author: ■WILDMAN, J.

text:
    NEGLIGENCE — SIDEWALKS.
    [Lucas (6th) Circuit Court,
    March 6, 1908.]
    Parker, Wildman and Kinkade, JJ.
    Abraham Smith v. Toledo (City).
    .PEDESTRIANS NOT REQUIRED TO TAKE MORE DANGEROUS OR GREATLY INCONVENIENT Route to Avoid Known Defective Sidewalk.
    A pedestrian must exercise ordinary care both in the selection of a route and in its use after selecting it. A pedestrian on a city street desiring to go from one residence to ' another on the same side of the street is not negligent as a matter of law in attempting to pass over a defective sidewalk, where his only alternatives are to take another and very circuitous route by another street or cross the street through deep mud to a more dangerous sidewalk on the other side.
    [For other cases in point, see 6 Cyc. Dig., “Municipal Corporations,” §§ .-2836-2914; “Negligence,” §§ 339-366. — Ed.]
    [Syllabus approved by the court.]
    ERROR to Lucas common pleas court.
    C. A. Aten and C. K. Friedman, for plaintiff in error-.
    C. S. Northup and C. H. Masters, for defendant in error.
    Cited and commented upon the following authorities: Schaefler V. Sandusky, 33 Ohio St. 246 [31 Am. Rep. 533] ; Conneaut (Vil.) v. Naef, 54 Ohio St. 529 [44 N. E. Rep. 236] ; Norwalk v. Tuttle, 73 Ohio ■St. 242 [76 N. E. Rep. 617]; Dayton v. Glaser, 76 Ohio St. 471 [81 N. E. Rep. 991].
   ■WILDMAN, J.

The plaintiff in error sued the city of Toledo for damages caused by its claimed negligence in permitting a sidewalk on the north side of Woodland avenue in said city to become and remain in a dangerous and defective condition. On October 8, 1906, the plaintiff while passing along said sidewalk going -from his residence to the residence of his daughter on the north side of said street, fell and was injured by stepping upon a decayed plank. .

Upon the trial in the court below, at the close of plaintiff’s evidence, the court arrested the testimony from the .jury and directed a verdict for the defendant. For this and other claimed errors this proceeding is brought here.

There is little, if any, dispute that the evidence offered and received in the court below tended to establish the negligence of the municipality. The sidewalk was an old one, which had been suffered to fall into decay. During the year, 1903, a resolution had been passed by the city council for its repair. At some time, whether before or after the passage of this resolution, does not very clearly appear, some repairs were made; but in the making of them, as the testimony indicates, the original materials were again used. The stringers and some of the planks had been weakened by reason of the lapse of years, and at some places in the sidewalk spaces had been made by the removal of planks. At the particular point where the injury was received, the sidewalk, according to the testimony of the plaintiff, appeared to be in fair condition. A plank broke under one of his feet, and he was precipitated forward and into an opening where two or three planks had been removed.

It is claimed on behalf of the defendant in error, in support of the ruling of the court below, that the danger was obvious; that the hazard was voluntarily encountered by the plaintiff; and that he was guilty of such contributory negligence as would bar recovery. Reliance is placed upon two or three recent decisions of the Supreme Court in cases of claimed defective sidewalks, and brief reference may be made to some of them. One of them is the case of Dayton v. Glaser, 76 Ohio St. 471 [81 N. E. Rep. 991], in which a very familiar principle is enunciated in the syllabus, as follows:

“A municipal corporation is charged with the duty of keeping its ■streets free from nuisance and in a reasonably safe condition for travel in the usual modes, but it is not an insurer of the safety of persons using them, and when they are in that condition it is not chargeable with negligence, although an accident happens in the use of the streets.”

The syllabus does not touch upon the question of contributory negligence of the plaintiff, and really affords not very much aid to •our present inquiry; because, as I have already stated, there is not much dispute in the case at bar as to the asserted negligence of the •defendant. The other question as to contributory negligence of the plaintiff in going upon and using the defective sidewalk is not touched in the decision.

Another case is that of Norwalk v. Tuttle, 73 Ohio St. 242 [76 N. E. Rep. 617], a case with which I have some familiarity because, on one of its trials I sat as common pleas judge. This is one of a class of eases growing óut of an accumulation of ice and snow upon sidewalks in cities, rendering them more or less dangerous. Mr. Tuttle had slipped and fallen upon an icy sidewalk in Norwalk, and claimed that the city was negligent in permitting the sidewalk to be and remain in that condition. The Supreme Court held otherwise, announcing in the syllabus the result of its examination of the case. I quote:

“One who voluntarily goes upon a sidewalk of a city which is. obviously, and by him known to be, in a dangerous condition, cannot recover on account of injuries which he may thereby sustain, even if the negligence of the city is admitted or shown. (Schaefler v. Sandusky (City), 33 Ohio St. 246 [31 Am. Rep. 533], and Conneaut (Vil.) v. Naef, 54 Ohio St. 529 [44 N. E. Rep. 236], approved and followed.),"

Counsel for the defendant in error and possibly the court below may have inferred from this broad statement in the syllabus that some departure was intended from the qualified rule which had theretofore been held in the state, to wit, that one could not recover, who went upon such a defective sidewalk with knowledge of its defective condition, when he might easily have avoided such use of it by going by some other road to his destination.

Whether or not the court intended to abandon this qualification of the earlier rule becomes an important question in the present case, in view of the testimony of the plaintiff, Smith, corroborated to some extent by the testimony of another witness, that there was no other' convenient method of route to his destination. I have said that his residence and that of his daughter were situated on the north side of Woodland avenue. He was going from his daughter’s residence to his own, and to avoid the defective part of this sidewalk he would either have had to take a very circuitous route, greatly lengthening his journey, or would have been compelled to cross the street and then recross it, having passed the defective sidewalk. He testifies that along the north side of the sidewalk and only six or eight inches from it was a barbed wire fence or a picket fence with barbed wires strung along the top leaning toward the sidewalk; and on the other side of the sidewalk was a row of trees, some three trees, which were close to the sidewalk, indeed encroaching upon it; south of the-trees was a ditch; the street was an unpaved one and at the time of this occurrence was in a very muddy condition; one of the witnesses testifying that a person- walking alpng there would sink in at places-almost to his knees, the soil being a mixture of clay and muck and sand. Mr. Smith testifies that the sidewalk on the opposite side of the street was worse, so far as the defective condition was concerned, than the sidewalk along which he was passing and on which he received his injury.

Now, assuming the correctness of these statements, and that the-evidence tended to prove the facts asserted, there can be no dispute,, can it be said that the plaintiff failed to exercise that care which is; ordinarily nsed by prudent people, and has the Supreme Court, in its somewhat general statements in two or three of the recent cases, laid down a rule which will hold a pedestrian to a higher degree of care than that which had been deemed to devolve upon persons of prudence, as ordinarily exercised by them?

To determine what is intended by the Supreme Court in the two-cases to which I have referred, Norwalk v. Tuttle, and Dayton v. Glaser, supra, we may have recourse to the references in the opinions; to the earlier cases. As already said, it appears in the second paragraph of the syllabus in Norwalk v. Tuttle, supra, at page 242, that the cases of Schaefler v. Sandusky, 33 Ohio St. 246 [31 Am. Rep. 533], and Conneaut (Vil.) v. Naef, 54 Ohio St. 529 [44 N. E. Rep. 236], are approved and followed. Dayton v. Glaser, supra, does not refer to these earlier eases by titles or otherwise, but as already suggested, this case bears rather upon the asserted negligence of municipal corporations than upon the claim of contributory negligence of a plaintiff, and’ so has little relevancy to our present inquiry. I have in my hand1 Schaefler v. Sandusky, supra, and read from the syllabus:

“A person who voluntarily attempts to pass over a sidewalk of a city, which he knows to be dangerous by reason of ice upon it, which-he might easily avoid, cannot be regarded as exercising ordinary prudence, and therefore, cannot maintain an action against the city, to-recover for injuries sustained by falling upon the ice, even if the city would otherwise have been liable.”

The other case said to be approved and followed in Norwalk v. Tuttle, supra, is Conneaut (Vil.) v. Naef, supra. In it is stated without qualification, in the syllabus, that:

“One who goes voluntarily upon an accumulation of ice on a walk of a village cannot maintain an action against such village for a personal injury resulting to him, if the source of danger is plainly visible.”

There is nothing said here as to the opportunity to avoid such accumulation of ice; but on pages 530 and 531, in the reasoning of Judge Shauck, speaking for the court, we find that reliance is placed upon Schaefler v. Sandusky, supra, in which that qualification is asserted. He says, in speaking of a certain instruction and certain evidence with regard to it:

“The only question is whether it imposed upon the plaintiff, as; a condition to recovery, a higher degree of care than the law requires. If it did not, it is not objectionable because it stated the rule definitely instead of leaving it as a matter of inference to be drawn by the jury from a statement of general principles. This is determined in Schaefler v. Sandusky, 33 Ohio St. 246, where it is held as matter of law, that one who voluntarily attempts to pass over a sidewalk of a city, which he knows to be dangerous by reason of ice upon it, which he might easily avoid, cannot maintain an action against the city to recover for injuries sustained by falling upon the ice. The precise question left undetermined by the case cited is whether in eases of this character a recovery will be denied on account of the plaintiff’s failure to avoid a source of danger that is plainly visible as well as one that is actually .known.

The matter that was specially in the mind of the judge rendering the opinion, is the distinction between a claim that the plaintiff had knowledge of a dangerous condition and a claim of the obvious character of the dangerous condition, so that the inference ought to be •drawn that he had knowledge, and the court is not paying very much .attention to the other question as to whether he would be excused for •going upon a sidewalk more or less dangerous by reason of defects,' by his having another ready route to his destination. The adoption of the language of Schaefler v. Sandusky, supra, without criticism, leaves in the mind the inference that the court does not intend to change the rule therein expressed. It seems to be. left in Ohio, as it is in other states, as a recognized rule that the plaintiff is held to the exercise •of ordinary care, and that in the exercise of that ordinary care, he must avoid choosing a dangerous route in preference to a safe one which he might take without inconvenience.

But in the case at bar we have evidence tending to show that he •could not avoid the route selected without very great inconvenience to himself by going around upon another street, or possibly incurring greater danger by selecting a more dangerous sidewalk on the other side of the street. Surely the Supreme Court does not intend to hold him to the latter alternative. Several adjudications have been had in the circuit courts of the state touching the question. It was held in the case of Ohlinger v. Toledo, 10 Circ. Dec. 762 (20 R. 142), in the fourth paragraph of the syllabus, that:

“It is not negligence, as a matter of law, for a person to attempt .to pass over a sidewalk which he knows to be out of repair to the •extent of having a board out of it. Such person is at liberty to use the walk, but must exercise such care as the nature of the walk requires. ’ ’

Of course the pedestrian must exercise ordinary care both in the . selection of the route and in it's use after he has selected it. Smith testifies here that he did not deem the sidewalk dangerous at the point where he was injured; it had apparently been repaired within seven .years, perhaps, and possibly at a still more recent time; that there was nothing in its appearance at that particular place that indicated to his mind its danger. He says, however, that he was walking with care and that he was walking very slowly, because he was expecting some members of his family to meet him on the sidewalk.

Schaefler v. Sandusky, supra, has been so often cited in other jurisdictions as to become a somewhat leading case, and reference may be made to some of the cases in other states, where the rule has been followed, sometimes, perhaps, with slight modifications, but in the main as announced. Without express citation of them I refer to the annotations of Schaefler v. Sandusky, Cent. Anno. Ed.; and also invite attention to the decision of our own court in Toledo v. Fuller, 27 O. C. C. 729. And the ease cited by counsel in argument, Kendall v. Albia (City), 73 Iowa 241, 247 [34 N. W. Rep. 833], especially the language on page 248. We think that the rule of contributory negligence is not so exacting as counsel for the defendant in error contend, and our judgment is that in view of the evidence tending to disclose the difficulties and dangers attendant upon the choice of another route than that by -which the plaintiff traveled and on which he was injured, the court was in error in arresting the case from the jury. The questions' as to the asserted negligence of either party should have been submitted to the jury.

Another point, somewhat relied upon by counsel for plaintiff in ■error, that the court erred in the exclusion of evidence, is not well taken for two reasons — first, there is no formal offer of proof on the face of the record in response to question asked, and second, plaintiff in error was not prejudiced thereby if the court erred, because of the fact that the witness did testify quite fully upon this subject in another part of his examination.

The judgment of the court below will be reversed and the case remanded for a new trial.

Parker and Kinkade, JJ., concur


source: Caselaw Access Project

author: SMITH, J.

license: Public Domain

text:
    CONTRACTS — INJUNCTION—MUNICIPAL CORPORATIONS.
    [Hamilton (1st) Circuit Court,
    December 28, 1907.)
    Swing, G-iffen and Smith, JJ.

      State ex rel. Dolle v. Charles A. Miller et al.
    Street Improvement with Wood Blocks Treated with Certain Preservative. Process Held not Enjoin able.
    A contract for paving a street with wood blocks treated with a certain process of coal tar creosote oil will not be enjoined upon the ground that the specifications exclude competition where it appears (1) that the specifications as to wood blocks are not covered by a certain patented process but refer to a different and older wood preservative process; (2) that the pure coal tar creosote oil required may be obtained in the-market.
    [Syllabus approved by the court.)
    W. C. Taylor, for plaintiff:
    Cabell & Kohl and G. H. Kattenhorn, for defendants:

       Affirming State ex rel. Dolle v. Miller, 18 Dec. 218.

   SMITH, J.

Plaintiff in her action seeks to enjoin the board óf public service of the city of Cincinnati from entering into a contract with the Kirchner Construction Company for the improvement of McMillan street with wood blocks as set forth in the specifications under said contract.

The grounds upon which said injunction is sought are:

First. That the specifications so far as they relate to wood blocks are so devised and prepared as to exclude any and all real competition therefor, the preparation of the same being covered by letter^ patent issued to the United States Wood Preserving Company and owned and controlled by it.

Second. That the specifications provided that the oil used in the treatment of the wood blocks shall be pure coal tar creosote distilled from illuminating gas tar or coke oven tar and shall contain no oil derived from water gas tar, oil gas tar or other tar; and (that the specific ■ gravity thereof at 68 degrees Fahrenheit shall not be less than 1.10 and that when distilled in a retort with a thermometer suspended one inch above the oil up to 600 degress Fahrenheit it shall not lose more than 35 per cent in quantity and that the specific gravity of the residue shall not be less than 1.125; and that the said specifications further provide that the oil must be clear; that is, that there must be no substances in suspension, and that it must be absolutely soluble in benzoyl so that it will readily penetrate the wood; that the requirements of the specifications in this regard cannot be fully and accurately complied with; that oil such as is mentioned in the specifications ■cannot be obtained and for this reason prevented persons and firms from bidding and thus shut out competition

As to the first claim, we are of opinion that the specification relative to the wood .blocks is not an infringement of the Bevier patent ■as claimed by plaintiff. The process contained in the Bevier patent as compared with that mentioned in the specifications is not the same. The vaporizing and the moistening of the wood, the impregnation with the creosote-resin misture and the pressure to which the blocks are subject, together with the quantity of the creosote injected are entirely different; besides the preservation of wood in this manner is no new thing.

As to the second claim, to wit, that a pure coal tar creosote oil such as is mentioned in the specifications cannot be obtained, we are of opinion is not tenable. The weight of evidence upon this point is with the defendants. While the testimony of the experts tended to sustain plaintiff .in this regard, yet the evidence of the defendants by practical distillers of this article satisfies the court that such an oil' with the specific gravity and all the requirements contained in the ■specifications not only can be obtained but is now being distilled and on the market. This therefore would indicate that the specifications . can be complied with in this regard. They do not admit of fraud being practiced or that persons were prevented from bidding owing to the impossibility of compliance with said specifications.

For these reasons the injunction prayed for will not be granted.

The motion of the plaintiff to strike the appearance and answer of the United States Wood Preserving Company from the files will be sustained.

Swing and Giffen, JJ., concur.


text:
    ERROR — PARTIES—PROSECUTING ATTORNEY.
    [Hamilton (1st) Circuit Court,
    June 22, 1907.]
    Swing, Giffen and Smith, JJ.
    George H. High v. State ex rel. Rulison et al.
    1. Taxpayer Cannot Prosecute Error from Allowance to Prosecutor of Extra Compensation in State ex rel. Case.
    A taxpayer is not a proper party to prosecute error to the allowance made by the trial court under Rev. Stat. 1278a (Lan. 2657) for services rendered by a prosecuting attorney in an action brought by the state on his relation in behalf of the taxpayers of the county, prosecuted to Anal judgment favorable to the county. The object sought by the taxpayers having been attained he has no substantial right or interest in the separate proceeding for allowance of attorney fees.
    2. Reasonable Compensation for Services by Prosecuting Attorney Outside his Official Duties.
    Services rendered by a prosecuting attorney, in prosecuting actions, brought under Rev. Stat. 1277 (Lan. 2655) et seq., for the recovery from county treasurers money received by them from banks as interest on county deposits and appropriated to their own use, are services outside his official duties for which he is entitled to extra compensation under Rev. Stat. 1278a (Lan. 2657). Hence, actions resulting in the recovery of $215,000' which are turned into the county treasury, are those in which the “state is successful” for which an allowance of $7,500 is but “reasonable compensation,” and not an abuse of discretion in the trial court which can be reviewed on error.
    [Syllabus approved by the court.]
    ERROR to Hamilton common pleas court.
   SMITH, J.

Tbe original actions in the court of common pleas were brought by'the state of Ohio, on relation of Hiram M. Rulison, prosecuting attorney of Hamilton county, and Louis A. I-reton, legal counsel for Hamilton county, against R. E. Hynieka, John H. Gibson and Tilden R. French, as treasurers of Hamilton county, to recover for the use of said county about $215,000, which it was claimed Said treasurers had received and appropriated to their own use, as interest upon deposits of county funds from various banks in the city of Cincinnati, said actions being brought under Rev. Stat. 1277 (Lan. 2655).

These actions resulted in judgments being obtained against each of the defendants for the amounts claimed, which sums were paid to the prosecuting attorney and by him turned into the treasury of the county, satisfactions of said judgments being filed in each case. After the rendition of said judgments the prosecuting attorney filed a motion •for compensation for services in said cases, the court fixing an aggregate amount in all three eases at $7,500, under Rev. Stat. 1278a (Lan.. 2657).

Prior to the entry being made on said motion for allowance the trial court, on application of the plaintiff in error herein, allowed said plaintiff in error to be made a party defendant. Said plaintiff in error-thereupon filed a motion for a new trial on the question of compensation, which was overruled, and he now brings this suit as plaintiff in> error against the defendants in error to reverse the action of the court' of common pleas in its allowance of compensation to the prosecuting: attorney, the defendant in error herein.

At the outset, upon an examination of the record and the sections-, under which said action was brought (Rev. Stat. 1277 and 1278a; Lan. 2655, 2657), the court is of the opinion that this suit cannot be maintained by the plaintiff in error.

Under those sections the original actions were brought by the state-of Ohio on the relation of the prosecuting attorney and legal counsel, in behalf of all the taxpayers of Hamilton county, and was prosecuted' in their behalf. Final judgments were secured in behalf ‘of the state-of Ohio, and the object sought by the taxpayers through the prosecuting-attorney was attained.

Having, therefore, no substantial right or interest in the litigation,, the suit having been brought and determined in favor of the taxpayers,, and as a proceeding in error is an entirely independent action from the .original ease, there remained nothing to be done but for the court, under the statute to fix the compensation, if any, to the prosecuting attorney fior his services.

The plaintiff in error was not, therefore, a proper party in the-court of common pleas. The statute does not provide for the prosecution of error by a ta-xpayer where suit is brought on relation of the-prosecuting attorney at the request of a taxpayer and the suit is successful; nor does the order made in favor of Mr. Rulison affect a “substantial” right of the plaintiff in error as understood by Rev. Stat. 5115 and 6707 (Lan. 8630, 10297).

But if this is not correct, the court is of the opinion that no error-was committed by the trial court in the allowance to the prosecuting-attorney in the three actions brought. It is clear under the statute relating to compensation for such services that the amount so fixed is within the sound discretion of the trial court; and this discretion cannot be reviewed unless there is an abuse of that discretion. It is urged that the services rendered by the prosecuting attorney were in the line of his duty as an official. The trial court found that many of the: services connected with the bringing of the suits and the collection or the amounts were performed as a part of his duties as prosecuting attorney, and that others were not. The language used in Rev. Stat. 1278a (Lan. 2657), is “that for all services rendered by the prosecuting attorney under the provisions of section 1277 [Lan. 2655], in which the state is successful, the court shall allow the prosecuting attorney reasonable compensation for his services and proper expenses incurred.” It cannot be claimed in these cases that the state was not “successful”; and if “successfull” that the court should not allow the prosecuting attorney reasonable compensation. Upon an examination of the record setting out the services rendered, we are of the opinion that he was “successful” in these actions, and the services were rendered by him outside of his official capacity. The allowance made by the trial court is not excessive. The discretion of fixing the allowance is lodged solely in the court itself, who has the right to determine the amount either from extrinsic testimony or from its own good sound judgment, and as this discretion was not abused by the court, its action cannot be reviewed on error.

Judgment affirmed.

Giffen and Swing, JJ„ concur.


author: WALTERS, J.

text:
    RELIGIOUS SOCIETIES.
    [Scioto (4th) Circuit Court,
    March 23, 1908.]
    Walters, Cherrington and Jones, JJ.
    Charles O. Graham, et al., Trustees, v. Frederick F. Ransahous et al.
    1. GENERAL Conference of Free Baptists of the United States Present Organization.
    The General Conference of Free Baptists of the United States has been duly and legally organized and incorporated under the laws of the state of Maine and is the legal successor of the General Conference of the Free Will Baptist Connections of the United States.
    2. No Departure from Faith or Tenets of Prior Organization.
    There has been no substantial or material departure by said General Conference of Free Baptists of the United States from the faith and tenets of said General Conference of Free Will Baptist Connections of the United States, and there has never existed a schism in said General Conference of Free Will Baptist Connections of the United States nor in its said successor, The General Conference of Free Baptists of the United States.
    3. Change in Name of General Organization Duly Authorized.
    The said incorporation of the General Conference of Free Baptists of the United States and the change of name from that of the General Conference of Free Will Baptist Connections of the United States to said corporate name were duly and legally authorized by said General Conference of Free Will Baptist Connections of the United States and what is known as the new constitution and by-laws of said Free Baptist Church were duly and legally adopted by said General Conference of Free*Baptists of the United States.
    4. Judgment of Court having Jurisdiction Res Judicata of Controversies between Factions.
    Where one of two existing factions in a church society, or the trustees or representatives of said such faction obtains a judgment of a court having jurisdiction of the parties and subject-matter against the other faction, determining the rights and interests of said parties in and to the church property of such society such judgment if unreversed is res ad judicata as to all matters so determined in all subsequent suits between said two factions so long as they continue substantially the same, and this is so notwithstanding the trustees, representatives and individual membership of said factions may change.
    [Syllabus by the court.]
    Appeal from Scioto common pleas court.
    Evans & Crawford and N. J. Dever, for plaintiffs.
    F. B. Finney and J. C. Milner, for defendants.
   WALTERS, J.

Charles O. Graham, et al. v. Frederick F. Ransahous, General Conference of Free Baptists of the United States, et al., is in this court on appeal from the court of common pleas. The plaintiffs in the court of common pleas filed their petition, alleging in substance that in the year 1880 there was a church society existing in the town of Sciotoville, this county. And that it has continued in existence up to the present time; that if‘was known as the Free Will Baptist Church Society; that in 1880 Henry Towne, and wife, and Samuel McConnell, and wife, by deed executed to certain trustees of said church, conveyed a lot in the village of Sciotoville to them in trust for the uses and purposes of a church. They further allege that the defendants aré unlawfully keeping them out of possession, and that they are claiming to be the legal trustees of the church; whereas, they are not; and alleging that the plaintiffs are the successors of the trustees who were mentioned and named from the organization of the church down to the present time. They further allege that in 1905 the defendants attempting to act as such trustees made a conveyance of the church property to the general conference of the Free Baptist Church; that the Free Baptist General Conference deeded the property back to the trustees*at Sciotoville, upon certain conditions: that they should pay the taxes and keep the property insured for half its value, thus giving the-property back to the trustees for religious purposes.

The prayer of the petition is that the plaintiffs may be restored to the possession of the property and their rights as the lawful trustees of the property and church, and that their title may be quieted to the same, and that the two conveyances to the trustees of the General Conference of the Free Baptist and from the General Conference of the Free Baptist back to the trustees be set aside as fraudulent and void, and contrary to the original trust.

The answer is a substantial denial, first of the allegations in the petition; and second, it sets up that the matters and things complained of in the petition have been adjudicated in a former suit filed in the court of common pleas, in this county, in 1899, substantially between these same parties, and that the judgment of the court thereon still remains unmodified and unreversed, and in force.

A long reply is filed to that answer in which the plaintiffs declare that the General Conference of the Free Baptist attempted to form an organization and take over the property of this church; but that they didn’t adhere to the original doctrines and tenets of the church, and that they have gone away from the original church, leaving the plaintiffs the original church people and entitled, therefore, to this property.

There has been a large amount of documentary evidence introduced in this case, and it presents two or three questions, and in order to have a presentation of the same it will be necessary to dwell some" what upon the history of this organization.

It seems from the papers and exhibits in this case that the church was organized in 1780, as a Free Will Baptist — a denomination — and that it was a voluntary association. And it continued in existence until 1827 when a General Conference was organized. In 1841 it adopted a constitution and by-laws. Article 10 of the constitution provides:

“This constitution may be amended at any regular session of this Conference by a vote of two-thirds of the members present, provided such amendment has been proposed at a previous session, and approved by at least three-fourths of the Yearly Meetings, belonging to the Conference. ’ ’

It seems this church organization had, in the first place, what they denominated local churches, who by prescribing to certain forpis came' into the association. That they had certain rules which they followed in the local church organization; that they then had a quarterly meeting, which quarterly meeting was composed of two or more of the local' churches; they then had what they styled yearly meetings, which was! composed of two or more of the quarterly meetings.

I would say the history of the church shows in their General Con--ferenee, previous to 1889, there arose a discussion in the General Con--ferenee as to the change in the name of the church. And in the con" ferenee that was held in 1866, on page 109 of the Free Baptist Faith, this appears:

‘ ‘ The Conference instructs the Conference Board to take immediate' steps to secure the incorporation of the General Conference.” Twenty-seventh Conference, p. 508, 1886.
“The name and title of the general corporate body shall be, “The General Conference of Free Baptists.” Twenty-sixth Conference, pp. 36, 38, 1889.

It will appear, therefore, that the General Conference of the Free Will Baptist had under discussion in 1886 and 1889 the incorporation of the General Conference, and directed the name by which it should be incorporated. Following that General ‘Conference in 1889, it appears from the proceedings that in 1891 certain persons belonging to the Free Will Baptist Church procured a charter from the legislature of the state of Maine; that charter is a very comprehensive one, and is embraced in a special act passed by the legislature which gives to these incorporators certain special privileges and provides in the act what they shall do, and what their jurisdiction and authority shall be. And it gives to tbe incorporation tbe name of tbe General Conference of Free Baptists. In tbe act there is an authority to certain designated persons therein to give a certain notice to the members of the ehnrch— a public notice, — before the call of a meeting for tbe purpose of taking such steps on tbe act as they may see fit. That notice appears in tbe records. Pursuant to that notice on‘October 3, 1892, tbe incorporators —tbe incorporation you might say — met at Old Orchard, Maine; there they attempted to perfect a corporation under tbe special act. They 'adopted unanimously the charter provided in the special act, and they also adopted a constitution and by-laws. After having done that they then adjourned to meet at Paige St. Church, in Lowell, Mass., where at the same time the Triennial General Conference of the Free Will Baptists was being held. It seems from the record that the incorpora-tors went into the church — the place where the Free Will Baptist Conference was being held, and took possession practically of the whole proceedings. And they organized under the incorporation articles in the church where the Free Will Baptists were holding the conference. They elected a presiding officer and a clerk, and they adopted the roll of the delegates that had been presented to the Free Will Baptist Conference, as the roll under the incorporation articles, and proceeded to business.

Among other things, the following resolutions were adopted: “Resolved, That whenever the clerk of the General Conference of Free Baptists shall certify to the treasurer of the Conference that Yearly Meetings and Associations representing three-fourths of the membership of this denomination have approved of the organization and incorporation of the General Conference of Free Baptists, then the treasurer of this Conference be and hereby is directed and authorized to give, transfer, deliver, set over and assign to the treasurer of the General Conference of Free Baptists, a corporation duly created in the state of Maine, all property of every name, kind and nature held by said Free Will Baptists’ Connection in North America, to be held by said treasurer of the General Conference of Free Baptists under the same conditions, powers and privileges as held by the treasurer of this Conference. ’ ’

That was unanimously adopted. There is also another resolution which provides that, under the same conditions “when three-fourths of the membership of this, denomination have approved of the organization and incorporation of the General Conference of Free Baptists, then tbe treasurer of this Conference be and hereby is directed to transfer the Aged and Needy Ministers’ Fund, now held by him to the Conference Board of the General Conference of Free Baptists, to be held by it for the same purpose as now held by the treasurer of this Conference. ’ ’

At the same General Conference, the following resolution was adopted:

“Resolved, That the General Conference of Free Baptists hereby recommend the Yearly Meetings and Associations constituting the General Conference of Free Will' Baptists of North America to consider the organization and incorporation of the General Conference of Free Baptists as effected at Ocean Park and perfected at Lowell under in-, structions given by General Conference at Harper’s Ferry, and it approving the same to express their approval by formal action, to be re-, ported at once thereafter to R. Deering, Clerk of the- General Conference of Free Baptists, at his office in Portland, Me.; and,

Resolved, That the various benevolent societies connected with the denomination which are expected' to become merged into the General Conference of Free Baptists are advised for the time being to continue their work as at present constituted; and,

Resolved, That when the Yearly Meetings and Associations representing three-fourths of the resident membership of the denomination shall have approved of the organization of the General Conference of Free Baptists it shall be understood as the will of the denomination and the various benevolent societies aforesaid transfer their funds and 'merge their interests into and with the General’Conference of Free Baptists. ’ ’

This appears in the proceedings of the twenty-eighth General Conference of Free Baptists, and of the Free Will Baptists Conference,, partaking of the nature of both organizations.

The next Triennial Conference was held at Winnebago, Minn., by special appointment of those authorized to fix the time and place. In the proceedings of that Triennial Conference, being the twenty-ninth of the Free Baptists, appears the following:

“On motion of Webb, of Maine, the clerk was directed to read the records relating to the adoption of the constitution, and of the .transactions affecting it, made since the'Lówell Conference. The records having been read accordingly, on motion they were approved. ’ ’

That, we take it, rélates to the former provision of resolutions passed in 1892, providing that the consent of three-fourths of the yearly meetings be directed to the clerk, and that when he shall have received the consent of three-fourths of the members of the yearly meetings, then these articles of incorporation of this new body should go into effect.

His report is not given there. The report is referred to as having 'been read accordingly, and on motion approved. His report in .detail nowhere appears in the records submitted here in evidence. On page 11 is the report of the conference board, which was read by H. M. Ford, who is the recording secretary, and in that report .appears the following:

“For the first two years .the work of the board was sadly hindered •while it waited for the necessary three-fourths vote of the resident membership of the denomination, which turned over to them the business ,of the three benevolent societies, and this took place just one year ago, .,SO that the board has actually had but one year to formulate and carry ,out its plans. Only a mere beginning could be made in so brief a time. ’ ’

Though we have a reference in the official proceedings of the report of this executive and financial board, yet a year before that in 1894 the necessary three-fourths of the members of the yearly meetings .had been obtained.

There appears in the proceedings of this conference a correspondence between Rev. Thomas E. Peden and the conference — being a letter . — a general letter, addressed by Mr. Peden to the conference in which he .protests against any action being taken by the conference under the .corporation, and the answer of that letter was referred to a special .committee. The special committee drafted a letter and it was laid be.fore the.conference and adopted. In that letter appears the following:

“The experience of other denominations, while making such .changes, led to expectations of this kind, but to the credit of Free Will Baptists it can be truly said that their forbearance and kindness in the •premises have exceeded that of any other denomination in like circumstances. Out of a resident membership of 58,847 the large number of 49,563 voted in favor of the changes proposed before said changes were made. ’ ’

It is true we do not have the official ballots or votes, or the official report of the secretary in detail showing this vote. It is nowhere in evidence; but it is referred to in the documents from which I have just read extracts, as having been done — as having taken place — and gives the vote which constitutes more than three-fourths vote of the members of the yearly meetings. Therefore, we take it that so far as the question presented by this record, one of the chief questions that the constitution was not changed or the incorporation was not perfected by the necessary three-fourths consent of the- members of the yearly meetings is not correct; that there is nothing in the records to show that ■the Art. 10 of the constitution of 1841 was complied with. It provides that the amendment shall be proposed at a previous session. The records show that in 1892 at the regular session the proposed change was already laid before the general conference. The act of incorporation under the state of Maine was laid before the corporation. The proceedings of the corporators thereunder in their organization, the adoption of the new constitution and by-laws, and a change of the name were all three years before its adoption and at the previous Triennial Conference laid before the General Conference. The records show that on the vote it was adopted by the three-fourths of the members present and more. The records show that three-fourths of the yearly meetings belonging to the conference had voted to accept the new constitution. The new constitution was adopted under the corporate name, and the name was changed from the Free Will Baptists to the General Conference of the Free Baptists. . That was a part of the change of the •constitution, because the old constitution provided that the name shall be the General Conference of the Free Will Baptist connection. Therefore, from these records we can see that the constitution of 1841, Art. 10, was strictly complied with, and the new constitution was adopted and a corporation formed for the purpose of taking over by a resolution all the property of the Free Will Baptist connection, and that by such incorporation and three-fourth^ consent - of the yearly meetings, and a two-thirds vote of the conference, together with the proposal of all that was being done made before the previous Triennial General Conference, have been complied with, and that by the act of incorporation and these steps having been complied with, it ipso facto, turned over .all the property and effects of the,, church to the new corporation.

In Christian Church v. Church of Christ, 76 N. E. Rep. 703 [219 Ill. 503], the learned counsel for the complainants in this case have given us is the decision which there appears. The sixth syllabus of the case is as follows:

“Property conveyed to the trustees of an incorporated congregation vests on its incorporation in the corporation. ’ ’

In this case there seems to have been just about the difference that there was between the two different factions in regard to the name. 'The one contending for the name of Christian Church and the other for the Church of Christ. In this ease the difference between Free Will Baptists and the Free Baptists. And in the opinion the court say they incorporated under the name of the Church of Christ of Sand Creek. By that act of incorporation all the property of the Sand Creek congregation became immediately vested in that corporation, and its title thereto was not divested by the act of the defendants in error in subsequently incorporating as the Christian Church of Sand Creek.

It will be observed that these proceedings show that the- local church at Sciotoville in 1905’, incorporated, and that these complainants are the trustees under the corporate act, and are now seeking as such trustees to obtain the title and the quieting of the same and possession of its church property in Sciotoville. Under that decision — under the rules, and under the constitution adopted in 1841, we must therefore hold that the incorporation was regular; that the constitution was changed by the change of name regularly — that the name was regular and authorized in 1886, and also in 1889, and that they were adopted by the necessary consent of three-fourths of the members of the yearly meetings. That would seem practically to dispose of this case; but there is another question presented and argued strenuously by counsel for complainants.

Counsel for the complainants claim under the general rule of law in regard to church associations that where there is a schism in the church, or a division, the property of the church will belong to that faction or division of the church which holds to the original doctrines and tenets of the church. And counsel claim that the organization to which complainants belong, the Free Will Baptists, maintained the original doctrines and tenets of the Free Will Baptist Church connection, as an original organization. And that the General Conference of Free-Baptists is an offshoot and seceder from the original doctrine, and therefore, that all the property of the church remains with those who stick to the old methods and doctrines and faith of the church.

At the twenty-fourth General Conference, page 405, of the record, held in 1880, the following appears:

4 ‘ Each religious body connected with the Conference is at liberty to' use in its title ‘Free’ or ‘Freewill’ as may be preferred.”

At the twenty-fifth Triennial Conference, page 457, of the records, held in 1883, appears the following:

“The names ‘Freewill Baptists’ and ‘Free Baptists’ are to be regarded as synonymous.
“The name and title of the general corporate body shall be ‘The General Conference of Free Baptists.’ ” Twenty-seventh Triennial Conference, pp. 36 and 38, held in 1889.

Mr. Peden while on the stand testifying in the case, testified among other things,- that the doctrines of the Free Will Baptists and the Free Baptists are substantially the same. And in going through the record of the publication of the Book of Faith, and the Confession of Faith, or Articles of Faith, or whatever it may be called in ecclesiastical language, there appears no difference in the Articles of Faith of the Free Will Baptist church, as it has always stood, and the Free Baptists, with the exception of one Article of Faith, and that appears-in a little pamphlet, styled Free Will Baptist Faith, being a treatise, it is said, containing the leading points of the doctrine and principle of the Free Will Baptists, and on page 32 appears the following:

“Washing the Saint’s feet. This teaches humility, purity of body, as well as soul-willingness to serve every Christian in any way we possibly can to promote his spiritual welfare and advance the cause of' Christ. It is the duty and happy prerogative of every believer to observe this sacred ordinance. ’ ’

In this record objections to this section or Article of Faith appear. It was published in 1905, and for aught that appears in this record this; Article of Faith was adopted long after the schism took place in 1892, and ten years after the final adoption of the new constitution under the-corporate name in 1895. And so far as we know from this record this-washing the saints’ feet faith — article was passed by the Free Will Baptists themselves long after all these injuries are alleged to have-occurred. If that be so, then the Free Will Baptists have changed faith and doctrine, if it be a change. If it be, as counsel claim, a radical change and in the nature of a sacred sacrament, then the Free Will Baptists, as I say, ten years after this change occurred, made the change from the original doctrine themselves, and that they are the ones that have perverted and receded from the original doctrine instead of the-corporate Free Baptists. And they certainly cannot allege as a predicate that the original doctrine had been changed and that they represent the original doctrine, when from all that we know, this change occurred a long, long time after all these things took place. There is. nothing in this whole record from the beginning to end in the view we take of it, that will prevent the, complainants in this ease attending the church in Sciotoville, as now organized under the Free Baptists, qnd worship God according to the doctrine of the Free Will or the Free Baptists. And that is the foundation of all rights in a civil court that the complainants can have, and with their doctrines and faiths and their ecclesiastical rules of law we have nothing to do, excepting that if their rules and courts as they have them provide for the doing of a certain thing that is lawful and it is done, it precludes the civil courts from afterwards taking jurisdiction and passing upon the question. It seems that this church has had different ascending functionaries and judicatories . to determine the different matters; the local church, the local matters; the quarterly church, the quarterly matters; the yearly meetings, the yearly matters; and the General Conference, general supervi-rsion of all matters, — constituting general courts of judicatory so far ..as ecclesiastical questions are concerned and for determination. And if they have determined them, this civil court .has nothing whatever to ■ do with it.

In .a well considered ease that was affirmed by the Supreme Court, appearing in Rike v. Floyd, 3 Circ. Dec. 359, 379 (6 R. 80), the court : says:

“That where the right of property in the civil court is dependent -on the question of doctrine, discipline, ecclesiastical law, rule, custom ■ Or church government, and that has been decided by the highest tribunal within the organization to which it has been carried, the civil court will .accept that decision as conclusive, and be governed by it in its application to the case before it. ’ ’

Having found that the ecclesiastical courts, the General Conference of the Free Will Baptists, if you please, having provided in their ..articles — in their constitution, Art. 10, how it shall be amended, or how abrogated, if you may please, — finding as we do that the steps provided there have been carried out, this court has nothing further to do.

There has been cited to us here a very learned ease from the Housé of Lords, England. The holding appears in the law reports in •this • pamphlet containing some eight hundred pages, where a church question arose, and was decided after long and learned discussion. And the book really is a symposium of learning and eloquence in polemics and scholasticism, but so far as the merits of this case are concerned, as we view it, it is not decisive and really does not apply. The first -syllabus is:

“The identity of a religious community described as a Church ■consists in the identity of its doctrines, creeds, confessions, formularies .and tests. ’ ’

As we have seen and found from this record the Free Baptist 'Church and the Free Will Baptist- Church in all their doctrines and confessions of faith are alike, except as to washing feet; and that from this 'record appears to have been introduced by the complainants themselves.

Now, there is another question — (this opinion is already getting long) — as to matters and things herein having been adjudicated. It seems in 1889 a suit was brought in this court and that the suit was between the identical same parties that bring this suit, or their predecessors or successors. It was the same principle exactly,- — to obtain possession of this church. The one faction claiming they had been put ■out by the other, and the other claiming that they had not. Why wasn’t it an adjudication?- Because they are different parties here sue-•ceeding to the title of trustees in trust, doesn’t alter the ease; it must be considered as the same parties; the subject-matter is the same; the factions representing the Free Will Baptists and the Free Baptists ■are the same; their successors are the same; and the trust is the same, and the same question was made in the subject-matter and practically between the same parties.

So far as the case being an appealable one, we adhere to our former decision, and the motion to dismiss the appeal will be overruled. The petition of the complainants will be dismissed. Finding and decree will be entered in favor of the defendants.

Cherrington and Jones, JJ., concur.


author: CRAINE, J.

text:
    SHERIFFS — PROCESS.
    [Morgan (5th) Circuit Court,
    April 22, 1908.]
    Taggart, Donahue and Craine, JJ.
    P. Smith Sons’ Lumber Co. v. R. A. Kennard et al.
    Deposit of Sheriff’s Fees with Clerk Issuing Writ Prerequisite to Sheriff's Liability for Failure to Execute Foreign Writ of Execution.
    A judgment creditor cannot maintain an action against a sheriff for failure to execute a foreign writ of execution, or for failure to index his foreign execution docket, or do the other things enumerated in Rev. Stat 1212 (Lan. 2581), unless such judgment creditor has made a deposit of the sheriff’s fees with the clerk issuing the writ, as required by Rev. Stat. 5596 (Lan. 9128).
    [Syllabus by the court.]
    Error to Morgan common pleas court.
    Ivers & Danford, Kibler & Montgomery, for plaintiff.
    Weber & Fonts, for defendants.
   CRAINE, J.

The P. Smith Sons ’• Lumber Co. filed an amended petition in the court of common pleas of Morgan county, in which it alleged, in substance, that the plaintiff was a corporation under the laws of Ohio; that R. A, Kennard was the sheriff of Morgan county, Ohio, and that the other defendants [L. S. Holcomb, J. L. Bailey and G. B. Dougan] were his bondsmen as such sheriff; that at the September term, 1905, of the court of common pleas of Licking county, Ohio, plaintiff recovered a judgment against»L. H. Campbell and Dollie Campbell in the sum of $162.97 with interest thereon at 8 per cent from September 21, 1905, and for costs of suit; that on November 16, 1905, an execution was issued by the clerk of Licking county to the sheriff of that county, which execution was returned unsatisfied for want of property whereon to levy'; that on December 18, 1905, the plaintiff had a foreign execution issued by the clerk of the court of common pleas of Licking county,, directed to the defendant, R. A. Kennard, as sheriff ,of Morgan county; that on December 21, 1905, the sheriff of Morgan county received the writ and entered upon his foreign execution docket the time when said writ was received by him, from what county it issued and the amount of the judgment, and that said sheriff of Morgan county, then for want of goods and chattels whereon to levy, levied on certain real estate of said L. H. Campbell and Dollie Campbell, situated in Morgan county, Ohio, being of the value of $1,500, and that after making such levy, said-sheriff entered in his foreign execution docket, a full description of the-real-estate levied upon, and entered said description, in- full, upon said writ and also copied in said execution docket his return as shown by said writ and indorsed his fees on said writ in the sum of $1.50; but said sheriff then and ever afterward omitted, neglected, and failed to-make any indexing of said acts, either direct or reverse, on his execution docket and that he neglected, failed and omitted to enter on said' foreign execution docket, the court from which said execution issued and failed to enter in said execution docket the date of the execution and the date of the judgment, contrary to Rev. Stat. 1212 (Lan. 2581) ; that on February 16, 1906, said execution was by the direction of plaintiff, through its attorney, duly returned to the court of common pleas: of Licking county; that at the time of the issuing of said writ and the-levy of the same upon said real estate, L. H. Campbell and Dollie Campbell were the owners in fee simple of the same and that they continued to be such owners until June 26, 1906, at which last-named date, they sold said real-estate to Harriet W. Glass; that Harriet W. Glass at the time of the purchase of said real estate, was ignorant of any levy having been made by said sheriff and that she being a bona fide purchaser,, took said real estate free from said levy. Plaintiff further avers that by the failure of the sheriff of Morgan county to do the things omitted by him, as aforesaid, it was damaged in the sum of $162.97 together with interest at 8 per cent from September 21, 1905, together with costs, and asks judgment against the defendant for the amount that it was so damaged.

R. A. Kennard, the sheriff, filed an answer in which he sets up three defenses to the amended petition. The first of which was a denial of' many things set forth in the amended petition. The second defense-alleged in substance, that the real estate levied upon was only worth: the sum of $1,000 and was covered by a mortgage to the extent of $800 and that L. H. Campbell ánd Dollie Campbell were entitled to the difference between the value of said property and the mortgage upon the same, as an exemption. The third defense gnd the only one which need be considered in this case, reads as follows:

“The defendant, R. A. Kennard, for a third defense herein says: that said execution so issued from said court of common pleas of Licking county, Ohio, had indorsed thereon in substance: ‘Fees deposited for service of this writ;’ that said plaintiff caused and procured said in-dorsement to be made by the clerk of said last named court for the purpose of causing this defendant to believe that funds were then on deposit in said court to pay his fees on said writ; that in fact no funds had been deposited with said clerk to pay said fees, as plaintiff then ivell knew, and this defendant never received any fees for the execution of said writ and the making of said levy; that plaintiff so caused and procured said false indorsement to be made on said writ fo.r the purpose of deceiving this defendant and thereby causing this defendant to accept and undertake the due execution of said writ; and this defendant, believing and relying upon said indorsement being true, and that funds had been so deposited, accepted said writ and levied the same upon said lands, which, had it not been for said false indorsement, he would not have done. ’ ’

The plaintiff filed a reply to the second and third defenses of the answer. The reply to the third defense reading as follows:

“Plaintiff admits that said execution so issued from said court of common pleas of Licking county, Ohio, had indorsed thereon in substance, ‘Fees deposited for service of this writ,’ and admits that no funds had been deposited with said clerk to pay said fees; but avers that said fees were deposited in the office of the clerk of courts of said Licking county, for him, and before this action was commenced. Plaintiff admits that said defendant accepted said writ and levied the same upon said lands, and plaintiff denies each and every allegation in said defenses contained, not herein expressly admitted to be true. ’ ’

A demurrer was filed to the reply and sustained, and the plaintiff, not desiring to amend, judgment was rendered for the defendant, and error was prosecuted by plaintiff to this court, asking this court to reverse the judgment of the court of common pleas.

Revised Statutes 5594 (Lan. 9126) prescribe the duties of a sheriff and provide that upon his failure to perform said duties, the court shall amerce him. Revised Statutes 5596 (Lan. 9128) reads as follows :

“If an officer fail to execute any summons, order, execution, or other process, directed to him, or to return -the same, as required by law, unless he make it appear, to the satisfaction of the court, that he was. prevented by unavoidable accident from so doing, he shall be amerced, upon motion and notice, as provided in section 5594 [Lan. 9126], in a sum not exceeding one thousand dollars, and be liable to the action of' any person aggrieved by such failure; but he shall not be liable to an action or amercement for a failure to execute any such process directed to him from any county other than that in which he was elected, unless his fees are deposited with the clerk who issued the process, and an indorsement of that fact is made and subscribed by such clerk on the-process, at the time of its issue, in these words: ‘Funds are deposited to pay the sheriff on this process.’ ”

It will be observed by this statute that before a sheriff will be liable-to an action by a judgment creditor on a foreign execution, there must be: First, a deposit by the judgment creditor of the fees ..with the clerk who.issued the execution. Second, the clerk must indorse on the-writ, the fact that the fees have been deposited in the following words :■

“Funds are deposited to pay the sheriff on this process.”

The right of a judgment creditor to have a foreign execution issued and the duty of a sheriff to execute such writ is a pure matter of statutory law, and the legislature in granting such right to a judgment creditor, had a right to provide on what conditions the sheriff in the-foreign county should be liable for failure to execute such writ. If the-judgment creditor desires to avail himself of the right to hold the sheriff liable for nonperformance of duty, he must make the deposit of the-necessary fees with the clerk issuing the writ. It is his duty to act first, in making the deposit, and he cannot consistently complain of the sheriff for the nonperformance of his duties, when he, himself, has; failed to observe the law on the same subject. We think that under the statute, the deposit of the necessary fees by the judgment creditor was a condition precedent tó his right to hold the sheriff for his failure to execute the writ.

It is claimed by the plaintiff, however, that the fees were deposited in the office of the clerk of court of Licking county before this action was commenced, and hence the sheriff had been made secure as to his fees. This, however, in our judgment, does not satisfy the statute. In Duncan v. Drakeley, 10 Ohio 45, a writ had been issued to the sheriff of another county, without the indorsement required by the statute. The sheriff refused to execute the writ, notwithstanding the fact that the judgment creditor tendered to the sheriff an amount more than was sufficient to satisfy all fees, yet the court refused to amerce the sheriff' and the case having been carried to the Supreme Court, where it was held:

“A sheriff cannot be amerced for not executing a capias ad satis-faciendum from, another county, unless such an indorsement (‘funds deposited’), be made on the writ, and tender of his fees cannot be substituted in the place of such indorsement. ’ ’

It is true that in the case just mentioned, a motion had been made' to amerce the sheriff and an amercement is a pecuniary penalty imposed by the court upon an officer for nonperformance of his duty. In that case, however, the sheriff plead the statute as a defense and the courts, construed the statute according to the letter. Where the language of a' statute is plain, eourts must follow it, irrespective of the results or intention of the legislature. In Woodbury v. Berry, 18 Ohio St. 456, a. case of an attempted amercement, the first paragraph of the syllabus, reads as follows:

“Where the words of a statute are plain, explicit and unequivocal, a court is not warranted in departing from their obvious meaning although from considerations arising outside of the language of the statute, it may be convinced that the legislature intended to enact something different from what it did in fact enact.”

In Slingluff v. Weaver, 66 Ohio St. 621 [64 N. E. Rep. 574], a part of the syllabus reads as follows:

“But the intent of the lawmakers is to be sought first of all in the language employed, and if the words be free from ambiguity and doubt, and express plainly, clearly and distinctly, the sense of the lawmaking body, there is no occasion to resort to other means of interpretation. The question is not what did the general assembly intend to' enact, but what is the meaning of that which it did enact. That body should be held to mean what it has plainly expressed, and hence no room is left for construction.”

And again:

“The language of the act of May 12, 1902, entitled, ‘An act to amend section 6710 [Lan. 10301] of the Revised Statutes,’ is plain and free from doubt, and effect must be given to its clear import without regard to the consequences which may result.” The statute in question having expressly stated that the sheriff should not be liable, except on certain conditions, and the plaintiff having admitted that those conditions had not been complied with, there could be no liability without violating the very letter and spirit of the statute.

Counsel for plaintiff contend that although the sheriff was not required to execute this writ without the fees being first deposited, yet if he undertook to execute the writ and did it negligently, he would be liable; that is to say, that if he undertook 'to execute the writ without the fees having been deposited, he must do everything required by Rev. Stat. 1212 (Lan. 2581), and if he failed and the plaintiff was damaged, a recovery might be had against him. If the sheriff of Morgan county was liable to the plaintiff, it must be by reason of some duty the sheriff owed the plaintiff, and our opinion is that the sheriff owed the plaintiff no duty from the fact that the plaintiff had failed to do the thing which would have created the duty, viz., the deposit of the necessary funds with the clerk. If the sheriff was under no obligation to take any steps or do anything in the. way of executing this writ, he certainly would not be liable for a failure to do some of the things required by statute. If he was under no obligation to execute the writ, we think it clear that he could not be liable for executing the writ defectively, or putting it in other words; if he was not required to do any of the things enumerated in Rev. Stat. 1212 (Lan. 2581), he could not be liable for omitting to do some of them. We think the court of common pleas was right in sustaining the demurrer to' the reply of the plaintiff to the third defense of the answer, and the judgment of the court of common pleas will be affirmed.

Taggart and Donahue, JJ., concur.


author: DUSTIN, J..

text:
    ASSESSMENTS.
    [Montgomery (2nd) Circuit Court,
    June 16, 1907.]
    Wilson, Sullivan and Dustin, JJ.

      John W. King v. Dayton (City).
    1. Failure to Include Territory of Whole District in Sewer Improvement.
    Sewer districts are not changed by a reference in the resolution of necessity and the ordinance to those parts of the district covered by the plan of improvement, leaving the remainder for future description and improvement.

      2. Assessments for Main Sewer Imposed against Whole District.
    If a main sewer is inadequate and so located that it can be utilized in the future by the construction of convenient laterals^ the lands in the whole district will he deemed specially benefited, it is not necessary that property he improved so as to make sewer connections immediately available.
    3. Sewer Assessments Properly Include Cost of Pumping Station.
    A pumping station is a necessary part of a sewer equipment; hence, under Sec. 92 of the municipal code of 1902 (Lan. Rev. Stat. 3647; B. 1536-255), the cost of construction of such a plant may properly he included in the amount assessed for a main sewer. N
    •4, Adequate Surface Drainage does not Exempt Property from Assessment of Sanitary Drainage. .
    The fact that property is supplied by adequate surface drainage is not sufficient to exempt it from an assessment for construction of a general sewerage system including sanitary as well as surface drainage.
    .'5. Assessments not Judicially Reduced Unless Grossly Excessive.
    Assessments must be grossly excessive to warrant reduction by a court of equity.
    [Syllabus approved by the court.]
    W. G. Frizell and R. G. Corwin, for plaintiff.
    T. B. Herrmann, city solicitor, and P. G. Burnham, for defendant.

      Affirming King v. Dayton, 18 Dec. 567.

   DUSTIN, J..

The sewer districts were never changed. The reference in the resolutipn of necessity and the ordinance, etc., to those parts of the district covered by the plan of improvement, as “sewer districts Nos. 6 and 7” was an error of description simply and did not constitute a repealing or amending clause. The ordinance itself was not inconsistent with the sewer district plan already established. It simply covered a part of the territory, leaving the remainder for further disposition. It is competent, however, to assess the whole' district for the construction of the main sewer. According to the statute Sec. 85 of the municipal code of 1902 (Lan. Rev. Stat. 3640; B. 1536-248) the assessment cannot be made in any other way. Should a new main sewer ever be constructed west of Western avenue, the property east of it in the same district will have to help pay for it.

If the notice was misleading and plaintiff -did not have his day in court at the time, he has it now and may present his objections.

It is not necessary that property be improved so as to make sewer •connections immediately available. If the sewer is adequate and so located that it may be utilized in the future, the lands are specially benefited. The presumption is that the present plan will be perfected so as to include convenient laterals as the city grows. The assessment for the main sewer can be but once and must be now in order to provide prompt payment for its construction.

Conceding that the law in force at the time of the passage of the resolution of necessity applies as to the time of collection, etc., wherein has the plaintiff been prejudiced? The few days difference in interest would be too small for the consideration of a court of equity. Besides, it was an error for which there is a remedy at law.

There was no excess in the amount assessed for the main sewer. The pumping station was a necessary part of the equipment.

The increased cost necessary to make it large enough for the storm water for the entire district should be collected therefrom, because the present surface drainage for that part which is west of Western avenue is but temporary and must inevitably be wiped out-by the improvements as they are constructed.

The assessments must be grossly excessive in order to come within our jurisdiction for reduction. We do not find them so. Decree for defendants.

Wilson and Sullivan, JJ., concur.


author: DONAHUE, J.

text:
    CONSTRUCTION OF WILL.
    [Stark (5th) Circuit Court,
    February Term, 1908.]
    Taggart and Donahue, JJ.
    (McCarty, J., not sitting.)

      Nicholas Youngblood et al. v. Harry Youngblood et al.
    Heiks of Deceased Devisee Take by Virtue of Rev. Stat. 5971 (Lan. 9510>, Residuary Estate Bequeathed by Testator to “Legal Heirs” of Deceased-Brother.
    Where a testator bequeaths his residuary estate to the “legal heirs” . of a deceased brother without other or further designation as to who are intended as his beneficiaries, and by his will directs that such residuum “shall fall to and be divided in equal shares among the legal heirs of my deceased brother, and I hereby bequeath and devise the same to them;” and, that-at the time of making said will one of the sons of the testator’s deceased brother was dead, leaving heirs: Held, (1) That all persons who at the time of the death of the “deceased brother” of those who answer the description of “legal heirs” of said deceased brother at the time of such brother’s death are entitled to share in such a residuary estate in equal proportion, and if at the time of making of the will any of such “legal heirs” had died leaving issue surviving the testator, thqt such issue shall take the share which would have otherwise gone to such “legal heir,” had he survived the testator. Revised Statutes 5971 (Lan. 9510) controls such distribution. (2) The expression “legal heirs” as tísed by a testator has a well known, definite meaning in the law, to wit: Those upon whom the law would cast the estate if the testator had died intestate; the expression “to be divided in equal shares” merely points out how such persons are to take their interests.
    [Syllabus approved by the court.]
    Wiilison & Day, for plaintiffs in error.

      D. F. Reinoehl and A. N. Kaley, for defendants in error.:
    Cited and commented upon tbe following authorities: Mooney v, Purpus, 70 Ohio St. 57 [70 N. B. Rep. 894]; Woolley v. Paxson, 46 Ohio-St. 307 [24 N. E. Rep. 599]; 30 Am. & Eng. Ene. Law (2 ed.) 705, 718, 725, 729; Thurston v. Bissell, 7 Circ. Dec. 235 (13 R. 293); Huston v. Crook, 38 Ohio St, 328; Bunnell v. Evans, 26 Ohio St. 409; Wiley v. Bricker, 11 Circ. Dec. 429 (21 R. 109) ; McKelvey v. McKelvey, 43 Ohio St. 213 [1N. E. Rep. 594]; 15 Am. & Eng. Enc. Law (2 ed.) 322; Under-hill, Wills 814; Bichey v. Johnson, 30 Ohio St. 288; Weston v. Weston, 38 Ohio St. 473; Campbell v. Clark, 5 New Eng. Rep. 66 (N. H.) ; Hall v. Smith, 61N. H. 144; Farmer v. Kimball, 46 N. H. 435 [88 Am. Dec. 219]; Sears v. Bussell, 74 Mass. (8 Gray) 86; Benny v. Kettell, 135 Mass. 138; McCartney v. Ocburn, 6 West. Rep. 793 (Ill.); Howard v. Fenkell, 10’ West. Rep. 671 (Ohio) ; 2 jarman, Wills (5-ed.) 156; Morrell, In re, 4 Paige 44; Wickers v. Clarke, 8 Paige 161; Birney v. Hann, 10 Ky. (3 Marsh. A.. K.) 322 [13 Am. Dee. 167]; Chapman v. Chapman, 2 Conn. 347 [7 Am. Dec. 277]; Thompson v. Garwood, 3 Whart. (Pa.) 287 [31 Am. Dee. 502]; Loockerman v. McBlair, 6 Gill (Md.) 177 [46 Am. Dee. 664]; Ward v. Stow, 2 Dev. Eq. (N. C.) 509 [27 Am. Dec. 238]; Kean v. Hoffecker, 2 Har. (Del.) 103 [29 Am. Dec. 336]; King v. Beck, 15 Ohio 559; Collier v. Collier, 3 Ohio St. 369; Jarman, Wills 204; Paige, Wills 545, 547; Sinton v. Boyd, 19 Ohio St. 30 [2 Am. Rep. 369]; Stewart v. Powers, 6 Circ. Dec. 101 (9 R. 143) ; Delaney v. McCormack, 88 N. Y. 174.

       Affirmed by Supreme Court, without report, Youngblood v. Youngblood, 78 Ohio St. 000; 53 Bull. 108.

   DONAHUE, J.

This proceeding in error is brought to reverse the judgment of the common pleas court in an action brought by Harry Youngblood against Nicholas Youngblood and others to construe the will of Peter-Youngblood, deceased, by the terms of which will Peter Youngblood devised certain real estate and personal property to his widow for her life with the right to consume thereof all that might be necessary for her support, and at her death such real estate if unsold and all personal property or proceeds thereof that should remain unconsumed he directed “shall fall to and be divided in equal shares among, the-legal heirs of my deceased brother, John Youngblood, and I hereby bequeath and devise the same to them.” This latter provision of the will is the one sought to be construed, and the question arising:, thereon is as to who are the heirs of his brother, John Youngblood,, deceased. The common pleas court made a finding of fact covering-the questions in this case at length and about these facts there is no-dispute. The question' is as to the conclusion of law from these; facts. It is not necessary to give in detail all of the finding of facts; it is sufficient for the purposes of this review to note the controlling ones.

1. Peter Youngblood executed this will on the twenty-sixth day of September, a. d., 1893; he died September 30, a. d., 1894; that his wife died July 1, 1906; that his brother,- John Youngblood, died in 1855 leaving four children surviving him as his only heirs at law. These children were John, Joseph, Frank and Nicholas; that the son •Joseph died in September, 1888, leaving six children, Mary, Clara, Harry J., Cora, Joseph and Blanch. Some of the other sons have died since the death of the testator but there is no contention between the parties here that their death makes any difference in the construction of this item of the will, the controversy is as to the interest these children of Joseph Youngblood take under the will of Peter Young-blood. It is insisted that these six grandchildren were and are heirs of John Youngblood, the deceased brother of the testator, and that therefore they come within the class of heirs of John Youngblood named in Peter Youngblood’s will; that the directions of the will are that these heirs shall share equally and that therefore each of said grandchildren shall take an equal share with the living sons of John Young-blood, deceased. That is to say, that this residue of Peter Young-blood’s estate must be divided into nine parts, one of each of said parts •given to the living sons of John Youngblood and one of these parts •given to each of the children of Joseph Youngblood. In view of the doctrine announced by the Supreme Court of Ohio in the case of Mooney v. Purpus, 70 Ohio St. 57 [70 N. E. Rep. 894], if these grandchildren are heirs of John Youngblood, deceased, then they each share equally with their uncles in this devise. That is to say, each will take an. equal part as heir of John Youngblood and not simply the share of their father had he survived the testator.

While it is true that in the construction of a will the main object to be arrived at is the intention of the testator, yet, a court is not authorized to say, that the testator intended other than the clear and manifest meaning of the words used to express his intention. He is supposed to have known the legal effect and import of the words used and to have intended that which they express notwithstanding it might ;seem that-he had inadvertently used these words.

It is only where there is an ambiguity, an uncertainty in the words used, or a contradiction in -the terms that a court is justified in attempting to determine the intention of a testator in order to determine the purposes and construe the language of the will. So in this .case we must conclude that he used the word "heirs” advisedly, and if the effect of that be to give to these six children, six shares, instead of one, although we might personally think that the testator-did not so intend, yet, we must nevertheless give ful1 effect to the language used, for a court has no power to make wills for people but only to construe them. In the case before us the words used are plain, certain and unambiguous, and have a well-known, definite, legal meaning, and full effect must be given to them without regayd to consequence.

The only thing left for the court to determine is who are the heirs, of-John Youngblood, deceased, and this question must be determined by reference to the statute of descent and distribution, for it is only - by force of this statute that any heirs of deceased persons exist. In construing these statutes we must keep in mind the fact that no living person has heirs. The legal definition of the word “heirs” is, “Those-who take the estate of an intestate under the statutes of descent and distribution” and all persons who do take any portion thereof under this statute no matter how small it may be is an heir in the legal contemplation of the word, so that,an hour before John Youngblood’s death he had no heirs, they were simply heirs apparent, nothing more; but "at his death,, then they became his heirs, and that class became fixed and 'certain and can never be changed by any subsequent event no matter of what nature or extent it may be. That is to say, when a man dies the law determines who his heirs are and except for the one exception, of’ posthumous issue there.is not and cannot be any change in those heirs. To illustrate this let us consider the descent of property owned by John Youngblood at his death. His four sons living would be his only heirs, and if one of them died the day after, his children would inherit not from John Youngblood but from their father, and the estate would first be vested in the legal representatives of Joseph Youngblood and would be applied to the payment of his debts and legacies, and the residue would pass to them if he died intestate, but they would not inherit from the grandfather if their father survived their grandfather by so much as one moment of time; but if the father died an hour before the grandfather then they would inherit directly- from the grandfather. True, they would only take their father’s share but they would take as heirs of the grandfather and not as heirs of the father; so that in order for a grandchild to become the heir of the grandfather their father must die before the grandfather, otherwise any interest they take in the grandfather’s estate is taken as the heir of the father and not as the heir of the grandfather. Joseph Young-blood lived thirty-three years or more after his father’s death. All that time he was the heir of the father, and if John Youngblood had had an inheritable interest in any property the enjoyment of which was delayed for a half century, Joseph Youngblood would inherit his share of that property, and any part of it that his children would take, they would take through him, as his heir, and they could never take as heir of their grandfather. This being true, notwithstanding the ■death of Joseph Youngblood before the death of the testator, Peter Yopngblood, and even before the execution of his will, it in no wise ■changed the heirs of John Youngblood. They were fixed and certain at the time of his death, and except for posthumous issue would forever remain fixed and certain. These grandchildren no more become his heirs than the most absolute stranger to him; they never were his heirs and never can be his heirs. Their father, Joseph Youngblood, having survived the grandfather forever precluded the possibility of these grandchildren becoming the heirs of the grandfather, and any intestate property of which the grandfather died seized would pass to, and vest in, their father’s estate, and if they derive any benefit therefrom of any kind or character it would be because they inherit the same from their father immediately, and not because they inherit .anything from the grandfather.

We are therefore clearly of the opinion that these grandchildren never were the heirs of John Youngblood, could not become so because of" the death of their father after the death of the grandfather, but could only become the heirs of John Youngblood by the death of their father before the death of their grandfather, and that being true they do not come within the class designated in the will as the heirs of John Youngblood, deceased, and could take no interest whatever under this will were it not for the provision of Rev. Stat. 5971 (Lan. 9510), which provides, that when a devise of real or personal estate is made to any children or other relative of the testator if such children or other relative shall have been dead at the time of the making of the will or shall die thereafter leaving issue surviving the testator, in either case such issue shall take the estate devised in the same- manner as the devisee would have done, etc. So that we think the word “heirs” in the will of 'Peter Youngblood does designate a class, and that that class was fixed and certain immediately upon the death of John Youngblood, and that they were his four sons; that these four sons were relatives of the testator; that Joseph died before the making of the will, and that under the provision of Rev. Stat. 5971 (Lan. 9510), his children take his share, no more and no less. So that this residuary estate under this will passes to said four sons of John Youngblood, deceased, who were his only heirs at law, in equal proportions, share and share alike, that is, eaeb shall take one-fourth- thereof, and that the children of any of these deceased sons shall take their father’s interest therein.

The conclusion of law of the common pleas court upon the facts found and the judgment entered therein was erroneous and should have been as hereinbefore stated, and for such error which we find prejudicial to the rights of plaintiff in error, • the judgment of the common pleas court is reversed, and the judgment may be here entered that should have been “entered in the common pleas court upon these findings of fact. Exceptions of defendant in error noted. Costs of this proceeding in error adjudged against the defendant in error and cause remanded for execution.

Taggart, J., concurs.


author: COOK, J.

text:
    EXPLOSIVES — NEGLIGENCE.
    [Columbiana (7th) Circuit Court,
    October Term, 1907.]
    Burrows, Laubie and Cook, JJ.
    W. E. Mercer, Admr. v. John White et al.
    Contributory Negligence of One Haying Notice of Blasting of Wall Operations in Municipality, Going within Danger Lines.
    Where tbe owner of a burned building situated in a populous city, desiring to demolish a wall with dynamite — for the purpose of erecting a new building — that being the only practicable means — secures the consent of the street commissioner, to such dynamiting and before putting off the blast stretches ropes across all streets leading to the building for the purpose of keeping all pedestrians at a safe distance and a young man, knowing the object and purpose of the ropes, goes with others under the ropes and up the street through curiosity to a point much nearer the building, and is hit with a flying brick and is killed, when if he had kept outside the ropes he would have been in perfect safety, the owner of the building and his contractor who put off the blast are not liable in damages for his death.
    [Syllabus approved by the court.]
    ERROR to Columbiana common pleas court.
    Charles Boyd and G. D. Ingram, for plaintiff in error.
    C. S. Speaker and F. E. Grosshans, for defendant in error.
   COOK, J.

Lewis E. Moore,' a young man, was killed at East Liverpool, tbis county, by a flying brick caused by dynamiting a wall in that city. There had been a large fire and there was one particular wall left standing that was difficult to demolish. Jackserews were used without effect. Water was tried, but, in consequence of the low pressure, it was-also ineffective, and from the evidence it is apparent that the only practical way to remove the wall was by blasting with dynamite. No-formal permit was obtained from the city government to resort to-blasting, but the officers in control of the streets were informed that-such resort would be had and they consented thereto.

Before the blast was put off, ropes were stretched across all streets- and alleys at a distance from the wall as was supposed to preclude the possibility of there being any danger beyond the ropes. The rope was-stretched across Drury lane, the street upon which young Moore was killed* 195 feet from the wall. No part of the wall or debris was thrown any material distance from the wall but this single brick, and the evidence shows by persons used to. blasting with dynamite that it was a very unusual occurrence; that they had never heard of a similar case, of a brick or a piece of brick being thrown such a distance before.

The street commissioner who had control of the streets was upon the ground at the time of the blasting; as were also a number of the city police and fire department; at the request of defendants in error, jwho were the owners of the building and the contractor in control of the work, for the purpose of warning all persons to keep beyond the ropes' which they did to the best of their ability: so that every precaution was taken to prevent injury from the blast. But it is claimed that blasting in a populous city is a nuisance and that whoever does so does it at his peril and that no amount of precaution will avail anything in case of injury.

In support of this position much reliance is placed by counsel upop the case of Munro v. Dredging & Reclamation Co. 84 Cal. 515 [24 Pac. Rep. 303; 18 Am. St. Rep. 248]. In the opinion in that case it is said:

“The giving of the following instruction by the court is likewise excepted to: ‘It is no defense or answer to an action of this character that defendant, in exploding the blast in question, used and employed skillful and experienced men, and in everything appertaining to blasting it used and exercised the highest degree of care; and I charge you that defendant is liable to damages for the death of said Michael Stanton, if you find that his death resulted from the firing of the-blast in question, even if it rised the highest and utmost care and skill in firing and exploding it.’
“We perceive no error in the above direction. The evidence shows clearly that this blast was exploded in a thickly settled portion of the city. We are of opinion that no degree of care will excuse a person, where death was caused by such explosion, from responsibility for it.
“It is said that the above instructions ignored the doctrine of contributory negligence. As there was no evidence of contributory negligence in the cause, the doctrine of such negligence was properly ignored.”

We are not informed of the circumstances of the blasting in that case, ‘whether it was being done in the erection or demolition of a building. Possibly it was being done in the prosecution of some character of business by a manufacturer or other person which it seems to us would make a material difference.

In this case the old wall was being removed in order that a new building might be erected.

It is well settled that streets may be used temporarily by abutting proprietors in the erection of a building where due care is used in guarding the obstruction so that pedestrians are fully warned, and we cannot see why the same may not be done when proper caution is used in taking away the debris for the purpose of erecting a building.

In the case of Graetz v. McKenzie, 35 Pac. Rep. 377 (Wash.), the Supreme Court of Washington held that:

“1. Blasting, in excavating for a building, so as to throw rocks on the street and adjacent property, is a nuisance, but giving fair warning of an impending blast absolves the excavators from damages for personal injuries, if the injured person failed to heed it.
“2. Where warning of an impending blast was given to a pedestrian on a street before it occurred, and he was advised to take a place of safety along the wall of a building, the fact that he was seized with a sudden panic when the crash came, and rushed into the building, where he was killed by a stone hurled through the window,, will not render the persons exploding the blast liable.”

Although this case was decided by a divided court, yet, it is certainly in harmony with reason. To the same effect is St. Peter v. Denison, 58 N. Y. 416 [17 Am. Rep. 258].

In the case before us plaintiff’s intestate had full knowledge that, the blast was about to be put off and that he should keep out of danger. The rope, as we have before said, -was stretched across Drury lane 195-feet from the place of the blast. It was notice tó all persons to keep-beyond the rope. Furthermore, the people were cautioned by the policemen and firemen to keep outside of the ropes and yet plaintiff’s intestate with others through curiosity, went under the rope on Drury lane and up the street for a distance of 55 feet nearer the wall where the blast was being put off, and while standing at that point was struck with the brick and killed. Had he been outside of the rope he would not have been struck. It was bis own carelessness and recklessness that directly contributed to his death and although defendants in error .may have been guilty of creating a nuisance, yet they could not be held responsible for his death.

Something is claimed by counsel for plaintiff in error on the authority of Cincinnati, H. & D. Ry. v. Kassen, 49 Ohio St. 230 [31 N. E. Rep. 282; 16 L. R. A. 674], There is no evidence that defendants in error knew that young Moore was within the ropes before they caused the blast to be put off; hence, that case does not apply. The court did right in directing a verdict for defendants below, and the judgment is -affirmed.

Burrows and Laubie, J«L, concur.


text:
    ATTACHMENT.
    [Hamilton (1st) Circuit Court,
    January 4, 1908.]
    Brown & Ketcham Iron Co. v. L. P. Hazen & Co.
    'Giving of Bond Does not Confeb Jubisdiction in Void Attachment Pboceedings.
    In an attachment proceeding which is rendered void by a defect in the affidavit, jurisdiction is not conferred over the defendant by reason of the fact that he has given bond.
    Cobb, Howard & Bailey, for plaintiff in error.
    Raymond Ratliff, for defendant in error
   SMITH, J.

Upon the authority of Ward v. Ward, 10 Circ. Dec. 656 (20 R. 136), we are of the opinion that the affidavit for attachment filed herein was void. This being so, did the giving of a bond by the defendant below to discharge the attachment have the effect of submitting the defendant to the jurisdiction of the court? We think not. See Saxton v. Plymire, 2 Circ. Dec. 118 (3 R. 209). The court therefore erred in overruling the motion of plaintiff in error to discharge the attachment, and said judgment is reversed.

Swing and Oiffln, JJ., concur.