text:
    MONTHLY PAYMENTS TO WIFE IN A DIVORCE PROCEEDING.
    Circuit Court of Cuyahoga County.
    Kate D. Fenn v. Everton W. Fenn.
    Decided, December 3, 1912.

      Divorce and Alimony — Decree Adjudging Property of Husband to 'Wife Divorced for Aggression Not Subject to Modification.

    Where a divorce is decreed a husband because of the aggression of the wife, the further jurisdiction of the court in respect to the property rights of the parties is determined by Section 5700, Revised Statutes; and where in such case the decree provides for a monthly payment of alimony by the husband extending through a term of years, such payments are in fact not alimony, but property of the husband adjudged to the wife, and are not subject to modification.

      Squire, Sanders <$> Dempsey, for plaintiff in error.

      Kline, Tolies c& Morley, contra.
    Niman, J.; Marvin, J., and Wincii, J., concur.
    The action out of which this proceeding in error arises was begun' in the Common Pleas Court of Cuyahoga County by Everton W. Fenn, the defendant in error, against Kate D. Fenn, the plaintiff in error, to secure a divorce.
   On the trial of the original action the plaintiff was granted a divorce from the defendant upon the ground of willful absence for more than three years, but the plaintiff was ordered io pay to the defendant for her support the sum of $25 each month beginning December 1st, 1904, for the period of six years from and after said date. This was in addition to certain payments which the plaintiff was ordered to pay for t'he support of the children of the parties.

The journal entry in connection with this order states:

"This provision for alimony for the defendant herein is made in view of the fact that a liberal allowance had already been made by an agreement resulting in the settlement of a suit instituted by the defendant against the plaintiff for alimony in this court.”

The plaintiff complied with the order made, and fully paid the installments provided for in the decree.

On December 15, 1910, the defendant filed a motion to modify the decree so as to secure an order on the plaintiff to pay to her such sum per month as the court might decree proper during the life of the defendant, or until she should remarry.

Notice of the filing of this motion was given the plaintiff in Chicago, and also to counsel of record for the plaintiff in the original action. Subsequently counsel for the defendant -sought to take depositions on her behalf in support of the motion. Notice of the taking of such depositions was sent to the plaintiff by-registered mail, and was served on his attorney of record. At the time set for the taking of depositions, a witness was called before the notary and questions put to him seeking to elicit information concerning the financial condition of the plaintiff. On the advice of counsel the witness refused to answer.

The notary then certified his proceedings to the court of common pleas, and asked for instructions in the matter of requiring the witness to answer the questions propounded to him. On consideration of this application, the court adjudged and decreed that it had no jurisdiction over the person of the plaintiff, and instructed the notary not to require the witness to answer the questions, and to take no further proceedings in the taking of the depositions.

On the hearing of the motion, the court adjudged that it was without jurisdiction of the plaintiff or the subject-matter of the motion, and therefore declined to consider said motion on its merits.

Exceptions were duly taken to these rulings, and by this proceeding in error it is sought to secure a reversal of the judgment entered against the defendant below.

It is contended on behalf of the plaintiff in error that the eourt may at any time on any change of circumstances .of the parties, increase or reduce the amount awarded one of the parties as alimony, and that application for such purpose may be made in the same cause.

This contention is sustained by numerous decisions both in this state and elsewhere, where the subject-matter of the controversy is alimony in the proper and strict sense of that term. Cole v. Cole, 142 Ill., 811; Jungs v. Jungs, 5 Ia., 541; Hoffman v. Hoffman, 15 O. S., 427; Olney v. Watts, 43 O. S., 499; Pretzinger v. Pretzinger, 45 O. S., 452.

The determination, therefore, of the soundness of the rulings of the court of common pleas, which resulted in the judgment against the defendant, complained of in this proceeding, requires a consideration of the nature of the order sought to be modified. If it was a decree for alimony proper, the jurisdiction of the court was continuing and the judgment below was erroneous. If, on the contrary, it was a mere judgment for the payment of money, such that its rendition exhausted the powers of the court on that subject, unless vacated or set aside in some manner authorized by law, the action of the court below was correct.

Section 5700, Revised Statutes (now Section 11993, General Code), is as follows:

“When the divorce is granted by reason of the aggression of the wife, she shall be barred of all right of dower in the lands of which her husband is seized at the time of filing the petition for divorce, or which he thereafter acquires, whether there is issue or not; and the effect of the judgment of divorce shall be to restore to her the whole of her lands, tenements or hereditaments not previously disposed of, and not allowed to her husband as alimony, subject to the dower right of her husband therein, and the court may adjudge to her such share of the husband’s leal or personal property, or both, as it deems just and reasonable or the husband shall be allowed such alimony out of the real and personal property of the wife as the court deems reasonable, having due regard to the property which came to the wife by marriage, and the value of her real and personal estate at the time of the divorce, which alimony may be allowed to. him in real or personal property, or both, or by decreeing to him such sum of money, payable either in gross or in installments, as the court deems just and equitable; and if the husband survives his wife he shall also be entitled to his right of dower in the real estate of his wife not allowed to him as alimony, of which she was seized at any time during the coverture, and to which he had not reliquished his right of dower.”

Since the divorce in this case was granted the husband by reason of the aggression of the wife, the power of the court to decree any of the husband’s property to her is based on said Section 5700.

The order made upon the plaintiff to pay the defendant the sum of $25 per month for six years must be referred to the authority of the court, not to award the defendant alimony, but to “adjudge to her such share of the husband’s real or personal property, or both, as it deems just.” The fact that the payments ordered made are described as alimony does not affect their essential character. The order was in legal effect a judgment under authority of said Section 5700, Revised Statutes, for such share of the husband’s property as the court deemed just, and that judgment is not subject to modification in the manner attempted by the defendant.

That a distinction between alimony proper, and a judgment rendered under authority of said Section 5700, Revised Statutes, exists, is recognized by the Supreme Court in Hassaurek v. Markbreit, Admr., 68 O. S., 544. In the opinion on page 579, it is said:

“Nor need we consider the nature of the obligations upon which decrees for alimony are founded, since the finding of the court upon the evidence that the wife had been willfully absent for more than three years, and its judgment that the marriage relation should be terminated for that reason, excluded her right to alimony. The court having concluded that a divorce should be decreed for her aggression, its further jurisdiction was defined by Section 5700 of the Revised Statutes as follows: ‘and the court may adjudge to her such share of the husband’s real or personal property, or both, as it deems just and reasonable.’ ”

See also Law v. Law, 64 O. S., 369; Fickel et al v. Granger, 83 O. S., 101.

The judgment of the court of common pleas is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    PROCEDURE FOR ENFORCING STOCKHOLDERS’ STATUTORY LIABILITY.
    Court of Appeals for Fulton County.
    George W. Griffin v. Edward F. Rowley, Receiver.

    Decided, December 28, 1914.

      Summons — Attempted Service by Publication on Resident of the State —Invalidity of, Not Material When — Enforcement of Statutory Liability Against Stockholders — Proceeding in the Nature of a Suit in Equity — Stockholders in Court by'r Representation — Matters Which May be Conclusively Adjudicated in Their Absence — Preservation of the Right of a Personal Defense — Pursuit of a Stockholder in Another Jurisdiction.

    The invalidity of service by publication upon a resident of Ohio, in an action to assess the statutory liability of stockholders of an insolvent corporation, constitutes no defense where legal service has been obtained in a subsequent action to recover the amount found due.

      Ham & Stahl, for plaintiff in error.

      R. S. Holbrook and C. B. Banker, contra.
    Grant, J.; Winch, J., and Meals, J., concur (sitting in places of Judges Kinkade, Richards and Chittenden).
    Error to the court of common pleas.

       For decision below, see 14 N.P.(N.S.), 625.

   To avoid confusion and for the purpose of clearness, in this opinion the order of parties will be designated as it was in the court of first instance; that is to say, in the reverse position of that stated in the caption here.

Prior to January 25th, 1914, the Union Central Savings Bank Company, whose receiver the plaintiff is, was a corporation of the state of Ohio. Also prior to that date, that corporation became indebted to the Central Savings Bank Company, also a corporation, and to others, its creditors. At that date also, and when such indebtedness arose, the defendant was a stockholder in the Union Central Savings Bank Company. At that date the Central Savings Bank Company had reduced its claim to judgment, and an execution having been sued out against the debtor upon it, and this having been returned unsatisfied, the creditor in question began a suit in the Court of Common Pleas of Lucas County to compel satisfaction of its claim by the stockholders of the debtor corporation, under the statutory liability at that time existing by the Constitution and laws of Ohio in that behalf provided.

In the petition in that cause and in an amendment to it, the creation of the debt named, the rendition of judgment thereon, the failure of the debtor to satisfy the execution issued upon it, the insolvency of the delinquent corporation, the fact that the defendant, among others, was a stockholder at the time and when the credit was extended, and other proper averments were aptly made. The plaintiff in that action sued on its own behalf, and for the benefit as well of all other creditors of the alleged insolvent debtor. To that petition the corporation was made a defendant, as also were its officers and shareholders, including the defendant. No personal or actual service, however, was at any time had upon him in the action, nor was any attempted to be had upon him. On the contrary, he was named in the proceeding as a defendant non-resident of Ohio, upon whom such service could not be had within the state, and thereupon and for that stated reason, constructive service upon him as such non-resident defendant, and as a resident of the state of Indiana, was attempted and purported to be had, by publication, in the form allowed by statute for that purpose having been first made.

This allegation of non-residence and the consequent inability to have actual and personal process upon him, was not true in point of fact, the defendant being at the time a resident of Fulton county, Ohio, having an actual and visible domicile there, and having had at no time a residence in the state of Indiana.

The prayer of the petition in that case was for an ascertainment by the court of the several amounts due from the defendant corporation to the plaintiff in the action ancl to the other creditors on,whose behalf it sued, for the like ascertainment of the stockholders of the corporation, and for an order requiring each' of these to pay his ratable share necessary to satisfy the debts due to the plaintiff and its creditors, in accordance with the liability of each created by statute. A receiver also was asked for, to collect the amounts so to be found forthcoming from the shareholders of the insolvent corporation.

By an interlocutory order in that cause a referee was appointed, who was directed to try the issues both of law and fact and to report his findings and decision thereupon, the corporation itself having duly entered its appearance in the action.

The referee reported his findings Of fact and conclusions of law arising in the proceeding, those material to the present inquiry being to the effect that the defendant here, George W. Griffin, was a stockholder in the defaulting corporation to an original amount of $500, upon which there was a then present liability of $608.91, under the statutes of Ohio.

Upon the coming in of this'report, the court approved it, with certain modifications, ixnimportaxxt in the present controversy. The confirmation was followed by a finding of the court that the defendant had become liable to the creditors of the defunct corporation in the sum already named, that beixxg the amount of his holdixxg with the interest which had accrued since the liability attached, and that this should be collected by the process aboxxt to be awarded, ‘ ‘ or so much thereof as may be necessary to secure the payment of the amounts heretofore found due the several creditors, together with the costs,” etc., the finding in this respect and so far, being ixx terms contingent as to the amount to be paid by the defendant, although it was arithmetically certain that such amount must be the entire amount.

It was then by the court "ordered, adjudged and decreed” that the plaintiff in that action axxd its co-creditors "recover” from the several shareholders the amounts set opposite their xxames, that set opposite the name of the defendant here being the full amount of his assessment, already mentioned, "or so much thereof as may be necessary to pay the aforementioned debts * * * and it is ordered that execution issue therefor. ’ ’

This is the formal language usually employed in the rendition of a money judgment in personam. Nevertheless, the same contingency is reserved in terms as to the amount of it as is done in the basic finding, although, here again it was obviously certain that the contingency of a less amount than the full amount could not, under the circumstances, happen. It is supposed that the awarding of the execution was wholly redundant, the right to that accruing as of course, if there was a personal money judgment.

A receiver in the action was appointed thereupon, to collect the various sums “hereinbefore found to be due from said respective stockholders, or so much thereof as may be necessary to pay the said claims against said corporation,” the language denoting liability still being less than absolute as to the amount to be required from the defendant, although in fact such amount could in no manner be uncertain.

In the decree now being recited, the only language as to defendants to the action non-residents of Ohio, is the following: “As to the defendants who are non-residents and upon whom service was had by publication, which service is hereby approved and confirmed * * *.” And, “Said defendants so found to be non-residents are * * * George W. Griffin.” This language seems to assume, but not make, a finding of non-residency, in what state or jurisdiction does not appear.

As to the assumed, but not found, defendants non-residents of some place, ten in all, and upon whom service by publication is assumed to have been properly had, the receiver is authorized by the decree to pursue by action “outside of the state of Ohio, or ■wherever jurisdiction may be- had, for the purpose of collecting the several amounts so found due.”

That judgment and decree is still unreversed and operative to effect, so far as the record here discloses.

Acting under the authority thus conferred, the plaintiff here— who is the receiver named in the decree — commenced the present action against the defendant, in this, the county of his residence, declaring for substance on the proceedings and judgment in the original suit in Lucas county, and praying judgment in the amount there purported to have been fixed as the liability of Mr. Griffin as the aforementioned stockholder, under the statute then in force, and interest. In this action the defendant was personally summoned. He answered, admitting the proceedings in Lucas county and the findings of that court thereupon, in substance, and admitting — by not denying — that Griffin was a shareholder, as alleged. By an amendment to the answer, he was expressly admitted to have been such, and in the amount found in the other suit.

The answer, aside from its admission, concerned itself with two things: first, that the defendant was sued in the Lucas county cause, not by his full and proper name of George W. Griffin, but by the name of G. W. Griffin only, which was the fact; and, second, that the finding of that court to the effect that the defendant was a non-resident of Ohio and therefore amenable to constructive service by publication as such, was wholly false and that no service in the action was ever had upon him, or jurisdiction acquired over him, that could be made the basis of the present action. The assault upon the Toledo judgment in this respect was vigorous to the verge of violence. Many, many times in the answer, what the Lucas common pleas did, and decreed, found and adjudged, is characterized by the limiting word “pretended.” But the substance of that document is as we have stated. The allegation is that the defendant was not only at all times a resident of Ohio, but that the fact ought to have been well known, and probably was well known, or at least could easily have been ascertained, by the instigators of that action. A separate defense of the statute of limitations also was pleaded in the answer. To the name of answer in the pleading now referred to the title cross-petition was added. But the prayer of it was wholly defensive in character and amounted to no more than asking for a dismissing of the petition. A reply to the answer was made, not materially changing the issues made, or attempted to be made, in the case.

After much intervening litigation, not necessary or useful to recite here, the cause came on for trial to a jury in the court below. A motion by the defendant for judgment on the pleadings was denied.

The plaintiff introduced a full transcript of the record, and proceedings of the court of Lucas county, of the tenor and effect already narrated, and rested.

The defendant then moved for a judgment in his favor on the plaintiff’s case, and this was refused. Tie then produced evidence the tendency of which was to prove his residence was always in Ohio and that the plaintiff in the case of first instance had full opportunity to know the fact, and rested.

Thereupon the defendant renewed his motion for a judgment in his favor, as upon undisputed evidence decisive of the case, but reserved a right to go to the jury upon the évidenee if the motion should be denied. It was denied.

The plaintiff then moved for judgment upon the evidence, in his favor and asked that the jury be directed to return a verdict for him.

Before this latter motion was passed upon by the court, the defendant presented a series of written instructions and requested that they be given to the jury as the law governing the case. These amounted to the direction of a verdict for the defendant, on the ground that since he was not a non-resident of Ohio at the time he was alleged to have been so in the proceedings had in Lucas county, the notice published for him was inert to confer jurisdiction and that any judgment in that cause purporting to bind him was void for want of jurisdiction to make it — it not being claimed that any process upon him personally, by summons, was obtained in that action.

These requests were severally refused, and the court proceeded to direct the jury to return a verdict for the plaintiff for the sum claimed hy him, which was done, accordingly.

Appropriate exceptions were saved to these actions of the trial court, adverse to the defendant. A motion for a new trial was seasonably made and overruled, to which an exception also was taken, and judgment upon the verdict was rendered.

And these several rulings of the trial court are assigned as so many errors to be corrected here by a reversal of the judgment below, and complained of in the present proceeding.

The people of Ohio, by their adoption of the Constitution of 3851, issued their imperative mandate to the legislatures and courts of the state, requiring the one to pass adequate laws securing to creditors of corporations their dues by fixing an individual liability upon their stockholders, and the other to advance the remedies thus provided. The constitutional purpose was to supply by law that conscience which a soulless body could not have, and thus to check the improvident habits which corporations not thus restrained surely would have.

Having this view of the mischief aimed at in view, the Legislature of Ohio, in obedience to the command, have passed laws progressively appropriate to the purpose and it is the duty of the courts to administer these, upon occasion, in the spirit of the constitutional provision for safeguarding the rights of corporation creditors.

Disregarding as not useful here, the genesis of the legislation referred to, and coming at once to that which can usefully be brought to bear upon the present contention, it is to be said that by the provisions of what became in the revision of 1880, Section 3260 of the Revised Statutes of Ohio, the individual liabilities of stockholders might be enforced by a creditor of a corporation at the suit of the latter against all the shareholders, jointly. The contingency of non-residence or failure to obtain service of process upon any for any other reason, does not seem in that act to have been contemplated; in any event, it was not provided for.

The scope of remedy was materially widened by the amendment found in Ohio Laws, Yol. 91, page 88, as follows:

“Section 3260. (How Such Liability Enforced; Inability to Summons Stockholders, Etc.) A stockholder or creditor may enforce such liability by action jointly against all the holders or owners of stock, which action shall be for the benefit of all the creditors of the corporation, and against all persons liable as stockholders, and in such action there shall be found and determined the amount payable by each person liable as stockholder on all the indebtedness of the corporation, in which adjudication no costs shall be taxed to nor collected of any stockholder to an amount which, together with the amount to be paid on said indebtedness, will exceed the amount of the stock on which he is liable, provided, that in any action the plaintiff may file in the court a sworn statement that a stockholder or stockholders or the legal representatives of a deceased stockholder have not been summoned, giving their residence, if known, and that it is impracticable to secure the services of summons upon such stockholder or such legal representative of a stockholder, and remitting from the claims of the plaintiff or of other creditors consenting, so much as may be found payable by such stockholders, not served with summons except those who may be insolvent or non-resident of the state, and judgment shall be rendered against the stockholders who have been served with summons, for the pro-rata amount for which they would be liable if all solvent stockholders resident of the state were served with summons; and when a creditor has prosecuted against a corporation an action of (at) law begun before any action to enforce the stockholders’-liability and has recovered final judgment only after such an action to enforce the stockholders liability has been prosecuted to a final decree in the court in which the action was commenced, such judgment creditor may bring a like action against the stockholders of the corporation to enforce ■such judgment at any time within four years after the recovery of his said judgment, but the stockholders shall not be liable for any amount in excess of that provided in section thirty-two hundred and fifty-eight.”

Without remark as to the respects in which the enlargement is evidenced by this enactment, except to say that the power to pronounce personal judgment against liable shareholders is restricted by it to such as “have been served with summons,” and that it does not undertake to absolve such as have not been so served — although for aught that appears they may be parties to the action — we pass to the act of April 16th, 1900, which further broadened the field of remedy and crystallized the law of procedure in the following language:

‘ ‘ Section 3260. Whenever any creditor of a corporation seeks to charge the directors, trustees, or other superintending officers of a corporation, or the stockholders thereof, on account of any liability created by law, he may file his complaint for that purpose in any common pleas court which possesses jurisdiction to enforce such liability.
“Section 3260a. The court shall proceed thereon, as in other cases, and, when necessary, shall cause an account to be taken of the property and obligations due to and from such corporation, and may appoint one or more receivers..
“Section 32605. If, on the coming in of the answer or upon the taking of such account, it appears that such corporation is insolvent, and has not sufficient, property or effects to satisfy such creditor, the court may proceed to ascertain the respective liabilities of the directors, officers and stockholders, and enforce the same by its judgment, as in other cases.
“Section 3260c. In all cases in which the directors or other officers of a corporation, or the stockholders thereof, are made parties to an action in which a judgment is rendered, if the property of such corporation is insufficient to discharge its debts, the court shall give notice to non-resident stockholders as provided in Sections 5048, 5049, 5050, 5051 or 5052 of the Revised Statutes, and shall first proceed to compel each stockholder to pay in the amount due and remaining unpaid on the shares of stock held by him, or so much thereof as is necessary to satisfy the debts of the company.
“Section 3260d. If the debts of the company remain unsatisfied, the court shall proceed to ascertain the respective liabilities of the directors or other officers and of the stockholders, and to adjudge the amount payable by each, and enforce the judgment, as in other cases. The court may authorize and direct the receiver to prosecute such action in his own name as receiver, as may be necessary, in other jurisdictions to collect the amount found due from any officer or stockholder.
“Section 3260e. .Whenever any action is brought against any corporation, its directors or other superintending officers, or stockholders, according to the provisions of this chapter, the court, whenever it appears necessary or proper, may order notice to be published, in such manner as it shall direct, requiring all the creditors of such corporation to exhibit their claims and become parties to the action, within a reasonable time, not less than six months from the first publication of such order, and, in default thereof, to be precluded from all benefit of the judgment which shall be rendered in such action, and from any distribution which shall be made under such judgment.
“Section 3260/. Upon a final judgment in any such action against an insolvent corporation, the court shall cause a just and fair distribution of the property and assets of such corporation or the proceeds thereof to be made among its creditors.”

This states the statute in substantially its present form, as Sections 8693 to 8697 of the General Code. It is the law applicable to this case and a proper consideration given to it must coerce our conclusion upon the merits of the petition in error here.

The nature of the action thus authorized is stated by Spear, J., in Kulp v. Fleming, 65 O. S., 321, at 339, as follows:

“True, our method of enforcing the liability of stockholders is by a proceeding in the nature of a suit in equity which contemplates the bringing in of the corporation, of all the creditors, and of all the stockholders, and a decree which will adjust and finally settle the rights and liabilities of the parties. This is made practicable because the corporation is a creature of our law, the stockholders principally' residents of the state, and a multiplicity of suits may thus be avoided. ’ ’

The sweepingly equitable scope of the proceeding is not diminished by the subsequent legislation, which allowed as defendants the directors and officers of the corporation, as well as the corporation itself and its stockholders, the basic purpose plainly being, as is suggested by the language just quoted, to preclude many suits where the remedy may be made effectual by one suit.

The first words of this quotation signify that the learned judge was differentiating the Ohio law and policy in this regard from the possible legislation of other states in respect of the subject, suggesting caution in the application of adjudications elsewhere bottomed, perhaps on materially different statutory provisions. But the point now emphasized is that the proceeding is equitable in quality, as well as highly remedial in ultimate design. Possibly this inference may be further stretched in the same direction by observing that the name of the initial pleading in the proceeding is called a' “complaint” and not a petition, and so far departing from the provisions of onr procedure statute fixing the nomenclature of papers.

Under this act the corporation is a necessary party if its solvency is called in question. Such of its directors and officers as are sought to be charged in the action with a liability, must also be parties. And so must such stockholders as are being sued in the action as for unpaid subscriptions for their holdings, and doubtless such other shareholders upon whom the judgment should definitely be fastened in a fixed sum of money to such effect as would cut off personal defense of non-ownership of stock, or payment of the liability being enforced, or an allowable set-off to it. Some further clue to the line of cleavage between those things in the suit as to which the shareholder must be considered to be vicariously represented by the corporation, and those which may be used to fix a money obligation, beyond the reach of an independent personal defense, may be found in the syllabus of Kulp v. Fleming, supra, as follows:

“A provision of statute that the stockholders of a corporation shall be individually liable to creditors for the debts of the company does not alone create the liability. It is rather a legislative requirement that whoever becomes a stockholder shall thereby assume an individual liability, and thus gives legal effect to the acts of the parties. The actual liability becomes operative by the act of the shareholder in becoming such, being founded on his proposal to become liable which arises from the membership and individual agreement to abide by the organic law of the corporation, and the acceptance thereof by the creditor by extending credit. Such obligation is contractual.”

Some things which the court can do in a suit thus authorized, and which were done in the suit prosecuted to effect in Lucas county, are things in which the shareholder is conclusively in court by representation only. His representative in that respect is the corporation. In those respects he surrendered his right to appear or to have process, personally, when he subscribed for his stock, ipso facto. By doing that, in legal effect he issued to the corporation his letter of attorney, irrevocably sending his company to act and answer in his stead in those respects. Among the things in regard to which 'the corporation is deemed conclusively to represent him, are the questions of its own insolvency, the distribution of its assets, the necessity of fastening the statutory liability upon its shareholders and the amount of such liability, as a result flowing from their status as such, to be visited upon each. And this is equally so whether the individual stockholder is a party to the action or not. In either ease he is in court in the artificial personality of his company (Spring, Trustee, v. Rose et al, 75 O. S., 355). The ease at bar perhaps may be assimilated to that case upon the consideration that the signing of the premium notes in the one, was the equivalent in legal contemplation of the subscription for the stock in the other.

The landmark which is now sought to be made visible is suggested in the language quoted in the opinion in the case just cited from Commonwealth Mutual Fire Ins. Co. v. Hayden et al, 61 Neb., 457, apparently approvingly:

“We do not mean that it (the judgment of assessment) is conclusive as against any individual sued as a stockholder, that he is one, or if one, that he has not already been discharged by payment to some other creditor of the corporation the full measure of his liability, or that he has no claims against the corporation, or judgments against it which he may, in law or equity, as any debtor, whether by judgment or otherwise, set off against a claim or judgment; but in other respects it is an adjudication binding him.”

The bead-roil of authorities called by our Supreme Court in support of this proposition seems to settle the law for us in this respect, as we think.

It appears to be equally clear that there are still other things that the court is competent to adjudicate, by permission of the statute last quoted, to binding effect and for the purposes of the suit, without the personal presence of the individual stockholder, in court at the command of a summons to judgment, and as to the conclusiveness of which it is immaterial whether he is there or absent. And it was competent for the Lncas county court to pass upon such matters, regardless of whether its writ had effectually run as to him individually or not. These things may be said to sound in rem; if the expression may be allowed, they are quasi in rem.

They include the appointment of a referee to take an account of the assets and .liabilities of the corporation adjudged to be insolvent, and the number and persons of its stockholders and the amount of the holdings of each, as well as the appointment of a receiver in the action and the using of him to force the collection of the assets in any appropriate manner, including the asset in the form of a statutory liability of the indivdual stockholders, when ascertained and fixed by adequate judgment, rendered after jurisdiction is acquired. These things have to do with the assets of the corporation and not of themselves with the personal obligation of the shareholder, although they may be a part of the necessary train of causes which are to eventuate in fixing such a liability. But primarily and of themselves, they look to the husbanding of the corporation’s present resources and the sequestration of such as are yet in gremio legis only, to the ultimate payment of its debts. If in the suit the shareholder is in court in person, at the foot of a summons to judgment, as well as being there sub modo under the aegis of his company, then the court may proceed further and pass a judgment upon him finally, in such wise that its writ of execution may run against him for collection by any of the processes known to the law. Such a judgment, proceeding under a jurisdiction acquired by personal process, cuts off and determines any personal defenses which the debtor may interpose, such as non-stockholder ship, payment of the liability, or a set-off against it; for then he will have had his day in court and his opportunity to be heard. But unless he is so in court in obedience to its process, he is not concluded as to these rights of defense, because in such event there has not been due process of law as to him in those respects, and the law of the land has not in his case been observed.

In most instances of the enforcement of the statutory liability of stockholders, the former of the two alternatives is the fact. The shareholders are generally residents in the same jurisdiction with the locus of the corporation and the writ of the court will run to the domicile of all of them. They are therefore usually before the court by process of its summons, so that a final adjudication can be had as to all in one action, and a multiplicity of suits and of costs is avoided. This is the reason given by Judge Spear for the form of proceeding taking its present shape, to the end that the rights and obligations of all may be worked out in a single action, if that is practicable, and so far as it may be practicable, the whole squaring with the equitable theory which is the reason of the statute.

But if, for any cause, personal service is not had on a given shareholder, so that a money judgment, upon which execution may issue, can not be rendered as to him, no good reason is perceived why the court may not still pass upon these matters as to which he is represented vicariously by his corporation and those which are in rem merely, to all proper legal effect, and so far conclude him. In such case his personal rights of defense the law preserves to him against his day in court, when he is there by due process to answer, with his consequent opportunity to be heard. For, after all and in the last analysis, these two things are the sum total of his rights. In the underlying suit in Lucas county, the court had jurisdiction to do what it purported to do in the matters in which the stockholders were conclusively represented by the corporation and as to those which were quasi in rem only. And when these were adequately attended to; that is to say, when the insolvency of the corporation, the amount of its debts, the number and persons of its shareholders and the shares held by each, were fixed — when these merely mechanical operations were performed, arithmetic and the statute did the rest. It was then a mere thing of computation. An adding machine could render the judgment from these data, as well as the court, to the great saving of judicial mental tissue.

And upon a critical reading of the judgment rendered in the case in Lucas county, it may perhaps be doubted whether more was there attempted to be done. For in all cases in the decree where a money liability is undertaken to be fastened upon individual defendants, the figures reached by the perfunctory mechanical process just noted are limited to such part thereof as might be necessary to liquidate the demands of the corporate creditors. And this result-is not disturbed in the law’s eyes by the self-evident fact that it was all along certain to take an amount sure to do this, to-wit: the amount of each shareholder’s stock, plus interest.

And what the court in that judgment did in respect of service upon the defendant by publication, in like manner is in the twilight zone of literal uncertainty. The court assumed a publication and confirmed the assumption. And it did no more, having regard only to the wording of its decree. It did not find the fact of publication. Attention has already been called to the court’s language in both these respects.

But, let it be granted that this view is wholly a mistaken view, and that the court in Lucas county undertook to go beyond the point of adjudication to which, as has been shown, it lawfully could go, and what follows? What did the plaintiff take by it? And what did the defendant lose by it ? The answer in either case must be, nothing. It would be destructive of every just principle of jurisprudence to allow that a legal right or a correlative legal obligation can arise from a falsehood. And the non-residence of the defendant, in the state of Ohio was admittedly a falsehood. A cart load of solemn adjudications in the form of findings could not make it a truth. Immunity from collateral attack could not make it true. The allegation of it was altogether inert and conferred no right and called for the performance of no legal duty. It is not now perceived why this result should not be found in this case.

And if the nullity of this attempted service by publication be admitted, so that in the judgment in Lucas county the law saved to the defendant his right still to have his day in court, and his right to wage his personal defenses to the creditors’ claims against him, it does not follow, inevitably, as we think, that he must go free of his real-obligation in that respect, when the right to enforce it is legally asserted. If the nugatory character of the attempted constructive service be allowed to work an immunity against a personal judgment in that ease, does that fact operate as a judgment against his being made to pay a just debt when properly haled to court for the purpose of making him discharge an unperformed legal duty? We must think not.

But the decree in the ease in Lucas county did one thing more, and that it did have a right to do. It authorized the court’s receiver ‘‘ to bring suit or suits against any or all of said defendants outside the state of Ohio or wherever jurisdiction may he had, for the purpose of collecting the several amounts so found due.” This sentence is to be read, manifestly, we think, as if a comma were placed after the word “defendants.” As to the defendants assumed to have been found to be non-residents of the state, the decree has already authorized the receiver, specifically “to take all such actions he may deem necessary to collect the amount so found due” from them. The authorization to bring suits extended to all defendants in other jurisdictions, whether resident or not in Ohio. And this is strictly pursuant to the Ohio statute.

Acting in accordance with the authority this conferred, the receiver brought the present action in Fulton county — -the residence county of the defendant — where the defendant was summoned in the action.

Due process of law includes two essential things — notice and an opportunity to be heard. The defendant, therefore, has had due process of law. The defendant would have been entitled to no more if the purported non-residence assumed in the Lucas county case had been a fact. In all the essential things as to him the law of the land has been observed — that law which, as Webster defined it in the Dartmouth College case, “ which hears before it condemns, which .proceeds upon enquiry, and renders judgment only after trial.” In this case all the substantive defenses to which he was entitled have been open for the defendant to make; that is, all the defenses as to which the corporation must not be held to represent him, and all matters which were not matters of computation alone, arising from the fact of insolvency, the amount of debts and the number of shareholders and the amounts of their holdings. Is it a question that he is a stockholder? His answer in this case admits it. Has he paid his share of the indebtedness thence arising ? It is not claimed that he has. Has he a set-off? He does not assert it in his answer. Having no defense to make on the merits of the case, shall he be exempt from a liability otherwise complete because of the assumed misdirected act of the Lucas county court in finding him a resident of a state in which his rights could have been in no way differently treated than if the finding had been that he resided in Ohio? Upon the footing of substantial justice and the administration of a law to which he assented by becoming a stockholder, it is hard to sec that he should. He is deprived of no right by being sued in his owm county in Ohio rather than in Indiana, his putative residence, if the record in the Lucas county ease imports verity. And no additional burden is placed upon him. That he has a summons instead of a notice is to the prejudice of no right of his. In McVicker v. Jones, 70 Fed., 754, it is said:

"The twelfth cause of demurrer is grounded upon want of an averment of notice to the defendant of the judgment or claim against him before commencement of the suit. The notice to persons sought to be charged, required by the Kansas statute before execution shall issue against the stockholder, umuld seem to have reference to the motion made in open court, that execution issue against the stockholder, and not to the original claim, or the process anterior to the judgment. Under the statute the creditor may elect to proceed by motion and notice, with a view of obtaining execution direct against the stockholder, or by his action upon the judgment, giving, of course, the usual notice required in instituting proceedings at law; and no reason is seen why the stockholder can not avail himself of all matter by way of defense in an action at law which would be open to him as objection against a motion for execution, where the creditor elects to proceed under such motion rather than by action. Looking to the statute, therefore, it can not be found that it either expressly or impliedly contemplates notice of the claim to the stockholder before commencement of an action at law, where the creditor elects such proceeding as his remedy.”

Holding, as we do, that the action of the court in Lucas county — whatever it may. literally have been — in regard to notice to the defendant as a putative resident of Indiana, was null and of itself conferring no right on the receiver that he would not have had without it, leaving the receiver, both by its decree and the express authority of the statute, with full power to pursue the defendant stockholder into “other jurisdictions,” one of which “other jurisdictions” might be, and in this case is, Fulton county, Ohio, — which the receiver has done in the present action — finding these things, we say, and to our apprehension the two questions mainly argued before us, namely, the effect of the assumed constructive service by publication and whether the answer here is a direct or a collateral attack on the Lucas county judgment, become relatively unimportant. The former disappears by elimination, and the latter loses all coercive force through entire irrelevancy. In short, neither is longer in the case.

That leaves the receiver in the position of obeying the order of the court whose officer he is, in pursuing the defendant by suit in the jurisdiction of his residence, declaring in that suit on the judgment rendered in Lucas county, which conclusively furnished the basis of his action as to all things in which in the suit of origin the corporation represented the defendant and as to the matters adjudicated which sounded in rem, leaving open to the latter all defenses which he could have made in the Lucas county case had he been there present visibly in person at the behest of the court’s summons. This pursuit to another jurisdiction was permitted also by the statute.

It has been made, and the defendant is having that which he complains that he did not have in Lucas county — his day in court and due process of law. When thus brought to the bar his defenses are not that he is not a stockholder, or that he has paid his dues to the creditors of the defunct corporation, as he agreed to do when he became a stockholder in it, or that he has a set-off to their claim. His answer is concerned with the alleged invalidity of the Lucas county adjudication, upon the ground already fully discussed, that he was attempted to be sued in that jurisdiction by the initial letters of his first and second names and that the action is barred by the statute of limitations. None of these, it is to be observed, touches the matter of the defendant’s real obligation to the creditors of his company, to enforce which both actions were brought.

As to the first of these defenses our views are already given.

In regard to the misnomer assigned, we think there is nothing in the point.

As to the statute of limitations, the court below properly disregarded it, in our opinion.

The petition before us does not in terms assign either of these two things 'as matter of error, unless they come within the complaint of “other errors.” But we mention them as being by that possibility in this case. As already narrated, at the conclusion of all the evidence the defendant moved “for judgment on the undisputed evidence,” but with a named reservation of his “rights to go to the jury upon the evidence if the court holds against me. ’ ’

The motion was then overruled. The plaintiff then made a motion for a judgment in his favor on the same ground, and also moved for a directed verdict.

Before this motion was acted on by the court the defendant presented certain instructions in writing, and requested that these be given in charge to the jury before argument. These amounted to the direction of a verdict for the defendant. They were refused and there was no argument.

The court then directed a verdict for the plaintiff. All proper exceptions were saved, and a motion for a new trial was thereafter made and denied.

The motion by the defendant for a judgment on the evidence in effect submitted the issue to the court to be found, nor did the attempted reservation, without more, withdraw the submission, and the court found the issue to be with the plaintiff.

If our view of the law as already expounded is correct; if the attempted constructive service was inert, taking no legal right from defendant and fastening no liability upon him, then the trial court was right in directing the jury to return a verdict for the plaintiff.

If, on the other hand, our view in this respect is mistaken and the assumed finding of the Lucas county court as to such service operated as a judgment against the defendant, it still remains an integral part of that judgment until reversed in that cause or some cause having such reversal for its direct purpose. The present action is not of that nature.

Upon either footing the defendant must fail.

We are quite aware that in somewhat laboriously reaching this conclusion the fact that we have in words paid so little attention to the very voluminous briefs filed in the case, will be thought a cause of grief if not grievance to the compilers. With cyclonic energy and with the zeal of crusaders, with characteristic industry and with the learning which has had the effect that Festus imputed to Paul, the utmost corners of the judicial earth have been ransacked for law, and from all the immense armories of legal resource authorities have been marshaled before us in the wildest profusion.

“Mastering the lawless science of our law—
That codeless myriad of precedent,
That wilderness of single instances.”

It has not quite been “Love’s Labor Lost,” for we have examined these with attention always, and with those parts of some of the briefs which in wealth of language transcend the picturesque at times and approach the frontiers of the lurid, the court has been affected even to admiration. The very prodigality of eases cited has precluded a more particular allusion to them in the course of this opinion. But they have been considered, and the result of the consideration is embodied in what we have now said. So much is due to the labor and erudition of counsel in the case.

We have heard in one of the briefs the tocsin sounded, that this ease may “pathfind its way” to a higher court. The outcry has no terrors for a court whose humble but sole ambition is to be right, even at the expense of being set right by any tribunal having authority to do that. Certainty of being right is not the monopoly of any mortal. We aspire only to that “learned and modern ignorance” which the great historian of Rome’s fall characterizes as the mark of great minds.

The result of'our consideration is that we find no intervening error of substance in this record, injurious to the rights of the defendant, and we are unable to say that substantial justice has not been done in the case.

The judgment complained of is, therefore, affirmed.


text:
    HARMLESS IRREGULARITIES IN A FIRST DEGREE MURDER. TRIAL.
    Court of Appeals for Muskingum County.
    Charles Lynch v. State of Ohio.
    Decided, May Term, 1915.

      Summoning a Grand Juror Under the Wrong Initials — Not Gi'ound for a Plea in Abatement — Description of the Instrument With Which the Crime Was Committed — Testimony of Undivorced Woman Living With Defendant as His Wife May be Received Against Him.

    1. The summoning of a grand juror under the wrong initials is a misnomer only, and is not an irregularity of which advantage may be taken by a plea in abatement.
    2. Under the present rules for pleading in criminal cases, which require reasonable certainty only in an indictment, the fact that the pleader might have been a little more explicit in his statement as to why the instrument alleged to have been used in committing the homicide could not be more fully described, does not constitute ground for quashing the indictment.
    3. Where the woman with whom the defendant was living as his wife at the time of the commission of the crime, is shown to have been previously married to another man who was still living and from whom she had not been divorced, it is competent for the state to call her as a witness against the defendant.

      E. F. O’Neal and E. R. Myer, for plaintiff in error.

      c. F. Ribble and Perry Smith, contra.
    Shields, J.; Powell, J., and Houck, J., concur.
    At the September (1914) term of the Court of Common Pleas of Muskingum County, Ohio, the grand jury of said county returned an indictment against Charles Lynch, the plaintiff in error, charging him in four separate counts with murder in the first degree — in killing John G. Albert. Upon trial had the plaintiff in error was convicted of the crime charged and upon a recommendation of mercy by the jury in its verdict, he was sentenced to the penitentiary for life. For the purpose of having the judgment and proceedings in the court below reviewed upon proceedings in error, a petition in error was filed in this court containing numerous assignments of error, and while not waiving any rights under the various errors assigned therein, the errors discussed and urged upon the attention of this court were: (1) that the court below erred in overruling and dismissing the plea in abatement of the plaintiff in error to said indictment; (2) that said court erred in overruling the motion of the plaintiff in error to quash the first and second counts in said indictment; 3) that said court erred in overruling the demurrer of the plaintiff in error to the first and second counts in said indictment; (4) that said court erred in admitting evidence upon the trial to the prejudice of the plaintiff in error; (5) that said court erred in its charge to the jury; (6) that the verdict of the jury was manifestly against the weight of the evidence and not sustained by sufficient evidence and was contrary to law.
   Taking up the errors alleged in their order, it was contended on behalf of the plaintiff in error that the grand jury presenting said indictment was’not legally constituted: (1) That one J. F. Bell participated in the deliberations of said grand jury as a member thereof when he was not selected or drawn as a grand juror in the manner prescribed by law; (2) that said grand jury was impaneled and sworn before the date set out in said indictment as the date .of the commission of the crime charged, and that therefore defendant did not have an opportunity of making any challenge to the array or-to any one in said grand jury.

In reply to the plea in abatement setting up this alleged irregularity, after making general denial of the claim thus made by the plaintiff in error, the state by its counsel averred therein:

' ‘ That the said J. F. Bell as mentioned and referred to in defendant ’s plea in abatement is and was the same person considered by the jury commissioners of this county at the time they selected names of the jurors for the present year as that indicated and designated by the said commissioners as F. M. Bell of Fourth Ward B., the said jury commissioners then believing that said person’s name to be F. M. Bell instead of J. F. Bell; that the said name F. M. Bell, Fourth Ward B., with others, were by said commissioners selected, written on separate pieces of paper uniform in size, quality and color, placed in the jury wheel and certified to as jurors for the ensuing year.
“That upon the order of this court of common pleas, the clerk in the presence of the sheriff, judge and jury commissioners, after turning the jury wheel several times, drew therefrom the number of names of the persons to serve as grand jurors specified in said order, among which names was F. M. Bell, Fourth Ward B,’ That the clerk forthwith issued to the sheriff a venire facias commanding him to summon the persons whose names were so drawn as aforesaid to attend as grand jurors at the time and place in the order stated.
“That thereupon, on the 15th day of September, 1914, the said sheriff in endeavoring to serve said summons drawn in the name of F. M. Bell as aforesaid, left a true copy thereof at the usual place of residence of the said J. F. Bell, to-wit, at No. 229 Jackson St., Fourth AYard B., Zanesville, Ohio; that the said J. F. Bell appeared in answer to said summons at the time and place named in said order and said summons and answered to the name of F. M. Bell; was impaneled, sworn and charged as a grand juror in and under the name of F. 1C. Bell, and as such served on said grand jury and took part in all the deliberations and consideration of said grand jury, all of which appears of record in the journal of this court, a copy of which record is hereto attached, marked Exhibit A, and made a part hereof.
“That the said J. F. Bell who so served on said grand jury as aforesaid was at said time possessed of the requisite qualifications to act as a juror, and was not selected and drawn as a member of said grand jury in any manner other than as herein set forth.
“That at the time the names of the jurors were selected by the said jury commissioners as aforesaid, and at the time of the service of said summons by said sheriff as aforesaid, there was no other F. M. Bell or J. F. Bell living in said Fourth AYard B.”

Upon a demurrer being filed to the foregoing reply, the court below overruled the same and dismissed said plea in abatement. Under the facts stated, was the action of said court erroneous? The statutes point out the manner in which the drawing, summoning and impaneling of grand jurors shall be conducted. Section 11435 of the General Code provides that:

“A challenge to the array may be made and the whole array set aside by the court when the jury, grand or petit, was not selected, drawn or summoned, or when the officer who executed the venire did not proceed as prescribed by law. But no challenge to the array shall be made or the whole array set aside by the court, by reason of the misnomer of a juror or jurors; but on challenge, a juror or jurors may be set aside by reason of a misnomer in his or their names; but such challenge shall only be made before the jury is impaneled and sworn, and no indictment shall be quashed or verdict set aside for any such irregularity or misnomer if the jurors who formed the same possessed the requisite qualifications to act as jurors.”

Here it appears that J. F. Bell was supposed and believed to be the same Bell whose name was selected by the jury commissioners, and whose name was afterwards drawn from the jury wheel to serve as one of the grand jurors, as appears more fully in the reply to said plea in abatement. Taken all in all, in our judgment, it was a misnomer at best, and the qualifications of J. F. Bell as a grand juror not having been raised or challenged, but who it is not claimed did not have the requisite qualifications to act as such grand juror, said alleged irregularity under the provisions of said Section 11436, General Code, was not such an one, in our judgment, as that the plaintiff in error could avail himself of and thereby defeat the state in its right to further prosecute.

Again, aside from the fact that said plea in abatement seems to rest upon conclusions rather than upon facts stated, can irregularities and defects in the selecting, drawing and impaneling of a grand jury be taken advantage of by a plea in abatement ?

In the case of Ruling v. State, 17 O. S., 583, it is held that—

“It is a good plea in abatement in a criminal case, that one or more of the grand jurors who found the indictment had not the legal qualifications of such grand jurors.
“But mere irregularities in selecting and drawing grand jurors, which do not relate to or affect their personal qualifieations as such, must be taken advantage of, if at all, by challenge for cause, and can not be so pleaded in abatement. ’ ’

The principle laid down in the foregoing ease has since been cited and followed in a number of cases decided by the Supreme Court of this state, among which are the following: 81 O. S., 504-5 ; 70 O. S., 373; 45 O. S., 649.

And in the case of Lindsey v. State, 4 C.C.(N.S.), 409, affirmed' in 69 O. S., 201, which was a case in this district, the court in its opinion held.that—

“The errors complained of as to impaneling the grand' jury are irregularities only, and not objections to any of the panel as to their qualifications. Sections 5162 and 5167, Revised Statutes, provide for the selection, drawing and summoning of grand and petit juries. Mere irregularities in selecting and drawing grand juries, which do not relate to or affect their qualifications' as such, must be taken advantage of, if at all, by challenge for cause, and can not be made grounds to quash the indictment or be pleaded in abatement.
“Technical defects in obtaining and impaneling a grand jury which do not affect the competency of the persons to act, can not properly be made the basis of a motion to quash- the indictment or plea in abatement, but must by express statutory provision be availed of, if at all, by challenge before the jury is impaneled and sworn. ’ ’

And in the ease of McHugh v. State, 42 O. S., 154, in which the array was challenged for misnomer of a grand juror, it was held:

“It not appearing that the officer had acted in bad faith, or that the accused had been injured by the mistake in any of his substantial rights, the error, if any was committed, afforded no ground of reversal.”

And the judge announcing the opinion in said case on page 164 said:

“An indictment can not be held invalid for a defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant on the merits.”

Can it be said that the pláintiff in error was injured or prejudiced in any of his substantial rights by J. F. Bell acting as a grand juror when his qualifications to act as such were not questioned, especially when we consider that the manner of selecting and drawing juries concerns the public rather than the accused ? We do not think so, and we further think that the action of the court below was fully justified in dismissing said plea in abatement and that such action affords no ground of reversible error.

The second error complained of is that the court below erred in over-ruling the motion of the plaintiff in error to quash the first and second grounds of said indictment (said motion to quash the third and fourth counts in said indictment having been sustained). It was contended on behalf of the plaintiff in error that said indictment is indefinite in this, that it does not sufficiently describe the nature and character of the instrument alleged to have been used by the plaintiff in error in causing the death of the said John G-. Albert, thereby failing to apprise the plaintiff in error of the charge he was called upon to meet and defend against. That one charged with crime is entitled to be advised of the nature of such crime is fundamental, but that there are eases in which the state for want of information can not aver with certainty the character of the weapon or instrument used iu the commission of a crime is also well known, and in such case the rules of criminal pleading permit the pleader to describe such weapon or instrument as “with a certain weapon, the name and character of which is to the grand jurors unknown,” or “with a certain instrument, the name and character of which is to the grand jurors unknown.” In the indictment before us perhaps the pleader might have been a little more ex- ■ plicit in stating why the weapon or instrument alleged to have been so used could not have been more fully described, but under the present liberal rules of criminal pleading, reasonable certainty in an indictment only being required, we are of the opinion that said indictment sufficiently describes the crime of murder in the first degree and of the manner in which said crime was committed.

Defects and imperfections which do not prejudice the substantial rights of the accused on the merits do not invalidate the indictment, and we do not think that the substantial rights of the plaintiff in error were prejudiced by any lack of averment in said indictment advising him more fully of the charge made against him.

Entertaining these views we are of the opinion that the court below was right and did not err in overruling said motion to quash said counts in said indictment.

It was also contended that the court below erred in overruling the demurrer of the plaintiff in error to the first and second counts in said indictment. From what has already been said in this opinion it is scarcely necessary to add here that in our judgment the action of said court in overruling said demurrer was proper.

4. It was urged that the court below erred in admitting certain evidence of one Mrs. Frank Brown, as the same appears in the bill of exceptions, commencing on page 245, given upon the trial in behalf of the state against the objection of the plaintiff in error, and to which exceptions were duly taken. It was claimed by the plaintiff in error that the witness was his wife and she was therefore incompetent to testify as a witness against him, while the state denied that the witness was his wife, and even under the assumption that she was, still under the present statute (O. L. Vol. 100, pp. 49-50) fixing the rights of husband and wife to testify, she was competent to testify as a witness as to the whereabouts of the plaintiff in error on a particular occasion, under favor of the special exception made in said statute. That husband and wife are competent witnesses in behalf of each other in a criminal case, and incompetent witnesses against each other, except in certain instances, is fully recognized in this state, the last announcement made by the Supreme Court, perhaps, being in the case of Skate v. Orth, 79 O. S., 130.

This is true as between husband and wife. Here an anomalous situation was presented — the plaintiff in error claiming that he was lawfully married to said witness and that she was at the time of the trial his wife, while she claimed that they were never married and that she was not and is not his wife. Without here reciting the testimony offered on this subject, it is sufficient to say that it is not altogether clear that some form of marriage may have been undertaken by these parties at Newark in 1909, but it is admitted by the plaintiff in error that at the time he ran away with said witness in 1906, she was then living in Union City, Indiana, that she was then a married woman and was then the wife of Frank A. Brown of said city, with whom the plaintiff in error admitted having worked, and was well acquainted with. That he afterward never learned, nor made any effort to ascertain, whether or not the said Brown and his wife were divorced, except what said witness told him about a month before their alleged marriage. In addition to the testimony of said witness denying that she was married to the plaintiff in error and that she was not divorced from her husband, Frank A. Brown, the said Brown also testified that they were married, that they were still man and wife and were not divorced. From the foregoing it appears that the said witness had a lawful husband living from' whom she had not been divorced, at the time she was called on as a witness to testify, and if this is true, the alleged marriage between the plaintiff in error and the witness was not a valid marriage. Underhill on Evidence lays down the rule that:

“The burden of proving that the marriage relation exists between the witness and the accused rests upon the party opposing the competency of the witness, unless a marriage valid or at least apparently valid in all respects is shown to exist at the time the witness is offered, or his or her testimony must be received. It is not enough that the parties, supposing the marriage to be valid, had lived together for years as man and wife and had introduced each other to the world as such. The marriage must be actually and in fact valid, and must have existed in full force and vigor down to the date of the crime alleged.
“The validity of the marriage will be inquired into upon a voir dire examination of the witness and if the relation of husband and Avife is not found to exist, the witness is competent and must be permitted to testify.”

Again, in the case of State v. Rocher, 106 N. W. Rep., 648, it is held:

‘ ‘ There is, of course, a presumption in favor of legality arising from naked proof that a marriage has taken place, but it is a mere presumption of the fact and may be overcome by proof, among other things, that one or both of the parties was incompetent to enter into the marriage relation. Accordingly the presumption must give way at once in the face of proof that the defendant had a former -wife living, undivorced, and his ineompetency to enter into the subsequent marriage is thus established. ’ ’

Following the above authorities, under the proof made that the witness was then the wife of another from whom she had not been divorced, and who was then living, the alleged marriage of the plaintiff in error and the witness could not be and was not á valid marriage, and the witness was therefore competent to testify, and in permitting her to testify, in our opinion, the court below did not commit error.

It was also urged that the court below erred in admitting as evidence upon the trial the certificates issued by the State Security Bank of Zanesville to the said John G. Albert. These certificates are dated January 17, 1914, February 14, 1914, and June 20, 1914, issued by said bank to the said John G. Albert and made payable to him, and were delivered to him as of said dates. In the absence of proof to the contrary, the presumption would be that he retained the possession and was the owner of said certificates until the date of his death. True, the possession of them traced to and found in the possession of the plaintiff in error soon after the crime charged was committed, would not of itself be evidence sufficient to convict him of such crime, but it would be a circumstance for the jury to consider in connection with all the other evidence in the case, including the explanation given, if given, of such possession, and whether satisfactory or not. Jt was argued by the plaintiff in error that possession of these certificates may have been lawfully secured from the said John G. Albert in his lifetime by some other person, and that their possession by the plaintiff in error was therefore not necessarily unlawful, nor was such possession to be regarded as having •any .connection with the crime charged. As stated, the possession of these certificates as a fact or circumstance standing alone might not be an incriminating circumstance or evidence of guilt, but the conduct and declarations of the plaintiff in error in explaining their possession might be, all of which it was the province of the jury to determine. The rights of the plaintiff in error in this respect seem to have been properly guarded and protected in the instructions of the court to the jury in its charge. We find no error upon the part of the trial court in admitting these certificates as evidence upon the trial, nor in the admission of the evidence in relation thereto.

5. One of the specifications of error in said petition in error is that the court below erred in its instructions to the jury. We have carefully examined this charge and find it to be a fair and able exposition of the law applicable to the case. In it the interests of the state and the rights of the accused are alike properly eared for.

In the charge given as well as in the refusal of the court to give certain requests of the plaintiff in error submitted to be given in charge, we .think there was no error.

6. It was argued that the verdict in this case was clearly against the weight of the evidence and not supported by sufficient evidence, and was contrary to law. At the expense of no little time and labor we have carefully read the entire bill of exceptions. This we were led to do because of the important character of the case — important to both the state and the accused. Without stopping to philosophize on the value of human life or the stern demands of the law that one accused of crime shall first be given a fair trial before liberty or life is taken, in the light of this record we can not say that the plaintiff in error has not had the full benefit of this charitable and humane rule of the law. Despite his claim that he was not in the vicinity of the Albert premises on the Sunday evening in question, a reading of the record shows the decided weight of the evidence given upon the trial to be to the contrary. Iiis own admissions show that he was well acquainted with said Albert and was familiar with his premises. It likewise shows that during his visits at the Smithley and Quinn homes in the afternoon of that day his mind seemed to be occupied with matters concerning said Albert, and that in the evening of that day his conduct rvas observed to be both strange and unnatural. This evidence when considered in connection with the undisputed fact that he left his home in Zanesville for Wheeling that night (the night of the murder) without any apparent cause, and in connection with the evidence clearly showing that after reaching Wheeling or Bellaire he soon surrounded himself with ex-convict friends and laid plans with their aid to negotiate and raise money on one of the said certificates of deposit in question, and after having been taken in custody by the authorities, he stealthily sought to conceal his pocket-book containing the other two said certificates of deposit, and then denied having possession of any and all of them, these together with other facts and incriminating circumstances clearly shown, were before the jury and in their solution of them vre do not think their verdict was against the weight of such evidence or contrary to law.

Finding no error in the record prejudicial to the plaintiff in error the judgment of the court of common pleas will be affirmed and the case -is remanded for execution.


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    SETTLEMENT WITH DEBTOR HEIR.
    Circuit Court of Cuyahoga County.
    Augusta C. Lockwood, Augusta L. Whitlesey and Charles H. Whitlesey v. Grant T. Whitlesey, Nellie H. Whitlesey, Augustus M. Weber and The Commercial National Bank of Cleveland.
    Decided, December 2, 1912.

      Inheritance — Action to Quiet Title — Debtor Ileir Does Hot Inherit When His Debt Hxceeds His Distributive Share — Action to Quiet Title Against Claim, of Debtor Heir Maintainable.

    1. A debtor heir, who makes claim for distribution, is required to account to the estate for the debt he owes, the amount he is to receive depending on the accounting, and where his indebtedness to the estate exceeds his distributive share in the estate, he inherits no interest in the real estate.
    2. When the distributive share of a debtor heir is less than the amount which he owes to the estate, an action to quiet title may be maintained by the other heirs to the real estate, to remove any cloud upon the title through the claim of the debtor heir or anyone claiming under him.

      Carpenter, Young & Stocker, for plaintiffs in error.

      Wing, Myler & Turney, contra.
    Marvin, J.; Winch, J., and Niman, J., concur.
    This action was brought by the plaintiffs originally against Grant T. Whitlesey alone, the other defendants having been made such during the pendency of the suit.
   The purpose of the action is to quiet the title of the plaintiffs in certain real estate described in the petition. This real estate was owned by Harriet T. Hanford at the time of her death, which occurred on the 19th day of May, 1910. She died intestate. Her only heirs at law were the plaintiffs and the defendant, Grant T. Whitlesey. The other defendants have no rights in this action except as they obtained the same through Grant T. Whitlesey. But for other facts to be hereinafter stated, the defendant Grant T. Whitlesey would 'have inherited from the said Harriet T. Hanford an undivided one-sixth part of the said real estate, the plaintiffs together inheriting the remaining five-sixths.

The plaintiffs were in possession of all of said real estate at the time the action was brought. When Mrs. Hanford died she left personal property out of which all her debts have been paid, so that the title of the plaintiffs is in nowise affected by any such debts.

At the time of the death of Harriet T. Hanford the defendant Grant T. Whitlesey was indebted to her in the aggregate sum of about $3,500, no part of which has ever been paid. If there be added to the value of the real estate described in the petition the amount of the indebtedness of Grant T. Whitlesey to her, and further added the amount of all her other property after the payment of her debts and the expense of administering her estate, and the amount thus ascertained be divided by 6, it will be found that the indebtedness of said Grant T. Whitlesey to the said decedent is more than his one-sixth part of the entire estate.

Before the death of Harriet T. Hanford said Grant T. Whitlesey filed his petition for adjudication in bankruptcy in the United States District Court of this district, and he was adjudged a bankrupt. He has never, however, been discharged in bankruptcy. His indebtedness to the decedent antedated his adjudication as a bankrupt, but as he was never discharged, that in no wise affects his rights, or the rights of* those claiming under him in this proceeding. And that brings us to the question of whether he inherited any fractional part of this real estate.

He did inherit one-sixth of whatever estate the decedent left, and but for his indebtedness to her this would have given him a good title to an undivided one-sixth of this real estate, but having already received from her, as shown by his indebtedness, more than one-sixth of her estate, he inherited nothing in this real estate. That is the claim of the plaintiffs, and that we hold to be the law.

We have read with great interest the elaborate and learned opinion prepared by the judge of the court of common pleas who heard this case, and who reached a conclusion different from that which we reach, but we are constrained to ho]d that the conclusion reached is not sound. The question is made in the case that the effort on the part of the plaintiffs is to acquire a title to real estate and not to quiet a title which they already have. If what has already been said is true, this contention is not sound. "When Harriet T. Hanford died somebody immediately became the owner of this real estate; somebody immediately had title to it. It is not essential to this proposition that all the facts should have been known at the time of her death which would fix this inherited title in particular persons, but whenever the facts became known which determined who the particular persons are to whom the title descended from the intestate, we then have the means of knowing who was entitled to hold and own this real estate. Those facts have become known and are as hereinbefore stated, that the plaintiffs together became the owners of five-sixths of all the estate which the intestate left, whether personal or real, and that the defendant, Grant T. Whitlesey, became the owner of one-sixth of all that estate, and that the defendant Grant T. Whitlesey had already received more than his one-sixth part of said estate and therefore took no estate in these lands. But the fact that he is an heir at law of the intestate, and that there had not been, prior to the bringing of this suit, any adjudication that his inheritance was all covered by the amount of his indebtedness to the decedent, constituted a cloud upon the title of the plaintiffs, which cloud it is the proper office of a suit to quiet title to remove.

Section 11901, General Code, reads:

"An action may be brought by a person in possession .of real property against any person who claims an estate or interest therein adverse to him, for the purpose of determining such adverse estate or interest. ’ ’

Suppose that Grant T. Whitlesey had brought a suit in partition of these lands, the facts turning out to be such as they are here agreed to. be. He would not have been entitled to a partition, because it would have turned out that he had no ownership in the lands; that he never had any ownership in the lands; not because he was not entitled to one-sixth of the estate of the intestate, but because he had already received that one-sixth; that is, that the indebtedness owing by him to the intestate must be accepted first by him on his fractional part of the entire estate, and since that indebtedness exceeded his entire one-sixth, he had no interest whatever in the real estate.

It would seem entirely unreasonable to say that he should be denied partition on the ground that he had no ownership in the property, and yet, those who have the entire ownership in the property, except only what the defendant "Whitlesey had, might not maintain an action to quiet their title as against him. The court below took the position that upon the death of the intestate Grant T. "Whitlesey became the owner of a one-sixh part of this land, and that this suit was to take from him that title and put it into the plaintiffs. That is not the purpose of the suit. The purpose of the suit is to have it determined that he never had an interest in the lands, and the facts establish that proposition.

Section 8586, General Code, treating of advancements, is in these words:

“If the amount of such advancement equals or exceeds the share of the heir to whom it was made, he shall be excluded from any further part in the division or distribution of the estate.”

In the case of Keever v. Hunter, 62 O. S., 616, the syllabus reads:

“When the lands of an intestate descend to his children, there being no personal estate for distribution, the interest of each child in the lands is subject to his indebtedness to the intestate.”

And in the opinion Judge Shauck uses this language, at pages 618 and 619:

“A proposition necessarily involved in the decision of the circuit court (which was reversed by the Supreme Court in the case now under consideration) is that in a case of this character a son who owes a debt which is payable, at all events occupies a better position than one who has received an advancement which is not payable otherwise than as it may serve to diminish his inheritance. The conclusion does not contribute to the equality of inheritance, which is made, so prominent in the legislation and the decision of this state. It is not important whether, to secure equality in cases of this character, we adopt the doctrine of equitable set-ofil, as has been done by some courts, or, for that purpose, regard the debt as an advancement, as has been done by others. The ground of decision is that it is inequitable and at variance with the policy defined in our statutes to permit one to share in an estate which is diminished by his default and to the prejudice of those whose rights are equal to his.”

Judge Shauck then quotes the following language from Woerner on the Administration of Estates, Section 71:

“The distinction between debts owing by an heir and an advancement made to him by the intestate is sharply drawn; in some states debts so owing can not be deducted from the share of the heir in the real estate, and from the personal estate only by way of set-off, but the true principle seems to be that a debt owing by an heir constitutes part of the assets of the estate, as ■much as that of any other debtor, for which he should account before he can be allowed to receive anything out of the other assets; and it is held so in the United States. ’ ’

To the same effect is the case of Tobias v. Richardson, 5 C.C. (N.S.), 74, which is affirmed without report in 72 O. S., 626. The last clause of the syllabus in the circuit court reads:

“A debtor heir who makes claim for distribution is required to account to the estate for the debt he owes, and the amount he is to receive will depend upon the result of the accounting. If his debt is evidenced by promissory notes, they may, in a suit for partition, be regarded as advancements. ’ ’

We reach the conclusion, therefore, that the plaintiffs are entitled to a decree quieting their title as against all the defendants, and such decree will be entered in the case.


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    CONFORMITY REQUIRED AS TO A^CONDITION FOR APPRAISAL UNDER FIRE INSURANCE POLICIES.
    Circuit Court of Cuyahoga County.
    The Commercial Union Assurance Company, Ltd., of London, England, v. H. M. Weinberger.
    Decided, November 20, 1912.

      Insurance — Performance of Condition as to Appraisal Pre-requisite to Action on Policy.

    Where a policy of fire insurance provides that in case of disagreement as to the amount of loss, the amount shall be determined by arbitration, such provision makes the obtaining of an award, or at least an attempt in good faith to obtain an award, a condition precedent to a right of action on the policy; and in an action upon such policy the burden is upon the insured to show that he has, on his part performed, or offered to perform, the condition as to the appraisal.

      C. W. Fuller and L. R. Canfield, for plaintiff in error.

      Hidy, Klein & Harris, contra.
    Marvin, J.; Winch, J., and Niman, J., concur.
    Weinberger vas plaintiff below and recovered a judgment against the assurance company for loss by fire on goods covered by four policies of insurance issued by the company. The parties plaintiff and defendant are .spoken of in this opinion as they stood in the court below.
   Each policy contained the following clauses:

“In the event of disagreement as to the amount of loss, the same shall, as above provided, be ascertained by two competent and disinterested appraisers, the insured and this company each selecting one, and the two so chosen shall first select a competent and disinterested umpire. The appraisers together shall then estimate and appraise the loss, stating separately sound value and damage, and failing to agree shall submit their difference to the umpire; and the award in writing of any two shall determine the amount of such loss; the parties thereto shall pay the appraiser respectively selected by ■ them and shall bear equally the expenses of the appraisal and umpire.
“No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity, until after full compliance by the insured with all the foregoing requirements.
“This company shall not be held to have waived any provision or condition of this policy, or any forfeiture thereof,' by any requirement, act or proceeding on its part relating to the appraisal or to any examination herein provided for; and the loss shall not become payable until sixty days after the notice, ascertainment, estimate and satisfactory proof of the loss herein required have been received by this company, including an award by appraisers when appraisal has been required. ’ ’

In its answer the defendant set up these clauses and averred that there was a disagreement between the parties as to the amount of loss under each of said policies by reason of said fire, and that there had been no appraisement of the same as required by said policies of insurance.

For a reply the plaintiff denied that there had’been any disagreement between the plaintiff and the defendant as to the amount of such loss by fire, and says that never until the bringing of this suit did the defendant make any objection to the amount claimed, and that never until the filing of its answer did it deny or dispute the amount of loss sustained by reason of the fire, and as shown by the proof of loss filed. lie admits that there has been no appraisal of the amount of the loss, and says that he repeatedly requested the defendant to submit to an appraisement, and that he selected an appraiser to act for him, and that he gave to the defendant the- name of said appraiser, and requested the defendant to' select and name its appraiser, which it refused to select and name, and thereby waived any right to insist upon such appraisement.

An examination of the evidence shows that the plaintiff employed as his agent one E. M. Lee, and he testified in regard to such employment in these words:

“Mr. Lee came out to see me several times; he would like to have my claim to adjust, as he said I did not know how to go about it. lie said he has been an experienced man in that line of business, so 1 let him adjust my claim.”

He was then asked: “You hired Mr. Lee to adjust your claim?” He answered: “Yes, sir.”

He was then asked: ‘ ‘ Now, after that, did you have anything to do with the adjustment of the loss aside from doing whatever Mr. Lee directed you to do?” To which he answered: “Yes, sir.’’

He clearly meant by this, " No, sir, ’ ’ for the next question is: “That is what you did.”

And the answer is: “Whatever Mr. Lee told me, I done.”

And later on in his evidence he was asked: “What did Mr. Lee and the other gentleman do?” (referring here to the representative of the insurance company).

To this he answered: “I don’t know what he done: I turned the whole thing over to Mr. Lee and I didn’t pay any attention to it at all.”

It seems that the man to whom he referred as the other gentleman was Mr. C. F. Barnard, who was employed by the defendant to represent it in the adjustment of the loss had by Mr. Weinberger under the several policies on his stock of goods. He testifies that Mr. Lee came to his office, told him that he had been employed by Weinberger to make up his proofs of loss, as be called them, and render services to this man along these lines, adjusting the loss or making up his claim. He says he made an examination of what remained and an estimate of what had probably been destroyed; that Lee came to him and presented him the proofs of loss, showing the loss to be in the aggregate $5,463. He says that before Mr. Lee presented him with this proof of loss he had numerous talks with him in which he told him that it was perfectly apparent that there was a limited amount of stock and that it could hardly be possible, in his judgment of the ruins and condition of affairs, that there could have been as much in the fire as the goods that were taken out during the fire. He says that when the proofs of loss were brought to him by Mr. Lee he looked over the inventories and then, to quote his words:

“I told him that the amount of loss claimed was, in my opinion, absurd, and in the course of these conversations expressed myself that the loss sustained over and above the stock saved in an undamaged condition could by no means amount to as much as $1,000. I remember using that figure, and stated to him that my judgment perhaps would indicate that it was rather less, than more than that amount.”

He says that in later conversations he had with Lee:

‘ ‘ I told him that I was entirely willing to discuss a compromise settlement if it came to that kind; I believe I went so far as to say that if he wanted to settle the claim inside of $1,000, it might be done. I told him that if he chose to compromise the case on an amount in the neighborhood of $1,000 I might discuss it with him from that standpoint, basing that as the probable amount of the man’s loss.”

He says that he and Lee got together and tried to adjust and fix the amount of the loss. “He said that the proposition of compromise which I made, based upon my judgment of amount, could not and would not be accepted.”

He says that Lee said to him : “Why don’t you have this loss appraised and relieve yourself of the trouble of it.”

I said: “Of course, when the proper time comes and when proper action is taken by these parties, that will be done, for the reason that I have no power, no disposition and no power particularly to waive or set aside the policy conditions along those lines. ’ ’

In answer to a question as to whether Mr. Lee or anybody representing the plaintiff ever suggested an appraisal to him, he said “No,” and in this connection this question was asked him:

“Didn’t he name to you Mr. J. J. Klein, a gentleman living on Buckeye road, as an appraiser of the plaintiff here ? ” To which he answered: “Never heard of the man before; there was no conversation relating to that sort of proposal at all so far as I recollect. ’ ’

He says that after the proofs of loss were filed Mr. Lee stated to him that that ended his connection with the case — the service of these proofs of loss which he did not make upon the company but left at his office. ‘ ‘ lie stated when he left the proofs at my office, that that ended his employment in that ease. Pie stated he had got his money and that ended the case so far. as he was concerned. ’ ’

He stated that he never had any communication with Mr. Weinberger with reference to the matter; never saw him until the time of the trial.

For some reason Mr. Lee was not called as a witness in the case. From the evidence that was produced, it seems perfectly clear that there was a disagreement between Mr. Barnard, the representative of the company, and Mr. Lee, whom the plaintiff says he employed to attend to the entire business for him, as to the amount of this loss; that therefore the provision of the policy to which attention has been called in reference to an appraisement, came into force; that the plaintiff made no effort to have an appraisement, but, as he says, because Lee told him there was nothing for him to do now but to sue, he brought this suit.

We think he brought his suit too soon. He should have given notice for an appraisement under the clause of the policy quoted. Not having done that, he failed to sustain the burden which was upon him. We are not surprised that the trial judge felt, as he expressed in his opinion on the motion for a new trial, that if there was not another tribunal to review the record in the case, the court would feel constrained to grant a new trial. We have read the opinion of the court with decided interest, and with most of it we are in entire accord. We think the reasoning in the opinion clearly shows that a new trial should have been granted, because the verdict was not sustained by the evidence, and not sustained by the evidence because it showed that there was a disagreement between the parties as to the amount of loss, and failed to show that there had been any effort made by the plaintiff to have an arbitration.

That this suit was not maintainable under the facts as shown by the evidence hereinbefore pointed out, is fully sustained by the last utterance on the sirbjeet by the Supreme Court in the case of Graham v. Insurance Co., 75 O. S., 874.

In the policies under consideration in this ease, the same provisions for arbitration appear as in the case before us. and it is held that where disagreement arises as to the amount of the loss, under such policies:

"These policies plainly and definitely make the obtaining of an award or at least'an attempt in good faith to obtain an award, a condition precedent to a right of action on the policy; and it is elementary that the obligation of taking the initiative or of showing an excuse for not doing so, is upon the party who has the affirmative in the action.”

The second paragraph of the syllabus reads:

"In such a policy the words ‘ including an award by appraisers when appraisal is required, ’ do not impose any obligation on the insurer to demand an appraisal; but in the event of a disagreement between the insurer and the insured as to the amount of the loss, an appraisal is required by the terms of the contract, and in a suit on the policy the burden lies upon the insured to show that he has, on his part, performed, or offered to perform, the condition as to the appraisal.”

In this case the evidence, as already pointed out, shows no attempt on the part of the plaintiff to obtain an award, nor is any excuse for failing to do so shown, and the court erred in refusing to direct a verdict for the defendant at the' close of the plaintiff’s evidence, and again in refusing defendant’s motion to direct such verdict at the close of all the evidence, and again in overruling the motion of defendant for a new trial, on the ground that the verdict was against the weight of the evidence.

For these reasons the judgment is reversed and the ease remanded.