author: HULL, J.

text:
    GUARDIAN AND WARD — ACCOUNTS—BONDS—ACTIONS.
    [Lucas (6th) Circuit Court,
    February 7, 1902.]
    Haynes, Parker and Hull, JJ.
    Alvina A. Wegner v. John L. Wiltsie et al.
    1. No Cause Accrues on Guardian’s Bond Untie Account is Fired and Settlement.
    No cause of action on the bond of a guardian accrues in favor of his ward until the filing of the guardianship account and the settlement of the estate in the probate court.

      2. Facts Which Fail to Give Common Pleas Jurisdiction.
    The probate court is given exclusive jurisdiction under Sec. 524, Rev. Stat., to appoint and to remove guardians, to direct and control their conduct and to settle their accounts. Therefore, the common pleas obtains no jurisdiction of an action on the bond of a guardian to compel an accounting and payment of funds belonging to his ward, from the fact- that the guardian died without filing his account and left no books of account, or memoranda from which his indebtedness could be ascertained.
    3. Allegation as to Jurisdiction — Conclusion oe Raws.
    An allegation in a petition in an action upon a guardian’s bond that “an accounting cannot be obtained from or with such guardian in the exercises of the power and jurisdiction of the probate court in respect to said estate, and such jurisdiction is ineffectual for such purpose,” states a conclusion of law and not of fact to be taken as admitted upon demurrer.
    Geo. A. Bassett, for plaintiff.in error,
    cited:
    Parties and Pleading: 1 Kinkead Pldg., Sec. 171; “Parties;” Secs, 5006 and 5020, Rev. Stat.; Pomeroy Eq. Jurisp., Sec. 114; Pedan v. Robb, 8 Obio 227; 1 Pomeroy Eq. Jur. Sec. 280; Bricker v. Eliott, 55 O. S. 577, 580 [45 N. E. Rep. 1045]; Newton v. Hammond, 38 O. S. 480, 436; Gorman v. Taylor, 43 O. S. 86, 90'[1 N. E. Rep. 227]; Sec. 6291, Rev. Stat., as to settlement by administrator.
    Sureties: Woerner on Guardianship, p. 128; Penn v. McBride, 1 Circ. Dec. 159 (1 R. 289); Eichelberger v. Gross, 42 O. S. 549, 554.
    Equity will not require a vain thing: 1 Pomeroy Eq- Jurisp., Sec-114; Bricker v.-Elliott, 55 O. S. 577, 580 [45 N. E. Rep. 1045].
    An accounting may be had in equity: Armstrong v. Miller, 6 Ohio 118, 119, 125; Pedan v. Robb, 8 Ohio 227; Davies v. Lowrey, 15 Ohio 655; Gorman v. Taylor, 43 O. S. 86, 90 [IN. E. Rep. 227]; approved in Kearney v. Beatty, 52 O. S. 656; Bricker v. Elliott, 55 O. S. 577, 580 [45 N. E. Rep. 1045]; 3 Pomeroy Eq. Jurisp., Sec. 1421; State v. Humphrey, 7 Ohio (pt. 1), 223; Newton v. Hammond, 38 O. S. 430; Gorman v. Taylor, 43 O. S. 86, 90 [1 N. E. Rep. 227].
    Joinder: Howard v. Powers, 6 Ohio 92.
    Action: 1 Pomeroy Eq. Juris., Sec. 193; Dube Eq. Pldg., p. 441; Chapman v. Eee, 45 O. S. 356 [13 N. E. Rep. 736],
    Interrogatories may be annexed to pleading. Sections 5099, 5100 and 5101, Rev. Stat.
    Mandamus will not lie as against a person occupying a quasi official relation. 2 Spelling on Extraordinary Relief, Sec. 1590; 14Am.&Eng. Ene. Daw, (1 ed. ) pp. 138 and 165; Smith v. Burton, 48 Mich. 643; 3 Bacon’s Abridgement, 527. Mandamus A. Turner, In re, 5 Ohio 542, 543; Freon v. Carriage Co., 42 O. S. 30 [51 Am. Rep. 794]; State v. Carpenter, 51 O. S. 83 [37 N. E. Rep. 261; 46 Am. St. Rep. 556]; State v. Commissioners, 57 O. S. 86 [48 N. E. Rep. 136}.

      Plaintiff may reach the life insurance moneys. Sections 3628, 3629, 5019, Rev. Stat.; Weber v. Paxton, 48 O. S. 266, 271 T26 N.' E. Rep. 1051]; Favorite v. Booher, 17 O. S. 548, 558; 1 Pomeroy Eq. Jurisp., Secs. 243, 275; Pratt v. Insurance Co., 3 Circ. Dec. 287 (5 R. 587, 595); Penn v. McBride, 1 Circ. Dec. 157 (1 R. 285); Eichelberger v. Gross, 42 O. S. 549, 554.
    Suits on guardianship bonds: Parties to action, etc. State v-Humphries, 7 Ohio (pt. 1), p. 224; Cochran v. Taylor, 13 O. S. 382; Favorite v. Booher, 17 O. S. 548; Newton v. Hammond, 38 O. S. 430; Gorman v. Taylor, 43 O. S. 86 [1 N. E. Rep. 227]; Penn v. McBride, 1 Circ. Dec. 157 (1 R. 285). ,
    The remedy may be changed by statute. Ohio Const., Art. 2, Sec. 28; Peters v. McWilliams, 36 O. S. 155,162; Goodale v. Fennell, 27 O. S. 426 [22 Am. Rep. 321]; Rairden v. Holden, 15 O. S. 207; Hamilton Co. v. Rosche, 50 O. S. 103, 111 [35 N. E. Rep. 887; 19 E. R. A. 584; 40 Am, St. Rep. 653]; Society v. Wheeler, 2 Gall. 104; Sturges v. Carter, 114 U. S. 511 [5 Sup. Ct. Rep. 1014]; 3 Am. & Eng. Ene. Eaw, 758; Cooley’s Const. Eimit. 370; Bernier v. Becker, 10 O. S. 588; Allbyer v. State, 10 O. S. 588; State v. Rabbitts, 46 O. S. 178 [19 N. E. Rep. 437]; Smith on Stat. Const., Sec. 547; Rev. Stat., 79, 3628, 4974; State v. Purcel, 31 O. S. 352, 358; Webster v. Bible Soc., 50 O. S. 1 [33 N. E. Rep. 297]; Shuman v. Drayton, 8 Circ. Dec. 12 (14 R. 328, 333); Kinkead’s Practice, Secs. 10, 11; Bode v. Welch, 29 O. S. 19.
    Remedial Laws: Hubble v. Rennick, 1 O. S. 171, 172; Mechanics’ & T. Bant v. Debolt, 1 O. S. 59l; Knoup v. Bank, 1 O. S. 603; Bank of Toledo v. Bond, 1 O. S. 622; Trustees of Cuyahoga Falls R. E- Assn, v. McCaughy, 2 O. S. 152; Acheson v. Miller, 2 O. S. 203 [59 Am. Dec. 663]; Mack v. Bonner, 3 O. S. 366; Butler v. Toledo, 5 O. S. 225; Eoeffner v. State, 10 O. S. 598; Allbyer v. State, 10 O. S. 588; Goshorn v. Purcell, 11 O. S. 64Í; Rairden v. Holden, 15 O. S. 207; Trustees of Green Twp. v. Campbell, 16 O. S. 11; State v. Circleville, 20 O. S. 362; Great Western Stock Co. v. Saas, 24 O. S. 542; Westerman v. Westerman, 25 O. S. 500; Rouse v. Chappell, 26 O. S. 306; Bode v. Welch, 29 O. S. 19; Seeley v. Thomas, 31 O. S. 301; Eittle Miami Ry. Co. v. Commissioners, 31 O. S. 338; State v. Purcel, 31 O. S. 352, 358; Eawrence Ry. Co v. Mahoning Co., 35 O. S. 1; Peters v. Me Wil-iams, 36 O. S. 155; Bernier v. Becker, 37 O. S. 72, citing Cooley Const. Limit., 370, and Broom Leg. Maxims, 35; Howard v. Brower, 37 O. S. 403; Lafferty v. Shinn, 38 O. S. 46; State v. Sinks, 42 O. S. 345; O’Donnell v. Downing, 43 O. S. 62 [1 N. E- Rep. 438]; Halderman v. Larrick, 44 O. S. 438 [8 N. E. Rep. 177]; State v. Rabbits, 4b O. S. 178 [19 N. E. Rep. 437]; Canaan Twp. (Trustees) v. Infirmary Directors, 4b O. S. 694 [23 N. E. Rep. 492]; Gager v. Prout, 48 O. S. 89 [2b N. E-Rep. 1013]; Bartol v. Eckert, 50 O. S. 31 [36 N. E. Rep. 294]; Hamilton Co. (Comrs.) v. Rosche, 50 O. S. 103 [33 N. E. Rep. 408; 19 E. R. A. 584; 40 Am. St. Rep. 653]; Blackburn v. State, 50 O. S. 428 [36 N. E. Rep. 18],
    Kinney & Newton, for Eouis Hanner, August F. Wendt and Jennie Hanner,
    cited:
    Newton v. Hammond, 38 O. S. 430, 436; Gorman v. Taylor, 43 ü. S. 8b [1 N. E. Rep. 227]; Secs. 3628 and 5427, Rev. Stat.
   HULL, J.

This is a proceeding in error to reverse the judgment of the court of common pleas entered against the plaintiff upon a demurrer to the third amended petition, demurrers having been sustained to the petitions theretofore filed.

The action is founded on a guardian’s bond, and the petition sets forth in the first cause of action that:

‘ ‘ On November 21, 1896, Herman Baumbach was duly appointed by the probate court of Lucas county, Ohio, guardian of the property of the plaintiff, then fourteen years of age; that said Baumbach as such guardian entered into a bond as required by law, in the sum of $5,000 with Charles Hanner and J. L. Wiltsie as sureties, which said bond was duly approved by said court, and under the terms and conditions of which bond the said Charles Hanner and John L. Wiltsie were and are jointly and severally liable; that said bond was upon the condition that the said Baumbach as such guardian should discharge with fidelity the trust reposed in him, and render.an accurate statement of his transactions, with a just account of the profits arising from the real and personal estate of his said ward, and deliver up the same to the court, when thereunto required, a copy of which bond is hereto attached, marked exhibit ‘ A.’
‘ ‘ There came into the possession and custody of said Baumbach as such guardian the sum of $2,500 in money, which belonged to and was the property of this plaintiff. Said Baumbach continued to act as such guardian and to administer said trust until on or about August 15, 1898, when he died, and in a short time thereafter, John N. Magee was duly appointed and qualified as guardian of the person and property of plaintiff, continuing to administer said trust until the plaintiff became of the age of eighteen years, to-wit, on March 26, 1900.
“ On August 25, 1898, John E. Parsons was by the probate court of said Eucas county duly appointed and qualified as administrator of the estate of said Herman Baumbach, deceased, which estate then was and still is wholly insolvent. Said administrator filed his final account and was discharged by the probate court on or about June 8, 1899, without being able to acquire information by which he could settle up the account of said Baumbach as such guardian, although diligent and protracted search was made by said administrator to obtain such necessary information, there being an entire absence of books or papers that would enable him so to do; but as such administrator said Parsons delivered to said Magee, as such guardian, one promissory note of $400, one promissory note of $200 and $12.60 in cash then remaining in bank to the credit of said guardianship estate, which property was all that said administrator was able to discover belonging to said estate of the plaintiff. Said Magee, as such guardian, has filed his final account setting forth his dealings with respect to said property so coming into his hands from said Parsons, and such account has been duly approved and confirmed and said guardian discharged.
“ Plaintiff avers that out of or from the said $2,500 received as aforesaid, by said Baumbach, she has not been paid nor has she received the benefit, either directly or indirectly, of more than the sum of $1,362; and that said Baumbach failed to faithfully perform his duties and discharge with fidelity the trust committed to him, in that between July 2, 1897, and March 31, 1898, he wrongfully converted to his own use the remainder of the said property coming into his hands as such guardian.
“ By reason of the negligence of said Baumbach, and his omission and failure to provide himself with proper books or memoranda, and for other reasons not known to this plaintiff, no account, either partial or final was ever prepared or filed in said probate court by him in relation to said guardianship property ; nor has this plaintiff, or any one in her behalf, been able, after diligent search, to discover any books, papers or other information which would show an accurate statement or the detailed transactions of said guardian, and an accounting cannot be obtained from or with said guardian in the exercise of the power and jurisdiction of said probate court in respect to said estate, and such jurisdiction is ineffectual for that purpose.”

Then follows a second cause of action, setting forth that Charles Hanner, one of the bondsmen, carried life insurance to the amount of several thousand dollars, with several life insurance companies that are named, the life insurance being in favor of his wife and children, — some in favor of his wife and some in favor of the children. And it is claimed that under Sec. 3628, Rev. Stat., plaintiff is entitled to have a certain amount of this life insurance subjected to her claim, it being in exces-of the amount that could be carried as against creditors, under Sec. 3628, Rev. Stat., as it then stood. And plaintiff prays that these defends ants be required to answer and disclose the amount of life insurance carried upon the life of said Charles Hanner. and a number of interrogatories are attached to the petition upon that subject; and asks “ that an accounting may be had of said trust property in the hands of said Herman Baumbach, as aforesaid, and of his dealings with respect thereto as such guardian, and that the plaintiff may have judgment for the amount found due her, with interest thereon from March 1, 1898; that the amount of the liability of said Charles Hanner on said guardianship bond be determined; that an accounting may be had as to said life insurance upon the life of said Charles Han-ner, deceased, and the annual premiums or payments therefor ; that the amount of each of the insurance premiums and annual payments or cost aforesaid be added together, and that only such portion of all of said insurance as the sum of $150 will bear to • the whole of such annual premiums and payments be declared to belong to said beneficiaries, within the meaning of Sec. 3628, Rev. Stat., and that the residue of such insurance (or so much thereof as may be necessary) be ordered paid over to the plaintiff to be applied to the payment of her said claim and the liability of said Charles Hanner on said guardianship bond. And for such other and further relief in the premises as the nature of the case may require and as in equity may seem meet and proper.”

To this third amended petition was filed a demurrer on the grounds:

First: That the plaintiff is without legal capacity to sue.

Second: That several causes of action are improperly joined.

Third: That separate causes of action against several defendants are improperly joined in said amended petition.

Fourth : That said amended petition does not state facts sufficient to constitute a cause of action against this defendant..

The demurrer was sustained by the common pleas court, as demurrers had been to the preceding petitions, and the plaintiff not desiring to plead further, judgment w’as rendered against her. And this is the judgment that is sought to be reversed’ in this court.

The claim on the part of the defendant in error, coming first to the fourth ground of demurrer, is that the petition does not state facts sufficient to constitute a cause of action, for the reason that it does not show either that Herman Baumbach filed a final account as guardian of plaintiff and bad that account passed upon and settled by the probate court, or that his administrator, John E. Parsons, ever filed such account with the probate court, or had any settlement thereon, or any adjudication of the probate court as to the amount due from Herman Baumbach, as her guardian, to plaintiff.

The claim is that no cause of action would accrue to the plaintiff until final settlement was had with the probate court, and adjudication of this account was had in that court. It is claimed by the plaintiff in error that if the allegations contained in the amended petition are true, as is admitted upon demurrer, it was impossible to have an accounting and settlement in probate court, and that in the language of the pleading, “ an accounting can not be obtained from or with such guardian in the exercise of the power and jurisdiction of said probate court in repect to said estate, and such jurisdiction is ineffectual for such purpose,” and therefore it is urged by counsel for plaintiff in error, that the plaintiff had a right to file her petition in the court of common pleas without first having a settlement and accounting in the probate court, and that she may have an accounting in the court of common pleas with these defendants,'and the amount due her determined, and that she may recover judgment, and that they should be required to account to her for the excess of life insurance.

Section 524 Rev. Stat., providing for the jurisdiction of the probate court, provides, among other things, that “ The probate court shall have exclusive jurisdiction, except as hereinafter provided: * * * to appoint and to remove guardians, to direct and control their conduct and to settle their accounts.”

Unless this is a case where there can not be an accounting in the probate court, or can not be an accounting within the exercise of the power and jurisdiction of the probate court, then it is not a case where such an action can be maintained in the court of common pleas for the probate court has exclusive jurisdiction of these matters.

There have been several decisions of the Supreme Court on this question. A case cited by counsel for plaintiff in error is found in Bricker v. Elliott, 55 Ohio St. 577 [45 N. E. Rep. 1045], where it is held, as laid down in the syllabus :

“ A suit to compel a trustee to account to the beneficiaries of his trust and for a judgment for the-amount which, upon such accounting, may be found in his hands, is not an action for the recovery of money only; and from the judgment of the court of common pleas in such action either party may appeal to the circuit court.”

The only question decided in this case was that in such an action, either party may appeal to the circuit court, and this was an action against a trustee to compel him to account to the beneficiaries, and not an action upon a guardian’s bond. On page 580 of the opinion, which was rendered by Judge Shauck, the court say : “In the original petition the plaintiff did not allege an indebtedness for a definite amount due from the defendant. He alleged facts which excused him from doing so, by showing that, although the parties were adversary in the suit, they had not been so in the transaction out of which it arose.”

It is not necessary to discuss the facts in this case. It was a suit brought against a man who had been acting as a trustee for his mother and it was brought by her administrator, requiring him to account for money and property that came into his hands. This authority is hardly applicable to the question before us now, which is whether this action can be brought against the bondsmen of Herman Baumbach, as guardian of this plaintiff for an alleged default in the guardian’s bond before there has been a settlement in the probate court, and that court has found and adjudicated the amount due from Baumbach to his ward.

Newton v. Hammond, 38 Ohio St. 430, it seems to us, is in point and decisive. A portion of the syllabus in the case is:

“The jurisdiction of probate courts over the settlement of such accounts is exclusive.
“ A right of action on a guardian’s bond to recover from the sureties the amount remaining in the hands of the guardian, first accrues to the ward when such amount is ascertained by the probate court on the settlement of the guardian’s final account.”

And the court say, on pages 434 and 435 of the opinion:

“ The plaintiffs in error contend that ‘the right of action’ of the plaintiff below first accrued to him at his majority, at which time he undoubtedly had a right to compel his guardian, by judicial process to perform his duty, to-wit, to make final settlement and payment. We hold, that the ‘right of action’ meant by the statute is the right to prosecute a suit on the cause of action therein stated, and, as applied in this case, means a suit on the guardian’s bond. The right to sue on the bond, and the right to compel the guardian to render a final account are very different rights. The latter can be enforced only in the probate court, while that court has no jurisdiction over the former. Section 2 of the probate act (S. & C. 1212) gives to the probate court exclusive jurisdiction : ‘ To appoint and remove guardians, to direct and control their conduct, and to settle théir accounts;’ and by section 1, clause 4, of the act of March 26, 1872 (69 Ohio L. 50), it is made the duty of every guardian, ‘ at the expiration of his trust, fully to account for, and pay over to the proper person, all the estate of his ward remaining in his hands.’ That the settlement'of this final account is within the exclusive jurisdiction of the probate courtis not disputed, but the claim of plaintiff in error is, that the failure to make the account, and pay over the estate remaining in his hands, at the expiration of the trust, is a breach of the bond, for which a right of action immediately accrues to the ward. And in support of this claim, State v. Humphries, 7 Ohio (pt 1), 223, is relied on, in-which it was held, that a previous settlement of the accounts of a guardian was not necessary to an action on his bond. In that case, however, it was admitted that it had been settled by adjudications, * * * that an action on an executor’s or administrator’s bond would not lie until after settlement of accounts, in the absence of a statute on the subject, yet, as the legislature had subsequently adopted the rule as to executor’s and administrator’s bond, without including guardians, it was therefore held, that an action on a guardian’s bond might be maintained without a previous settlement of his accounts, in accordance with a practice which had obtained in respect to other official bonds, namely, in respect to an insolvent’s bond and a clerk’s bond (3 Ohio, 508; 6 Ohio 150), cases, in which no accounting was required by statute. But Bartlett v. Humphries is of little or no weight on the question now under consideration, for, as we have shown by reference to the act of March 26, 1872, every guardian is now required at the expiration of his trust, to file a final account in the probate court, ‘ fully to account for and pay over; ’ that is, to account first, so that the amount in his hands may be judicially ascertained, and then pay over, etc.
“ The settlement made in the probate court of the accounts of the guardian shall be final between him and his ward, unless an appeal be taken to the court of common pleas, or the same be set aside for fraud or manifest mistake. Section 31, of Guardian’s Act, S. & C. 677, and Sec. 33 of the same act provides: ‘ When any guardian has died, or may hereafter die, before the settlement in court of his or her guardian, ship account, it shall be the duty of the executor or administrator of such guardian to settle up said account in the same manner as such guardian ought to have done.
“ If an accounting cannot be obtained from the guardian in the exercise of the power and jurisdiction of the probate court, we do not deny that an action on the bond against' the makers may be prosecuted in a court of equity for an account and other relief; otherwise, such final accounting being a duty enjoined by law, and the enforcement of it being entirely within the jurisdiction of the probate court, a jurisdiction declared by statute to be exclusive, and that'court performing a judicial function in finding the balance due upon such accounting under the power conferred upon it by statute, no action will lie against' the guardian and his sureties on his bond as for a breach thereof, for any balance due from the guardian to his late ward, in a court of law, until such balance shall have been fixed by final settlement in the probate court.
“ That an accounting must precede judgment is clear from the fact that the amount of the judgment cannot otherwise be ascertained. Exclusive jurisdiction in the settlement of the account is given to the probate court. The probate court has no jurisdiction in an action on the bond.”

This case and one or two other cases seem to decide clearly and finally that unless the jurisdiction of the probate court has been ousted in some way, or it is impossible to settle the matter within the jurisdiction of the probate court, an action cannot be maintained upon the guardian’s bond until there has been a settlement and adjudication of the amount due in the probate court.

Gorman v. Taylor, 43 Ohio St. 86 [1 N. E. Rep. 227], paragraph three of the syllabus is as follows :

‘ ‘ A suit in equity on a guardian’s bond, to compel an account can not be maintained without a showing that the powers and jurisdiction of the probate court are ineffectual to secure such accounting.”

And it is held in Braiden v. Mercer, 44 Ohio St. 339 [7 N. E. Rep. 155], that the settlement in the probate court is conclusive and final against the sureties. The syllabus is :

“In an action upon a guardian’s bond for the recovery of the amount found due the ward upon a final settlement of the guardian’s accounts in the probate court, the sureties are concluded by the settlement, and will not be heard, in the absence of fraud and collusion, to question its correctness or to demand a rehearing of the accounts.”

It is sought to avoid these decisions of the Supreme Court and the law as therein established by the allegations in the amended petition that Baumbach kept no books or memoranda of accounts whereby it could be ascertained how much was due from him to his ward, and therefore it was impossible to compel any account or have any settlement of Bumbach’s account; and the further allegation, “ that an account can not be obtained from or with said guardian in the exercise of the power and jurisdiction of the probate court with respect to said estate, and such jurisdiction is ineffectual for that purpose.” This last averment is purely a conclusion of law. It is not an allegation of fact to allege that the probate court is without jurisdiction or that an accounting cannot be had within the exercise of the power and jurisdiction of that court, or that such jurisdiction would be ineffectual, it is necessary to plead facts to show that that is the case.

We are of the opinion that the first cause of action in this petition does not state facts sufficient to constitute a cause of action; and if the first cause of action falls, the second must fall, for it is based upon it. And there is in fact but one cause of action. That is the claim which plaintiff has against the bondsmen and their representatives. The fact that Baumbach kept no books or accounts and left no memoranda behind him did not oust the jurisdiction of the probate court. It might make it more difficult to ascertain in what amount if any he was indebted to his ward, but it would not affect the jurisdiction of the court or render the jurisdiction of the court ineffectual, and it would be no more difficult to ascertain in the probate court in what amount he was indebted to his ward than it would be in the court of common pleas or in this court. It would be a matter of accounting, a matter to be determined by the court from such evidence as could be offered, such papers and memoranda as could be found; and the adjudication of the probate court upon this question, as decided by the Supreme Court, would be final as against the surety in the absence of fraud or mistake or collusion.

We are unable to see how these allegations in the petition to which reference has been made take the case out of the rule established by these decisions of the Supreme Court, or afford any substantial reason or ground why an accounting should not be had in the probate court and this matter determined there. It is not necessary to state or discuss the rules of law or evidence that would apply in a hearing of that kind. The whole matter is within the exclusive jurisdiction of the probate court. There has been no settlement or finding or adjudication of that court fixing the amount due from Baumbach to his ward, and the court of common pleas had no jurisdiction to require an accounting and settlement or make a finding thereon.

Being of this opinion as to this branch of the case, it is not necessary to discuss the second claim of the plaintiff that the life insurance in a certain amount should be applied to plaintiff’s claim. If plaintiff cannot maintain her action against Baumbach’s bondsmen, for the breach of the guardian’s bond, she of course is not entitled to an accounting against the children and widow of the bondsman Hanner for the excess of life insurance.

We are of the opinion that the court of common pleas was right in sustaining the demurrer. ' Holding as we do, that the petition does not state facts sufficient to constitute a cause of action, it is not necessary for us to discuss the other grounds set up in the demurrer.

For the reasons stated, the judgment of the court of common pleas is affirmed. > ,


source: Caselaw Access Project

author: COOK, J.

license: Public Domain

text:
    CRIMINAL LAW — INTENT—EVIDENCE—TRIAL.
    [Jefferson Circuit Court,
    November Term, 1901.]
    Burrows, Uaubie and Cook, JJ.
    William Coles v. State of Ohio.
    1. How Intent to be Proven.
    In a trial upon indictment containing two counts, one for assault witbl|intent to rape and the other for assault with intent to rob, the intent is a substantive part of the offense and must be proven beyond a reasonable doubt.
    2. Intent — Rule in Reviewing Court as to Quantum oe Proof.
    In such case the reviewing court, in passing upon the question as to whether or not the verdict is clearly against the weight of the evidence,will take into consideration the rule as to the quantum of proof necessary to convict in the lower court.
    3. Rights oe the Accused Under State and Federal Constitution.
    Where, during the examination of the prosecuting witness, the accused, at the request of the prosecuting attorney, was ordered by the court to stand up and turn his back to the witness, over the objection and exception of his counsel, that she might the better be able to identify him, and thereupon the prosecuting witness testified that the party that assaulted her was a short man like the accused: Held, that the action of the court was notfa violation of the rights of the accused under Sec. 10 of the bill of rights of the constitution of Ohio or of the fifth amendment of the constitution of the United States which provides that no person be compelled, in any criminal case, to be a witness against himself.
    Heard on Error.
    Erskine & Erskine and Dio Rogers, for plaintiff in error.
    A. C. Lewis, for defendant in error,
    cited:
    I. The state is not expected, and cannot be required, to make a proof of felonious intent, as a fact, by direct and positive evidence. 3 Rice Ev., Sec. 286; Padget v. State, 3 N. E. Rep. 377 [103 Ind. 500].
    II. Intent in a case of a charge of assault with intent to murder need not be shown by direct and positive testimony, as it may be inferred from the circumstances. 1 McClain, Sec. 275; 1 Clark & Marshall, Sec. 145.
    III. The intent or intention is manifested by the facts and circumstances connected with the perpetration of the offense, and the sound mind and the discretion of the perpetrator. Desty Crim. Law, Sec. 6.
    IV. It is constantly laid down that intent at the time of action is enough. 1 Wharton Crim. Law, 117..
    V. No visible act of robbery need be shown. Desty Crim. Law, Sec. 142 G.
    VI. The question as to the intent with which an assault was committed is a question of fact, and if there is evidence tending to prove that the intent was as alleged in the indictment, the verdict will not be set aside on the ground that the evidence is insufficient to sustain the verdict. State v. Estrada, 53 Cal. 600; 2 Am. & Eng. Ene. Eaw (2 ed.) 1000; 1 Bishop Crim. Eaw, Secs. 760, 772 A.
    VII. Change of intent or abandonment of purpose does not reduce the offense. Craighead v. Peterson, 72 N. Y. 279; 28 Am. Rep. 150,152; 1 Wharton Crim. Eaw, 147.
    VIII. The force of the gainful motive to crime, when awakened by the sight or the idea of some coveted material object within apparent reach is often so great and urgent as to overcome all considerations of possible or even probable danger or injury or loss to be encountered in the attempt to gratify it. Burrill Circum. Ev., 286.
    IX. Intent is usually, if not always, established by inquiries from the environing acts and circumstances, but rarely, if ever, by direct proof. State v. Woodard, 50 N. W. Rep. 885, 886 [84 la. 172].
    X. The presence or absence of intent must be gathered by considering all the facts and circumstances, and all that was said and done, or omitted to be done in determining whether the acts were accompanied by a criminal or fraudulent purpose; and subsequent conduct may be considered as well as prior or contemporaneous. State v. Meyer, 10 Re. 746 (23 Bull. 251, 252).
    XI. In a prosecution for assault and battery, felonious intent need not be shown by direct and positive evidence, and if there is any evidence whatever going to show it, and not an entire failure to prove, the Supreme Court will not reverse on the ground that such evidence is indirect and unsatisfactory. Padgett v. State, 3 N. E. Rep. 377 [103 Ind. 500].
    Supplemental brief for defendant in error.
    1. As to whether it was error on the part of the court to order the accused to stand up for inspection by the witness and jury: Wharton Cr. Ev., Sec. 315 ; 1 Greenleaf Ev. pp. 27, 28n; Underhill Crim. Ev.,Secs. 53, 54; State v. Hall, 44 N. W. Rep. 914 [79 la. 674]; Garvin v. State, 52 Miss. 207, 209; State v. Wieners, 66 Mo. 13; People v. Gardner, 38 1ST. E. Rep. 1003 [144 N. Y. 119, 120,127,130; 28 E. R. A. 699 ; 43 Am. St. Rep. 741]; State v. Reasby, 69 N. W. Rep. 451 [100 la. 231] ; Johnson v. Commonwealth, 9 Atl. Rep. 78 [115 Pa. St. 369, 370, 395, 396]; State v. Ah Chuey, 14 Nev. 79 [33 Am. St. Rep. 530]; People v. Mead, 15 N. W. Rep. 95 [50 Mich. 228].
   COOK, J.

Two questions are made in this case by counsel for plaintiff in error:

First. That the verdict is not sustained by the evidence.

Second: That the action of the court upon the trial, by which the accused was compelled to stand up for the better inspection of his person by the prosecuting witness, was a prejudicial violation oí his constitutional privilege and rights.

Upon the first proposition the special complaint of counsel is that the evidence was not sufficient to show the intent.

The accused was charged in the indictment with assault with intent to rape and with assault. with intent to rob. The jury convicted of assaült with intent to rob. In determining the question, we concede the correctness of the claim of counsel that the intent in a case of this character is a substantive part of the offense, and that, in order to convict of the higher offense, the intent must be established beyond a reasonable doubt; and that, in reviewing the judgment of the lower court upon this question this court must take into consideration the amount of proof necessary to work a conviction; and if the verdict is clearly against the weight of evidence, taking into consideration the amount of proof required in a criminal case, then the action of the lower court in rendering judgment upon the same should be reversed.

Under this rule, was the evidence sufficient to show’ the intent? Coles was standing on the corner of Adams and Fifth street when the prosecuting witness came up Adams street and turned down Fifth street southwardly. He immediately followed her and when she got to the gate or close to the gate of her home, about half way down the square, struck her upon the head with a piece of gas pipe, stunning her; but she did not entirely lose consciousness and screamed three times. Coles immediately desisted and ran up an alley immediately opposite the place of assault and out to his own home. The prosecuting witness had a gold watch and chain upon her person, the watch being in her belt, the place where she ordinarily carried it, and where it could be plainly seen-She had gone to her home in the same direction from her work, three or four squares away, for several months previously, two and three times a day. Coles was a resident of the city and had been all his life and lived a few squares from where the prosecuting witness lived. He is a negro about eighteen years of age and she a white girl twenty-four or five years of age. There is no evidence of any grudge; indeed, she did not know Coles. Simon Uoftus was about a square away and heard her scream and immediately ran to her rescue, but did not see Coles in his flight. When he got to her she was leaning over the gate partially unconscious. Nothing was disturbed upon her person.

Were these facts sufficient to justify the jury in rendering a verdict of guilty with intent to rob ? We think they were.

The accused must have had some intent in striking the girl beyond the malicious purpose of injuring her. It is true that, in striking her with the piece of gas pipé, the natural conclusion is that he intended to kill or at least wound her; that intent follows and is presumed from the use of such a weapon. It may be contended that his purpose was to wound her, but it does not follow that he had no other purpose ; or that the wounding of her was not to accomplish the ultimate purpose to rape or rob-There is nothing illogical in holding that both intents were in his mind, the one being necessary to accomplish the other. It is hardly conceivable that he struck her for the purpose of wounding alone.. There was no motive at all for simply wounding her; no ill feeling; no quarrel; nothing of that character. Why, therefore, did he follow her down the street, out of the glare of the electric light and secretly strike her with the weapon? It could only be for the purpose of rape or robbery ; the jury found the latter and we think from the evidence they found correctly.

The next question is a more difficult one. During the examination of the prosecuting witness, while upon the stand in her direct examination, the following took place:

Prosecuting Attorney Eewis: “ State if you could recognize the person who struck you there as he was running away from you.
“A. No sir, I could not.
“ Eewis: Stand up, Coles (speaking to the defendant). Turn your back to the witness.
“ Defendant objects to this.
Court: I think that is all right.
“ Mr. Erskine (Attorney for Coles): We object to that.
‘1 Court: He may remain standing a minute.
“ To this defendant then and there excepts.
“ Witness: The size of that man fills the bill.
“Court: The answer is stricken out.
“ Erskine: We object to the order of the court to have the defendant stand up. Overruled, to which ruling of the court the defendant then and there excepted.
“ 0. Now state to the jury whether the person that you saw running, how he compared, if at all, with the person of the defendant ?
“ Objected to. Sustained.
“ Court: Eet her state her recollection of his size.
“ Q. State as to whether the person you saw was taller or shorter or the sa,me size as the defendant.
“Objected to.' Sustained.
“ Court: Eet her state what kind óf a man he appeared to be.
“ Q. State.
“ A. He was a short man and the size of that man fills the bill.
“ Court: The latter part of the answer is stricken out; the jury-will pay no attention to that remark.”

From these proceedings it will be seen that the accused, over the objection and protest of his counsel, was required by the court to stand up and turn his back to the prosecuting witness in order to assist her in identifying him, if possible, and, by his standing up, she was enabled to state that the man that assaulted her was a short man like the accused.

Was this action of the court a violation of the rights of the accused under Sec. 10 of our bill of rights or the fifth amendment to the constitution of the United States ? The provisions are practically the same. The bill of rights provides : “Nor shall any person be compelled, in any criminal case, to be a witness against himself.”

Nearly every state in the union has similar provisions in their organic law. In some of the states the provision is: “ Such person shall not be compelled to give evidence against himself,” the phraseology being slightly different but of the same legal effect. Note to State v. Ah Chuey, 33 Am. Rep. 530, 540.

The solution of the question is not free from difficulty from the adjudicated cases. The accused was required to stand up and turn his back to the prosecuting witness, in order that she might compare him with the person who fled after striking her. It would seem as if that was requiring him to give evidence against himself; but at the same time he was exercising his right to face his accusers, and, being in court, would be under the control of the court for all fair and reasonable purposes. So far as we have been able to ascertain, there are no reported cases in this state bearing upon this question, either of our Supreme Court or of our lower courts; and in other states the authorities are conflicting.

People v. Mead, 15 N. W. Rep. 95 [50 Mich. 228]; State v. Jacobs, 5 Jones Law R. (N. C.) 259; Blackwell v. State, 67 Ga. 76 [44 Am. Rep. 717]; Stokes v. State, 5 Baxt. [619 30 Am. Rep. 72]; State v. Ah Chuey, 33 Am. Rep. 530, 540; People v. Gardner, 144 N. Y. 119 [38 N. E. Rep. 1003; 43 Am. St. Rep. 741]; Johnson v. Commonwealth, 115 Pa. St. 369 [9 Atl.Rep. 78]; State v. Reasby, 69 N. W. Rep. 451 [100 Ia. 231]; Day v. State, 63 Georgia, 669.

In State v. Jacobs, supra, the court says: “A judge has not the right to compel a defendant in a criminal prosecution to exhibit himself to the inspection of the jury for the purpose of enabling them to deter-termine his status as a free negro.”

In Stokes v. State, supra, it is held : “ On an accusation of murder, it being claimed that certain footprints were those of the prisoner, the prosecuting attorney brought a pan of mud into court and placed it in front of the jury, and having proved that the mud in the pan was about as soft as that where the tracks were found, called on the prisoner to put his foot in the mud in the pan. On objection the court instructed the prisoner that it was optional with him whether he would comply. The prisoner refused, and the court instructed the jury that his refusal was not to be taken against him. The prisoner being convicted, held, he was entitled to a new trial.”

In Blackwell v. State, supra, the court held that: “ On a trial for murder the extent of an amputation of one of the prisoner’s legs being a material question, it is error to compel the prisoner to exhibit his leg to the jury.”

In Day v. State, supra, the court held: “ Evidence that a witness forcibly placed defendant’s foot in certain tracks near the scene of the burglary, and that they were of the same size, is not admissible.” A defendant cannot be compelled to criminate himself by acts or words. The court say: “ By the constitution of this state no person shall be compelled to give testimony in any manner to criminate himself; nor can one, by force, compel another against his consent to put his foot in a shoe track for the purpose of using it as evidence against him on the criminal side of the court.”

In People v. Mead, supra, the court held: “A prisoner on trial for crime cannot be required, against objection, to try on a shoe to determine whether tracks found at the scene of the offense were his own; nor if he objects can he properly be required to measure the shoe after trying it on.”

In State v. Ah Chuey, supra, it was held : “ In a criminal case on a question of personal identity a witness testified that the defendant had certain tattoo marks on his person. The court compelled the defendant against his objection to exhibit his person to the jury — Held, no error.” The decision in the case was by a divided court and we think the dissenting opinion of Eeonard, J., is the better reasoning upon the facts of that case.

In State v. Reasby, supra, it was held: “During the trial of a criminal case the defendant’s brother who greatly resémbled him took a seat by his side as a test of identity. At the request of the attorney for the state the judge ordered the defendant to rise for identification against the objection of his attorney. The prosecuting witness then identified the one who stood up as the one who committed the offense charged. Held, that the action of the court in compelling the defendant to rise was not error, as compelling him to criminate himself.”

In People v. Gardner, supra, it was held: “ Upon a trial- of an indictment for an attempt to commit the crime of extortion, a witness called for the purpose of identifying the defendant as the individual in company with the prosecutrix upon an occasion having a material bearing on the case, testified that he did not know him, but would know him if he saw him. Thereupon defendant by direction of the court and against the objection of his counsel was compelled to stand up and was then identified by the witness. Held, that the direction was not error ; that this was not a violation of the constitutional provision protecting a person from being compelled in a criminal case to be a witness against himself under the fifth amendment of the United States constitution and Sec. 6, Art. 1 of the constitution of New York.”

In Johnson v. Commonwealth supra, it was held: “ Whether it would have been error, had timely objection been made and exception taken to the request of the district attorney to the prisoner to stand up and repeat certain words, is not decided, as the question was not properly presented to the court.” Per Sterrett, J.: “ To hold that this was a violation of the clause in Sec. 9 of the declaration of rights, which declares the accused ‘ cannot be compelled to give evidence against himself’ would in my judgment be a strained construction of that instrument.”

From the foregoing authorities it will be observed, as we have said, that there is great disagreement in the courts of final resort in the different states upon the question involved. To attempt to review the reasons given in the different cases for the decisions made would take a great deal of space and throw little additional light upon the question.

We are impressed with the reasoning of the learned judge delivering the opinion in the case of People v. Gardner, supra, and, while there may be some doubt upon the question, we have concluded to follow that case. In the opinion, Earl, J., says : “ It is now claimed on his behalf that this action on the part of the court violated his constitutional rights, by compelling him to be a witness against himself. N. Y. Const., Art. 1 Sec. 6; U. S. Const., amendment 5. We do not think that the defendant’s constitutional right was violated, or that he was compelled, within the constitutional provisions referred to, to give evidence against himself. He was bound to be in court and in the presence of the jury, the recorder and the witnesses who might be there. The recorder, the jurors and the witnesses had the right to see him and he had the right to see them. It was necessary that he should be identified as the person named in the indictment and charged with the crime. * * * There was nothing on his person or in his appearance that in any way connected him with the crime, or furnished any evidence whatever of his guilt. Suppose he ¡had come into the court with his face veiled, could not the recorder ■ compel him to remove the veil that his face might be seen ? Could he not compel him to remove his hat; to stand or sit in the prisoner’s dock ? Inf he examination of the witness could not the district attorney have pointed to the defendant and asked the witness whether he was the person he had seen with Mrs. Amos ? Instead of compelling the defendant to stand up, could not the recorder have directed the witñess to go to the place where he was and look at him with the view of identifying him ? If all these things could be done without violating the rights of the prisoner, how is it possible to say that he was harmed, or that his constitutional right was invaded by compelling him to stand up for the purpose of indentification ? For the orderly conduct of a criminal court it is requisite that the trial judge should have the power to say what place the prisoner shall occupy in the court room, and whether at any time he shall stand or sit, and be covered or uncovered; and he must have the"power at all times to keep the prisoner within sight of the court, the jury the counsel and the witnesses.”

In this caseAhe accused was required to do nothing further than he ordinarily would do in coming into and returning from the court room during the trial, and the prosecuting witness would have had the same opportunity to observe him as she did when he was required to stand up and turn around while she was testifying upon the stand.

This exception will, therefore, be overruled.

We have examined the entire record carefully and find no error.

The judgment will be affirmed and the cause remanded.


text:
    COURTS — JUDICIAL NOTICE — SUNDAY*
    [Ashtabula (7th) Circuit Court,
    January Term, 1902.]
    Burrows, Laubie and Cook, JJ.
    Albert Strauss v. Village of Conneaut.
    1. Municipal Courts Take Judicial Notice of Ordinances.
    Municipal courts take judicial notice of the ordinances of the municipality in prosecutions for the violation of the same.
    2. Same Rule in Reviewing Court.
    Upon a petition in error to reverse the judgment of the municipal court assessing a penalty for the violation of an ordinance, the reviewing court occupies the same relation to the ordinance as the municipal court, and will take judicial notice of the ordinance under which the conviction was had.

      8. Ordinance Against Common Labor — What it Must Contain,
    An ordinance prohibiting common labor or opening places of business on the first day of the week, commonly called Sunday, which does not except works of necessity and charity, is invalid, and a conviction under it will he reversed.
    HEARD on Error.
    Parker & Smith, for plaintiff in error.
    A. M. Cox, for defendant in error.
   COOK, J.

Strauss was convicted before the police justice for a violation of an ordinance of the village of Conneaut for keeping his place of business open on Sunday.

The ordinance provides “that it shall be unlawful for any person over fourteen years of age to engage in common labor or to open or cause to be opened any building or place for the transaction of business on the first day of the week, commonly called Sunday.”

The ordinance further provides in a separate section that its provisions do not extend to persons who conscientiously observe the seventh day of the week as the Sabbath, and who do in fact on that day abstain from the doing of the things prohibited by the ordinance, but does not exempt works of necessity and charity.

Strauss, by his counsel, filed a motion for a new trial which' was overruled by the police justice and six days were given to prepare, have allowed and file a bill of exceptions, which was done.

Application was made to the court of common pleas to file a petition in error, which was granted by the court. Thereupon, the village, by its counsel, filed a motion to strike the bill of exceptions from the files for tbe reason that the police justice had no authority to allow six days to prepare and file a bill of exceptions. The motion was sustained and the petition in error was dismissed by the common pleas court.

The ground of error relied upon is that the ordinance under which Strauss was tried and convicted is invalid for the reason that it does not except works of necessity and charity. The question was not' passed upon by tbe court below for the reason that the ordinance was included in the bill of exceptions, and the bill being stricken from the- files, that-question, as it was claimed, was not before the court. The principal argument before us has been as to whether or not the common pidas court erred hi striking the bill of exceptions from-the files for the reason that the police justice had no authority to give time for' the fifing oí á bill of exceptions.

As to whether or not a municipal court, in a prosecution for a violation of an ordinance, has tbe power to extend-the time after judgment for the filing of a bill of exceptions has been much controverted. In two circuits, the sixth and eighth, it has been decided it has no such power, while in the second it is held that it has. As we view the case it is not necessary for us to determine this question for the reason that this court will take judicial notice of the provisions of the ordinance under which the accused was convicted, and its incorporation in the bill of exceptions was unnecessary.

Upon the trial in the municipal court the police justice must have considered the ordinance under which the charge was made independent' of- whether it was introduced in evidence or not. It was not necessary in the- affidavit to aver the existence and contents of the ordinance, nor was it necessary to prove the same. Courts of-general jurisdiction will not take judicial notice of municipal ordinances in original actions brought Upon the ordinance, but in actions in the municipal court in a criminal prosecution for a violation- of the ordinance the jurisdiction of the court depends upon the ordinance under which the prosecution is had. The ordinance is the foundation of the prosecution.

The question has not been determined by our Supreme Court, and so far as we know by any circuit court of this state. While there is a diversity of holding in the other states [17 Am. & Eng. Enc. Law (2 ed.) 937], we think the better opinion is that municipal courts will take judi■cial notice of the ordinances of municipalities in actions to enforce the same, and that it is not necessary to introduce the ordinance in evidence. Solomon v. Hughes, 24 Kans. 211; Downing v. Miltonvale, 14 Pac. Rep. 281 [36 Kans. 740]; Moundsville v. Velton, 13 S. E. Rep. 373 [35 W. Va. 217] ; Laporte City v. Goodfellow, 47 Ia. 572; Incorporated Town of Scranton v. Danenbaum, 80 N. W. Rep. 221 [Ia.].

If the municipal court takes judicial notice of the ordinance under which the conviction. is had, the reviewing court must do the same, otherwise the accused would be without remedy. It not being necessary to introduce the ordinance in evidence the record would be barren ■of the ordinance and however invalid the ordinance might be, the accused coaid not have the determination of the reviewing court upon its validity. The reviewing court occupies the same position as the mu-inicipal court in relation to the ordinance; what was law before it is law i in the reviewing court, and what was fact before it, is fact before the reviewing court. The law need not be averred and proven while the facts should be. One is taken judicial notice of, the other must come before |it by bill of exceptions. Hanley v. Donoghue, 116 U. S. 1 [6 S. Ct. Rep. 1242] ; Moundsville v. Velton 13 S. E. Rep. 373 [35 W. Va. 217]; Downing v. Miltonvale, 14 Pac. Rep. 231 [36 Kans. 740] ; Keck v. Cincinnati, 4 Dec. 324; 17 Am. & Eng. Enc. Law (2 ed.), 938.

This holding in no way conflicts with the decision in Toledo v. Libbie, 8 Circ. Dec. 589 (19 R. 704, 705). That case was an original action brought in the common pleas court, and that court could not, under the well settled rules of law, take judicial notice of the ordinance, but held that it must be plead and proved, and, therefore, the circuit court upon review could not consider the ordinance, it not being attached to the bill of exceptions. In that case it was said, however, that “ city courts and mayors of villages take judidicial notice of the ordinances of their respective municipal corporations.”

The ordinance in this case is attached to the record and is certified by the police justice as the ordinance under which the conviction was had, and counsel concede that to be so; it shows that no exception is made of works of necessity and charity. However necessary it might have been for the accused to open his store, or whatever charitable purpose it was to subserve, could not have been shown under the ordinance. It must, therefore, be held invalid. Such is the distinct holding in Canton v. Nist, 9 Ohio St. 439. The judgments of the common pleas court and of the police justice are reversed and the accused is discharged at costs of defendant in error. Case remanded to common pleas court for execution.


author: CALDWELL, J.

text:
    LIS PENDENS.
    [Cuyahoga (8th) Circuit Court,
    February 10, 1902.]
    Caldwell,'Hale and Marvin, JJ.
    Leslie M. Green v. Perry S. Green.
    1. Case is Lis Pendens During Whole oe Term.
    A case is in court, lis pendens, during the whole of the term at which judgment' is rendered and not simply to the time when the judgment is rendered.
    2. Rule Applied.
    Under the forgoing rule, a suit for divorce and alimony, restraining the transfer of property by injunction, Which was dismissed, but at a later term, upon motion for rehearing filed at the same term, reheard and judgment prayed for granted, was lis pendens from time of dismissal to filing of motion for rehearing.
    Appeal.
    J. F. Clark, for plaintiff.
    White, Johnson, McCaslin & Cannon, for defendant.
   CALDWELL, J.

It is unnecessary to state the facts in this case in full. The plaintiff, Leslie M. Green, brought an action in the court of common pleas for divorce and alimony against her husband Perry S. Green, and undertook to. tie up certain property by injunction which she claimed had been unlawfully transferred from her husband and that he was the true owner of the same. She failed to obtain either divorce or alimony, and she was dismissed out of court. A motion for a new trial was overruled, and, at the same term, she filed a motion for a rehearing. The motion was granted, and she obtained her divorce and alimony upon the rehearing.

Either after the first judgment in the case and the time of filing the motion for a rehearing, or just before the first judgment, this property in question was transferred by the one who held the title to the same; and notwithstanding such transfer, she now seeks to fasten upon it her right to subject the same to the payment of her alimony; and the only question in the case is this: There was a judgment against her and she was dismissed entirely out of court, and so remained until at the same term she filed her motion for a rehearing, which motion was heard after the term and granted, and she obtained her relief sought. Was the case lis pendens between the time of the dismissal of her. petition by the court and the time when the motion for a rehearing was filed ? In other words, was the case in court during the period ?

It is not denied, in this case, by the defendant but that the court of common pleas had jurisdiction over its records and judgments during the term at which .they are made. In fact, it is too well settled in this state, to any longer be a question of controversy. Huntington v. Finch, 3 Ohio St. 445; Knox Co. Bank v. Doty, 9 Ohio St. 505 [75 Am. Dec. 479]; Kelly v. Stanbery, 13 Ohio 408; Niles v. Parks, 49 Ohio St. 370 [34 N. E. Rep. 735]; Huber Mfg. Co. v. Sweny, 57 Ohio St. 169 [48 N. E. Rep. 879]; Ash v. Marlow, 20 Ohio 119, 131.

Nor is it contended, in this case, by the de.endant, that it made any difference whether the court acted upon the motion for rehearing at the same term in which the plaintiff was dismissed out of court, or at a subsequent term, provided the motion was filed, as it was in this case, at the same term.

The only question is: Was the case pending in such a manner in the interim above named, that it can be now said to be Us pendens during that time?

We have been cited to a number of cases; none of them, however, being directly in point on the question in the case before us for determination. In some of them, it has been held that a bill of review filed and on a hearing of the same a new trial granted, that between the time of the first judgment and the filing of a bill of review, the case was not Us pendens, But, upon an examination of these cases, we find that in none of them was the bill of review filed at the same term of court; and the courts seem to differ upon the question, under the facts just stated.

There is a difference of opinion when the one acquiring an interest in the subject of the litigation after the original decree is entered and before the bill of review is filed, takes title subject to such final action as may be had under any bill ot review which may be subsequently filed.

Among the decisions confirming that purchasers, before the bill is filed, are, nevertheless, bound by the result thereof, are many of those that have been cited. And courts differ as to this question, where an appeal is taken or error is prosecuted, and the title changes after the judgment and before an appeal is prosecuted or error is taken.

The case of Ludlow v. Kidd, 3 Ohio 541, 544, has been criticised upon the supposition that the court meant to say that after the judgment, one who purchases, is not bound by lis pendens, notwithstanding that the case is thereafter brought into court under a bill of review.

None of these cases are, in their facts, like the question before us, nor is the principle the same in that the question in our case is deter, mined entirely by determining whether a case remains in court during the term at which judgment is given or refused and until the end of such term.

In contemplation of law a term of court is but one day, and all judgments are supposed to be of that one day; and yet this fiction must give way where two acts of the court are drawn in question as to which is prior, and then the question is determined by the facts to be established by evidence.

The court retains control over its entries during the term is undis. puted and this is equivalent, in our judgment, to saying that the case remains pending in the court during the term at which the judg. ment is rendered. A court certainly cannot adjudicate in a case not in its court; and when the law says that a court may modify its judgment during the term, it must mean that it may modify it in a case that is pending.

But this does not answer the entire question : Is it pending in such a manner as to become lis pendens? In other words, is it notice during the entire term, or only until the time that judgment is rendered? It is claimed that any one seeing the record of the court, will see that all matters in the case have been adjudicated and are at an end. But this latter conclusion would be wrong, for they are not at an end and do no terminate before the close of the term.

It has been held that when a judgment is set aside at the same term, the case stands in court as though it had never been tried. 27 Ark. 295; Stannard v. Hubbell, 25 N. E. Rep. 1084 [123 N. Y. 520].

And in Kudlow v. Kidd, supra, if the Supreme Court bad found a case establishing this doctrine just announced, evidently from the opinion it must be concluded the court would not have concluded as it did in that case.

Cases fairly in point on this question, are not numerous, and, in fact^ we have found but one that fairly decides the exact question before us, and that is Cornell University v. Parkinson, 58 Pac. Rep. 138 [59 Kansas 365]. The district court, in disposing of the case, used this language on page 140 :

“The first rule to be considered is this: That the court has absolute control of its decrees and judgments during the term at which they are rendered. They are, as expressed by some writers, within the breast of the judge during the term. This is a wholesome provision of the law and necessary to the administration of justice. In the hurry of business and confusion incident to a term of court it often becomes necessary to correct during the term the mistakes that have been made > and these can be corrected at any time during the term, and the term is only one day, in law; and persons who purchase property upon decrees) must understand that rule, and purchase with reference to it. * * * ”

And the court concluded that there was no estoppel of record in that case; that is by the mere entry of the judgment, as the judgment does not become final until the term adjourns; that is final in the sense that it is beyond the control of the court that pronounces the decree. In that case, the court found an element oí estoppel which prohibited in equity the party seeking to obtain relief. So that, notwithstanding the purchase was made lis pendens, the other party was debarred from taking advantage of the same.

It has been held that if an appeal is prosecuted in a case before the end of the term at which the judgment was rendered, or proceedings in error are had before the end of the term, and although the jurisdiction of the appellate court may have attached, yet the trial court is not thereby barred from changing its judgment during the term. Blum v. Wettermark, 58 Tex. 125; Grubbs v. Blum, 62 Tex. 426.

Our conclusion in this case is, that the case was lis pendens during the entire term in which the court rendered the judgment dismissing the petition, and the motion having been filed at that term, the transfer of the property was made while the case was yet in court, and that it never ceased to be in court until the plaintiff obtained the relief that she sought in her petition, and that the plaintiff is entitled to the judgment that she seeks.