text:
    CRIMINAL LAW — SENTENCES.
    [Stark (5th) Court of Appeals,
    November 29, 1916.]
    Shields, Powell and Houck, JJ.
    In re Leonard Pontius (Habeas Corpus).
    Judge Denied Power to Suspend Sentence After Expiration thereof.
    A judge has no authority to set aside a sentence which he has theretofore' suspended, if the period covered by the sentence as originally pronounced has expired.
    [Syllabus by the court.]
    Error.

      Amerman & Mills, for petitioner in error.

      Clarence A. Fisher, Herbert Hunker and Walter S. Buff, for respondent in error.
   HOUCK, J.

Leonard Pontius, the plaintiff in error, who had been committed to the Canton workhouse by the police court of said city, filed a petition in the court of common pleas of Stark county, Ohio, for a writ of habeas corpus, which having been denied, error was prosecuted thereto. The agreed fasts are as follows:

Leonard Pontius was convicted of a violation of an ordinance of tlie city of Canton, Ohio, providing for the punishment of persons found guilty of disorderly conduct. Said conviction was had before the police court of said city on May 27, 1916, and on that day Pontius was sentenced to the Canton workhouse for a period of thirty days, the same being suspended conditionally upon Ms good behavior. The longest period for which the accused could have been sentenced by said police court, under said ordinance, was thirty days.

The judge of said police court, on the third day of August, ,1916, set aside the order suspending said sentence, and ordered and directed that the same be enforced, and pursuant thereto the petitioner was committed to the workhouse.

At the hearing on habeas corpus it was the claim of counsel for Pontius that the police court was without jurisdiction to put into execution a suspended sentence, after a period of time had expired longer than the length of time that the petitioner could have been sentenced for the offense charged.

The aim and purpose of the writ of habeas corpus is the speedy release, by judicial decree, of persons who are illegally and unlawfully restrained of their liberty. "WMle a writ of habeas corpus is in the nature of a writ of error, to the extent that it brings before the reviewing court the legality as to the right and by what authority the accused is confined, it is also wmll settled that the writ will not be allowed to take the place of proceedings in error.

The power of courts and judges in habeas corpus is clearly defined by statute. The power to discharge is limited to cases where the imprisonment is found to he without authority of law. This can not be extended or enlarged simply to meet a seeming ease where an injustice may or may not have been done. The real test must be, is the petitioner lawfully restrained of his liberty 1

Section 12177 G. C. provides that when the judge is satisfied that the petitioner is unlawfully imprisoned or detained, he shall forthwith discharge Mm from confinement.

Section 12165 G. C. provides:

“If it appears that the person alleged to be restrained of his liberty is in custody of an officer, under process issued by a court or magistrate, or by virtue of the judgment or order of a court of record, and the court or magistrate had jurisdiction to issue the process, render the judgment, or malm the order, the writ shall not be allowed.”

, If the police court had authority to issue the process and order the petitioner committed to the workhouse sixty-eight days after the sentence of thirty days had been imposed and suspended, then the judgment of the common pleas court must be affirmed; otherwise it should be reversed. The question is, did the police court have jurisdiction over the person of the petitioner and of the subject-matter of the controversy at the time it set aside the order suspending the sentence and issued the order and process committing Pontius to the workhouse? If the court was without jurisdiction to do this, then the petitioner is unlawfully deprived of his liberty, and should be discharged.

This question must be determined by the proper construction to be placed upon Sec. 18714 Gf. C. which is as follows:

“Upon such revocation and termination, the court or magistrate may pronounce judgment at any time after the suspension within the longest period for which the defendant might have been sentenced, whereupon the judgment shall be- in full force and effect, and the person shall be delivered over to the proper officer to serve his sentence. ’ ’

We think this section of the statute is clear, plain and unambiguous ; and by its provisions the police court was given authority to revoke or set aside the order of suspension, and enforce the execution of the sentence in question at any time within the thirty days after its suspension, which thirty-day period was the longest time that the police court, under the ordinance, could sentence the petitioner. After this thirty-day period the court was without jurisdiction in the premises.

The police judge was humane, and wanted, if possible, to bring about a reformation of the accused, and therefore acted well his part and suspended the sentence for thirty days— the longest period given by law. We commend the court for it, and it is to be regretted that the accused did' not profit thereby. When the court suspended the sentence for thirty days the accused was placed upon his good behavior, and the court took the chance of his reforming within the thirty-day period, and if at the end of that period he had not done so, the court thereafter was without jurisdiction in the premises.

The court had authority and jurisdiction, in this case, to enforce the execution of the sentence any time within the said thirty days, but not thereafter. During this thirty-day period the petitioner was, in law, imprisoned. Imprisonment is not confined to the act of putting a man in prison; it may take place without actual application of any physical agencies of restraint, such as locks or bars; it may be and can be by verbal compulsion. Any restraint of one’s personal liberty is sufficient to constitute imprisonment, and any detention of a person by another, against his will, is imprisonment as contemplated by law, and if it be without right is unlawful.

We hold that an order setting aside the suspension of the sentence in the case at bar might legally have been made at any time within the thirty-day period, and process issued by the police court committing the petitioner to the workhouse, but after the thirty-day period the police court was without jurisdiction to act in the premises.

Upon a careful examination of the record before us we have reached the conclusion that there is error in the record to the prejudice of the plaintiff in error, for the reasons hereinbefore set forth, and therefore the judgment of the common pleas court is reversed, and judgment entered for the plaintiff in error. And there being no disputed questions of fact in this case, the court coming now to render the judgment that the court below should have rendered, it is ordered and adjudged by the court that a writ of habeas corpus be allowed, as prayed for by the petitioner below, the plaintiff in error here, and that said petitioner be discharged from his imprisonment, and be released from the custody of the superintendent of the Oanton, Ohio, workhouse, at the costs of the respondent, and this cause is remanded to the common pleas court with instructions to carry into execution the judgment of this court.

Shields and Powell, JJ., concur.


source: Caselaw Access Project

author: LIEGHLEY, J.

license: Public Domain

text:
    COURTS — ERROR.
    [Cuyahoga (8th) Court of Appeals,
    July 2, 1917.]
    Carpenter, Grant and Lieghley, JJ.
    Modern Brotherhood of America v. Katie Nyiry.
    1. Right of Reversal by Appeals Courts under Constitution Is Jurisdictional, not Procedural and not Limited.
    The right of reversal by courts of appeals is jurisdictional, and not procedural, and is granted by the constitution, and so far as Sec. 11577 G. C. has application to courts of appeals it is in conflict with the constitution.
    2. Code Provision Limiting Reversals on Weight of Evidence not Applicable to Appeals Courts.
    Section 11577 G. C., in which it was sought to deprive reviewing courts of authority to reverse a case the second time on the weight of evidence is part of a chapter relating to the trial court, and in the absence of express words or of words creating the inference, can have no application to courts of appeals.
    [Syllabus approved by the court.]
    Error.

      C. W. Golllster and Jas. T. Walsh, for plaintiff in error.

      T. S. Dunlap, for defendant in error.
   LIEGHLEY, J.

The parties stood in reverse order in the court below, and for convenience will be mentioned herein as they were below.

The plaintiff brought suit in the common pleas court upon a benefit, certificate of the defendant company for the sum of $1,000, which covered the life of her husband, John Nyiry. Trial was had in the court of common pleas, which resulted in a judgment for plaintiff, from which judgment error was proseeuted to the court of appeals, and upon due consideration thereof the court of appeals reversed the judgment on the weight of the evidence and entered final judgment. Error was prosecuted to the Supreme Court of Ohio, which resulted in an affirmance of the judgment of the court of appeals reversing the case on the weight of the evidence, and a reversal of that part of the judgment of the court of appeals in which it undertook to render final judgment. The case was remanded to- the court of common pleas for further proceedings. The cause again came on for trial, and resulted in a verdict for plaintiff upon which judgment was entered, from which judgment error is prosecuted to this court to reverse the same.

It appears from the record that the deceased was examined in August, 1910, by Dr. Evans, who found him suffering from enlarged spleen and liver. Again by him in March, 1911, at which time he found him afflicted in the same manner but with the disease somewhat progressed. The deceased took sick about January 26, 1913, afflicted with cirrhosis of the liver and a general dropsical condition. He was taken to the hospital and there examined by other doctors who diagnosed his condition the same. The doctor who examined him in January declared that he was in the tertiary stage; that the disease is divided into three stages, primary, secondary and tertiary, and that the disease had progressed to the most advanced stage. The doctors agree that considerable time is required for the development of this disease to the stage they found in him upon examination. In the early part of March he was in Lakeside Hospital and examined by the house physicians. Those doctors were called who testified as to the advanced stage of the 'disease and that the deceased told them that he had been suffering for over eight months therefrom. The proof is overwhelming, when the testimony of the doctors and those who are presumed to know is considered, that the deceased in December, 1910, and theretofore was afflicted with the disease of which he died about May 29, 1911.

In the early part of December the deceased was an applicant to membership in the society of defendant. The application is a part of the policy and contains questions to be propounded to the applicant and his answers thereto recorded, which are made warranties of the truthfulness thereof by the terms of the contract.

In the answer of defendant it is claimed that said application contains the following question: “When and by what physieian were you last attended and for what complaint?” and that the answer recorded thereto is “no.” The defendant claims that the answer to this question was false and untrue, and being a warranty defeats plaintiff’s right of recovery.

A reply was filed thereto by the plaintiff in which facts are plead to the effect that said question was never propounded to the applicant and the answer not given. Facts are plead in the reply which it is claimed constitute an estoppel.

Plaintiff sought to verify her position and more solidly establish her right to recover by calling a large number of witnesses to testify as to the physical appearance and condition of the applicant at or about the time the certificate was issued. However, these witnesses could only testify as to appearances at that time and were not such as were thoroughly qualified to pass upon the fact of whether or not the applicant was diseased in the manner overwhelmingly established by the medical proof in the case and the circumstances and facts developed by the proof.

The state of the evidence has not been changed in any respect from what it was when the case was here before for review, with this exception, that the jury was requested by interrogatory to answer the following question: “Did the examining physician for the defendant when he prepared the application of John Nyiry, ask of him the following question: ‘When and by what physician were you last attended and for what complaint?’” The answer of the jury was: “John Nyiry was not asked the following question: ‘When and by what physician were you last attended and for what complaint?’ ”

The force of this interrogatory and answer thereto is rendered negligible by the state of the proof. The physician who examined him as an applicant testified that he did not ask that exact question; that he used the word “doctor” for “physician” and the word “sickness” for “complaint,” in order that he might the better reach the understanding of the applicant. He gave the exact substance of the question but not the exact words. In short, the request for special finding submitted to the jury was not based, upon the state of the proof in the case, and the jury could only truthfully answer “No,” for the defendant was not claiming that the question in the exact words was. submitted, but claimed at all times and proved that the whole substance and the exact meaning of the question was put to the applicant, so that the special finding of the jury after all presents a new fact but one of little or no probative value.

We have therefore reached the conclusion that the state of the evidence is the same now as it was when the case was here before for review, and that the judgment of the court below should be reversed on the weight of the evidence, unless the established law of the state precludes us from a judgment of reversal.

Sec. 11577 G-. C. reads as follows:

“The same court shall not grant more than one new trial, on the weight of the evidence against the same party in the same case, nor shall the same court grant more than one judgment of reversal on the weight of the evidence against the same party in the same case.”

This section was formerly Sec. 5306 R. S., and received judicial interpretation in the case of Columbus Street Ry. Co. v. Peace, 68 Ohio St. 200 [67 N. E. 490], the syllabus of which reads as follows:

“The provision in See. 5306 R. S., that: ‘The same court shall not grant more than one new trial on the weight of the evidence against the same party in the same case,’ has special and exclusive application to trial courts, and such provision does not operate as a limitation upon the power of the circuit court, as a court of error, to reverse a case any number of times, on the ground that the verdict of the jury in the trial court was against the weight of the evidence.”

Jn the opinion Crew, J., at page 209, says as follows:

“It was doubtless the design and purpose of the legislature by the enactment of Sec. 5306 R. S., to thereby restrain the unlimited discretion of trial courts over verdicts of juries, whose peculiar province it is under our system of jurisprudence to determine the facts. But in the absence of any such expressed intention, or irresistible implication arising from the language employed in the statute itself, we think it could not have been intended by the legislature by this act to limit, or take away the jurisdiction, or to restrict and limit the power of the cireuit court to but a single reversal, on the ground that the verdict of the jury in the court below was against the weight of the evidence. To give this act a construction that would thus restrict the power of the circuit court, would, we thinly be far more calculated to injure than to preserve, the usefulness of the trial by jury.”

Section 11577 G. C. will be found in the chapter relating to the júrisdiction and procedure of trial courts. Presumably the legislature had in mind only and was dealing solely with the subject about which it was legislating. Neither by express words nor by words that will reasonably bear the implication is this section made referable to any other court than the trial court. In the absence of such the presumption is strong that the application of the section is limited to the subject-matter being dealt with.

We are not unaware of the fact that said. Sec. 5306 R. S. (now See. 11577 G. C.) was amended by the legislature in 1908 by the addition thereto of the following words:

“Now shall the same court grant more than one judgment of reversal on the weight of the evidence against the same party in the same case.”

Reference to this amendment was omitted from the original opinion for the reason that, in our judgment, the section, as amended, does not in any degree change the principle which controls the situation in the present case. Nor does the amendment, in view of the fact that the jurisdiction of this court is exclusively obtained from the present constitution, render less forcible the language of the Supreme Court in the case last above cited, nor change the rule governing this case. Reference thereto was omitted for the reason that, if the section expressly mentioned the court of appeals, as we view it, the situation would not be altered. The jurisdiction of the court of appeals is solely obtained from, and is defined by, the constitution. The legislature has no authority to say what subject-matters are cognizable by courts of appeals.

Thompson v. Redington, et al. 92 Ohio St. 101 [110 N. E. 652]; Bayes v. Midland Casualty Co. 92 Ohio St. 303 [110 N. E. 751]; Cincinnati Polyclinic v. Balch, 92 Ohio St. 415 [111 N. E. 159].

In the opinion in the last named case, the court, at page 418, says:

‘ ‘ Sec. 6, Art. IV, as amended, confers upon the courts of appeals jurisdiction to review, affirm, modify, or reverse all judgments of the courts of common pleas. There is no authority on the part of the legislature to limit the jurisdiction of the courts of appeals to any particular class of judgments. It cannot add to or take from the appellate jurisdiction of the courts of appeals now conferred by the constitution. ’ ’

However, it is urged that the right of a second reversal is governed by See. 11577 G. C. as amended, upon the ground that the same is procedural. This might perhaps be claimed at a time when the jurisdiction of this court was prescribed by statute. But not so, after the jurisdiction of this court was fixed by a vote of the people of Ohio in 1912, in the form of an amendment of Art. IV, See. 6. It is to be presumed that in so changing the jurisdiction of this court from a statutory to a constitutional source, a real change was intended. An intended change from the amended statute of 1908 may be conjectured.

The language of the constitution now is:

“The courts of appeals shall have original jurisdiction in quo warranto, mandamus, habeas corpus, prohibition and procedendo, and appellate jurisdiction in the trial of chancery cases, and, to review, affirm, modify, or reverse the judgments of the courts of common pleas, superior courts and other courts of record within the district as may be provided by law. ’ ’

It will be noticed that the language is “the judgments.” Is the judgment following a second trial of a cause any less a judgment than the one following the first trial, of a cause? If the legislature may declare that the jurisdiction of this court is diminished to the extent of denying the right to review a second judgment on the weight of the evidence on the ground that it is procedural, then are we not obliged to look to the statutes as well as to the constitution for oUr jurisdiction ? May the legislature make two classes of judgments, those following a first trial and those following a second trial, and then say you may reverse the first class but not the second ? If so, then it may deny the right to reverse for error in the exclusion of evidence a second time. Or, it may deny the right to reverse a case a second time for error in the charge. The Supreme Court of Ohio has denied to the legislature this authority in the language above quoted.

"When a petition in error shall be filed, when a bill of exceptions shall be presented and filed, what bond shall be given what steps shall be taken to transfer a cause for review, are procedural matters. But when once transferred in compliance with prescribed rules, the right to entertain and consider the subject-matter is jurisdictional. If no method for prosecuting error from the judgments of the court of common pleas was provided, another question would be presented. But one is provided, and in the case at bar all necessary steps were taken to obtain a review, and a judgment of the court of common pleas is before us. The constitution says you may review the judgment of the court of common pleas. The Supreme Court of Ohio said, in the language above quoted, you may review all judgments. In face of this authority, it is urged that power yet resides in the legislature, and a legislative enactment may be invoked to dispute our authority to review and reverse this kind of judgment, — this kind of judgment is in a class by itself.

We are not unmindful of the case of Mahoning Valley Ry. v. Santoro, 93 Ohio St. 53. If the syllabus states the law of the case, it is silent upon the subject of the right of a court of appeals to reverse a case a second time upon the weight of the evidence. However, the opinion by a majority of the court deals with the subject. So far as the language of this case is concerned, the ease of Columbus Street Ry. v. Pace, supra, was not considered, referred to nor disapproved. The dissenting opinion by Judges Newman and Jones held that Sec. 11577 G-. C. has no reference to courts of appeals; that the right of reversal is jurisdictional and not procedural; that the court of appeals now obtains its jurisdiction from thé constitution, where formerly it was granted by statute, and that so far as said section may be claimed to be applicable to the courts of appeals, the same is in conflict with the constitution.

So that we hold that this court has jurisdiction to reverse the same case a second time on the weight of the evidence against the same party, for the following reasons:

1. Said section is a part of the chapter relating to the trial court, and in the absence of express words or of words creating the inference, said section has no application to courts of appeals.

2. That the right of reversal is granted to the court ol appeals by the constitution, is jurisdictional and not procedural, and if said section may be said to apply to this court to that extent it is in conflict with the Constitution.

We are supported in this opinion and we derive our authority for it from the case of Columbus Street Ry. v. Pace, supra, in which judgment all members of the court concurred; also Cincinnati Polyclinic v. Balch, supra. Also by the dissenting opinion of Judges Newman and Jones in the case of Mahoning Valley Ry. v. Santoro, supra.

Our opinion in this matter is opposed-by the majority opinion in the ease of Mahoning Valley Ry. v. Santoro, supra, in which case, however, the syllabus is silent in respect to the subjeet-matter under consideration.

In this unsettled state of the law as to what our jurisdiction is and what our right is in respect to reversing the same case a second time upon the weight of the evidence, we adhere to the opinion that we have jurisdiction to do so, and the judgment of the lower court is reversed and the cause remanded at the costs of the defendant in error.

Grant and Carpenter, JJ., concur.


author: GORMAN, J.

text:
    LIMITATIONS — MASTER AND SERVANT.
    [Hamilton (1st) Court of Appeals,
    March 5, 1917.]
    Jones, Gorman and Hamilton, JJ.

      Charles Omin v. Baltimore & O. S. W. Ry.
    Federal Employers' Liability Two Years' Period for Bringing Suit Imposes Condition to Bringing Suit not Limitation.
    The requirement of the federal employers’ liability act, conferring the right to bring an action for damages by an injured employe, that suit must be brought within two years, is a condition limiting a liability not otherwise than by such act existing and not in the nature of a statute of limitations. Hence, the right to proceed under such act is lost by lapse of the two years’ period, notwithstanding the servant was induced to postpone bringing action by the master’s offering and servant’s accepting temporary employment of a character suited to the injured servant’s condition and the subsequent refusal of the master to continue the employment after the two years’ period had been tolled.
    Error.

      Bettinger, Schmitt & Kreis, for plaintiff in error.

      Harmon, Colston, Goldsmith & Hoadly, for defendant in error. -

       Motion to certify record overruled, Omin v. Railway, 62 Bull. 308; affirming, Omin v. Railway, 27 Dec. 494.

   GORMAN, J.

This proceeding in error is brought to reverse a judgment of the common pleas court wherein an instructed verdict was returned in favor of the defendant.

The action was one to recover damages for personal injuries said to have been received by the plaintiff February 17, 1912, while employed by the defendant company as a freight truckman.

The defendant by answer denied generally all the allegations of negligence set out in the petition. In >a second defense it alleged that at the time of the accident Omin was employed by it in commerce among-the several states, and that the action was not brought within two years from the date on which it occurred — that being the time limit for the commencement of actions under the federal employers’ liability act.

By way of reply to this second defense plaintiff alleged that immediately after leaving the hospital where he was confined on account of his injuries, he threatened to institute suit to' recover damages for his injuries, and that thereupon the defendant promised and agreed that if he would not bring suit it would provide him with such employment as his ’ physical condition would warrant and would take care of him as long as he was disabled; that pursuant thereto the defendant did employ him in the office of its depot master until July 17, 1914. but that ever since said date although the disability of the plaintiff on account of his injuries still existed the defendant refused to give him employment or to take care of him as it had agreed to do, and that by reason thereof defendant is estopped from pleading said statute.

At the close of the plaintiff’s testimony the trial court, as above stated, instructed the jury to return a verdict for the defendant, among other reasons, because the plaintiff had failed to bring his action within two years from the time his injuries occurred.

Several errors are complained of by plaintiff in error, but we deem it unnecessary to pass upon any other question than that of whether or not the action was brought in time.

Under the federal employers’ liability act, Sec. 8662 U. S. Rev. Stat. (Sec. 6, U. S. Comp. St., 1913), passed April 22, 1908, it is provided that—

“no action shall be maintained under the statute unless commenced within two years from the day the cause of action accrued. ’ ’

The plaintiff seeks to avoid the effect of this statute by pleading the conduct of the defendant in giving him employment upon the condition that he forebore to bring suit. But it has been held in several well-considered cases that the statute just cited confers a right to which is attached a condition that it be enforced within the stated period — two years. The act creates a liability where none existed theretofore, and it takes away defenses which were formerly available. Coupled with the enlargement of the liability of carriers is the limitation that no action shall be maintained under the act unless commenced within two years from the time the cause of action accrued. This condition in the statute is not an ordinary statute of limitations. It affects the right and not the remedy. If it were merely a statute of limitations we have no doubt that the defendant would be estopped from setting up the failure of the plaintiff to bring his action within two years by reason of its agreement with him to give him employment upon the condition that he forebore to bring an action to recover damages. The time within which the suit must be brought operates as a limitation of the liability and not of the remedy alone. It is a condition attached to the right to sue at all. Time has apparently been made of the essence of the right, and the right is lost if the time is disregarded. The liability (which did not exist apart from the statute) and the remedy are created by the same statute and the limitations upon the plaintiff’s right to maintain the action are to be treated as limitations of the right and not limitations upon the remedy.

This question was squarely presented to the Supreme Court of Michigan in Bement v. Railway, Mich. 000 [160 N. W. 424]; to the same effect are the decisions in Morrison v. Railway, 40 D. C. App. Cas. 391; and Partee v. Railway, 204 Fed. 970.

It is admitted in this case that the right of the plaintiff to recover, if he had a right, arose under the federal employers’ liability act in that he was engaged while employed by the defendant in interstate commerce. It has been a universal rule, adopted by all the states, that the construction of the federal statutes by the federal courts should be followed by the state courts in construing the same statutes. It would appear to us that the application of this rule laid down in the cases cited operates to bar the plaintiff’s right to recover, for the reason that his right was lost by the lapse of time, and not because he failed to invoke the remedy within the two years.

We deem it unnecessary to pass upon the other alleged questions of error in the ease. For the reasons stated the judgment of the court below will be affirmed.

Jones and Hamilton, JJ., concur.


author: HOUCK, J.

text:
    COUNTIES — ELECTIONS—PLEADING.
    [Tuscarawas (5th) Court of Appeals,
    July 11, 1916.]
    Shields, Powell and Houck, JJ.

      Robert H. Nussdorfer, Aud. v. State ex rel.
    1. Allegation of Money in Hands of County Treasurer to Credit of Proper Fund not Otherwise Appropriated, Sufficient.
    In an action based on a claim against a county, the allegation that there is money in the hands of the county treasurer, to the credit of the proper fund and not otherwise appropriated sufficient to satisfy the claim in suit, meets the requirement of the case without adding that it has been appropriated by the county commissioners for payment of the particular claim in question.
    2. Deputy State Supervisors of Elections Entitled to Two Dollars for Every Election.
    The compensation provided for deputy state supervisors of elections for the holding of primary elections is two dollars for each and every election precinct in the county for each and every primary election held under authority of law.
    [Syllabus by the court.]
    Error.

      Edward C. Turner, Atty.-Gren-., A. 0. Dickey and E. E. Lindsay, Pros. Atty., for plaintiff in error.

      J. G. Mitchell and Graham & Stafford, for defendant in error.

       Motion to certify record overruled, Nussdorfer v. State, 61 Bull. 370.

   HOUCK, J.

The defendant in error was tbe relator in the court below, and the plaintiff in error was the respondent.

The record discloses that the action below was based oel a petition in mandamus seeking to compel the county auditor of Tuscarawas county, Ohio, to issue his warrant on the county treasurer of said county for the sum of $148 in favor of Upsure D. Miller, the relator, one of the members of the deputy state-supervisors of elections of said county; the said sum alleged to be due him being for services rendered in conducting the primary election held on April 25, 1910.

The plaintiff in error, the defendant below, filed a general demurrer to said petition which, was heard by the trial judge and overruled, and the defendant below, the said plaintiff in error, not desiring to plead further, a judgment was entered for the plaintiff bélow, granting to him all the relief prayed for in his petition and directing that a peremptory writ of mandamus issue ordering and directing the said respondent, Bobert H. Nussdorfer, as the county auditor of Tuscarawas county, Ohio, to issue his warrant on the county treasurer of said county for the sum of $148 in favor of Upsure D. Miller, the relator.

To the overruling of the demurrer and the entering of the judgment in favor of said relator the plaintiff in error prosecutes error to this court, asking for a reversal of the judgment of the common pleas court.

Counsel for plaintiff in error urge a reversal of the judgment below upon two grounds:

1. That the following allegation in the petition is not sufficient in law:

“There is money in the county treasurer’s hands to the credit of the proper fund, and not otherwise appropriated, to pay the full amount of relator’s claim for compensation.”

2, That there is no provision of law authorizing the compensation claimed by the relator, or the payment of same from any source.

Coming now to the first ground of alleged error, the plaintiff in error contends that the language in the petition is not sufficient in law to impose upon the county auditor the duty to issue a warrant on the county treasurer; that it can not be properly claimed that it is the duty of the county auditor to issue a warrant to pay money out of the county funds, unless it affirmatively appears by allegations in the petition that there is money in the treasury to the credit of the fund from which the claim is payable, and that it has been by the county commissioners appropriated for the payment of the particular claim in question.

We can not agree with learned counsel as to their contention in this respect. From our examination of the language used we feel that the allegation in the petition “that there is money in the county treasurer’s hands to the credit of the proper fund, and not otherwise appropriated,” etc., is sufficient. All that is required in this regard is that the petition should affirmatively show that the money necessary to pay the claim is in thecounty treasury, and that it is available for the purpose for which it is sought to be used.

As to the second ground of alleged error, the plaintiff in error insists that deputy state supervisors of elections are to be paid a compensation of two dollars for each election precinct in the county for their services in conducting all primary elections held during any one year, and the defendant in error as strongly insists that they are to be paid two dollars for each election precinct in the county in conducting each and every primary election required or authorized by law to be held in such county.

The parties to this suit, in support of their respective claims, rely upon the provisions of Sec. 4990 G-. C. which is as follows:

“For their services in conducting primary elections, members of boards of deputy state supervisors shall each receive for his services the sum of two dollars for each election precinct in his respective county, and the clerk shall receive for his services the sum of three dollars for each election precinct in his county, and judges and clerks of election shall receive the same compensation as is provided by law for such office’s at genral election.”

The real question presented for our determination is, What is the proper and correct interpretation of and construction to be placed on said See. 4990 G-. C. ?

It is the duty of courts in construing a statute to give effect to the intent of the law-making power, and seek for that intent in every legitimate way. But, first of all, this should be sought in the words and language used; and if the words are free from ambiguity and doubt, and express plainly, clearly and distinctly the sense of the framers of the statute, there is no occasion to resort to other means of interpretation. In other words, the statute itself, and the words and sentences contained therein, furnish the very best means for its own interpretation. If the sense in which words were intended to be used can be clearly ascertained, the intention thus indicated will and must prevail.

We think there can be no doubt that the primary and general rule of statutory construction is that the intent of the lawmaker is to be found in the language that he has incorporated in the statute. He is presumed to know the meaning of words and the rules of grammar; and courts have no function of legislation, but must construe and interpret a statute by means of the words and sentences contained therein.

Counsel for plaintiff in error maintain that the construction of Sec. 4990 G. C. which must be adopted in this case, is that deputy state supervisors of elections are entitled to an annual salary of two dollars for each voting precinct in the county for conducting primary elections, and it is not changed in amount by reason of more than one primary election being required to be held.

"We can not conceive how counsel arrive at such a construction. They are assuming that the statute provides for an annual compensation, which it does not do.

It is conceded that whatever compensation, if any, deputy state supervisors of elections receive for the holding of primary elections is under the provisions of Sec. 4990. We feel that it would be just as reasonable for counsel to claim that under the language used in this section the compensation they concede for one year should be for two years, because the statute — so far as language is concerned — is silent as to whether or not the compensation shall be for one, two, or three years, and we certainly have no right to read into a statute, for the purpose of construction, any language that is not contained therein.

It seems clear to us if the legislature had intended that the compensation provided in See. 4990 was to be for all primary elections held within the year, that it would have inserted therein the same or similar language as is used in Section 4822, G. C. to wit, ‘ ‘ during any year. ’ ’

Again, it will be observed from a careful examination of the language used in the statute before us for construction that the law-makers had in mind, as the basis for fixing the compensation to be allowed for services rendered by deputy state supervisors of elections, in conducting primary elections, the number of voting precincts in the county, and that the compensation was fixed at two - dollars for each precinct, and it was so made without any reference to time. Therefore, in view of these facts,- and giving to the language used its plain and simple meaning, we hold that it was intended by the legislature that deputy state supervisors of elections for holding primary elections should be paid two dollars for each election precinct for each ■and every primary election held under authority of law.

The section of the General Code under consideration is not as clear and explicit as it might be, but we are to construe the language therein, giving to the words therein their ordinary and popular meaning, and thereby give a sensible and intelligent construction to every part of the same, to avoid absurd and unjust consequences, and, if possible, so as to make it valid and effective, thus carrying out the intention of the legislature.

"When-the legislature, within its powers given it by our constitution, has enacted a statute, and fixed the rights of the people thereunder, it is not within the province of a court to declare a different policy or attach different rights. In this matter the law-making body is supreme, and it is presumed that it will pass no unjust or unwise laws. If the statute under consideration is unwise, unjust, or does not meet with popular approval, the remedy is with the people and the legislature, and not with the courts.

It therefore follows, from what we have already said, that we are of the opinion that the judgment of the common pleas court is right, and should be affirmed.

Judgment affirmed.

Shields and Powell, JJ., concur.


author: RICHARDS, J.

text:
    AUTOMOBILES — CRIMINAL LAW — NATURALIZATION.
    [Lucas (6th) Court of Appeals,
    July 29, 1917.]
    Chittenden, Richards and Kinkade, JJ.
    Shirley Bell v. State of Ohio.
    1. Refusal to Determine Plea in Abatement for Disqualification of Grand Juror not Reversible Error.
    It is not reversible error for the trial court to refuse to hear and decide a plea in abatement based on the disqualification of a grand juror, until after the return of a verdict, no substantial right of the defendant being prejudiced thereby.
    2. Naturalization by Probate Courts Prior to 1906 Authorized.
    By virtue of the jurisdiction conferred by Sec. 2165 U. S. Rev. Stat., on state courts of record having common law jurisdiction and a seal and a clerk, the probate courts of Ohio were authorized .to grant naturalization of aliens, prior to the amend, ment of said statute in 1906.
    3. Sufficient Record of Naturalization by Probate Court.
    Judgments granting naturalization should be liberally construed and a probate record is sufficient which is certified Oct. 29, 1887, by J. W. Cummings, probate judge, by B. A. Case, deputy clerk, reciting that at a probate court held at the probate office in Toledo, Roger Sheehy, a native of Ireland, personally came and proved to the court that he had arrived in the United States before he had attained the eighteenth year of his age, and made the requisite declaration of his intention to be naturalized and become a citizen of the United States and had behaved as a man of good moral character attached to the principles of the constitution of the United States and well disposed to the good order and happiness of the same; the record further reciting that Sheehy having fully complied with the laws of the United States in relation to the naturalization of aliens, and on being admitted by the court, took the oath to support the constitution of the United States and to renounce allegiance to every foreign prince, potentate, state or sovereign, and particularly to the queen of England, and certifying that he was thereupon admitted as a citizen.
    4. Naturalization Record of Probate Court Prior to 1906 not Collaterally Attacked.
    The record of a probate court granting naturalization to an alien prior to the amendment in 1906 of Sec. 2165, U. S. Rev. Stat., imports absolute verity and can not be collaterally impeached.
    5. Violation of Speed Limit by Operator of Automobile Causing Death Constitutes Manslaughter Notwithstanding Contributory Negligence of Deceased.
    One who operates an automobile in violation of the speed limit authorized by Sec. 12604 G. C., and by so doing directly causes the death of another, or, if his unlawful conduct in so operating tlie machine is one of the direct causes of the death of another, is guilty of manslaughter, and this is so even though the deceased was guilty of some negligence which contributed directly to the collision resulting in his death.
    6. Instruction as to Assault and Battery in Manslaughter Unnecessary in Absence of Evidence Showing Commission of that Offense.
    On the trial of a case where the defendant is indicted for manslaughter it is not the duty of the trial judge to charge the jury on the included offense of assault and battery, when there is no evidence which would tend to justify the jury in returning a verdict of guilty of that offense.

      Marshall & Fraser, and Alb ertus Brown, for plaintiff in error.

      J. G. D’Alton, Pros. Atty., for defendant in error.
   RICHARDS, J.

Shirley Bell was tried on an indictment charging manslaughter and was convicted and sentenced for that offense. He prosecutes error to this court, relying chiefly on errors claimed to have been committed by the trial court on a plea in abatement filed by him, and on errors in the charge of the court to the jury.

The defendant had entered a plea of not guilty but on leave of court he was granted permission to withdraw that plea and file a motion to quash the indictment and a plea in abatement, and he did in fact file the motion and the_plea on February 20, 1917. The case was called for trial on March Gth and a jury impanelled. Immediately thereafter the motion to quash the indictment was, after consideration by the court, overruled. Thereupon the defendant stood mute and declined to enter a plea to the indictment, but the court entered a plea of not guilty for him, and the. jury was again impanelled. After counsel had stated the case to the jury, and the witnesses had been called and sworn, counsel for the defendant inquired of the court what was done with the plea in abatement. The court replied that he simply ignored it. It is apparent from the record that the plea in abatement, which had been lost or mislaid, had at this time been found but it was not disposed of by the court until after the rendition of a verdict of guilty of manslaughter. It was, however, heard and decided by the court before the motion for new trial was disposed of.

' The first objection made by counsel for Bell is the error of the court in failing to decide the plea in abatement prior to the impanelling of the jury. Certainly the orderly administration of justice would require the court to dispose of such a plea prior to the commencement of the trial, but a failure of the court so to do would not justify a reversal of the judgment and sentence unless the action of the court in deferring a disposition of the plea in abatement were prejudicial to the defendant. It is manifest that the rules of criminal procedure should be so construed as to effect the purposes for which they were intended, and the test is not whether all the legal formulas have been literally complied with', but whether anything has been done or left undone which prejudices the substantial rights of the defendant. If the action of the court in delaying a hearing and decision on the plea in abatement prejudiced any substantial right of the accused a new trial should be had. If it did not, then it is equally clear that it is the duty of an appellate court to decline to reverse the conviction on that ground. We are of the opinion that the aetion of the trial court in failing to hear and decide the plea in abatement until after the return of the verdict of guilty did not prejudice any substantial right of the accused. If the plea in abatement should have been sustained, the sustaining of it after the return of the verdict would protect the rights of the accused; and if the plea in abatement should have been overruled it can not prejudice the accused for the court to refrain from overruling it until after the return of the verdict.

The plea in abatement sets forth in detail that one of the jurors serving on the grand jury which returned the indictment against the accused was Roger Sheehy who was a native of Ireland and claimed by the defendant never to have been naturalized. On the hearing of the plea the record of the probate court was introduced in evidence, showing the action of that court on October 29, 1887, on the application of Roger Sheehy to be naturalized and to become a citizen of the United States; but it is urged on behalf of the accused that the probate court was without jurisdiction under the federal statute in force at that time to grant naturalization papers to aliens, and that the record introduced in evidence is insufficient to show that Roger Sheehy was in fact naturalized by the action of that court.

The question raised as to the jurisdiction of probate courts in Ohio to naturalize aliens is an important one. The statute giving jurisdiction to grant naturalization in force in 1887 was Sec. 2165 IT. S. Rev. Stat., and that statute provided, in substance, that an alien could declare on oath before a circuit or district court of the United States or a district or supreme court of the territories, or a court of record of any of the states having common law jurisdiction and a seal and clerk, etc., his intention to become a citizen of the United States. This statute was amended in 1906 so as to limit the jurisdiction of state courts in the granting of naturalization, to those which have jurisdiction in law or in equity in which the amount in controversy is unlimited. But the question of the naturalization of Roger Sheehy depends upon a construction of the statute, as it existed in 1887. The limitation contained in the act governing the instant case is to those courts having common law jurisdiction and a seal and a clerk. It is, of course, not necessary that the probate court should have had general common law jurisdiction in order to be empowered to act in such cases, and such is the rule announced in 2 Cyc. 112. That the probate court in Ohio is a court of record is provided by Art. 4, See. 7, of the constitution of Ohio. Under the statutes of Ohio -the probate court has'a seal, and by See. 1584 G. C. the probate judge is authorized to perform the duties of clerk of his court and may appoint, a deputy clerk or clerks who shall take an bath of office before entering upon their duties, and when so qualified may perform the duties pertaining to the office of clerk of the court.

The question of the power and authority of the probate courts of Ohio to grant naturalization to aliens has been under consideration in various courts, but, so far as we are aware, has.not been determined by the Supreme Court of this state or the Supreme Court of the United States. The courts which have been called upon to decide the matter have not always been uniform in their holdings. The earliest decision which we have seen ivas rendered in 1858' in the probate court of Hamilton county, that court holding that probate courts in Ohio have power to admit aliens to citizenship. Downs, Ex parte, 3 Dec. Re. 47 (2 Gaz. 278). That decision, was, however, reversed in the district court of that county. Downs, In re, 3 Dec. Re. 56 (2 Gaz. 318).

In 1859 the subject was given careful consideration in the district court in Monroe county in Wingard, Ex parte, 2 Dec. Re. 126 (1 W. L. M. 453), and a decision rendered by that court, holding that probate courts in Ohio do have power to admit aliens to citizenship.

Shortly thereafter the identical question came on for hearing in the circuit court of the United States in a case entitled Smith, Ex parte, 3 Fed. Dec. 552 (22 Fed. Cas. 380). The circuit court of the United States in an opinion in that ease delivered by Judge McLean held that the probate courts of Ohio have common law jurisdiction in numerous instances and a seal provided by law and are empowered to employ deputy clerks and have jurisdiction to naturalize aliens. The rule thus announced by Judge McLean was in the placing of a construe-, tion by a federal court on a federal statute, and the rule as thus laid down has been followed generally throughout the state of Ohio until the amendment of the federal statute. The federal court gave critical attention to the phraseology of the statute, construing the expression “having common law jurisdiction and a clerk and a seal,” and after such consideration reached the conclusion already stated. The case was cited in People v. Pease, 30 Barb. (N. Y.), 588, 603, that court saying that to hold that the court had no jurisdiction would be fruitful of mischief, creating doubt and uncertainty as to civil and personal rights, endangering titles to property, and in many instances perhaps destroying inhei’itanees and changing the course of" descent. The reasons thus given come now with added force for when the decision just cited was rendered the court then under consideration had been exercising the authority for only ten years, whereas the authority has been exercised by the probate courts of Ohio for a century, and until the amendment of the federal statute in 1906.

In 1910 the jurisdiction of the probate courts to grant naturalization -was before the court of common pleas of this county and a decision rendered by Judge Johnson, State v. Metzger, 21 Dec. 72 (10 N. S. 97), in which, after a thorough review of the authorities, the court reached the conclusion that such jurisdiction existed in that court.

The surrogate’s court of New York has been held to have such jurisdiction. See Harstrom, In re, 7 Abb. N. C. (N. Y.) 391.

On a review of all these cases, and especially in view of the holding of the United States circuit court cited above and the following of that authority in general practice for a half century and more, we are clearly of the opinion that the probate court of Lucas county had jurisdiction in 1887 to grant naturalization to aliens.

Counsel for Bell insist that even though the probate court had jurisdiction to grant naturalization to Roger Sheehy, the record introduced in evidence does not show that it did so. The record is certified under date of October 29, 1887, by J. W. Cummings, probate judge, by B. A. Case, deputy clerk, and recites, in substance, that at a probate court held at the probate office in the city of Toledo on October 29, 1887, Roger Sheehy, a native of Ireland, personally came and proved to the court that he had arrived in the United States before he had attained the eighteenth year of his age, and made the requisite declaration of his intention to be naturalized and became a citizen of the United States; and also proved to the satisfaction of the court that he has behaved ás a man of good moral character, attached to the principles of the constitution of the United States and well disposed to the good order and happiness of the same. The record further recites that Sheehy, having fully complied with the laws of the United States in relation to the naturalization of aliens, and on being admitted by the court, took the oath to support the constitution of the United States of America and to renounce and abjure all allegiance and fidelity to every foreign prince, potentate, state or sovereign, and particularly to the queen of England. The record thereupon certifies that Roger Sheehy was admitted as a citizen of tbe United States. Attached to this record is a paper purporting to bo an affidavit of Roger Sheehy, an applicant for naturalization, but it does not bear the signature of Roger Sheehy.

It is unnecessary to have perpetuated the evidence on which the probate court acted. It was a court of record proceeding in a matter in rem over which it had jurisdiction and its record imports absolute verity without setting forth the facts and evidence on which the judgment was rendered. Shroyer v. Richmond, 16 Ohio St. 455. Even though it were permissible to look to the affidavit made by Sheehy, for the purpose of determining the evidence on which the probate court acted, the absence of his signature to the affidavit is not sufficient to impeach the judgment of the court granting naturalization. The statute (Sec. 2165, U. S. Rev. Stat.) provides that the applicant shall “declare on oath,” and the record of the court shows that it was found by the court that he had complied with the statutes and was entitled to be naturalized, and the judgment ordered that he be admitted as a citizen of the United States. While the judgment of the court is not perhaps technically regular in form, it cannot be attacked in this collateral way. The judgments of courts in the granting of naturalization should be liberally construed and we hold that the record introduced in evidence is sufficient to show that Roger Sheehy became a naturalized citizen of the United States in October, 1887, and was therefore qualified to sit on the grand jury which returned the indictment against the accused. It follows, therefore, that the trial court committed no error in overruling the plea in abatement.

On the trial of the case the evidence disclosed that the defendant on the date named in the indictment, to-wit, November 7, 1916, was driving a seven passenger Hudson automobile north on Collingwood avenue in the city of Toledo. Ashland avenue runs into Collingwood avenue from the southeast, and at the point where these two avenues meet the car driven by Bell collided with a car going south and driven by the deceased, Donald Fallon. As a result of this collision Fallon was killed. Bell himself took the stand and testified in his own behalf and in the course of his testimony stated that he was driving his car at a rate of speed of from eighteen to twenty miles an hour, which would be in violation of Sec. 12604 G. 0. The evidence, however, would justify the jury in finding that he was going at a very much higher rate of speed than testified to by him, some of the witnesses putting the speed at forty miles an hour or more. The bill of exceptions contains photographs of the two cars taken shortly after the accident, and their condition as there shown would indicate that they must have been proceeding at a very high speed at the time of the collision. Bell contended that he believed that Fallon, the deceased, was about to veer to the left onto Ash-land avenue immediately before the collision, and that the collision was caused by the fact that Fallon changed his mind and determined to proceed down Collingwood avenue instead of going down Ashland as he had evidently first intended to do. He also claimed that the collision was caused by the high speed maintained by Fallon in driving his car, which Bell says was approximately twenty miles per hour. It is evident that the jury would be perfectly justified in finding that if Bell had been operating his car within the speed authorized by the statute the collision could have been avoided easily.

Under this state of the record numerous requests to charge the jury were submitted by the defendant which were refused and to which he excepted. Most of those requests are along the same line and, if given, would have required the jury to find a verdict of not guilty unless they should find that a wilful violation of law by the defendant was the sole and only cause of the death of Donald Fallon. Substantially all of those requests were based upon the theory that if Fallon was guilty of any negligence which contributed directly to the collision then the defendant could not be convicted. The court committed no error in refusing to give these instructions. If the defendant was guilty of a violation of Sec. 12604 G. C. in operating his automobile at a greater rate of speed than is periuitted by that statute, and if this conduct directly eaused the death of Fallon or was one of the causes which directly resulted in his death, then the jury would be justified in returning a verdict of guilty.

It is further insisted that the trial court erred in refusing to charge on the subject of assault and battery. If the defendant was operating the car at a greater speed than was allowed by Sec. 12604 G. 0., and if this resulted directly in the death of Donald Fallon, then the defendant was guilty of manslaughter. If th e speed at which the defendant was operating the car was not in violation of that statute, or if it was not the direct cause, or one of the direct causes, of the death of Donald Fallon, then he was entitled to a verdict of not guilty. We see no reason why the trial judge should have been required to charge the jury on the subject of assault and battery. The case appears to be directly within the holding of the Supreme Court in State v. Vancak, 90 Ohio St. 211, 214 [107 N. E. 511]. The record discloses that Donald Fallon lost his life by reason of the unlawful conduct of the accused in operating his machine at a speed in Adolation of the statute.

In a careful examination of the record Ave find no prejudicial error and the judgment Avill be affirmed.

Chittenden and Kinkade, JJ., concur.


text:
    DESCENT AND DISTRIBUTION.
    [Lucas (6th) Court of Appeals,
    June 21, 1915.]
    Kinkade, Richards and Chittenden, JJ.

      Kroff v. Amrhein et al.
    Child of Adopted Daughter May Inherit by Representation from Intestate Adopting Grand-parents.
    If an adopted child die during the lifetime of the adopting parents, leaving a child as survivor, such surviving child stands in the place of the parent and inherits by representation from' the adopting parents who die intestate, the same as if a grandchild.
    [Syllabus by the court.]
    Error.

      Allen J. Seney, for plaintiff in error

      Amos L. Conn, for defendant in error.

       Affirmed, Kroff v. Amrhein, 94 Ohio St. 282.

   RICHARDS, J.

The action is one in partition and involves the determination of bnt one legal question. This question of law was raised by a demurrer to the petition, which was sustained by the court of common pleas, and a fina] judgment rendered against the plaintiff. The facts, so far as necessary to a determination of the question, may be briefly stated.

On November 4,1876, Simon Fearsettle and Otilley Fearsettle duly adopted a female child named Mattie Stein. In the course of time Mattie married one Fred ITamley, and to them a child, named Hester Hamley, ivas born as the issue of such marriage. On February 22, 1912, Mattie died intestate, leaving, surviving her, a husband and said child and her foster parents, Simon and Otilley Fearsettle. The foster parents died intestate in 1914, leaving certain real estate to which the plaintiff, Frederick' C. Kroff, a half-brother of- Simon Fearsettle, claims title by descent.

The sole question in this ease is whether this real estate would descend to the child of the adopted daughter, Mattie, or pass to the brothers and sisters of the adopting parents.

If Mattie had survived her adopting parents, doubtless no question would have existed but that she was the heir under and by virtue of the provisions of Sec. 8030 G.. C. That section, referring to an adopted child, contains the following provision:

“Such child shall be the child and legal heir of the person so adopting him or her, entitled to all the rights and privileges and subject to all the obligations of a child of such person begotten in lawful wedlock. ’ ’

It is said, however, that by reason of the fact that the adopted daughter Mattie died before the adopting parents, her child can not inherit from the adopting parents. This precise question has not been determined by any reported decision in Ohio and we find but five decisions in other states.

The earliest of these is by the supreme court of Georgia in 1874, in Pace v. Klink, 51 Ga. 220, where it was held that in a case where the adopted son died before the adopting parents, leaving children, his children stood in the place of and represented the father and took the estate which he would have taken if living.

The question next arose in Kentucky in 1887, and the decision may be found in Power v. Hafley, 85 Ky. 671 [4 S. W. 683], where it is held that if an adopted child dies, leaving children, before the adopting parent, these children inherit as if they were grandchildren of the adopting parent.

In 1895 the question was determined in Kansas in the case of Gray v. Holmes, 57 Kans. 217 [45 Pac. 596; 33 L. R. A. 207], In that ease, where the adopted daughter died before the adopting parent, it was held that the heirs of the adopted daughter would inherit through her a share of the estate of the deceased adopting parent, just as if she were a daughter of such parent by blood.

The question arose in the supreme court of Vermont in 1911, and was similarly decided, in the case of Walesworth’s Est. In re, 85 Vt. 322 [82 Atl. 7; 37 L. R. A. (N. S.), 849, 1914 C. Ann. Cas. 1223]. The court reviews all the earlier decisions, finding there were but the three already, cited and reaches a conclusion that in no other reported ease has a like question been determined, and that there is no diversity of decision. The statutes of the various states where the above decisions were rendered, relating to the descent and distribution of property to adopted children, are quite similar in all material respects to the statutes on that subject in Ohio.

Since the decisions just cited, the question has come before the court of civil appeals of Texas, and was there determined in 1914, a conclusion being reached which is entirely in aecord with the ones above cited. The Texas ease is that of Harle v. Harle, 166 S. W. 674.

We cite also Van Derby v. Mack, 109 Am. St. 676 [137 Mich. 146; 100 N. W. 278; 66 L. R. A. 437]; and Hockaday v. Lynn, 118 Am. St. 684 [200 Mo. 456; 98 S. W. 585]. In both of these latter citations extensive notes may be found in which the editor reaches the same conclusion as was arrived at in the cases cited.

The interesting question is very clearly and convincingly discussed in 1 R. C. L. 614, and the conclusion there reached is expressed in the following language:

“If an adopted child dies during the life of its adopting parent, leaving children, such children are for most, if not all, purposes regarded as natural grandchildren of the adopting parent, and are entitled to represent their parent and to receive from the estate of his adopting parent what he would have been entitled to receive had he lived until after such parent’s death.’’

To the same effect is the conclusion of the learned editors as found in 1 Corpus Juris, 1401, and notes.

It is provided in Secs. 8573 and 8574 G. C. which covers the descent of real estate, however the title may have been derived, that it shall go first to the children of the intestate or their legal representatives, and Secs. 8029 and 8030 G. C. make the adopted child the child and legal heir of the adopting parent; it is perfectly clear then that under these sections of the statutes of our state the child of the adopted daughter, Mattie, is entitled to take the same estate by representation that her mother would have received had she been living at the time of the death of her adopting parents.

It was held in Smith v. Hunter, 86 Ohio St. 106 [99 N. E. 91], that the devise of a remainder to the “heirs at law” of a beneficiary for life, would include an adopted child of the beneficiary.

Counsel for plaintiff relies on Lathrop v. Young, 25 Ohio St. 451; Upson v. Noble, 35 Ohio St. 655, and Phillips v. McConica, 59 Ohio St. 1 [51 N. E. 445; 69 Am. St. Rep. 753]. We find nothing in these eases in conflict- with the conclusion herein reached.

The first case did not in any sense involve the descent of property to or from an adopted child, nor the children of an adopted child.

The second case involved the descent of property of an adopted child, and it was held that, if such child die intestate, the property of the child would pass to the natural mother to the exclusion of the adopting parents and their children born in lawful wedlock.

The last case decides only that .where a legatee dies before the testator the legacy lapses unless the legatee was a child or other relative of the testator and left issue surviving, and that an adopted child is not such issue. The case further holds that an adopted child can not inherit through the adopting parent, from the ancestors of such adopting parent. The conclusion reached by the court necessarily follows from the fact as stated in the opinion on page 9, that the statute does not make the adopted child the heir of the ancestors of its adopter, and the right of the adopted child to inherit can not be extended beyond where the statute has fixed it. The vital distinction between that ease and the one at bar is that the statutes do make the adopted child a child and heir of the adopting parent, and do provide that property shall descend not only to children but to their legal representatives. We are entirely in aceord with the following statement from the opinion of the learned trial judge in the instant case:

"It can not be denied that if the adopting parents had, at the time of the adoption, natural children who survived them, or had children born to them after the adoption who survived them, that the adopted child would be coheir with such natural children, with like and equal power of inheritance from her adopting parents, for the reason that the pis representations attaches as fully, under our statute of adoption, to the adopted child as to the natural children.

By force of the statutes above cited the child of Mattie became the grandchild of the adopting parents, and as such was entitled to take by representation the estate which her mother would have taken if she had been living at the time of the death of the adopting parents.

Judgment affirmed.

Chittenden and Xihkade, JJ., concur.


author: PARR, J.

text:
    EQUITY — JUDGMENTS—LIMITATIONS—MORTGAGES'.
    [Portage (7th) Court of Appeals,
    September 21, 1917.]
    Pollock, Metcalfe and Farr, JJ.
    Mary J. Weenick et al. v. M. C. Sluts.
    Decree in Foreclosure of Mortgage has Attributes of Judgment on Which Action is Maintainable within Twenty-one Years.
    Where, in an action to foreclosure a mortgage, a decree is entered ordering that the mortgage be foreclosed, liens marshalled, priority fixed, the amount due determined, the mortgaged premises sold, the proceeds applied to the payment of the indebtedness and that execution be awarded for the balance due, such decree is, in effect, and hhs all of the attributes of, a judgment upon which action may be maintained at any time within twenty-one years from the date it became dormant.
    [Syllabus by the court.]
    Error.

      A. S. Cole, for plaintiff in error.

      W. E. Holden and II. B. Loomis, for defendant in error.
   PARR, J.

This is an error proceeding prosecuted in this court from the judgment of the court of common pleas of this county.

On or about the--day of-A. D:. 1894, Ranson H. Clark as plaintiff, filed his petition in the court of common pleas of Portage county against Mary J. Purrington, now Weenick, and others for the foreclosure of a certain mortgage. On October 10, 1894, a decree was duly entered finding the amount of $1,441.44 due; a sale of the mortgaged premises was ordered, sale made, the proceeds applied to the payment of said claim, leaving a balance of $684.56, unpaid, and execution as at law was awarded for said balance, which execution was issued on October 13, 1896, and returned wholly unsatisfied; on September 9, 1897, said balance of $684.56 was by Banson H. Clark duly assigned to M. C. Sluts, the defendant in error here who, on August, 3, 1916, filed a petition in the court below for revivor of judgment under favor of See. 11645 G. C. To this petition an answer was filed raising the issue of the bar of the statute of limitations of both ten and fifteen years under favor of Secs. 11227 and 11221 G. C., and denying that any judgment had been rendered in said original action in foreclosure. In said action for revivor, a judgment was entered for plaintiff from which error is prosecuted in this court.

The prayer of the petition for foreclosure reads as follows:

“This plaintiff therefore prays that his said mortgage may be foreclosed, that the liens on said realty may be marshalled and adjusted and his declared prior, superior and paramount to all other liens and claims; that the amount due him may be determined and a decree entered therefor; that said realty may be ordered sold, free from the claims and liens of all parties herein and the proceeds applied on his decree; and that he may have such other and further order, judgment and decree as equity permits and such complete, general and alternative relief as the nature of his case requires against each of defendants including execution for any balance remaining unpaid after exhausting the property.”

The decree entered on October 10, 1894 found the amount due, directed the foreclosure of the mortgage lien and in conclusion awarded execution as follows:

“It is further ordered that the plaintiff have execution as at law against the goods and chattels, land and tenements of the said Isabella M. Bullock Snyder and Mary J. Purrington for any balance remaining unpaid on this decree after exhausting the property. ’ ’

It is urged by plaintiff in error that the above entry in said foreclosure proceeding’ was not, in effect, a judgment but only a decree in equity and was therefore barred by the statute of limitations in ten years by the provisions of Sec. 11227 G. C. or at most in fifteen years by the terms of Sec. 11221 G. C. and that it was not subject to the limitation of twenty-one years as to judgments under favor of Sec. 11648 G. G.

Was said decree in effect a judgment as defined by Sec. 11582 G. C. which provides in part as follows:

“Section 11582. A judgment is the final determination of the rights of the parties in an action. ” * * *

The prayer of the petition in foreclosure was that the mortgage be foreclosed, the liens marshalled, their priority fixed, the amount due determined and a decree entered therefor; the mortgaged premises sold, the proceeds applied to the payment of the mortgage indebtedness and such other and further order, judgment and decree as equity permits and such complete general and alternative relief as the nature of the case required including execution for any balance remaining unpaid after exhausting the property; all of which was granted and said decree also provided that plaintiff have execution as at law for any balance remaining unpaid. This was a full and complete determination of the rights of the parties and it was final. What else was there to determine or to be done in said proceeding between the parties? Their rights and all of them were fixed and finally settled so far as that action was concerned, except execution be issued. It is urged, however, that said decree was not in effect a judgment in view of the holding in Doyle v. West, 60 Ohio St. 438 [54 N. E. 469], the first and second paragraphs of the syllabus of which read as follows:

“1. In a suit to foreclose a mortgage, there was a finding of the amount due and the usual order of sale, if not paid in a certain time named. There was no prayer for a judgment, and none was rendered, and no order for an execution for any balance that might remain after applying the proceeds. A sale was made and after applying the proceeds, a balance of $102.21 remained. Held, that an action can be maintained on the finding for the recovery of this balance as a debt, evidenced by record.
’ 2. The statute of limitations was raised by demurrer; and it appearing from the petition that more than seventeen years had elapsed from the application of the proceeds, and no intermediate payments having been made. Held, that under our statute of limitations, the action is barred.”

The facts in the foregoing case are 'very similar to those in the case at bar. Like the instant case it was an action to foreclose a mortgage lien but no judgment was sought and none rendered; there was no award of execution for any balance remaining unsatisfied. Therefore there remained nothing further for the court to do, and this is one distinguishing feature in the case at bar, and so was the case of Doyle v. West, supra, distinguished in the later case of Graham v. Simon, 76 Ohio St. 77 [81 N. E. 170], the syllabus of which reads as follows:

“An action upon a judgment of a court of this state may be brought at any time within twenty-one years. Tyler’s Executors v. Winslow, 15 Ohio St. 364, followed; Doyle v. West, 60 Ohio St. 438, distinguished.”

It will bo observed that in the case of Graham v. Simon, supra, the court elects to follow the early case of Tyler’s Excrs. v. Winslow, 15 Ohio St. 364, which had long been the controlling authority in this jurisdiction and in distinguishing said case of Doyle v. West, Shauck, C. J., observes in Graham v. Simon, supra, page 81, as follows:

“In the suit to foreclose no personal judgment had been sought in the petition, nor was any rendered, nor was there even an award of execution for the satisfaction of any balance which might remain unpaid after applying the proceeds of sale. ’ ’

It is then further observed that the action in the case of Doyle v. West was for the recovery of a balance of the amount which the court had found to be the indebtedness, the finding having been made as the predicate of the decree of foreclosure to subject the mortgaged property, and then it is stated:

“And not affording to the creditor any executory remedy against the general property of the debtor.”

But such is not the case at bar, because the court awarded an executory remedy by way of execution and this clearly distinguishes the instant case from that of the above case of Doyle v. West. It is true that in the above case of Graham v. Simon, the action was based upon a judgment and there was no dispute as to the form and which carried with it the executory remedy; likewise in the case at bar the same remedy was awarded giving it at once the force and effect of a judgment and distinguished it from the case of Doyle v. West. Therefore, the decree entered in the case at bar had all the attributes of a judgment. It found the amount due and supplied as above observed the executory remedy to satisfy the same. It is conceded that if said decree is in fact a judgment that the execution issued on October 13, 1896, saved it from the operation of the statute of limitations of twenty-one years as provided in said Sec. 11648 G. C.

It must be held, therefore, in view of the foregoing that said decree was in effect and in fact a judgment, and that the present action to revive the same is not barred by the statute of limitations, and the judgment of the court below is affirmed.

Pollock and Metcalfe, JJ., concur.


author: CHITTENDEN, J.

text:
    DAMAGES — EVIDENCE—NEGLIGENCE.
    [Lucas (6th) Court of Appeals,
    March 31, 1917.]
    Chittenden, Richards and Kinkade, JJ.
    Toledo Railways & L. Co. v. Mary Prus.
    1. Physician Testifying as Expert cannot Testify to Statements of Injured Party as to Her Condition.
    A physician who makes an examination of one who has received physical injuries, for the sole purpose of enabling him to testify as an expert in an action to recover damages for such injury, can not testify to statements made by the party as to her condition, and an opinion given by the physician must not be based in any substantial degree on statements of the injured party as to subjective symptoms.
    2. Physician as Expert must Base Opinion upon Examination of Person.
    In general, a physician when testifying as an expert should be able to state to the jury, before giving his opinion, that such opinion is based upon his examination of the person without being affected in any .substantial degree by the relating to him by the person of subjective symptoms.
    3. Litigant Bound to Object to Incompetent Evidence as Offered not after Trial and Argument.
    The law imposes upon every litigant the duty of vigilance in the trial of a case, and he cannot permit incompetent evidence to be introduced without objection or without seeking to have the same excluded, with reasonable promptness, and at the conclusion of the trial, especially after argument of the case to the jury, predicate error upon the refusal of the court to exclude such evidence from the jury at that stage of the trial.
    4. Witnesses Testifying to Collateral Matters cannot be Contradicted by Cross Examiner.
    Witnesses can not be interrogated as to matters wholly collateral merely for the purpose of contradicting them by other evidence, and if questions of this character are answered the answer cannot be contradicted by the cross examiner.
    5. Prospective Damages Reasonably Certain to Result from Injury, not Liable to Ensue, Recoverable.
    Where prospective damages from an injury are claimed, they should be limited by the court in its charge to the jury to such as the evidence shows are reasonably certain to result from the injury, and it is error to charge that recovery may be had for “such future pain and suffering as you find from the evidence is liable to ensue.”
    Error.

      Tracy, Chapman & Welles, for plaintiff in error.

      Sala & Carabin, for defendant in error.
   CHITTENDEN, J.

The plaintiff in the court of common pleas, Mary Prus, l'e-covered a verdict and judgment against the defendant, the Toledo Railways & L. Co., in the sum of $2,500 as damages for injuries sustained by being thrown from a street car while in the act of alighting therefrom.

The defendant admits that the plaintiff was, on the date of the accident, to wit, December 7, 1915, upon one of the cars of the defendant, and that in attempting to dismount therefrom she fell to the pavement. The defendant denies all allegations of negligence upon the part of the defendant and pleads in the alternative that if it was in any wise negligent, the plaintiff was guilty of negligence directly contributing to her injuries in that she attempted to dismount from a moving car.

The first error relied upon for reversal of the judgment is that the verdict and judgment are against the weight of the evidence. Without entering into a discussion of the evidence, we deem it sufficient to state that- after an examination of the record we are unable to find that the verdict and.judgment are contrary to the evidence or are not sustained by sufficient evidence.

It is further claimed that the judgment should be reversed because of the excessive amount of the verdict. The case has been twice tried in the court of common pleas and two juries have assessed the damages of the plaintiff in the same amount, and we are unable to find from the evidence that the verdict is so excessive in amount as to justify a reversal on that ground.

Upon the cross examination of two physicians who were called as expert witnesses on behalf of the plaintiff, it was shown that the opinion expressed by them was based in part on statements made by the plaintiff to them as to her subjective symptoms, as well as her recital of the history of the case. Neither of these physicians was treating the plaintiff for her injuries, but, they were called only for the purpose of making an examination with a view to giving expert testimony. One of the witnesses states that, regardless of any statements made by the plaintiff, he thought his diagnosis would be the same, namely, that the plaintiff was suffering from traumatic neurasthenia. No motion was made on behalf of the defendant at the time of the examination of the witnesses to exclude their opinion evidence from the jury upon the ground that it was based in part upon statements made by the plaintiff to them of her subjective symptoms. At the close of the arguments, but not before, the defendant requested the court to charge the jury with respect to each of these physicians, that no weight should be given to his opinion, that she has traumatic neurasthenia, based in part upon the statements made to him by the plaintiff as to her subjective symptoms and the history of her case. These requested instructions were refused and such refusal is claimed to constitute prejudicial error.

We find no error in the action of the court in so refusing to give these requested instructions. This court has in many eases followed the decision of the Supreme Court of this state in Pennsylvania Co. v. Files, 65 Ohio St. 403 [62 N. E. 1047], which established the rule that when, one who has received a physical injury calls' upon a physician for the sole purpose of enabling the physician to testify as an expert in a suit for damages on account of such injury, statements made by the party under such circumstances in regard to his condition are not admissible in evidence. Counsel for plaintiff contends that this rule was not violated in this case for the reason that the physicians were not called upon to testify to any statements made by the plaintiff to them, and, indeed, this is true. In direct examination it did not appear that their opinion was based in any part upon statements made bjr the plaintiff. This fact was elicited by cross examination, and the cross examination, of course, did not call for any statements made by the plaintiff to the physicians. It only developed the fact that such statements had been made to the physicians and that their opinion was in part based upon such statements. It may well be that a physician who is called for the purpose of examining a plaintiff with a view to giving expert testimony may find it important, and even quite necessary, to ask some questions of the plaintiff. Indeed the nature of the malady might be such that the statements would be the only means of determining the malady. For example, if it was claimed that there was a mental disturbance resulting from an injury, questions asked by a skillful physician would be one of ihe proper means of determining the truth or falsity of the claim. But in general a physician when testifying as an expert should be able to state to the jury, before giving his opinion, that such opinion is based upon his examination of the plaintiff without being affected in any substantial degree by -the relating to him by the plaintiff of subjective symptoms.- It seems entirely clear that if the physician is precluded from relating to the jury the statements made by the plaintiff in regard to her condition, on the ground that such statements-were made without the sanction of an oath and under such circumstances as tend to cause her to exaggerate her feelings or even to make false statements with reference to them, that it is equally obnoxious to correct procedure to permit the witness to give to tlie jury an opinion based in any substantial degree upon those same statements of the plaintiff.

We hold that the opinion evidence of Dr. Baldwin, which was based, as he said, in part upon plaintiff’s statements to him as to her subjective symptoms, was incompetent: and the opinion evidence of Dr. Ritchie, in so far as it was based in part upon similar statements of the plaintiff, was incompetent. The latter witness, however, testified that his diagnosis and opinion would have been the same even if such statements were excluded from his consideration.

This court has discussed this class of evidence in a number of cases, and especially in the case of Toledo Railways & L. Co. v. Yahnke (not reported), 1914. We deem it unnecessary to add anything to what was said upon this subject by this court in the opinion in that case but call attention to the following authorities cited therein:

Lee v. Railway, 206 Fed. 765; Grand Rapids & Ind. Ry. v. Huntley, 38 Mich. 537, 544 [31 Am. Rep. 321]; Shaughnessy v. Holt, 236 Ill. 485 [86 N. E. 256; 21 L. R. A. (N. S.) 826].

The ruling of the court upon this evidence was-not erroneous, however, for the reason that objection to the evidence was not seasonably made. One can not permit incompetent evidence to be introduced in a case without objection or without seeking to have the same excluded, with reasonable promptness, and at the conclusion of the trial, especially after argument of the case in which it is to be presumed that such evidence, together with all other evidence, was analyzed and discussed before the jury, predicate error upon the refusal of the court to exclude such evidence from the jury at that- stage of the trial. State v. Kollar, 93 Ohio St. 89, 91; 5 Enc. of Evidence, 616. Such an application to exclude the evidence should in all fairness be made while the witnesses are in court and the opportunity is available for the party who called the witnesses to re-examine them, if he sees fit, on the point in question, and avoid the loss of their testimony in so far as it is competent.

Upon the cross examination of the plaintiff she was asked if she had ever received any other injury and she answered .in the negative Thereupon she was confronted with a statement signed by her in which was set forth an injury received by her in 1912 because of being thrown from a car while in the act of alighting therefrom; also by a receipt for forty dollars in full settlement of a claim made by her against the Toledo Railways & L. Co. for such injury. The defendant thereafter called a conductor in its employ and sought to prove by him that on the date and at the time of such claimed accident there was in fact no such accident. This evidence was excluded and it is claimed that the court erred in so doing. The evidence as to the former accident was entirely collateral to the issues involved in the case on trial and was claimed to be competent only for the purpose of impeaching the plaintiff and tending to show that her claim was fraudulent. The rule governing the cross examination of a party upon matters collateral to the issue is well stated in Jones, Evidence, Sec. 827, as follows:

“Although witnesses may often be questioned on cross examination as to matters collateral to the issue, for the purpose of testing their credibility, it is a well settled rule that witnesses can not be interrogated as to matters wholly irrelevant merely for the purpose of contradicting them by other evidence, lienee, if questions of this character are answered the answer can not be contradicted by the cross examiner. * -* * Any other rule would lead to the trial of innumerable issues, the distraction of the attention of the jury from the main question on trial, and would subject witnesses to the injustice of being compelled to be prepared on all occasions to support this testimony by that of other witnesses upon subjects having no connection with the issue.”

The court was undoubtedly correct in its limitation of the examination upon this collateral question.

Plaintiff in error complains of the general charge upon the subject of the assessment of damages for future pain and suffering. The charge upon that subject is as follows:

“If you find from the testimony that those injuries are permanent you can incorporate in your assessment of damages for such future pain and su fifering as you find from the evidence is liable to ensue.”

And again:

“You may include what, if any, amount the testimony shows such expense to have been, together with any amount which you may find from the testimony she is reasonably liable to incur in the future therefor.! ’

The rule upon this subject has been so clearly stated by the Supreme Court in the case of Pennsylvania Co. v. Files, supra, that little need here be said with reference to this part of the charge. In that case the rule as stated in the syllabus is:

“Where prospective damages from an injury are claimed, they should be limited by the court in its charge to such as may be reasonably certain to result from the injury. ’ ’

This rule has been often followed by this court and we especially call attention to the discussion of the rule in the opinion in the case of Poland v. Railways & L. Co. (to be reported). The word “liable” used by the court in the case at bar is no more than the equivalent of “may. ’’ By the use of this word in the charge the jury were justified in considering any damage that might by any contingency or possibility ensue in the future.

In addition to the eases cited in the opinion in the Poland ease we call attention to the following:

Green v. Catawba Power Co. 75 S. C. 102 [55 S. E. 125; 9 Ann. Cas. 1050], in which case the word “liable” was used in the charge in the same sense as in this case and its use was condemned and held to be prejudicial error.

Also: Ayers v. Railway, 158 N. Y. 254 [53 N. E. 22]; Stutz v. Railway, 73 Wis. 147 [40 N. W. 653; 9 Am. St. 769]; Louisville S. R. Co. v. Minogue, 90 Ky. 369 [14 S. W. 357; 29 Am. St. 378]; Ford v. Des Moines, 106 Ia. 94 [75 N. W. 630]; McBride v. City Ry. Co. 72 Minn. 291 [75 N. W. 231].

Counsel for defendant in error call attention to the concluding statements in the opinion of the Supreme Court in Pennsylvania Co. v. Files in which it is said that inasmuch as the attention of the trial court was not called to the error in the charge upon the subject of futui'e damages at the time the charge was given, they might not, if that were the only error, have reversed the judgment. It is claimed that the attention of the trial court in the case at bar was not called to this error and that the judgment ought not to be reversed for that reason. In some classes of personal injury cases we might entirely agree with the contention of counsel. For example, if the permanency and extent of an injury are manifest,^ and the injury is of some such character as to show that future damage must follow, as, for instance, in the loss of a limb or an eye, we might not be disposed to disturb the verdict for an error of the kind just mentioned. In the case at bar, however, the immediate physical injury does not appear to have been very great, and the principal damage arises solely from an alleged. nervous disturbance claimed to be the result of such injury. Neurasthenia, which the plaintiff claims resulted from her injuries, is well known to be of such character that its duration is extremely uncertain. It therefore becomes extremely important not only that the expert evidence should be kept within proper and legal bounds, .but that the charge of the court on the measure of damage should be correct and accurate. As was said in the Poland ease, the witnesses testifying upon this subject may not, upon ail features of the question, be inclined to speak with entire certainty. Nevertheless, when the court comes to state the rule of law to the jury it must be stated with accuracy.

We therefore hold that the charge as given was erroneous and prejudicial to the rights of the plaintiff in error, and for that reason the judgment will be reversed and the cause remanded for new trial.'

Kinkade and Richards, JJ., concur.