly a misdemeanor.
    But it is urged that even if the probate court has jurisdiction it is concurrent with the common pleas, and the common pleas therefore has no appellate jurisdiction, because “courts have no power to interfere with the judgment and decrees of ■other courts of concurrent jurisdiction,” arguing that error must, therefore, be prosecuted directly to the circuit court, which would give the circuit court of this county jurisdiction different from that conferred in other counties.
    This point is not well taken because, while it is true that of courts having concurrent jurisdiction, the one first obtaining' jurisdiction of the parties retains it without interference by the other, yet the rank of courts and the right of appeal is regulated by statute, and Section 6708, Revised Statutes, gives the common pleas court the right to review the action of the probate court. It would hardly be contended that because a magistrate’s court and the common pleas have concurrent jurisdiction in certain cases involving not more than $300, the judgment of said magistrate could not, -in such cases, be reviewed in the common pleas.
    Again, it is claimed that the plaintiff in error was refused the services of a stenographer in the trial before the probate court, which deprived him of obtaining an accurate record of the proceedings and the means of prosecuting error thereon. The affidavit offered with reference to that matter is contradicted by the bill of exceptions, but taking the affidavit of plaintiff’s .attorney, as though uncontradicted, and a case of prejudicial error is not made out, because it appears that an inquiry only was made as to whether a stenographer would be present. There was no demand made for a stenographer, and no continuance asked on acount of his or her absence, and no exceptions taken to being forced to trial under such circumstances. Plaintiff simply submitted, with a protest, to „ the situation and proceeded to trial.
    Strictly speaking, however, we can not consider this matter before us. The motion for a new trial was not filed in time. The trial was on the 24th of November, 1903. The motion for a new trial was filed November 28th. An affidavit was filed by defendant’s attorney setting up that the 26th was a national holiday, and that on the 27th he was engaged in another trial, and on account of illness in affiant’s family he was prevented from filing the motion. This is not a sufficient excuse. A holiday counts unless it is the last day, and the excuse does not apply to all three days allowed by the statute.

      Another error claimed is that no indictment was returned, and the information was not sworn to. Indictment is not necessary under Section 6455, and there is no requirement that the information be sworn to.' Of course in original proceedings in criminal matters (other than by indictment) there must be an affidavit upon which to found a warrant. And that was the case here. In the preliminary proceedings before the mayor’s court there was an affidavit, and that was sufficient to carry the matter all the way through.
    Again, it is urged that the information was insufficient to charge the offense defined in Section 4364-20, because it does not properly negative the exception and set forth that the accused was “not a regular druggist.” That exception applies only to the clause with reference to the sale of intoxicating liquors, and not to the offense of keeping openyon Sunday a place where intoxicating liquors are usuajly sold. The information contains matters with reference to two charges, one of keeping open a place, etc., and the other of selling, etc. The first charge is sufficiently stated because it negatives the exception by stating-that the said room was “not a drug store.” The second charge does not state that the accused is not a regular druggist, and is defective. The latter charge, therefore, being insufficient, may be considered as surplusage, and the accused is deemed to have been convicted of the offense properly charged.
    Lastly, it is claimed that the judgment of the probate court is erroneous in that it provides for the commitment of the plaintiff in error to jail until fine and costs are paid. Section 7327 authorizes such a sentence, but if not, it was waived by payment.
    The judgment, therefore, of the common pieas court-will be affirmed.

      Boberl J. Smith, for plaintiff in error.

      A. B. Campbelh and William II. Gilbert, for the state.


author: Parker, J. Wildman, J.

text:
    ATTACHMENT IN ACTIONS FOR NECESSARIES.
    [Circuit Court of Lucas County.]
    Joe Nemit v. John Vargo.
    Decided, April 6, 1906.

      Demand in Writing Jurisdictional—Error Proceedings on Motion to Discharge Attachment—Costs—Meaning of the Word “Provided”— Section 6501, Relating to Proceedings as to Garnishee.

    1. Tb,e circuit court lias jurisdiction to review an order by the common pleas, made on appeal from the overruling by a justice of the peace of a motion to discharge an attachment.
    2. A demand in writing upon a debtor for necessaries, for the excess over ninety per cent, of his personal earnings, is a necessary condition to the issuing of an. order for attachment. (Hughes v. Shields, 7 C. C.—N. S., 84, followed by a majority of the court. Judge Wildman adopts the contrary holding in The K. B. Company v. Batie, 2 C. C.—N. S., 358).
    Haynes, J.; Parker, J., concurs in a separate opinion; Wild-man, J., dissents in a separate opinion.
    Yargo commenced a suit against Nemit for $20.42 before a justice of tbe peace in Oregon township, and caused an attachment to issue. There was a garnishee proceeding against the National Malleable Castings Company, and the order of attachment was served upon that company. After that Nemit, by his attorney, came in and moved to discharge the attachment for sundry and divers reasons, among others that no demand in writing had been made upon the said defendant for ten per cent, of his earnings or for any other amount of his earnings, as required by law. It does not appear here that the garnishee answered, but the justice, having overruled the motion to discharge the attachment which was made by the defendant, the case was brought up by appeal to the court of common pleas, under the statute, and the court of common pleas refused to discharge the attachment and affirmed the action of the justice of the peace, and the case has been brought here on error.
    The first point made by counsel for Yargo is that the matter having been taken to the court of common pleas by appeal, the action of that court is final in the case, and that this court has no jurisdiction to hear the petition in error. Now, a part of Section 6494, under the head “Plow property discharged from attachment”, reads—
    “Provided, that in any case the defendant may make a motion before the justice of the peace to dissolve the attachment, or release the property, money, or credits attached, or garnisheed, either or both; which if overruled may be appealed by the defendant to the court of common pleas, if in session, or to a judge thereof in vacation, by giving notice to that effect to the justice of the peace, but no bond shall be required. Upon such notice of appeal being given, the justice of the peace shall forthwith transmit to the clerk of the court of common pleas all the original papers; and thereupon, within three days from such notice of appeal, or upon such further time as may be for good cause allowed, said court or judge shall hear and determine said motion in the same manner as though it was originally brought in said court of common pleas, and upon a final hearing said court or judge shall forthwith transmit the judgment with said original papers to said justice of the peace, which judgment shall be entered upon the docket of said justice of the peace as the final determination of said motion; and said attachment property, moneys and credits shall be disposed of as directed in said judgment.”
    Section 6709, Revised Statutes, provides:
    “A judgment rendered or final order made by any court of common pleas, or a judgment thereof, may be reversed, vacated or modified by the circuit court of the county wherein such court of common pleas is located, for errors appearing upon the record. All errors assigned in the petition in error shall be passed upon by the court, and in every case where a judgment or order is reversed or remanded for a new trial or hearing, the circuit court shall, in its mandate to the court below, state the error or errors found in the record upon which the judgment is founded. This act shall apply to pending actions, prosecutions and proceedings.”
    Section 6707, Revised Statutes,.provides what is a final order:
    “An order affecting a substantial right in an action, when such order in effect determines action and prevents a judgment, and an order affecting a substantial right made in a special proceeding or upon a summary application in an action after 'judgment, is a final order which may be vacated, modified or reversed, as provided in this title.”
    Now as long ago as the 5th Ohio State Report the Supreme Court decided that an order to discharge an attachment was a proceeding that might be taken up upon a petition in error, before final judgment in the ease, and that has been the law ever since. And we have no doubt that this order of the court of common pleas may be reversed by this court, or affirmed by it; that is to say, we have jurisdiction to hear it and pass upon it, and, therefore, the motion which was made to quash the writ-will be overruled.
    Coming now to the merits of the case, the question which has been presented here is one on which the circuits of this state have been unable to agree, the Circuit Court at Cincinnati holding in one direction, and the Circuit Court of Cuyahoga County in another direction, they being the only circuit courts that have passed on the question so far as we have learned. It was said in argument that counsel are anxious to have this court pass upon the question so that the court of eopamon pleas could be guided by this court. ” This court is divided on the subject. The majority of us have come to certain conclusions, and we hope that one of these parties will take the case to the Supreme Court and have a final decision that will be binding on all courts throughout the state.
    Now, in this case, Mr. MeLeary, acting as justice of the peace, received the following affidavit:
    “I, Benjamin F. Mallett, make oath and say that I am the agent of the plaintiff in the above entitled action, and that the claim in this action is for an amount due for groceries and meat sold and delivered to the defendant at his request, and I also make oath that the said claim is just and that I verily believe plaintiff ought to recover thereon the sum of $20.42; that the property about to be attached is not exempt from execution. .1 also make oath that the said claim is for necessaries. I further say on my oath aforesaid that I have good reason to, and do believe, that the National Malleable Casting Company is indebted to said defendant and has property, moneys and rights in action of said defendant in'its possession or under its control subject to be attached in this action. ’1

      The affidavit was made before him. Then was issued the order of attachment. The statute in regard to attachments before a justice of the peace commences at Section 6489:
    ‘ ‘ The plaintiff shall have an order of attachment against any property of the defendant (except as hereinafter provided) in a civil action before a justice of the peace, for the recovery of money, before or after the commencement thereof, when there is filed, in his office an affidavit of the plaintiff, his agent or attorney, showing' the nature of the plaintiff’s claim, that it is just, the amount the affiant believes the plaintiff ought to recover, and that the property sought to be attached is not exempt from execution, and, if the personal earnings of the defendant are sought to be attached, that the defendant is not the head or support of a family, and has not in good faith the maintenance and support of a widowed mother, wholly dependent upon him for support, or that such earnings are not for services rendered within three months before the commencement of this action, or, that being earned within that time, the same amount to more than one hundred and fifty dollars, and that only the excess over that amount is sought to loe attached; or that the claim on which judgment is sought is for work or labor or for necessaries; and except when £he claim is for work, or labor, or for necessaries; also the -existence of some one ór more of the following particulars: * * #. No attachment shall issue by virtue of this chapter against the personal earnings of any defendant for services rendered by such defendant within three months before the commencement of the action or the issuing of the attachment, unless the defendant is not the head or support of a family, or unless the amount of such earnings exceeds one hundred and fifty dollars, and then only as to the excess over that amount, or unless the claim is one for necessaries, and then for only ten per centum of such personal earnings.”
    The affidavit filed in this case does not set out these facts, but simply says there is property there not exempt from execution. Now, having proceeded that far, the chapter goes on as to the garnishee, and states that it shall bind the earnings due at the time' of such services that shall become due from the time of service until the trial of such cause—
    “Provided, however, that of the personal earnings now exempted under the provisions of Sections 5430, 5441, 5483 and 5548 of the Revised Statutes as amended April 26th, 1898,- shall, in addition to the ten per centum for necessaries” * *

      This clause also relates to the exemption of ninety per cent, of the earnings.
    * * * “be further liable to the plaintiff for the actual costs of any proceeding brought to recover the same in any sum not exceeding four dollars, and such garnishee may pay to such debtor an amount equal to ninety per centum of such personal earnings, less the sum of four dollars for actual costs as herein provided, which shall be due at the time of the service of process, or which may become due after such service and before trial, and be released from any liability to such creditor. ’ ’
    Now, down to 1894, that is the way the law stood. The statute allowed an attachment for necessaries without filing affidavit of fraud, non-residenee, etc., as allowed by the statute, Section 6849, but expressly declares that they shall only have the excess over and above the amount -that the party has exempted from liability. That in this particular cáse would be ten per cent, of the earnings before he had his attachment, and when the garnishee paid the amount of ten per cent, of the earnings it was first applied to the four dollars of costs. In 1894 the statute was amended by adding the following clause:
    “Provided further, that the person bringing an action for neeessaries-shall first make a demand in writing for the excess over and above ninety per centum of the personal earnings of the debtor; and no costs or expense shall be chargeable to the defendant debtor in such action if he tender payment in money or duly accepted order for the excess of his personal earnings over and above ninety per centum thereof upon such written demand made therefor.”
    There comes the stress of the case. Some courts, and one member of this court, are of the opinion that the attachment issued lawfully, but upon showing being made that no demand was made, that the costs shall not be charged against the debtor, • and that was the opinion of the court below. That is the opinion of the Circuit Court of Cuyahoga County. On the other hand, the Circuit Court of Plamilton County held a contrary doctrine, and held that the attachment can not issue until the demand has been made, and of that opinion is a majority of this court,

      The statute provides expressly that a person bringing an action for necessaries shall first make a demand in writing for the excess over and above ninety per cent, of the earnings of the debtor, and he shall not be charged with any expenses if he makes payment or gives an accepted order for ten per cent, of his personal earnings. The majority of this court are of the opinion that that demand must first be made before the party has a right to issue his order of attachment. It would seem to be very proper to require that that should be set forth in the affidavit for the information of the court. But at any rate, it is agreed in this case that no demand was made, and that the order was issued. And holding this view of -the case, the majority of the court are of the opinion that the court erred in refusing to dismiss the attachment. We think -that that was a condition that was fixed by law precedent to his right to have an order of attachment issue, and that he should have followed the statute; and that there ought not to be an order of attachment issued and -thereby compel- the debtor to hire a lawyer to go in and try to make a defense. It seems to us that the clear view of the Legislature was that the demand must first be made as a condition to having that order of attachment issued, and holding this view an order has been made reversing the action of the court of common pleas.
   Parker, J.

We are all in accord upon one proposition, and that is that this statute is exceedingly hard of interpretation. There is not one of us quite sure we are right on any one point. It is true that in this language, “the person bringing an action for necessaries shall first make a demand in writing for the excess over and above ninety per centum of the personal earnings of the debtor” before proceeding in an action; the term “action” is qualified by Judge Haynes to signify “such action”, i e., the-special proceeding under consideration or treatment, and yet we think that the term “proceeding” having been used in the same section in a number of instances and the whole section dealing with a matter of reaching wages, otherwise exempt, by a special proceeding, in certain cases, that is, either by attachment or a proceeding in aid of execution, which is also contemplated here, we believe that we are authorized to conclude that the Legislature' had such special proceedings in mind in the use of the word “action”—i. e., action of that character, though strictly, the word “action” applies to a civil action. I am not sure but the Circuit Court of Hamilton County has construed this statute as meaning that before the civil action for the money is instituted the demand must be made, but we are inclined to think that that is going rather farther than was intended by the Legislature. Because there is no provision in this statute as to what shall result from a failure of the plaitiff to make a demand, whereby opportunity may be given to the defendant to pay without suit and thus save himself costs; and provision being made for the result flowing from such demand, whether complied with or not, it seems to me that a failure to make such demand was not contemplated, but that it was 'contemplated that the demand would be made in all cases. It will be noted that the casting of the burden of costs upon the plaintiff where no demand is made is not expressly provided for in this statute at all, but in order to reach that result it is necessary to read something into the statute. In other words, it is necessary to read into the statute that if the creditor, shall fail to make demand before instituting the suit or before instituting the proceedings, that then the result shall be that he shall not collect this additional four dollars costs out of the ninety per cent, that the debtor might otherwise retain. It is apparent that it is just and proper that some such result should flow from his failing to make the demand, but if we rely upon the letter of the statute the creditor could avoid this result and could require the debtor to pay this additional four dollars costs by simply failing to make any demand. The results, we repeat, flowing from the making of the demand if complied with, and flowing from the making of the demand if not complied with are provided for in the statute; but a result to flow from the failure to make any demand at all, as I read the statute, is not expressly provided for. Certain of the counts have read into the statute, or have so construed the statute, as that the result of failing to make the demand shall be a failure to maintain the special proceedings; holding that the demand in writing is a condition precedent to the institution of the suit, just as the demand upon a tenant in forcible detainer to vacate the premises is a condition precedent to the institution of the suit, and just as -the demand upon a claim against an administrator before suit is begun is a condition precedent to the institution of the suit, and other illustrations might be mentioned.

This provision as to the demand follows the word 11 provided, ’ ’ and is in a clause which starts out with the word “provided.” It is true that ordinarily a clause starting out with this word is a proviso intended to qualify in some respect that which has gone before—it does not stand as an independent provision— but I think a careful reading of -this whole section will show that the framer of it did not use the word “provided” in that technical sense, because (it occurs several times in the course of this statute and in some eases it can not be regarded as a clause qualifying that which has preceded, but it is the introductory word of independent provisions when the conjunction “and” would have served the same purpose. I shall not take time to read the statute te illustrate this and it would take some time to discuss the section fully under this head, but upon reading it, it will be seen that the word “provided” occurs four or five times in the course'of the section.at the beginning of sentences, and that it is certainly not in all cases used in the technical sense of the introduction of a proviso qualifying what has preceded it. I concur with Judge Iiaynes in his conclusion.

Wildman, J.

(dissenting):

Upon the first question involved raised by the motion to quash service, as it is in form, although perhaps it should be a motion to dismiss the proceeding in error, I am in accord with the majority of the court. I think that neither a motion to quash service nor a motion to dismiss the proceeding in error should prevail upon the grounds urged in argument, or any other that occur to me.

I desire, however, to offer a few words in explanation of my dissent from the conclusion arrived at by a majority of the court, which conclusion has led to the reversal of the judgment of the court below. The construction of Section 6501, Revised Statutes, is one of much difficulty. The question is a close one, and it is not surprising that courts and attorneys differ in their views. I do not think that it is clearly provided by this statute, as Judge Haynes holds, that before bringing an action for necessaries, even if property is attached in the proceeding, there must be, to give the court jurisdiction, a preliminary demand for ten per cent, of the earnings sought to be attached.

An examination of this statute discloses that it is simply a modification of previous enactments in Sections 5430, 5441, 5483 and 5548 of the Revised Statutes. Without stopping to read those sections it is enough to say that they also provide for the subjecting of ten per cent, of the earnings of the debtor to the payment of his debt for necessaries, but there is no provision in those sections that any portion of the ninety per cent, remaining may be applied to the payment of costs in the suit in which the attachment was obtained. The Legislature, apparently recognizing that much of the benefit of the provision in favor of a creditor suing for necessaries by reason of the giving to him of ten per cent of the earnings would be unavailable to him if he were required to pay the costs of the proceeding out of his own pocket, provided by this Section 6501 that the debtor in addition to his liability for the ten per cent, should be further liable to the plaintiff for the actual costs of any proceeding brought to recover the same in any sum not to exceed four dollars, the Legislature carefully guarding the interests of the debtor by fixing the maximum costs which might be so taken out of his ninety per cent., and then added this language:

“And such garnishee may pay to such debtor an amount equal to ninety per centum of such personal earnings, less the sum of four dollars for actual costs as herein provided, which shall be due at the time of the service of process or which may become due after such service and before trial, and be released from any liability to such creditor.”

That is, as has been, provided in the sections before, the garnishee may pay over to the debtor ninety per cent., leaving only the ten per cent, to be applied, and he would then be exonerated from any further liability to the creditor by reason of having released all the earnings excepting the ten per cent. But the law in Section 6501 qualifies that by permitting the paying of the costs, to the maximum amount of four dollars, from the ninety per cent., and then adds: “Provided further, that the person bringing an action for necessaries shall first make a demand in writing for the excess over and above ninety per centum of the personal earnings of the debtor. ’ ’ In other words, the garnishee shall be so exonerated from liability provided that the creditor has first made this demand.

I think that there is no provision in this statute that before the beginning of an action the creditor shall make a demand. That would be something of an anomaly in our law. In order words, it would seem absurd to make a provision that a person suing for the price of necessaries must make a demand before instituting suit in order to give the court jurisdiction, when a person suing for any other thing need make no demand in order to give the court such jurisdiction. Now, to avoid this absurdity the majority of the court, as I understand their position, think that there should be read into this statute, and there is no other way of avoiding it, some language after the words “bringing an action,” so as to make it express the idea that it is considering only the case of a person bringing an action for necessaries in which he seeks to subject earnings or ten per cent, of the earnings of his debtor by attachment; but that language is not found in the statute, and the construction for which I contend requires no interpolation.

My impression is that the office of a proviso in a statute is to qualify that which goes before. Here is an enactment, not that the creditor shall make a demand before suit; but that the garnishee may be exonerated from liability provided that the demand is first made. It is a provision that the enactment of the section immediately preceding shall be operative in ease of such demand and then, in order to make the matter more clear, the statute proceeds to provide that even if the demand is made, no cost or expense shall be chargeable to the defendant debtor if he tender, in the way provided, the amount of the excess over ninety per cent, of his personal earnings.

Potter <& Potter, for plaintiff in error.

C. II. Durmid, for defendant in error.

I think that the court below was right in the construction which it placed upon the statute,¡1 and in holding that a demand was not essential to give the court jurisdiction, of either the action for necessaries or the attachment proceeding. I am disposed to follow the judgment of the Cuyahoga Circuit Court, consisting of Judges Winch, Hale and Marvin, rather than that of the Circuit Court of Hamilton County. - For convenience, reference may be made as supporting the view of the majority of the court to the case in 12 O. D., 438, a decision of the Clarke County Common Pleas, and the case referred to in Hamilton county found in 7 C. C.—N. S., 84. The decision of the Cuyahoga Circuit Court, holding that the demand is not essential to confer jurisdiction, is reported in 2 C. C.—N. S.; 358.

I do not know'that I care to add anything to what I have already said except perhaps that the provision as to notice in a forcible detainer suit is based altogether upon a different statute and one where the phraseology is so dissimilar to that employed here that it seems to me it can have no application. I think that this whole section, which is amendatory of the original Section 6501, has especial reference to the matter of costs, permitting the same to be taken from the ninety per cent., with the limitation that the maximum amount thereof shall not exceed four dollars. It seems clear to me that that was what was in the mind of the enactors of the section. It does not occur to me that the treatment of the clause relating to demand as a mere proviso or qualification of what precedes it, is a technical construction. It appears to me to be the natural one, and the other construction, which is maintained by a majority of the court, to be the one more difficult to sustain and one requiring, as I have already suggested, a change in the phraseology of the statute.


text:
    PROCEEDINGS IN AID OF EXECUTION.
    [Circuit Court of Lake County.]
    Wesley Sweet v. W. C. Barnum & Co.
    Decided, January Term, 1906.

      Necessaries—When the Exemption May he Claimed—Parol Evidence Admissible—To Show Its Character before being Merged into Judgment.

    Under proceedings in aid of execution it may be shown by parol evidence that the claim upon which the judgment was rendered was for necessaries, and ten per cent, of the earnings of the judgment debtor subjected to the payment of the claim of the judgment creditor.
    Brief of Elbert P. Blakley, attorney for plaintiff in error:
    When judgment is rendered on a claim or demand the claim or demand itself no longer exists but merges in the judgment. The original claim has by being sued upon and merged in the judgment lost its vitality and expended its force and effect. Black on Judgments, Yol. 2, Section 674; Freeman on Judgments, Section 215.
    Parol evidence is not admissible to show that a judgment was founded upon matters not presented by the pleadings. Black on Judgments, Yol. 2, Section 626.
    The legal effect of a judgment can not be varied by proof, outside the record. Woolworth v. Wrinlter, 11 O. S., p. 593, at pp. 596, 597; Sargent v. Sargent, 8 N. P., p. 238; s. c. 11 Dee., p. 218.
    A claim for necessaries reduced to judgment can not be basis of proceedings in aid of execution under ten per cent. law. Boiler v. Esman,

       15 Dec., 579; Ohio Law Bulletin No. 24, June 12, 1905; Salisbury v. House, 15 Dec., 584; Ohio Law Bulletin No. 24, June 12, 1905; Brown v. West, 73 Me., 23; Uran v. Houdletie, 36 Me., 15; Bioltnell v. Tricltey, 34 Me., 273; Bangs v. Watson, 75 Mass. (9 Gray), 211.
    See following sections of Revised Statutes: 6489, 6501, 6680-1, and 5430.

      Brief of R. G. Shepherd, attorney for defendant in error:
    The question as to whether certain goods sold are “necessaries” is one to be decided after the original judgment of the justice is entered; it is one involving the remedy and-can not be determined in the original action. The questions that could have been determined and which were determined in the action on the account were (1) is -the defendant indebted to plaintiff; and if so (2) for how much. The default judgment rendered under favor of Section 6577, O. R. S., decided in the affirmative of both of those questions and on those palone. To have pleaded in the bill of particulars that the goods were necessaries would have been pleading a conclusion of law and would have anticipated a defense available only under proceedings in aid of execution. The proper time for the debtor to claim bis exemptions is when the officer is about to levy (Sears v. Hanks, 14 O. S., 298); it is the privilege of the debtor, not the duty of the justice, to claim exemptions (Bempe & Sons v. Bavens, 68 O. S., 113, at 125). Section 6257, 0. R. S., provides what shall be alleged.in the bill of particulars. Constable & Co. v. White, 1 Handy, 44.
    The words “claim, debt or demand” found in Sections 5430-6 and 5441, O. R. S., can not be construed to mean or to refer to the judgment on the account. This original judgment did not by its recitals estop Barnum & Co., from showing in .proceedings in aid of execution, that the goods sold were necessaries, because where a judgment is relied upon by way of estoppel the question is not what the court might have decided, but what it actually did decide (Porter v. Wagner, 36 0. S., 471; Shirlcmd v. Bank, 21 N. W., 200). The original judgment shows that Sweet was indebted to Barnum & Co. in a certain sum and that is all that it shows. Inasmuch as the bill of particulars alleged nothing about necessaries, how could the judgment show the questions not raised in the pleadings? B. B. v, Hutchins, 37 O. S., 282.
    The questions at issue in the proceedings in aid of execution arose at a time when new parties had intervened, when different rights had arisen and at a time subsequent to the rendition of the judgment on the account, and hence it was in tire nature of a separate action founded and dependent upon the judgment in the original action.

      When the proceedings in aid of execution were instituted under favor of Section 6680-1 et seq., it brought the parties into the same relation, as though garnishment proceedings had been instituted (21 O. Cir. Ct., 434, K&rrush v. Myers); and Sweet, having filed in the proceedings in aid, his counter affidavit denying that the goods were necessaries and that ten per cent, of his wages were liable to the payment of the account, Barnum & Co. should have been allowed to show that the statements made in the counter affidavit were not true, and that the claim, debt or demand was for necéssaries. Kirk v. Stephenson, 59 0. S., 556; Cos ton v. Paige, 9 0. S., 397; Bradley v. Waeker, 13 Cir. Ct. Rep., 530.
    The introduction of this evidence would not have varied the terms of the original judgment on the account, as the proceedings were a separate and distinct action. Harrison v. King, 9 O. S., 388; Young v. Gerdes, 42 0. S., 102; Burkham v. Cooper, 2 Cir. Ct. Rep., 77; Trout v. Marvin, 2 C. C.—N. S., 523; Barbour v. Boyce, 5 Nisi Prius Rep., 273.
    The provision of the statute malting ten per cent, of the personal earnings of a debtor liable to seizure for a “claim, debt or demand for necessaries” (0. R. S., 5430-6 and 5441) can not be construed to mean that the words “claim, debt or demand” are identical with or refer to the judgment on the account; the judgment is the mere evidence of the debt (Latham v. Balke, 18 Pac.. Rep., 150); a judgment of a court is a finding upon certain facts proved, while a debt, claim or demand is the result of certain acts of the parties to the action.
    The defendant in error, therefore, claims that it should have been allowed to show in the proceedings in aid of execution the nature of the goods sold and delivered for the sole purpose of determining the question as to whether or not they were necessaries.
    Cook, J.; Borrows, J., and Laubie, J., concur.
    Barnum & Company filed a bill of particulars against Wesley Sweet before a justice of the peace of this county, claiming that there was a certain amount due them on account of goods sold and delivered. The claim as a matter of fact was for necessaries, but it was not so stated in the bill of particulars. Sweet made no defense and judgment was obtained by default for the full amount against him.
    Some time afterwards Barnum & Company commenced proceedings against Sweet under the statute in aid of execution and alleged in their affidavit that the Baltimore & Ohio Railroad Company was indebted to Sweet for wages and sought to have ten per cent, of such wages appropriated to the payment of their claim upon which the judgment was obtained, averring in their affidavit that the claim was for necessaries furnished Sweet.
    Sweet filed a motion to dismiss the proceeding upon the ground that Barnum having filed a bill of particulars averring that his claim was upon an account for goods sold and delivered, and taken judgment upon the same, they can not in the proceeding in aid of execution set up that the claim was for necessaries.
    The justice of the peace sustained the motion of Sweet and dismissed the proceeding. Error was taken to the common pleas court; that court reversed the judgment of the justice; set the case down for trial; rendered judgment ordering the Baltimore & Ohio Railroad Company to pay ten per cent, of the wages due Sweet into court to be applied upon the judgment of Barnum & Company, and the case is now before this court upon error to reverse that judgment.
    The claim of plaintiff in error before us, as it was below, is that the claim of Barnum & Company in the proceeding in aid of execution is upon a judgment rendered upon a bill of particulars upon an account for goods sold and delivered, and is in ño way a claim for necessaries. The claim of plaintiff in error is two-fold. First, that parol evidence can not be introduced to explain the bill of particulars, and second, that the judgment of the court merged the claim, whatever it was, into the judgment, and that a judgment is not a claim for necessaries.
    The defense, to say the least, is ingenious and what is more has the support of judges of two common pleas courts of the state, for whom we have the highest respect, and also would seem to have the support of the courts of the highest resort of several of the states. Boiler v. Esman, Common Pleas Court of Hamilton County, Weekly Law Bulletin, June 12, 1905; Salisbury v. House, Common Pleas Court of Montgomery County, Weekly Law Bulletin, June 12, 1905; Brown v. West, 73 Me., 23; Bangs v. Watson, 75 Mass. (9 Gray), 211.
    We think the difficulty arises from a proper construction of Section 5430 of the Revised Statutes respecting the words ‘ ‘ claim, debt or demand. ’ ’ When we take all the sections of the statute together, it is apparent that these words are not restricted to the claim, debt or demand upon which the proceeding in aid of execution was based, but upon the claim, debt or demand which went into the judgment.
    There is no doubt but what the original claim is usually merged into the judgment and for most purposes is wiped out by the judgment.
    “The cause of action, though it may be examined to aid in interpreting the judgment, can never again become the basis of a suit between the same parties. It has lost its vitality; it has expended its force and effect. All its power to sustain rights and enforce liabilities has terminated in the judgment and decree. It is drowned in the judgment and must henceforth be regarded as functus officio.” Freeman on Judgments, Section 215.
    That is true of the judgment when the judgment is involved, but the subjection of the property of a debtor to the payment of a claim is entirely different. Exemptions can not be claimed until the property is sought to be executed. Conditions then surrounding the parties alone are inquired into. The judgment has no force and effect save that the claim of the creditor is made certain, and it is necessary to permit execution, but as to what property is exempt depends upon the conditions pertaining at the time the debt is contracted and the execution is sought to be enforced. As against many claims no exemptions are allowed at all, although judgments are rendered upon the claim. Judgments upon méchanos ’ liens, under the liquor laws, for taxes, and many others that might be meneioned.
    It seems to us that what is denominated in Section 5441 by “claim, debt or demand for the payment of which it is sought to subject such personal earnings is one for necessaries furnished to the debtor, his wife or family; then only ninety per centum of such personal earnings of the debtor shall be exempt,” means the original claim, debt or demand. Any other interpretation would make the provision wholly ineffective. No execution could be issued until judgment is obtained; no action upon the judgment could be instituted until judgment was obtained; no proceeding in aid of execution could be instituted until judgment, and indeed no order can be made in attachment in favor of the creditor as to disposition of property or the turning over to him tho amount claimed due from garnishee under Section 6501 upon which so much reliance is placed until judgment is obtained, and if after judgment and before order as to the claim garnished, the debtor interposes that the judgment merges the original claim and the judgment is not for necessaries, the creditor is entirely foiled in his attachment proceedings; of course, if he does not or can not proceed in attachment, he is entirely remediless as to the ten per centum provision. Such a holding as contended for by plaintiff in error would make the provision of the statutes wholly nugatory and the action of the Legislature wholly inconsistent with its design.
    Having seen that under our statute the judgment does not so merge the claim as to preclude the showing as to what it consisted of, it necessarily follows that it may be done by parol.
    The theory that we adopt is fully sustained by the Supreme Court of Rhode Island in Thompson v. Roach, 6 Atlantic Rep., 790. The syllabus of that case is:
    “Pub. St. R. I. 209, Section 4, cl. 12, exempts from attachment wages not exceeding $10, except when the cause of action is for necessaries. Upon action in debt upon judgment recovered against defendant in action in assumpsit for necessaries—Held: That the cause of action is as much for necessaries in the action in debt upon the judgment as in the action in assumpsit. ’ ’
    Judgment of court of common pleas affirmed.

      Elbert F. Blakely, for plaintiff in error.

      R, G, Shepherd, for defendant in error,

      Reversed, Esman v. Roller, 8 O. L, R., 116.