author: WILDMAN, J.

text:
    ASSESSORS — MANDAMUS—OFFICE AND OFFICERS.
    [Lucas (6th) Circuit Court,
    June 2, 1908.]
    Parker, Wildman and Kinkade, JJ.
    David T. Davies, Jr., Aud. v. State ex rel. Scherer. William H. Scherer v. Arthur H. Rine et al.
    1. Effect of Failure of Municipal Assessoe to Qualify.
    Failure of an assessor in a municipality to qualify within the period after-election prescribed by law, is deemed a refusal to accept the office, which becomes ipso facto vacant, to be filled by appointment by the county-auditor. i,
    2. Mandamus Does not Lie to Invest De Facto Assessoe with Legal Title.
    A writ of mandamus will not lie at the instance of a mere de facto assessor; to enforce his claims to be invested with evidences of a legal title to-the office.
    3. Injunction is Pkopee Remedy to Pkevent Disturbance of Office.
    Injunction is the proper remedy by a de facto officer to prevent his being; disturbed in the performance of the duties of the office until the legal ‘ title thereto has been determined.
    4. Two De Facto Officers foe One Office Held Impossible.
    Two persons cannot, at the same time, be de facto officers of an office for-which one incumbent only is provided by law.
    5. Deputy County Auditoe cannot Approve Bonds oe Appoint Assistant Assessors.
    Approval of official bonds of assessors and of the appointment of assistant assessors are acts not merely ministerial, hut require the exercise of' judgment and are not within the legal powers of a deputy county auditor.
    [Syllabus by the court.]
    Mandamus. Appeal (Two cases.)
    L. W. Morgan and H. B. Thompson, for Davies and Arthur H. Rine.
    L. W. Wachenheimer, B. W. Johnson and K. A. Flickinger, for-Scherer.
   WILDMAN, J.

The two cases, David T. Davies, Jr. v. State ex rel. William H. Scherer, and the case of William H. Scherer v. Arthur H. Rine will be-disposed of in one opinion. The case of David T. Davies, Jr., as auditor of the county, against the State on relation of Scherer is an error proceeding brought in this court to reverse the judgment of the court below rendered in an application on behalf of Scherer, as relator, for a writ of mandamus to compel Davies as county auditor to approve the-appointment of two persons named by Scherer as assistant assessors,. ■and to deliver to Scherer books and papers pertaining to the office of ■assessor; Mr. Scherer, claiming that he is the assessor of one of the wards or precincts of the city by virtue of his election thereto. The ■other case of Scherer against Bine was instituted in the court below but brought to this court by appeal, and is a suit for an injunction to ■restrain Bine from disturbing Scherer, in the performance of the ■duties of the office as assessor.

We are brought first to a consideration of the question whether or not Scherer, at the time of the institution of these suits, was entitled to claim the office of assessor. He had been duly elected thereto on November 5, 1907, and he attempted to qualify by filing a bond on the nineteenth day of the same month. The statute, Sec. 1518 (Lan. 2995), provides that upon the election of an assessor in any ward or precinct of a municipal corporation, the office shall be considered vacant, in the event of the failure of the person elected to give bond and take the oath of office for one week after his election. By Lan. Rev. Stat. 3025 (B. 1536-3), it is provided:

“When the corporate limits of a city or village become identical with those of a township, all township offices shall be abolished, and the duties thereof shall thereafter be performed by the corresponding officers of the city or village, excepting that justices of the peace and ■constables shall continue to exercise their functions,” etc.

By Rev. Stat. 1739 (Lan. 3251; B. 1536-998), it is provided that certain official bonds in municipalities, including, as we construe the statutes, the bond of the assessor, “shall, upon its approval, be delivered to the city clerk,” who shall file and preserve the same after record. By Rev. Stat. 1738 (Lan. 3249; B. 1536-997), it is provided that such bond shall be approved by the mayor. Bevised Statutes 1718 (B. 1517-1) provides that in municipal corporations divided into wards, an assessor shall be elected in each ward at every annual election. He shall take the same oath, give the same bond and perform the same duties as are provided for township assessors. The section immediately preceding 1517 (Lan. 2994) provides as to the character of the bond to be given by the township assessor, so that the two sections must be read together to determine the duties of the municipal assessor. Be-vised Statutes 1517 and 1518 (Lan. 2994, 2995), to which I have already referred, are carried into the municipal code, and the code has provided for the amount of the bond to be given.

On April 8, 1907, of the year after Scherer’s election, an official •oath was taken by him, and on the thirteenth the city council undertook to pass a resolution approving his bond, and the mayor undertook to approve the act of the council, the bond having been fixed at $1,000. There was never any approval of Scherer’s bond by the mayor. He did nothing, so far as the record discloses to us, but approve the resolution of the council.

By Rev. Stat. 1740 (Lan. 3252; B. 1536-999), it is provided that,

“The council may declare vacant the office of any person elected or appointed to an office, who shall fail to take the oaths required in section 1737 [Lan. 3248; B. 1536-996], or to give any bond required of him, within ten days after he has been notified of his appointment, or election, or obligation to give a new or additional bond, as the case may be.”

This seems to have application to bonds generally, but by the section to which reference has already been made, Rev. Stat. 1518 (Lan. 2995), specific provision is made with reference to assessors, and it is provided, in effect, that as to this office, perhaps because of the need of filling it speedily after the election, the office of assessor shall be considered vacant, without waiting for the council to declare it so. The legislature probably made this enactment in view of the conditions existing, of a legislative character, as to the time of election, when the enactment was made; but they have permitted Rev. Stat. 1518 (Lan. 2995) to remain in force notwithstanding the subsequent changes as to the time of holding municipal elections.

A deputy auditor, Mr. Otto Sanzenbacher, attempted to approve the bond of Scherer, but we are quite clear in our view that the approval of an official bond is an act requiring such judgment of the officer attempting to exercise such approval that it cannot be done by a merely ministerial officer, and we do not think that a deputy auditor is clothed with, the power attempted here to be exercised. The same thing is true as to the appointment of assistants. It is an authority given to the assessor. The assessor names the assistants, and the. appointment is to be exercised or approved by the auditor, and it is a power which he could not delegate to another.

Now, coming directly to the question based upon the legislative •enactments to which I have referred, and the view which I have expressed as that of the court, whether or not Mr. Scherer, at the time of the institution of these proceedings, was the legally appointed and qualified assessor, or/in other words, whether he was the de jure officer, I desire to cite certain authorities which seem to me decisive of the question. I have before me the ease of the State v. Matheny, 7 Kan. 327, in which it is held that the failure of a county clerk-elect to áfiPlfiS teWoSffldaa^Wná^Mto^iieljgéftKífyS'Éeagufei- %$fcafiP«SBai# áSysom¥ÍItKéíícó5tómíenfém'í^|3M0t¿m>^fbF>’wafi%K£®í%a§Wel%m&a; VífcaBSs Wéss íñdsiaté^Fmmk^'mmr' qaoapí® 514], decided in 1905. it was held: .iioxxuoo mif io xioif

. ap-Ipbmt'éd rit5:,íSí{y ídífic^3 &Tfi§P fié^ébr-tN h^V-his ’-miPíTOS^^éeuted á^íPSVda^fig pfftüM ^iaw/^áddídfileaw'fóV <*fed^<£9fci«íifi[»tlfc fea^dlffii|OT4)^ff'ñi^T?á'8t,0'Íiis0oáfe!e8-ábíSÍ tfié*8^-<l¡ps0 0U ^éígáa^^figfcfffil^0 gféktpd áf^'bb’hdiftóohfif^tféy&'ém dtoVthp ri^hf^h^WdN^fcéd! oY^pífbiñféd td b^&dábfed'a>at6'«bÜ6'fe,,io

This is the decision court, two dQStV^Ké5 lóVrtH[^áMgPafEneí fheffe'yllabiiglfePVRd of tim-m mlT

tís^Ee--Wciapcb(ñíd?«#Mefl?á f^írdd/Tá^Tdd^WiMíñ'lthd^M boon-: r' ' ' ....... ■ . pro vi... -uoí) sd_ »?Jr# 9as. e ni_„ _ _„ . .. .... ¡Ioob oí ixoxxnoo sxíf ioi gmíisw ínoxiír/f tfn.so.sv b9'£obia

._„.._ , ., „ ¡cause of the con-- „- oiJootó lo 9hii^ sjdUr op- as tiafoB%Bxío ovxfBfern ilj!0,;yie cppqnent in the opinion upon other e; ■ftinroc^ 9VBÍ1 Y9uf bjcT, ; obBux^aBw ffipxrcto&ao felí*? collated on page 11C 8B saanBño fnaupsaana ■ the for t 'lumeroús cases are cited,, ana tpe puc „ If §nxbxiBfgnfiwion so-xol nx uxinriea of m-8G2

, • .saoxfaeLg lBqioxxinm. mumacLip . ie seen that the0ovetay-helming.weight,o_ , JS ti9noBaxi9siiB« óffu .xxlVT /rofrims yincrab A,, , „jl less mandatory than our own is to the Wect that, ano ux vjsslo.pjxnp nan sw ind .xaionoS lo nnop air1 9voaqqff oTMA rgi## ... . _jhht ?Foenars,_ MB ^ «ffiSurt « $it$B fcx# ÍI» Jgjf M&i$* offlce’1 a^-rtl»t, th (Lan xe Oil— -- a of ax ixiexnlxixoqqB 9XÍ xiaxxiw xr9v«x _ . ioixtw __

evifaJ^i^saPmir ■■vMW obj _ . __ .ce of.whom :T. all iKe’duties j9j stiSi^»81 srp srtj of vifoxmD srnxnoa, irevious to the performance of qx; .Dsxraslex. oven 1 Hoiif//, of, cfít9tíífo.Bnn ais office, who .refuses or neglects,to give such Oort lo’ismamr .rxsmo axil. io.,d.sdi as hossom, eurj-ty. agreeably to, and within the time .rot that . 9ufJáB7r Jg&xnsaodidsasxlt, io xioxfpfxfaxn oai lo «urpose nféscEibed' byvTawi, apa in ¿11 respects, to qualify himself tor -H10 «toLÍB 9Xfí 8BW SXÍ !I9Xff9XÍW ,&OS 29XUO 111 JO^.'XOaaOgaB BsxllfsrjD rASTio *aj& w%%s"e4S'*«» ;AtP Ssse ‘ cffiSLdered. vaqank and, be^Meft, ^^PJoyided bj^lay. ^

section m 1518 (Lan. 2995), referring specifically to the .slfice.pfo a^esgpr. In bB§&9£&W8 $B dBíñ^^iSlaáOi^fo iiíffifW which is to be drawn from the refusal or neglect of the asg^§^50|p' '%£ÍP%ii;P¿xÍ¥ Rev- -$$• 9l#§.o(^b ,ít«ic§lr W#ñf% BMÍd§Ste* to the asses^s^f,^ ft61ffÍ£í]l&fflÍyftftefefícffr^aa;íílifil fifebifeMffi3' áSfr5^so i%toa w/ ■> Tak-WiiMatesp SíA^oMaif^kk^ñf^^^á^^oYiife-Jffib%ay“§oftH# áfflt % m§m? SF^fánfe^oíTFmxferPB^BÍi®1 ¡Efe* rfifa^tí»D?p^Stí ‘ fe SMJ[ kfcWiáftT6§9y(Mf^/^M1%^%BTl'rfl?ÍW Wñí^B°&ceT§> the council may decli^gHc^y^gn^^ggijQo^qsi^gi^ic^^. jfiffl^qBSiE^SfÜ°ío%)iifiíg65fe ^PSriftPWfr ^Jffdent a® ?B^o^lS£W-^®¿0p*'£ífee8‘fflf^- .saco odf ni 9viaio9b arcma

Sa-iji93S1f(SlEFemc5<B^fPlr%^t£^aOlB4rteE©Mp>9fflto^Tb^0F<159^i7 xA^fe- ¡^feitas9fMe<l9$?8Í i%tfelgj^¥s <# scribed by the statute, the J^i^ro &p Jqrf^tfye' ^OTí%g> $£a Wo4íFJPrds-' I cite this case because of the attempt^Ki^dg feT^c^^r)¡¡f£f£r3^^)§g~ piration, of. the time allowed, by law for Jhis qualifying' to’ taire ..the oath .nQtJROmfaiiu imodiivf ,alLBx piTsng xo-sonío átíí qrbomsla oao LF\. otaouiee and hie the!bbnd.r obtaining the approyal oidlm. deputy auditor. i9i±e izan yiMruBL io WBbaoMjara odi sholod nnod iBiomomB. avis oí After, the office has. become vacant, ^and after the conclusive. pre-9xEf flomw 90IUO 9ifi m. yaaBOBy. s .yin ±bHF,no uiuodo ai9íff,.no£Í.o9Í9 uid, sumption has been, raised,of ms intention rto decline the office, it would. ,, , ,, . .ín9iníiiiodqB,ycrnit biuoda araaoiaaimmcrq „ytrinqo .seem that there is no power.In. Mb, Scherer to .restore himselOo the bortqqB ot»stoo is» asw noiaioñb 9df pub ,93B9 fsnf m hmoo sdT oafief)m/,&b?£Sotb1 A^oiifw.us J) 81 .íbíS .vofl lo aolqionhq 9df

l§°S¥jSíi®.g9A^<í>5ll®5díW-9ídfi)il;fel. ftfS .?iBffl3e^P&Bíá aFdissitag^gjp^^h^^lie^sipo^lfe totfep l&^gd^éfeMSlfc^ yÍenPM)feaí^i&®^ja&%6Ígí8fr[áfe fmíS¡, fa#ife§is§:§já§gg,l®yii9is £&1* ,Sffe«!ifiJlaalfflgélle'íMji<a¥e^mí|a^,><qppIpispjJíjia|h^.Jgggsq§t efMe.iefíaoPagg ÍK)18®b§Ml) $ -á&^#§latMi]3Sytfe ¿ejsrtMB# Í¡ÍJn§3T -bs dbn6b§iáf|§4 (¿íMiárMSMSrlgfMsrgdfeo ;g¿YP 1®^ (ggJ^-t^Tj^h of office, on or before the first day of the term, involves a more serious •question.”

Then the statute is quoted, which says that upon such failure the office shall be held to be vacant, and makes it the duty'of the commissioners to fill it by appointment; and Judge "Welch says:

“I suppose the true construction of this statute to be, that upon such failure to give bond and take the oath, the office ipso facto becomes vacant, without any resolution of the commissioners to that ■ effect, and without the appointment of anyone to the office, and that the treasurer elect in such case is liable at any time thereafter to be ousted from the office by a proceeding on the part of the public, or •of an appointee. It seems to us, however, that the treasurer and his .•sureties are estopped from setting up this defense.”

Here we have by this dictum a recognition of the principle which seems decisive in the present case, where no question of estoppel has been raised, where the public has not been injured, and is not seeking to protect its rights as against a defective officer or the sureties upon bis bond. A dictum to similar effect appears in the opinion in State v. Hopkins, 10 Ohio St. 511, quid vide.

A more decisive ease is that of State v. Commissioners, 61 Ohio St. 560 [56 N. E. Rep. 473], holding:

“If one elected to the office of sheriff fails, without justification, to give an official bond before the first Monday of January next after bis election, there occurs on that day a vacancy in the office which the county commissioners should fill by appointment.”

The court in that case, and the decision was per curiam, applied the principles of Rev. Stat. 19 (Lan. 24), which I have read, and also Rev. Stat. 1203 and 1205 (Lan. 2568, 2570), considering this general rsection, Rev. Stat. 19 (Lan. 24), applicable to the case of the failure of a sheriff to qualify, although there were specific provisions for his qualification, just as in the present case we have specific provisions for the qualification of an assessor, and as to the effect of his failure to .qualify within the time provided. Revised Statutes 1203 (Lan. 2568) of the sheriff act provided that “The sheriff or coroner shall, within ten days after receiving their commissions and before the first Monday of January next after their election, give bond to the state, with two or more sureties approved by the county commissioners;” and Rev. Stat. 1205 (Lan. 2570) provided that “If the sheriff or coroner fails to give bond, within the time above specified, or fails to give additional sureties on his bond, or a new bond, within ten days after he has received written notice that the county commissioners require such additional sureties or new bond, then said commissioners shall declare the' office of snch sheriff or coroner vacant; and said office shall thereupon be filled as provided by law.” It will be noted that, although there' was the provision, quoted as to the declaring of the office vacant by the' commissioners, the syllabus of the case holds that the office, on the very' day when the bond should have been filed, became vacant.

Without considering for the time being the question whether the appointment of Eine by the auditor made him the de jure officer, it cannot be held that Scherer became a de jure officer merely by virtue of his election and his attempted qualification in the April after such election.

The question remains, and has seemed to us one of vital consequence in the case, whether a merely de facto officer can maintain a proceeding in mandamus to compel the recognition of any rights in¡' him as an officer, and an examination of the authorities and a consideration of the principles involved lead our minds to the conclusion at which we have unanimously arrived, that a de facto officer does not possess the same rights as to maintenance of proceedings for man--damus that are held by an officer de jure.

The ease of Harris, Ex Parte, 52 Ala. 87 [23 Am. Rep. 559], holds:

“Mandamus is not the proper remedy to try the right to a public office of which there is a de facto incumbent. Nor will it lie in any case to compel the performance of duty or exercise of power, unless the relator has a clear legal right to demand it, and is without any other ' adequate and specific remedy.”

On the question as to the right of a mere de facto officer, to maintain mandamus, I invite attention to the definition of the expression-“officer ck facto” as found in Mechem, Pub. Off. (1890 ed.) Sec. 317, I will not'stop to read, but in one of the paragraphs of the section it is - said:

“Thus if the title of the assumed officer be directly assailed by the state, in a proper proceeding, it will be necessary for him to show' himself something more than an officer in fact. So in a direct pro-eeeding brought by the assumed officer himself to secure rights which-belong only to an officer de jure, it may be necessary for him to show himself to be such.”

Now is not'that the present case? Here is a persón who claims'to be performing some of the functions of an officer, in other wordsyf to be an assessor de facto. He says that he was to a certain extents recognized by the auditor at one time as an assessor; that he cam© into possession of some of the necessary blanks or papers, and that he inspected or viewed at one time certain structures, and that he tsáÉ astefe^l Ií^ds^0tin@fa®b,'en:|feoP8ata3t5ie,Í0fficfe.w9aIffio oritefíte tofeqf feiMbiíI-HÉdss&ísaíáBiglMws ;teJ3b€¿ng:9aocfooii£r®:{)ffiáarfíáífé ágBb&Ü% g@txíjthbjíJffi0Í6Í£tí©#ebMeffceBl olitósíMgh'tvtQl thef Éffisáro'xljlufe tbafífís gáf MMydffetifeatáiia efíotiite'^átieÍDaíiegfiMmft ájfe i&gfiobiihgo;Wwis3f%íS£ áb# í^eyee4ligcáHOfifí’azLelámt{sito3EIí»iñg8!tio Máalo IMulíustado ta1raK)i8si&a©b proceeding iiMhssmgetoBesdE tip!at wcaBilantoyloblijEDrfeoAaodtfe®- w&yw dfe .Bili®l5íbt'is$¿i(Éfeítit3)éitodp©^ff@HÍdir9íitl^ áfiltad^s^ffimbianoo íjjoxííxW

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S¿h¿ftift2taS?íicíl?sfe5^vliñ£tóbl^^t¿>itlife ^^"‘á^sSb^^SflQj5 ?áe0bfii| t^át^ífe'^fo^Jédte^ífi^áffiáiíiías'^Sl'dííft lí^Í-!d;rídViíwWbíí^:''v^0cP'ísi'ti.%í ááSE/'ffi&í fÍ¿ -^v'írt “MbuícJ besféíá§dd?^rj4í\ír £jláílfÍQeift^ferj'§tfé5ígtíe¿!Sá St>yaeív^ífelr%f:Blh8afá!^ fihlit' liÜ{sáLf-i;!h.áátBídSb'§iii2@^5í[ñd)4l K(i'Sgá?Mn|7'Bai?cííbS?;)^@íi8íffíHatlféi0ál JS^fás^ábNCfeá^-^fir^Mí^tiíiíé o!f? l^&ífení^fSP^WiSft'^'iséíál^, WiÉ 4¡S$srí>j|K'feiÍ ÜffiSffiiiíé TOSk^I?.S9^:i5:^peíbw¿e^láíiff§9íí?£¥¿e^r6'ffi^'<'bfnS^in)^tI'éi:£(?S’á'S'íWr^(íffll^b on a parallel with that suggested by MdB£®8P,B'MíT ^fdére^tFfe s&M ttíSlf¥ífef8)§aifflS£I4@JlW& (Míe^#, cffife7Í2afaé¥69ánd'ó>ñe de ^^e/Srtlcií^sáíélfítóe^heflW^'^r; j^e^ófesá* teéííáiolf! ^Élj%o%íá s<3femr%}at üí tli>^>Íi?i%iiffiií?|n6¥li:IÍiesl!^f)r6teSllbg^,orno ^ífeífe 'Mat 'feá^l f^pp^ñridrbefSffi{®éh§ffer,%al>l?6:i:íMíS%e^|Wí%v§ffibeF?h%n1®?ifet,o0iáfeíS ífeFsay, ¿fe 'WaS^ítí5!^^ feii!$?|píHaff%lí£ffe •ÍHlfí^á§cy!orffi(íb'y^ÍB.<%í®sfeá®,áñl'(:bS ffléc appaieíí:t'‘^iSÍnefe(lof^aiíí'íñ§8i!8?L1l5eÍfc^' dbáb^&^RS^ afiel %0# tfeft írfeaáólüf ri2t'-Sd3;itl6íiF;to WÍ)^ '^lrete^S-ííg^sí e?^ W '^6ftÍÍ!5Eslébíí'í®)%f3'áía® ?ffiaus->ívía^ciffl?1aíipPSpe1? '^Wfe?dte&^:)ío9d4tte‘riS&^I^lfiSl?J¿í hWz 1^S3iñáa ^bPeffilftiecf W Bffiáe? ^¿áíii^^ís ^fíiofeáddalí^ il>£Sít:,'S§af^s^RTnéíp£ítíISrÍi6í siriHr$ícl MU^yiifffy^fiudfebr'^^itf <ñd£'la^?t¿i:<yí£:fe5iife3S^Si9biá d@-Krnífted^iffíB.F niífifáafifíjís ^rfe^fem£í^)Jái^-iM#4h§vfe,uSff8§7'Gí^0

ing to be at least an officer de facto, and asking that he be not disturbed in the exercise of the duties of his office, it may be repeated that such application must be made because of the danger to the public, rather than because of any deprivation of benefit to himself. It is because, if he is disturbed in the performance of his duties while he is the one de facto officer, the public will be injured. When the case was first presented to us, and upon the showing then made and citation of authorities, and such examination as we were able to give to them, we concluded that, while the testimony was somewhat meager and vague in support of the claim of Scherer that he was a de facto officer, still there was enough to justify his claim, and we were disposed to grant the injunction. But much light has been given to us in the rediseussion of the case in connection with the presentation of the mandamus proceeding. It is not that new evidence has been offered, but we have had time to give to the whole matter more careful consideration, and it has been brought more clearly to our minds that no interest of the public can be subserved by preventing Bine from going on and performing the duties which are imposed upon him by the appointment. It is now made probable as between Scherer and Bine, who are both parties to the injunction suit, that Bine is the officer de jure as well as de facto. He was appointed, as the statute requires, by the auditor. He was appointed after the office had become vacant by reason of the failure of Scherer to qualify; and Bine was not appointed by a deputy, but by the auditor, as the statute requires. He has filed his bond with the auditor pursuant to a like requirement; he has, so far as appears, qualified regularly, and under those circumstances we are not now disposed to prevent him from performing the duties of the office, and thereby increasing the entanglement between these two gentlemen who are-both claiming to be assessors.

We have arrived at the unanimous conclusion, not only that the writ of mandamus should be refused, as already stated, but that we should not grant the injunction asked by Scherer. The contrary view previously announced in the injunction suit has not been embodied in any entry on the docket of the court or the journal, and for this reason it is not necessary to put the present decision in the form of setting aside a judgment. We have simply reconsidered the case, and the judgment of the court will be as an original one. The injunction will be refused and the petition of the plaintiff dismissed. On the cross petition of Bine, which asks an injunction against Scherer of like character, we have concluded that the facts warrant us in granting it and the judgment will be entered accordingly.


source: Caselaw Access Project

author: SMITH, J.

license: Public Domain

text:
    BONDS.
    [Hamilton (1st) Circuit Court,
    June 22, 1907.]
    Swing, Giffen and Smith, JJ.
    Edward Dienst et al. v. Fischmann Loan & Bldg. Co.
    SUBBOGATION OR BUILDING ASSOCIATION AGAINST GENERAL CREDITORS.
    A building association through the negligence of its attorney loaned $1,000‘ to one holding a defective title to the property upon which he gave 'a mortgage to secure the loan. The mortgagor died. The proceeds of the' loan could not be traced to his creditors, but were probably used by the widow in satisfaction of her allowance of $1,500 for the first year’s support of herself and minor children. The attorney moved out of the jurisdiction and in the present suit on his bond service could not be obtained upon him: Held,,

    (1) In an action on a bond which is in the nature of a joint obligation, the fact that one of the obligors could not be served with summons because not within the jurisdiction of the court does not prevent the taking of judgment against obligors who are within, the jurisdiction.
    [For other cases in point, see 2 Cyc. Dig., “Bonds,” §§ 834-847. — Ed.]
    (2) The building association was without remedy on its mortgage by way of subrogation against the general creditors, of the mortgagor or the first year’s allowance to the widow.
    [For other eases in point, see 2 Cyc. Dig., “Bonds,” §§ 1110-1116; 7 Cyc. Dig., “Subrogation,” §§ 8-23. — Ed.]
    (3) The attorney having knowledge of the mistake which he had made,, notice to him or his bondsmen of the loss the building association had sustained was not necessary, and laches or estoppel cannot be pleaded, in their behalf.
    [Syllabus approved by the court.]
    Error to Hamilton common pleas court.
    G. C. Wilson, Boyce & Boyd and M. C. Slutes, for plaintiff in error.
    E. A. Hafner and Robertson & Buchwálter, for defendant in error.
   SMITH, J.

Upon an examination of tbe testimony in this ease, and the finding of facts and conclusions of law of the trial eourt, we are of opinion that, the record establishes the negligence of Edward Dienst in not reporting-to the Fisehmann Loan & Building Company the true state of the title of the property on which it made its loan on Blue Bock street. As an attorney at law-he held himself out as capable of examining titles to real estate in this county, and the omission on his part to report the correct status of the property under the administration of the probate court is an omission for which he cannot be' excused. This being so, can his bondsmen be relieved from payment of the loss to the building association ?

First. Because the court to enter judgment against the bouSSMénSfosnfelle.reassntitiíalOtlíSalSriíiaeSi^ljíienst, was not served with a

Second. Because the building association should have resorted to general cre^gf^g SO&al&g appr|iiB013S;ofop9iiihignwidi)wriSorflg'H’;§iIlP%jO dsiroixíí xioiisiooaaB srriMmcT A s .^•ThMlA’-édeáííiéW fflé!'Mí$tdifífe (hsá’¿dia'M.'SM.3íis5resfoS#é'dpib30tipeaéon of i)oi lo a.tiosoo'ici oriT X*cc]> ■xoívwjíiOjch sríT .xsaol eiü sívsoa oi ogoaí'ionr '{Mí'AÍCAU 91W .¡1KÍ ,™:0Í1Í>9'¿0 ahí oJ booiíii ©cí ion bíj/oo JXJSOl So, v-w- . .»■«»• vi v v, v-».-»v> v-lívc_<v .. ai» UWW^A.u&llUI," such obligors as were found within the juriMictioMií&fothRfífielRítfowhere .effii*^á^brBüSíhfl fibtWitMtán&jBg^áb sbhfd'dfhgr'tjbifíi^bligbf1 waéNvith-rfiíoiHniua. íiJ.ivr. .a?iyv>a cu Too JFo&Bj-.v.iido odl lo.,ono :¡r.rU °asl oiíci •out foto qufngsáic&oft, aadoCopldidiQjbbei

Catherine Holbrook by will all his real personal propgptyn'^Jjqíj¿' doing this she received every asset of every kind belonging to the estate, and •there can be no doubt but that this suáíIwÍse4ledtíb§9B.%¥Ií6rsÍ{®ísí^lport and that of her minor

We do not think the building association is guilty of laches. Notice ü<5 Mríífáffcforcoiisal©a® mSh.iff ítass fossifSi áah®ol^Mi^sásWeiáSÍQ8? was not necessary. Dienst himself knew of the mistake he had made moth® .@iaffíhfatl3nJ3oficñie,*!taííl^wuMigb Sate5fetehíía5hebksAeiaí^a®ín$A another lot for a second lo.an. It was his negligence that caused the loss, £©4# was his duty and that of his bondsmen in the first instance. to protect ■themselves, if possible,, by perhaps paying off the mortgage -ifo •SiationN£aSd%ÍFen9|f3rlMn|t)tSS9í%mád^fc^:owS^:teIM0f%Sfio®]<i¥ such a?' rem$ffyqtíí§t!&? 9W d^oo íbíií 9di lo wsl lo anoiarrlonoo ban aiosi lo §niiijqM Ion bxBvrbH lo aono;giíg9n edi aodáiídalas biooai oáí üllil 9JD& f^áÍBÍa acral o/íí yaaqmoO -gniblina $> ncoil nncxmíoaiT orfl oi iib gxfw.lR,§’iM1§9wFf”l£r*f.f6 SBM^Ti 9bBía li doirlw no ydiaqoiq odi lo ffisr oi 89Üii gnininiBX9 lo eJckqBO as icro iÍ9arnid bíoxí 91Í wbí Ib yonioiis 1091108 9XÍÍ iioq9i oi diBq aid no noiaaimo o¿ít bns tyinnoo ardí ni sisias ai lirroo aifidoiq 9di lo noiiBiíainimbB 9di isbnn ylieqoiq 9di lo anisia b9xxrxoÍT9q od oí írsq tísxíí no garxííi£T9V9 oxrob 9vbxí xoíí & T9ÍÍ3xroPI ísxíí xo'í S> loííaxroíl bisa oí ísxíí *io ¿tesiírioo bisa Traborr ío Tgysiq oxíí xri s[iHaiplilitrdn,xílstjrfiCflTLuiítxCo.urfc, 11907aji ofa ío rrxxxa egiBÍ s

Swing, Giffen and SnHffiblJ?3^ «■" *ob liíxxrsíq sxfí xííod io Imí exíí lo'í eírsW .Ítuxoamol/Lpí berreloa; axrxx oaxxco oríT r r, Moores, Lime Co. v. NItioNal Chemicáj, Co. bt al, . r. b9T9bio asw 99T9Í9'xntsa brío ,o'£9'i9xlí Síitanr» tost bus wní ío sonaai exíí 1. 5irl ,.íuqTX oj *« sxrb ggíHiíiSibiS £p»i\bhB&p3,xfaéfltf;aí9dt£>9íeH^nu!]debw.0r¿hsMaa0ti(ahrcígafe) tüeí 03.88í*j& te^gh^g^ítMjfexíé8^»* miuájk . the qxcegs goes beyond the original consideration. b9iíxíxi9 ai irríxtrsiq axil ínuonui doixívx ,&DGÍ ,31 viub xixoii iaoToíxii xíírw ’2. Amendment to Conform to the Proof and .Opinion.

If in an action on such quantum, -gbxxipíatt£tiffi'tbjreísa«extandhe ihan)stheifetip&lted£'#iicE9 toy torete i&tfilhded ~0r»,rtoJib.e RKOflf,r9.lldr,OBilli' -qs JTtnWí/^íiroTO .itfinisia arfimiLaTqbHS-x te)Hi \ [For other cases m point, §ee 6 Cyc. Dig., “Pleadings, ¶§ 1082-1091. — Dd.T aai io ítoxjot aiii xtoqix bolíríndiia ai bus íboíiíjoiío exíí y;d iegq

C. M. Leslie, for plaintijfq ^([ f^sorí oouabivo exit 'gxirbxiiarti ,.90T9Í9'X oiíf ^éf^fexP^fflffi^ifPv^offiíig^áWÍSqn aosiie £ioiíri9ítio‘) Igixío oxíT

<3IFFEN, J. - : 99T9Í9T

Cfíféidícl,Ii€Éa^áiíyíiaifáifeM>fi¥iií>aDfTfib«feñ®5 &>400i, giéirffer.eaififattt» vkrifr ■ots'>-#rfg(Mñ«ráifa^vl^bteo eoheafet^ak'dif a^fegffigntes^th) feá&h 9«aaiísfc-%r #teWIíbe9ÍéfMdffñÍÉ,t3ffi5>aá'tférf'& .•pasfaagfttd" feífi&oaíid'íiatis^íto VeJ ■d)60e^,&^ítfifii>’':i:wíSrBIí:küd,r todSi'&M'^iffeffltísb^ieéétífitóiAsaftefecaib lia x&Mdr áBéfeí %&€0tÍ8eWi$«»g@a^M«^>ií(f Ato deíÉndáííf, fSeONatífetíMIoCWm'ib'áíl '■&ófffpste&? imílíbéi? TsifáiffiíSSjO&nds'íthfet ■¿Td'i<3S!ráMio2LMl^íZfliáfíife%fJÍCbñl1i)'á-tí3i -agreed rtofipvayíisaS;d ’SitBstlsr T&qEoxí ifeferfeíSí* IfliiP’grfá'§f3§;i9^iiíái£éd in's’sáid’eoWtha'fetg'aaSi'aí Hg^Éenfeá©;Vibthafi; oifeíKP^ te$e dbne'év^ry-thtóg ofi théfr-ipssetí t©3JMdd<3igitftl«i der said eontradfeI%^<í^4'fdeS¿érifsi;'-fhírt+ áúl&rgb 'sixMAi^iliudiitliideciaKte ^.Mt';tíKÍistl>eBIS^Ffc[fí; ‘bbaD'i't 'H6Ms;1tWOfdííS itídhe<+gbteii@£íi$&i;5Btf.45, ¥^%ibdla#áí'óífMeií-#ÍFSz'--xip0ñ rfbebsaíd^NáifflbííSi^MMaáir €8881|&1]$‡ ■v^Ei(3P'(fbté''bbei¡ñ§eáii-iíóMptoy-i?efiiges"tfc'pa5»|5 alid pirajysvx&Siij atféMfetiíi^^éty^líNb'é^áSíd^gl'éiHÍeál "édiiípálS^ áa¿>TsajdqH>éuÉt!te tlf^sáid^eiSiifáál^b'óñiíítóy'b&^erclef'e'dr t'd>> iSayíMeipíbifiStifb the amount of said orders out of any balance found due to Iíoustí&O© ]?8?. ^ TsIiaxxoII ísxíí bobivoxq tS0GÍ t4I lodoíoO io íobtíxcod oxiT exíí ípj& %ffnd^ü^0H'ó®tí# IMtóitrltMi^íl^&titaífe §fí^^x|Je^^g'0'iq íos'xjuo.9 exíí io í'xsq s abfinx 9T9W xíoiiíw axxoíís9&io9qa s^BqrM^Mlaif^héÉBMlWí^aíí^íaihitecfhailfoitgíinMBgdráisteTe^ fMíf^#itIdril^ÉRFf&SEÍoS:i'tfí3Íabí%©i?tfífe.;^^§aM9fe) «tnasMe másM that Houstler & Fox have done everything on their part to be performed under said contract, or that there remains due to said Houstler & Fox a large sum of money or any sum of' money, and joins in the prayer of the plaintiff for an accounting.

The cause was referred to Morrison R. Waite for the trial of both the issues of law and fact arising therein, and said referee was ordered to report his findings and decision to the court of common pleas.

Trial was had before the referee, the evidence reported in full, and his conclusions of fact and law stated separately, showing a balance due from the National Chemical Company to Houstler & Fox of $1,438.60 with interest from July 16, 1903, which amount the plaintiff is entitled to recover on its orders aforesaid.

This report was confirmed by the court of common pleas and judgment rendered for the plaintiff. The cause comes into this court on appeal by the chemical company and is submitted upon the report of the' referee, including the evidence heard by him.

The chief contention arises upon the following finding made by the referee:

“After the making of said contract of October 14; 1902, for the-work on the refining house, and before commencing said work and after-wards, the said contract was, by mutual agreement of the parties there-, to, materially modified with respect to the execution of the concrete-work on said refining house, and it was agreed by the parties that the-said chemical company should pay for the work on said building what, it was reasonably worth. Said work was reasonably worth eight dol-. lars per yard for the first and second stories and nine dollars per yard-for the third story measured in the wall. Said'concrete work in said refining house measured in the wall in the first and second stories;, amounted to 453 yards and in the third story 246 yards.”

It is manifest, from the present state of the pleadings, admitting-, that the work was to be done at a stipulated price, that the claim is not. proved in its general scope and meaning by evidence of an agree-, ment to pay what the work was reasonably worth, which should be-deemed a failure of proof within the meaning of Rev. Stat. 5296 (Lan. 8808).

The contract of October 14, 1902, provided that Houstler & Fox should receive five dollars per cubic yard for the concrete .work and the specifications which were made a part of the contract provided that the-concrete should be one part cement, three parts sand and four parts, broken stone or clean gravel; all material to be furnished by the contractor. The material modification of the contract consisted in changing the mixture to one part of cement and six parts of sand and gravel-'The proof shows that the change was made by direction of the chemical company; that it made a better wall, and cost the contractors more money than a mixture of one to seven of sand and gravel and still more than a mixture of one to seven of sand and broken stone. It is contended, however, by the chemical company that the specifications gave it the option of either broken stone or gravel, but we think not, as this provision was made for the benefit of the contractors and that the choice of material could be exercised by them alone.

The other modifications of the contract, such as mixing the materials in a machine instead of by hand upon a board platform, are of minor importance and the question is; whether the change of mixture was such ,a deviation from the contract as would abrogate it, and permit a recovery of what the entire work was reasonably worth. We think not, as the general plan of the building as well as the character of the work to be performed remained the same, the only change being in the material used and the manner of mixing it, which resulted in the use of more cement and required moré labor, for which the contractors should be allowed what they were reasonably worth.

The rule is stated in Robson v. Godfrey, 1 Holt’s 236, as follows:

“Where work is done upon a special contract, and for estimated prices, and there is a deviation from the original plan by the consent of the parties, the estimate is not excluded, but is to be the rule of payment, as far as the special contract can be traced; and for any excess beyond it, the.party is entitled to his ‘quantum, meruit.’ ”

The testimony in this case shows that a mixture of a cubic yard of material composed of one part cement, three parts sand and four parts broken stone would lay twenty-five cubic feet in the wall, and that the same amount of material composed of one part cement and six parts sand and gravel would measure in the wall only sixteen and two-thirds feet, and would require nine-fourteenths of a cubic foot of cement more than the mixture of one to seven of sand and stone, which was worth two dollars and thirty cents per barrel — about forty-three cents.

The account may be stated as follows:'

755 mixtures of 1 to 7 of sand and gravel equal.699 cu. yds.

755 'mixtures of 1 to 6 sand and gravel equal....:.466 cu. yds.

Deficiency occasioned by change of mixture.233 cu. yds.

699 cu. yds. as per contract @ $5 equal.$3,495.00

Extra cement for 755 mixtures @ 43 cents equal..:. 324.65

233 cu. yds. each reasonably worth $8.33 equal. 1,941.00

Total $5,760.C5

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Revised Statutes 6290 (Lan. 9831), found m Chap. ÍPSáeS8a mlont 9-on eW j'r-nüK'^a wr 'or'XiRZBODon vIotoloBcfB 9isw 839Ism £%so. srxií ar ?<m9 §»Sfnffiiimaii-ikteP%oPJdf in^ci 18$ residing out of teiJWB?® MÍpÍ0ii?0%M ardí in such actions, in the saihN way “other "'hbiNesíSehtsJ areubbTi|NlJ to do under the laws of this state. All''^5’ptfi8at}tlfis9fI?e 4i& ^estate by guardians of minors who live out of this state shall be made in the county in which the land is situate; or, if situate in more counties than one, then in one of the counties in which a part of such real estate is situate; and additional security shall be required from such guardian or guardians, when deemed necessary, and such as may be approved by the probate court of the county in which such application is made.”

It is claimed that all the provisions of this section apply alone to the disposition of the lands of a minor situated within the state. We do not think so. If there had been a period instead of a semicolon after the words, “shall be entitled to the benefit of this act,” the section would, no doubt, be less ambiguous, but when we take into consideration the fact the legislature was intending to cure any supposed defect in our law that militated against foreign guardians by closing the doors of our courts against them, punctuation shoqld have little effect.

. Something is also claimed for the words, “rendered in such eases in their favor.” What cases? Certainly the eases in which the actions have been prosecuted. We repeat that if there had been a period instead of a semicolon after the word ‘ ‘ act, ’ ’ there could be little, if any, doubt but that the language was intended to be used in its broad sense and applicable to all actions.

It is also claimed that the language of Rev. Stat. 6279 (Lan. 9820), tends to show that it was not intended that the provisions of Rev. Stat. 6290 (Lan. 9831) should apply to all actions.

It seems to us that the provisions of this section apply to a different .subject entirely — to cases as we have heretofore intimated, where money -or other property is in the lawful custody of a trustee or other person and which the foreign guardian desires to obtain possession of and remove it from the state. In such a case he must proceed under Rev. Stat. 6279 (Lan. 9820). Banning v. Gotshall, 62 Ohio St. 210 [56 N. E. Rep. 1030],

We should not be inclined to sustain th§ contention of plaintiff in error in this case, unless it were absolutely necessary to do so, as it waited until the ease was ready for trial, and the jury in the box, before it made the objection that plaintiff below had no right to maintain the action by objecting to any evidence being introduced.

We are not unmindful of the fact that Judge Ricks of the United States circuit court of the northern district of Ohio, in the case of Smith v. Madden, 9 O. F. D. 320 [78 Fed. Rep. 833; 37 Bull. 291] came to a different conclusion than that to which we have arrived.

Judgment of common pleas court affirmed.

Burrows and Laubie, JJ., concur.


author: JONES, J.

text:
    ELECTIONS — INTOXICATING LIQUORS.
    [Scioto (4th) Circuit Court,
    November 8, 1907.]
    Walters, Cherrington and Jones, JJ.
    John Kilcoyne v. Wells A. Hutchins, Mayor.
    The Jones Local Option Law does not Authorize Overlapping oe Districts.
    On May 21, 1907, a majority of the electors of a residence district in the city of Portsmouth signed a petition under the act, 98 O. L, 68 (Lan. Rev. Stat. 7283a et seq.; B. 4364-30a et seq.), in favor of prohibiting the sale of intoxicating liquors in that district. This petition was filed with a judge, found sufficient, and the residence district duly established prior to October 24, 1907. On the later date another petition was 'filed with the judge, also in favor of prohibiting the sale in the residence district described in it. The residefiee district described in the second petition overlapped the first and was identical with it, except that the second had an additional block attached containing forty-five electors: Held, Residence districts established under said act are territorial units; the act does not authorize the overlapping of a valid prior residence district by a later petition.
    [Syllabus by the court.]
    ERROR to Scioto common pleas court.
    T. K. Funk, Nathan Gumble and O. W. Newman, for plaintiff in error.
    W. B. Wheeler, Harry Ball and W. B. Richardson, for defendant in error.
   JONES, J.

It appears from tbe record of this case that on May 21, 1907, a petition was filed with the judge of the court of common pleas of this county, under what is known as the Jones law, act 98 O. L. 68 (Lan. Rev. Stat. 7283a et seq.; B. 4864-30a et seq.), signed by a majority of the electors of a certain residence district, in favor of prohibiting “the sale of intoxicating liquors as a beverage in that district.

The judge of the court of common, pleas held that petition sufficient, and thereupon a certificate was, filed with the clerk of the municipal corporation. The finding by the judge was made on June 24, 1907, and under that finding the petition became effective.

Later, on October 24, 1907, another petition was filed with the .same judge, signed by a majority of the electors of a residence district, which residence district was constituted largely from the territory that was incorporated in the first petition, with an additional block attached to it, in which there were forty-five electors. 'The latter petitioy was presented to the common pleas judge, under Sec. 1 of 98 O. L. 68, for the purpose of having him pass upon the sufficiency of that petition, and for the purpose of declaring the'second residence district dry.

It is an undisputed fact in the case that the territory in the second petition overlaps that contained in the first. The only additional territory in the second is this block that I have spoken of in which there was an additional number of electors to the number of about forty-five.

A motion was made to dismiss this petition. It came on for hearing upon, the motion and upon the agreed statement of facts. And the case is presented to us to determine the construction of the Jones law, and to determine whether or not the common pleas judge erred in overruling the motion and sustaining the second petition.

I will say that, ordinarily, we would not pass upon a question of such importance as this immediately after the close of the argument, as we do in this case, were it not for the fact that we are fully satisfied with the position that we are now taking.

The first question presented is this:

It appears that some of the petitioners who had the first district established by the petition of May 21, 1907, were acting in behalf of the saloon interests, and that it was partly through their efforts that the first district was established; and their motive is attacked in this case. "We do not think that the motive of the signers of this first petition can be inquired into in this court. But I will say upon that question, were we to pass upon it — were it necessary to pass upon it— we would probably hold that, when the first petition was filed, May 21, 1907, the motive could not be considered in the case under the authorities as we view it.

Under Sec. 1 of 98 O. L. 68 the electors of any residence district have the right to sign the petition. Therefore under that act a statutory right was given them. And the case of Cincinnati Volksblatt Co. v. Hoffmeister, 62 Ohio St. 189, 198 [56 N. E. Rep. 1033; 48 L. R. A. 732; 78 Am. St. Rep. 707], will probably apply here, where Judge Spear, citing a number of authorities, says:

“Ordinarily the motive, or purpose, of the party who is in the exercise of, or is about to exercise, a clear legal right, is unimportant. * * * "We are of the opinion that where a suitor demands the enforcement of a clear right given him by the law, whether the remedy be legal or equitable, his motive for such action is not a proper subject for judicial investigation.”

It appears from the opinion of Judge Spear that since the qualified electors.of any residence district have a right to sign a petition, whether it be one to create a dry district or a wet district, that their motive cannot be called in question. Of course in cases of this kind the motive of one section of the residence district is for the purpose of creating a dry territory, and of the other section of the same district probably will be to do all it can to create a wet territory. No more, do we think, can the motives of a signer of these petitions be attacked because he was interesting himself on the wet side of the proposition than could the motive of one who is interesting himself upon the dry side of a proposition. But, however that may be, it cannot be questioned in this ease, because that would be drawing the question into the case collaterally; if it could have been raised at all, it should have been done when that first petition was filed; but here we have the finding of the judge passing upon that petition — upon every incident connected with it — and his adjudication that the petition was sufficient.

Coming down to the real question at issue it is this:

That when dry territory has been created under 98 O. L. 68, Sec. 1, by a majority of the qualified electors of the residence district who sign a petition, present it to the common pleas judge, and a residence district established, whether or not a second petition could be filed which overlaps the first district.

In the construction of statutes, where statutes are ambiguous, the rule is without question that the purpose of the court is to ascertain, if it possibly can, what the legislative intent was. If there is no ambiguity, the court can only follow the statute as it finds it. agree also to the proposition that the policy of legislation for years past has been tending towards the stricter regulation of the liquor traffic-And the trend of judicial decisions for a number of years has been to the same effect. The,power of the legislature is supreme when it comes to legislating upon the question of the sale of intoxicating liquors-It comes, as we have heretofore held in one of the counties of this circuit, within what we term the police power of the state.

We have no doubt but that the legislature, if it felt proper to do so, could have created by positive enactment a law which would provide for the overlapping of territory in a second petition. We think it could have provided, and it would probably be an answer to the argument of counsel in this case, that if it had so provided for county local option, that the county would in that case be a unit, and the vote taken later on county local option would control the. smaller units, such as towns and townships. But we do think that the- authorities cited by counsel in support of that proposition depend largely upon the fact that the legislature of Texas and Kentucky, and of other states, has given by exact terms the power for the larger unit to control the smaller.

Now in construing this act, 98 O. L. 68, counsel must concede that we must construe its sections so as to make them all harmonize, if possible. The three sections- of the act that are important in this case .are the first, second and sixth. I will read briefly from the three sections.

Section 1 provides, in substance, that “Whenever a majority of the qualified electors of any residence district of any municipal corporation sign a petition in favor of prohibiting the sale of intoxicating .liquors as a beverage in such residence district and file the petition with the * * * judge of the court of common pleas of the county, * # * the judge shall examine the petition at a public hearing * * # and cause a copy of his decision to be filed with the clerk of the municipal corporation.” Then provided, that if “it shows that a majority of the voters of such residence district were in favor of prohibiting the sale of intoxicating liquors as a beverage,” that it shall be prima facie evidence that the selling, etc., shall be unlawful.

Section 2 provides, in substance, that whenever a majority of the .qualified electors of any residence district in which the sale has been -prohibited under the provisions of Section 1 of this act, “shall sign -:a petition against prohibiting the sale of intoxicating liquors as a beverage in the same residence district and file the petition with the # * * judge of the court of common pleas, * * * the judge shall decide upon the sufficiency of the petition and cause a copy of his .decision to be filed with the clerk of the municipal corporation.” And •that shall be taken as prima facie evidence that the sale of intoxicating liquors in the residence district is not then and there prohibited.

Then the section provides that the petition provided for in this section shall not be filed until after two years or more shall have elapsed after the filing of the petition provided 'for in Sec. 1 of the act.

Section 6 of the act provides, in substance, that “the territory enclosed by the boundary of any residence district within which the sale of intoxicating liquors has been prohibitéd, as provided for in Sec. 1 of this act, shall be controlled by the result of such action, and the law shall remain in full force and effect in said residence district for two years and thereafter until another petition is presented •under the provisions of section two of this act in said residence district; .and after a petition against prohibiting the sale of intoxicating liquors has been presented, and held sufficient by the judge * * * , anothei petition cannot be presented for two years thereafter.”

It is claimed here that under the provisions of Sec. 1 of this act, which provides that whenever a majority of the qualified electors of “any residence” district shall file a petition in the first instance, that they have a right under the purview and the construction of that section to create as many districts as they may please, any one of which may overlap prior districts. And the force of the argument is spent upon the words found in the first section, that electors of “any residence” district may take such action. And they say the court must construe the various sections of this act so as to give effect 'to that language in Sec. 1. But with due deference to the very able and certainly very ingenious argument of counsel who represent that view of the case, we are unable to come to that conclusion. And I will give our reason, very briefly, for it.

As I have stated, all the sections of this act should be harmonized, if possible, and none of them should be in effect nullified or repealed by action of the court. The judiciary cannot legislate. Nor can it nullify legislation. And we think that were we to give the effect to theact that counsel claim, it would be in effect a nullification of certain provisions found in Secs. 2 and 6.

The legislature has provided by Sec. 1 of the act that the qualified electors of any certain district may carve out a district, present their petition, and that district shall remain dry for the space of two years or more. In two years thereafter, or at any time after two years, the same electors or a majority of them may file a petition, if they see fit, seeking to create a wet territory out of that dry territory. Now there is no room, we think, for the construction of these various sections. And we think that the legislature has established these districts as units; and that when the district has been established it remains a district; and that action on various petitions that may be filed thereafter must be taken in connection with that fact; that if one district has been established, and a court has passed upon it, certain rights have accrued to the electors of that district. ■

Take the ease in question. Here was a residence district, created in May, 1907, which, by the action of the judge of the court of common pleas, was made dry. Under a later petition, dated October 24, 1907,., various electors of this dry district aforesaid, together with forty-five others, in a block of territory attached to it, have filed another petition asking that this overlapping district be also constituted dry territory. Can that be done? What would the effect be? Unquestionably, under Sec. 2 of this act, when a district has been created by the finding of the court as dry territory, the qualified electors of that district in two years time have the right to change the character of that district by petition. The electors residing in the district established by the petition of May 21, 1907, on May 21, 1909, have a right to again petition that the sale of intoxicating liquors shall not be prohibited. But suppose that the judge of the court of common pleas should have found the second petition also sufficient and valid (which overlaps the territory in the first), what would b'e the effect?

Assume, for instance, this proposition: That the electors residing in the first territory would be perfectly satisfied to rest under the rights acquired by them under the first petition. They would not only rest •satisfied for a period of two years, but for a period of three years, or indefinitely. Now with that assumption, assume now that the qualified electors of the second district in two years after October, 1907, or in ■October, 1909, would again petition for the purpose of establishing a wet territory; that the judge would thereupon find that petition suffi•cient. "What would be the effect of it? That territory or part of it would necessarily be wet. What part of it would be wet? Could the first residence district be wet? Unquestionably, no. Because its electors have acquired rights under these various sections which accrue to them as residents of the first district.

The contention further, as I understand it, however, is that all the territory in the second district would not be wet after October, 1909, but the block that was attached to it only would be wet under a petition of that kind. And what would be the result? The result would be that in the residence district, created by the second petition, part of that residence district would inevitably have to be dry and part wet. And the part ivet, in the case at bar, would have but forty-five qualified electors. I think counsel understand me when I take the proposition as counsel claim it. And I will state it again, although I may state it possibly more at length than I should in my judicial opinion, which is this:

If the qualified electors of the first district established by the petition of May 21, 1907, were content to rest upon their rights acquired under that section for a period of two, or three, or four years, and no petition should be again filed for that district, but if under the second petition filed on October 24, 1907, that district with an additional block attached, a majority of the electors of the second district in October, 1909, should again file their petition in the interest of wet territory, and such third petition found sufficient by the judge, the effect would be to do either one of two things. Either to make the entire second district wet, which would be in contravention of Sec. 2 of this act, under which the electors of the first district would have a right in their own limits after two years or more to petition, or it would create in the second territory or district a state of affairs as' follows: it would create part of a district wet (which would be the block in question, containing forty-five electors) and the balance of that entire district would have to be dry. The result would be, we would, have a wet district containing forty-five electors, when the statute required that every district — residence district — under the provisions of this act must have at least three hundred.

Secondly. If you can overlap territory by a second petition, you can do it by a third, you can do it by a fourth, you can do it ad infinitum; and if these various dry distrcts are overlapped, and remain in statu quo for a period of two years or more, respectively, and contests came on from the other or wet side of the issue, it would do this — we would have this condition of affairs — that there would be no finality with reference to any residence district in any municipal corporation, because after two years time if there had been various over-lappings before that time, the wets could come in and file petitions time after time, or according to the number of petition that have been filed for the drys, and the result would be contests in the same residence district by one side or the other. This, of course, may be an extreme assumption, but it could be done, and when we take into consideration the motives that underlie the action of parties where this issue is in question, why it might be done frequently. When the qualified electors of the first district signed — the majority of them signed the first petition in this case — we think that they acquired a vested right which could not be interfered with except by legislative authority. Counsel up.on both sides will probably agree to that proposition, but they will disagree as to the next proposition, whether or not that right has been interfered with. The right which they have acquired is that the electors of • that district should have that district dry for a period of two years and more. Now, speaking for the full court, this right is interfered with should we follow the construction asked by counsel in support of the second petition. I say, it might be interfered with. For instance, if, under the second petition or under a third petition overlapping territories that were incorporated in the first petition, which are entitled to remain dry for a period respectively of two years, later petitions from the wets came in to create or establish such a wet territory, we would have additional territory overlapping the first in which electors had rights acquired under the first petition and in its exact territorial limits. In other words, it is not impossible to assume that in this class, of cases after two years of time have passed, that the electors of such first district may sign wet petitions, thus establishing wet or dry districts as they see fit in their own residence district.

Now when we construe (and we think it really needs no construction), but were we asked to construe the words “in residence district” in Sec. 1 of this act, we think that that means a district that, has been established by petition as a unit. And that when the said district is afterwards referred to in the various parts of this act as the “same district,” or as the “said district,” it refers to that unit as established by such a petition. We think any other holding would, in effect, be a judicial nullification, of Secs. 2 and 6 of this act. What else could Sec. 6 mean than a nullification were we to hold otherwise? That section provides that the territory enclosed by the boundary of' any residence district, in which the sale of intoxicating liquors has been prohibited as provded by See. 1 of this act, sh'all be controlled by the result of such action, and the law shall remain in full force and effect, in said residence district for two years.

If a petition is filed in the second district it surely can not affect, the first district under the provisions of See. 6. And if it could not affect the provisions of the first district under Sec. 6 it would mean nothing more or less than what I have said, it might have the effect of creating a block of wet territory out of the district in question, leaving-only the balance of that residence district dry — leaving a residence district partly dry and partly wet.

Counsel have cited but very few authorities in this ease bearing upon the question here, except those that have been cited for the second petition, to which I have alluded. They are correct in principle and were they applicable to the case here we would be inclined of course to' follow them. But we think- undoubtedly that the position that we-have taken in this case is the only construction that can be harmoniously given to the various sections of the Jones residence local option law, and uphold the entire law. We have no doubt. The result will be, that the action of the lower court, or the judge rather, will be reversed. The-petition will be dismissed.

Cherrington and Walters, JJ., concur,


text:
    PLEADING — MORTGAGES.
    [Lucas (6th) Circuit Court,
    March 10, 1908.]
    Parker, Wildman and Kinkade, JJ.

      United States Mortgage & Tr. Co. v. Peter Anderson et al.
    1. Demurrer Does not Lie to Petition in Foreclosure Prating that all Claimants of Interest in Mortgaged Premises be Made Parties.
    •A petition in an action by a mortgagee, asserting that a defendant claims to be owner in fee simple of the mortgaged premises and praying that defendants be required to answer and set forth their respective claims to the mortgaged property or be forever barred, sufficiently complies with the provisions of Rev. Stat. 5006 (Lan. 8521), as to joinder of such claimant of title.
    2. Outstanding Claimant of Title Proper Defendant in Foreclosure,
    In Ohio an outstanding claimant of title to mortgaged real estate is a proper party defendant in a proceeding to foreclose the mortgage.
    [Syllabus approved by the court.]
    Appeal from Lucas common pleas court.
    Error to Lucas common pleas court.
    King & Tracy, for plaintiff:.
    Rhea Cary and C. A. Thatcher, for defendant, Anderson.

       Opinion on final judgment and decree, see United States Mortgage & Tr. Co. v. Anderson, 30 O. C. C. 491.

   WILDMAN, J.

The demurrer as presented to us is to the petition of The United States Mortgage and Trust Company, the plaintiff, filed by the defendant,'Peter Anderson, in the court below and re-urged here.

The allegation of the petition as to the reasons for making him a party defendant is as follows: “Plaintiff further says that the defendant, Peter Anderson, claims to be the owner in fee simple of said premises.” And just before the prayer it is said “The plaintiff therefore asks that they” (certain defendants) “be required to answer and set forth their respective claims or be forever barred.” It,may be a question whether this prayer refers to the defendants immediately before named, or whether it includes with the other defendants, Peter Anderson. All are named in one paragraph, and as the statement in regard to the other defendants is similar to that with regard to Anderson, my own judgment is that this clause is intended to refer to all defendants who are so brought in.

In Bates, PI. & Pr., and in the Kansas cases which he cites, it is indicated that an averment of this kind is hardly sufficient in some jurisdictions, or at least in those to which reference is made by Bates, without some further averment disputing the validity of the claims asserted by the parties so brought in. But in the ease of Winemiller v. Laughlin, 51 Ohio St. 421 [38 N. E. Rep. 111], our Supreme Court makes a little more liberal interpretation of Rev. Stat. 5006 (Lan. 8521). It will be remembered that that section provides that any person may be made a party who has or claims an interest in the con-’ troversy, and no special requirement is made in the statute as to the averments that are to be made as to the asserted rights of such claimants. In Winemiller v. Laughlin, supra, it was held in the syllabus, second paragraph, that

‘ ‘ The plaintiff in. an action to foreclose a mortgage, is not required to set forth either the nature of, or the facts constituting the claim ■of another lien holder, in order to bar the latter by a decree against his claim if he should fail to answer. If for that purpose anything more is required than to make him a party and serve him with legal process, it will be sufficient for the petition to state that such defendant claims some interest in the mortgaged premises, and advises him that his claim or lien will be barred if he fails to appear and disclose it.”

It will be noticed that there is an implication here that possibly it will not be necessary to say anything about his claim; that it may be necessary only to make him a party by summons, thereby giving him an opportunity to assert his claim by pleading it; in other words, that it may suffice to serve notice upon him that there is a suit in which the property in which he claims to have an interest is to be made the subject of a controversy and possible sale. But whether that is or is not permissible, the Supreme Court has definitely determined by this decision that it is not necessary to do moré than say in the petition that he has or claims an interest in the controversy, advising him that it will be barred if he fails to appear and disclose it and then serve him with summons, giving him an opportunity to assert his rights and have them litigated.

We are .unanimous in the opinion derived from an examination of the numerous authorities cited, that the strong current of adjudications outside of our own state, is in support of the contention that prior encumbrancers or claimants other than such as derive their titles or interests from the mortgagor of the mortgage which is sought to be foreclosed are neither necessary nor proper parties in a suit of this kind, and the important query with us, and the one to which we have devoted the most of our attention, is as to whether that rule prevails in Ohio, whether it is the practice which has been adopted here, and whether it is the rule best supported'by the'adjudications and the statutes of our .own state.

In Whittaker’s Annotated Code, in his annotation of Sec. 5006 [Lan. 8521], on page 106 (bottom paging), are references to some of the same authorities which have been cited in argument, and. also to Mr. Bliss’ work on Code Pleading, to which in our somewhat hurried examination of the question we have not had accessf He cites Bliss, Code Plead. Secs. 100, 101, in support of the proposition that in Ohio •such prior encumbrancers or outstanding claimants are proper parties, whether or not they are necessary ones.

In 1 Bates, Pl. & Pr. 583, is a discussion of the question very pertinent to the consideration of this demurrer. I read from the edition of 1881 which considered the authorities, or at least a number of them, bearing date prior to that time. There is no essential addition to the discussion of the question in the very recent edition of the same work. On the page to which I have referred, Mr. Bates calls attention to the distinction between necessary and merely proper parties, .and says that that distinction is very clearly shown in foreclosure cases. We have often had occasion to examine the distinction between mandatory and permissive joinder of parties. There are cases where persons must be brought in because they are essential to a determination of the controversy, and others where they may be brought in, in order to permit an adjudication of all controversies respecting claims relating to the same property in the same action.

At the outset it may be said that the law might proceed upon either of two contradictory policies. It might attempt to protect paramount lien holders, against any disturbance of their claims by contests between subsequent mortgagees and persons owning the equities of redemption. It might by like reasoning and upon the same principle decline to embarrass or disturb outstanding claimants by bringing them into the litigation of controversies with which they have no concern. •On the other hand, it' may be the policy of the law to protect purchasers .at judicial sales and to make more convenient the ascertainment of the value of properties sought to be sold. One state may adopt •one policy, and another, another, and in determining which policies have been chosen in the different jurisdictions something may depend upon the nature of the foreclosure proceedings in the various states. In Ohio it necessarily involves a judicial sale, for the proceeds of the property are subjected to the payment of the mortgage claim. Not so in some of the states. In several of them the mortgagee takes .the property without any judicial sale at all.

Now, manifestly, in a state where no appraisal and sale are required, a very different rule might apply. Mr. Bates, in further consideration of this question, bases a large part of his reasoning upon the provisions of our statutes as to appraisal of the property and its-sale to a purchaser. Omitting his language on this page until we arrive at Par. 18, we find under the caption, “Prior Encumbrancers,. Whether Proper:”

“The very great authority of Mr. Pomeroy, sections 334 and 342, note 4, is that the incumbrancers whose liens are prior to that of the plaintiff, are in no way affected by the decree of foreclosure or the sale thereunder. Their rights are paramount, and they are neither necessary nor proper parties, and says it is generally so considered except in Iowa, citing a number of authorities, to which may be added Broward v. Hoeg, 15 Fla. 370; Coy v. Downie, 14 Fla. 544, 563, and also the Kansas and Wisconsin cases cited below, as to the necessity of claiming the lien to be subsequent in order that a default may cut it off, the advice of which I have followed in drawing the forms of petition.

“Nevertheless, his authority of Wright v. Bundy, 11 Ind. 398, seems to be rather the other way, and the later authority in New York of Brown v. Volkening, 64 N. Y. 76, holding prior mortgagees, to be proper parties, would overrule contrary decisions in that state. The latest New York authority is that so far as mere legal rights are concerned, only the mortgagor and subsequent lien holders are proper parties, and they only are affected by the judgment, but that prior incumbrancers may be made parties for the purpose of having their interests ascertained and paid out of the proceeds, which purpose must be indicated in the petition. Emigrant Industrial Sav. Bank v. Goldman, 75 N. Y. 127, 132.”

“It is also held, that a prior incumbrancer is a proper party in Standish v. Dow, 21 Iowa 363; Heimstreet v. Winnie, 10 Iowa 430; Holland v. Jones, 9 Ind. 495; Warran v. Burton, 9 S. C. 197; Adger v. Pringle, 11 S. C. 527, 545; Besser v. Hawthorne, 3 Ore. 129.

“In White v. Holman, 32 Ark. 753, he.is said to be not'a necessary, party, perhaps implying that he is a proper one.” ,

I have read these citations simply because I find them in Mr. Bates’ discussion of the matter, and without withdrawing the statement which I made a little while ago, that we have concluded that the decided weight of authority outside of Ohio supports the contention of -counsel for this demurrer and the doctrine of Mr. Pomeroy. Mr. Bates then addresses himself to the consideration of. tbe question of tbe conflicting interests, or tbe conflicting policies, as I have called them, and says:

“Though tbe logic of the position of prior incumbrancer, as a bolder of a paramount right, who cannot be dethroned or disturbed by those subject to him, may be in favor of Mr. Pomeroy’s opinion; yet, there is in Ohio a practical objection to the doctrine which is insuperable.
“In Ohio a sale is always ordered in foreclosure cases. Rev. Stat. 5316 [Lan. 8832]. There must be an appraisement of the real value -of the property in money, Rev. Stat. 5389 [Lan. 8915] — for this section applies to mortgages, Rev. Stat. 5373 [Lan. 8899] — and there can be no deduction in the appraisement for incumbrances, but the appraisement must be of the entire estate. Baird v. Kirtland, 8 Ohio 21; Commercial Bank v. Bank, 11 Ohio 444, 450 [38 Am. Dec. 739]; Fosdick v. Risk, 15 Ohio 84, 106 [45 Am. Dec. 562]. And the sale cannot be for less than two-thirds the appraisement, Rev. Stat. 5391 [Lan. 8917].
“The consequence is obvious,” continues Mr. Bates, “if prior incumbrances are not cut off, no bidders will give a minimum of two-thirds the value of the entire estate, with several mortgages to pay ■off in addition, and the junior incumbrancer is helpless, unless he is .able to pay up the earlier liens.
“Nor would it be possible for the appraisers to examine the title .and allow for prior incumbrances, for their value could be determined often only after examining witnesses as to the amount of interest or principal already paid, and deciding questions of law as tó the validity of possible defenses, and if such prior incumbrance happens to be an indemnity mortgage, its amount would be contingent on considerations inextricáble except by a court.”

With much force, this last argument of Mr. Bates might be applied to the ease of an outstanding but disputed claim of title; one which for the determination of its validity might require the examination of many witnesses and the taking .of much evidence, a matter, of course, of almost insuperable difficulty to appraisers attempting to determine the value of the equity of redemption merely or the value of the interest of a party in possession, where his right to the possession is controverted by some person not in court.

Directly, pertinent to this inquiry is the case of Thatcher v. Dickinson, 2 Circ. Dec. 82 (3 R. 144), decided by the Putnam circuit court of this state at the April term, 1888. The third, fourth and fifth paragraphs of the syllabus, read as follows:

“3., In a suit to foreclose a mortgage and to marshal liens, an order to sell cannot be made subject to a certain undetermined indebtedness set forth in the answer and cross petition of a defendant lien holder.
“4. Under the statute the appraisers are sworn to appraise the property at its cash . value. A court is not authorized in such a suit, to order an appraisement of the property ‘subject to a certain undetermined indebtedness,’ and an appraisement in accordance‘with'such an order is irregular.
“5. In such an action the court should see to it that all lien holders and parties interested should be made parties, and it is error in the court to dismiss, without prejudice, a defendant lien holder, and order a sale of the'property subject to his undetermined lien.”

The opinion in the case is by Judge Seney. I will not stop to read it, but. will say that the discussion of the matter is very much along the same line as the reasoning embodied in Bates, PI. & Pr.

The case of Doan v. Biteley, 49 Ohio St. 588 [32 N. E. Rep. 600] has been largely relied upon by counsel for the plaintiff to sustain their contention that Anderson is a proper party here, because of his assertion or claim of being the owner of these premises which are sought to be sold in the foreclosure proceeding; and we think that there is much force in the claimed application of this decision. It is true that it was not the case of the foreclosure of a mortgage against a living mortgagor. But can it be said that when an administrator attempts to sell a decedent’s real estate for the purpose of paying debts, his right to sell has a larger scope than that which is possessed by the sheriff upon a judicial sale of mortgaged property. In the case of the mortgage, the mortgagor owns an equity of redemption; where a man dies, he leaves to those who succeed to his interests only that which he owned. ' It does not seem to us that the rights conveyed at an administrator’s sale can rise higher than those which were owned by the decedent at the time of his death, if the rights conveyed by the sheriff or master at a judicial sale in a mortgage foreclosure can rise no higher than those owned by the mortgagor at' the time of foreclosure. In either ease, by the adjudication in Ohio in Doan v. Biteley, supra, it would seem that it is the policy of the law to have an end of litigation; to avoid a multiplicity of suits; to bring in all persons who may be interested in the sale or in having clouds removed from titles and, having determined the controversies, to protect the interests of possible purchasers by giving to them unclouded titles, titles free and clear of the claims of all persons who may be brought within the jurisdiction of the court to assert them. I have not been able to see any distinction of' substance between Doan v. Biteley, supra, and the case at bar. True the administration law makes more specific provision as to the making of parties defendant in proceedings to. sell' land; but the ultimate intent of the foreclosure proceeding to sell the land instead of a mere equity of redemption is made equally apparent by the legislative requirements already referred to.

Now the case of Stewart v. Johnson, 30 Ohio St. 24, decided by the Supreme Court commission, has some bearing, we think, upon the question before us. The second paragraph of the syllabus is:

“It is the right of a mortgagee, as against his mortgagor, to foreclose the mortgage; but under the statute, he can foreclose only by a sale of the mortgaged premises; a junior mortgagee may therefore maintain an action for the foreclosure of his mortgage against those' having an interest in the premises, to subject the same to the payments-of the liens thereon, without having first paid off the prior mortgage.”'

There had been in that case a foreclosure by the senior mortgagee- and a purchase at judicial sale, and it was held that the rights of the junior mortgagee remained unaffected, he not having been made a party, and when he subsequently sought to foreclose his mortgage, it was held that it might be done.

The case of Stewart v. Railway, 53 Ohio St. 151 [41 N. E. Rep. 247 ; 29 L. R. A. 438], went up from Huron county in the-year, 1895. I will not stop to read very much of the ease, but simply invite attention to the language of Judge ‘Williams as found on page 167:

“It is the duty of a mortgagee to make all persons who appear of record to have a, lien upon or interest in the mortgaged premises parties to his action of foreclosure, and if he does not, their lien or interest remains unaffected thereby; and any such encumbrancer, whether prior or subsequent to the mortgage, who has not been made a party, may maintain an action to enforce his lien, and have a resale of the-property for that purpose. ’ ’

Citation is made of several earlier cases in Ohio, and also, Vanderkemp v. Shelton, 11 Paige 28.

Our conclusion of the whole matter is that a demurrer to the petition ought not to be sustained, but in announcing that result of this discussion, we do not wish to be understood as going any farther than the necessities of the question demand; in other words we are not passing upon what would be the rule in the case of an effort to bring. into court a prior encumbrancer whose indebtedness has not yet •matured. We are not disposing of a case as against a mortgagee having a mortgage which he may, desire to preserve in force upon property for a term of years perhaps, and wherein, if the land were forced to sale as against him, it might interfere with his just rights. We leave that question as an open one, to be determined when the .question properly arises. The demurrer to the petition will be overruled.

Parker, J., concurs.

.Kinkade, J., dissents from the second proposition óf syllabus.


author: GIFFEN, J.

text:
    ERROR — MASTER . AND SERVANT.
    [Hamilton (1st) Circuit Court,
    June 29, 1907.]
    Swing, Giffen and Smith, JJ.
    John Gill v. Pittsburg, C. C. & St. L. Ry.
    Relation oj? Vice-principal and Suboedinate between Workmen under one Foreman held Established.
    Evidence that defendant’s foreman directed plaintiff to help another workman whenever the latter called upon him to do so sufficiently establishes the relation of vice principal between such workman and plaintiff. Hence, instructions denying such relation in effect takes the case from the jury are prejudicial and erroneous.
    [Syllabus approved by the court.]
    ERROR to Hamilton common pleas court.
    J. T. Harrison, for plaintiff in error.
    Maxwell & Ramsey, for defendant in error.
   GIFFEN, J.

The court gave the following special instructions to the jury at the request of defendant:

“If you find that the plaintiff was instructed by his foreman to help Achten when called on by Achten, and that this was the whole of the foreman’s order on that point; your verdict must be for the defendant.”

Also—

“If the jury find that the only evidence on the subject of direction or control of Achten over Gill was in the words that 'Gill should help Achten when'ever he called on him, this alone would not be sufficient to make Achten a superior servant.”

The testimony shows that the foreman ordered the plaintiff to help Aehten whenever he called on him to do so, and is substantially the same testimony presented by the record of the first trial of this cause, wherein this court held it sufficient evidence of the subordinate position of plaintiff, and of authority and control of Aehten over him. The judgment in that trial was reversed because the court arrested the case from the jury. The above instructions, in effect, took the case from the jury by designating the only evidence of the relationship of vice principal and subordinate as insufficient.

We are still of the opinion that the order to plaintiff “to help Aehten whenever he called upon him” placed plaintiff under the control of and subordinate to Aehten. Hence the instructions were erroneous and prejudicial.

Judgment reversed and cause remanded for new trial.

Swing and Smith, JJ., concur.


text:
    ACTION OR SUIT — ELECTION OF REMEDIES — SPECIFIC PERFORMANCE.
    [Hamilton (1st) Circuit Court,
    May 18, 1907.]
    Swing, Giffen and Smith, JJ.
    Alphonse Zutterling et al. v. Charles W. Drake.
    ¡Suit for Specific Performance of Contract Bars Subsequent Action fob Damages Thereon.
    An action for remedies once made bars any other remedy. Hence, suing for specific performance of a contract bars an action for damages therepn. That an action for damages is subsequently commenced and while pending the suit for specific performance is dismissed by the plaintiff “without prejudice,” does not change the fact of election, 'nor bar the prosecution of a new suit for specific performance of the contract.
    [Syllabus approved by the court.]
    Appeal from Hamilton common pleas.
    E. C. Pociey, for plaintiffs.
    S. M. Johnson, for defendant.
   SMITH, J.

Under the contract set up in this case, the plaintiffs originally had .two remedies for the enforcement of their rights against the defendant. One was an action on the contract for specific performance; tbe other was a suit at law for damages for breach of contract. They could not assert both. -,

On April 15, 1902, plaintiff filed a. suit in specific performance, No. 123558 in the court of common pleas. Afterwards, on May 26, 1902, they filed an action at law for damages.

The suit for specific performance was dismissed October 6, 1905, “without prejudice” while the suit for damages referred to above was still pending. Subsequently, on October 9, 1905, a new suit for specific performance was filed by plaintiffs against the defendant, which last suit was tried, appealed to this court, and is this present case.

Defendant claims that this suit cannot be maintained, as plaintiffs dismissed their first suit for specific performance.

We are of the opinion that on April 15, 1902, plaintiffs made their election between their remedies against the defendant, by bringing their suit in specific performance. Having so elected, this was a bar to any suit for damages they might subsequently file. They could not choose the second time. 7 Enc. Pl. & Pr. 364.

Did the dismissal therefore of the original suit in specific performance “without prejudice” preclude the plaintiffs from instituting a new suit for like character within a reasonable time, and thus avail themselves of their election already made?

We think it does not have such effect. Dismissal “without prejudice” meant, that the petition of the plaintiffs was not to be unfavorably affected thereby. All their rights were to remain as they then stood. Creighton v. Kerr, 87 U. S. (20 Wall.) 8 [22 L. Ed. 309].

Having once elected to bring suit in specific performance, when the same was dismissed “without prejudice” and a similar suit was. again instituted, any and all rights and advantage that had accrued to plaintiffs through the bringing of the first suit still remained to them.

On the evidence we are of the opinion that specific performance of the contract entered into between the plaintiffs and defendant should be decreed in favor of the plaintiffs. The defendant himself admits that he made no tender of the deed to the plaintiff, Alphonse Zutter-ling, but says that he showed the deed to Mrs. Zutterling; and while he denies that the plaintiffs tendered him the notes and mortgage agreed upon under the contract, yet plaintiffs’ evidence is corroborated, tending to show that such á tender was made together with the amount paid by defendant into the building association.

A decree may therefore be taken in favor of the plaintiffs.

Swing and Giffen, JJ., concur.