text:
    (Fifth Circuit — Licking Co., O., Circuit Court,
    March Term, 1898.)
    Before Adams, Douglass and Smyser, JJ.
    CALVIN HILBRANT v. WILLIAM N. SIMMONS.

      Slander — What words are slanderous per se—
    (1) . In an action for slander,wherein it is alleged: “In place of
    trying to track around here you had better been to home tracking the man that burned your house and you would track him in your own door. You know you burned it. You took the money and built a barn with it.” Meaning thereby that the plaintiff had burned his own house to get the insurance money,and had taken the insurance money and built his bain; such words are actionable per se.

      What may he shown under general denial—
    (2) . The defendant in view of mitigating damages may give evir dence of a general report in circulation prior to the publication complained of, that the plaintiff was guilty of the charge then imputed to him. This is relevant only to rebut the presumption of malice and thereby mitigate damages, and the fact that, it tends to prove the truth of the charge is no ground for its exclusion.
   Douglass, J.

William N Simmons, tbe plaintiff below, brought an action against Calvin Hilbrant alleging that tbe defendant slandered and defamed his character by speaking certain words set out in bis petition; and prays damages in the sum of $20,000. Tho defendant denies the speaking-of the words and denies malice. The case was tried to the jury and resulted in a verdict of $800, in favor of the plaintiff. Error is prosecuted to this court, and there are five assignments of error, but the ones relied upon in argument are: I. That the petition is insufficient; thet the .words are not slanderous per se; that appropriate allega,, tions and proof could only make them so. 2. That the verdict and judgment is against the weight of the evidence. 3. That'jthe damages are excessive. 4. Error in ruling out theylsposition of one Howell, this deposition strongly tending'to prove the truth of tbe charge.

. First addressing ourselves to the claim that the petition is insufficient in that the words stated are not slanderous per se, and only become so by means of allegations of extraneous facts, The petition, omitting formal parts, is:

“In place of trying to track aiound here, you (meaning the .plaintiff) “had better been to home tracking the man that burned your house and you would track him in your own door. You (meaning the plaintiff) “know you burnt it” (meaning plaintiff’s house). “You” (meaning the plaintiff) “took the money and built your barn with it.” Meaning thereby that the plaintiff had burned his own house to get the insurance money, and had taken the insurance money and built his barn.

The first question presented is: Docs this petition state a cause of action ? Some of the questions here presented, namely this first one, is one of considerable difficulty, •one in which the court^k not in common agreement. A majority of the court is of opinion that the petition does state a cause of action, and that the innuendo pointing the meaning of the words is not overdrawn, and that it is the only logical deduction therefrom.

It would be an endless task and a thankless one to attempt to reconcile all the cases, as to the real foundation of slander. Some of the earlier cases hold that the real foundation' of slander was jeopardy of punishment, and others hold: injury to the reputation of the person. Words, to be actionable, must come within one of three classes (as set out in the 27 Ohio St., 328): “The words must import a charge of an indictable offense', involving moral turpitude or itnfamous punishment;” (and within that class this case must fall). 2 “Impute some offensive or contagious disease calculated to deprive the person of society; or 3. Tend to injure him in his trade or occupation. ” Within these three classes, we have slander.

I will make reference to the 27 Ohio St., 326, the syllabus of which is:

“Words spoken, charging a man with sodomy, are not actionable without alleging special damage; such an act not having been made a crime or offense indictable and punishable by law.”

The court, on page, 329, enters upon this discussion .(reviewing the 19 Ohio St., 432) the first rule .is cited by the court in these words:

“The general current ofdeeisions warrants us in saying that to render words actionable per se, on the .ground that they impute erimnality to the plaintiff, they must be, 1: such as charge him with an indictable offense; and 2: the offense charged must involve a high degree of moral turpitude, or subject the party to infamous punishment”, and to make this rule especially emphatic, the court adds, quoting from Starkie: “No charge, however foul, will be actionable without special damages, unless it be punishable in the temporal courts of criminal jurisdiction.”

On a review of the 17 Ohio St., 241, the court makes this obseravtion:

“The only innovation upon this common law rule which has hitherto been made in this state, is in regard to the slander of a female; but this exception has never been extended to the other sex where the words are •of a similar character. And we neither feel disposed nor authorized to extend the innovation, Wright’s Reports, 40, is one of the earliest cases in regard to this innovation. It is there said: To charge a man- with adultery is not actionable, though to charge a woman is, This court have gone no further. Going that far is conceded to be an innovation upon the common law rule. We are unwilling to carry the exception further, and have so decided heretofore.”

Then a reference is made to the 15 Ohio, 319, which •case, they say, stands alone The charge in the case in 17 Ohio St., 241, was one of a serious character, buiglary, and was between partners; and because a partner could not be indicted for stealing from himself, they held that there was no slander, per se, in what he said.

Hollingsworth v. Shaw, 19 Ohio St., 432, was a charge of desertion against a soldier. I will read what the court say:

“This charge, if true, subjected the party to infamous punishment, and even death by court martial, as well as involved the highest degree of disgrace and infamy, and yet, because it was not an inductable offense, the right of action was denied. So to say of a person that he had negro blood in his veins (Wright’s Reports 40), was more effective than the small-pox in excluding him from society, yet it was not actionable.”

I simply cite these to show how rigorously the rule has been held and followed that words, to be actionable, must support a charge of an indictable offense involving moral turpitude or infaomus punishment. The substance of the statute is that any person found guilty of this offense viz.,, burning his property to secure the insurance, shall be imprisoned in the penitentiary not more than twenty years. As preliminary, I desire first to cite section 5093:

“In an action for a libel or slander it shall be sufficient.to state, generally, that the defamatory matter was published or spoken of the plaintiff; if the allegation be denied, the plaintiff must prove the facts showing that the defamatory matter was published or spoken of him; and in such action it shall not be necessary to set out any obscene word, but it shall be sufficient to state its substance.”

Referring to Kinkead, vol. 1, sec 754, we have a construction of this statute as it refers to the colloquium and innuendo, which we think important:

“Codes of other states provide in so many words that it is not necessary to state extrinsic facts to show the application of the defamatory matter to the plaintiff. These provisions have caused confusion upon the question of the necessity and use of the innuendo and colloquium, as well as the necessity of averring extrinsic facts. It seems to be considered by some authorities that the code dispenses with-the necessity of pleading extrinsic facts. But the innuendo must be used where the publication does not appear on its face to be of a defamatory character, and only becomes so by reference to extrinsic facts, in which case the existence of those facts must be alleged to show a libelous meaning, But where the words themselves tend to injure the reputation, the allegation of extrinsic facts is not necessary, The-office of an innuendo is to direct attention to- the charge made. ”

Then it is stated, and truly,- that it does not enlarge or broaden the charge, but points the meaning. “The provisions of'the code heretofore referred to were clearly intended to dispense with the necessity of the colloquium, as it provides that it must be stated that the words were spoken of the plaintiff. In any event, if it be denied that the words were spoken of and concerning the plaintiff, they must be established. It is, however, dispensed with only when it is unnecessary to show that the defamatory words applied to the plaintiff, The averments required in common-law pleading to show the meaning of the words must still be made.”

That is the view of this text writer:

“The averments required in common-law pleading to show the meaning of the words must still be made. ” This is pointed here by the averment: “took the money and built your barn with it,” meaning thereby that the plaintiff had burned his own house to get ths insurance money, and had taken the insuarnce money and built his barn.

We have examined a large number of authorities, and, recognize the force of the position assumed. Is the innuendo in this case — “meaning thereby that the plaintiff had burned his own house to get the insurance money, and had taken the insurance money and built his barn” — justified by what is stated? If it is not, it counts for nothing; it cannot-enlarge or broaden, but it points the meaning.

In 16 Am. St., 422, the language was not choice, but it was: She is ornrier than two hells, and I can prove it, “meaning to charge her with being a whore.” That was all that was stated; the innuendo was: “meaning to charge-her with being a whore. ” The court in discussing that ¡says:

“It is charged in the petition that in using the expression defendant meant to charge plaintiff with being a whore The words themselves do not signify that. Without explanation, we regard them of very uncertain meaning.”

There was no evidence admitted except as to how the hearers understood that. Then they enter into a discussion here, saying that lexicographers have not attempted >to define the word “ornery”; that they have, not given it ■ any authoritativo recognition; that it is a sort of provincialism; and about the most that can be said of it is that it was -intended to cast some bad aspersion upon somebody, and so ■ on. But after that discussion the court say:

“In such cases the expressions are ambiguous. They may ’have one meaning or another, and the intent and understanding must be established by proof.” The defendant asked the court to give to the jury the following instruction, which was refused: “Thecourt instructs the jury that to say of a woman or girl that ‘she is ornrier than two hells’ will not -warrant the innuendo, meaning, or construction that she is a prostitude, although you may find, from the evidence, that the defendant did speak of and concerning the plaintiff the ■above words. Then, upon that branch of the case, you are instructed that the plaintiff cannot recover, and you will find for the defendant.’ Of his refusal the defendant complains. - The instruction merely presents a question as ~to the sufficiency of the pleading. The point urged was as manifest on the face of the petition before answer as after the taking of the testimony. If the objection could have been taken by motion, or demurrer to the petition, and was not, and the party answered and proceeded to trial, it was a waiver of the objection and cannot afterwards be raised by an instruction to the jury.”

The court decides this:

“Where a petition in slander charges that defendant said of and concerning plaintiff that ‘she is ornrier than two hells’, meaning to charge her with being a whore, the word 'ornrier’ being of doubtful and uncertain meaning, the intent and meaning of its use as understood by those who heard it may be established by proof, but the testimony of witnesses who did not hear that word used but heard other words not slanderous in character, is inadmissible to prove their understanding of the word charged.”

The court there holds that a petition stating those words as spoken, and then the innuendo; meaning thereby that she was a whore, is sufficient to make ■a good petition, and justifies proof as to the understanding ■of the parties who heard the words. In analogy to this, ■how stands our case? “You know you burnt it; you took the money and built your barn with it.” If a hundred persons heard that stated, no one could understand it to mean ■anything else than that the property was insured, and that ihe got the money from the insurance company and built a ■barn. There is no other logical construction, That being ‘the only logical deduction form the words spoken, it is a proper innuendo, and makes a case, as we view it.

22 Am. St., 126, is an instructive case, because there :are so many specific averments, and then an innuendo that we think is a good deal more strained than in this case, that •a different logical deduction could have been made from the words charged. The defamatory words relied upon are: “She keeps a common open house (meaning that plaintiff kept a ■common open house of ill-fame). She is nothing but a whore, anyway (meaning that the plaintiff was a common prostitute, and kept a house of ill-fame;” (This is a Vermont case). Our view is that keeping a common open house and charging her with being a whore anyway, that while the innuendo might point with some logic to the faat that she kept a house of ill-fame, it is not as conclusive as "the case at bar; because another logical deduction could be made that the one pointed by the innuendo. The court say:

“The question is not, as assumed by the defendant, whether this is the only natural meaning of the words ‘common open house’, In determining the meaning of this particular phrase, the language used is to be taken together, and the question then is, What might the person to whom the words were spoken have properly taken them to mean?”

If that is the question, then this case at bar is safe; because what other thing could the person to whom the words were spoken have taken them to mean in the case at bar? Again the court adds; “Might they not, without other aid, have naturally conveyed the meaning assigned by the innuendo?” That gives us wide latitude in the case at bar§

“If so, the words are legally susceptible of the meaning charged, and the count is sufficient after verdict. The-charge of keeping a common open house, standing alone,,' could not support an innuendo that a house of ill-fame wa& meant, without the aid of special prefatory averments, But when it is said cf a woman who in the same connection is-declared to be a prostitute that Bhe keeps a common open-house, we think the words are legally susceptible of the-meaning here ascribed to them, and the jury has found by its verdict that they were used by the defendant in that* sense. ”

We think that that case is very much wider and very much more doubtful than the one at bar. This is all I desire to say on this proposition. An examination of the-record satifies us that the judgment and verdict is not against the weight of the evidence as to the plaintiff’s right, to recover some amount at least.

As to the exclusion of the Howell deposition: This was" excluded on the ground that it tended to prove the truth of the words spoken under a general denial, and that proof of the truth of the charge was only admissible under a plea of justification. The authorities upon that proposition that are in conflict in this regard are the 5 Ohio St., 293, and 32 Ohio St., 604. The syllabus in 5 Ohio St., 293 is as follows;

.“Under the plea of the general issue in an action for a libel, it is competent for the defendant, with a view of mitigating damages, to give evidence of a general or common report in circulation prior to the publication complained of, that the plaintiff was guilty of the charge imputded to him; but such evidence is only competent to rebut the presumption of malice, and not by way of affecting or attacking the character of the plaintiff. “Under the plea of the general issue in such action, evidence of particular facts or circumstances calculated to have induced mistake,or to have misled the party in the publication of the slander, is competent in mitigation of damages by way of rebutting the presumption of malice, and that, too, whether the evidence tended to prove the truth of the charge or not.”

The opinion in this case, by Judge Bartley, goes to the length of holding that, under the general issue, or general denial, evidence tending to prove the truth of the charge, even if it went so far as to prove its truth to the entire satisfaction of the jury, may be given in evidence, and that the court will take care of it; not that it can defeat a recovery in any instance, but that it can be used simply to mitigate damages down to the very edge — to nominal damages. I will read the conclusion of the opinion in this case. First citing 18 Conn. Kep., 464, then the court proceeds:

“It has been said that a defendant could avoid the difficulty of this rule by putting in a plea of justification, and thus introducing his evidence, which, although it might not fully support the plea, would be considered by the jury in mitigation of damages. This would, however, introduce a fallacious principle in pleading. And besides the plea of one defense as a sham to enable the party to give evidence of another and different defense, it would subject the defendant to all the consequences of a repetition of the slander, which would perpetrate the charge upon the public records without proper and justifiable cause. A plea of the truth of the slanderous charge, when made in good faith, if unsustained by the evidence, always tends to aggravate the case and increase the damages. And when the truth of the charge is plead, and spread upon the record wantonly, or unnecessarily and improperly, it entitles the plaintiff to what would amount to exemplary damages according to the circumstances of the case. When, therefore, a party has made the charge under-an honest but mistaken belief of its truth, induced by circumstances which came to his knowledge tending to show it to be true, it would be a denial of justice to compel him to incur the consequences of a plea of justification in order to introduce evidence which, although it might not sustain a plea of justification to the satisfaction of the jury, would greatly tend to mitigate the damages by- repelling the presumption of malice.”

“The reason assigned for the rule that the plaintiff must be notified by a plea of justicfiation, before a defendant can introduce evidence tending to prove the truth of the charge, may be sufficient where the truth of the charge is relied on as a bar to the action; but it is wholly unsatisfactory and insufficient to justify a denial of justice, where the purpose of the evidence is to mitigate the damages by disproving malice. The party who institutes an action for slander or libel, always informs himself of the means of the defendant to establish the truth of the charge. In the absence of a plea of justification, evidence tending to prove the truth of the charge, offered for the purpose of repelling proof of malice, even if it went so far as to prove the truth of the charge to the entire satisfaction of the jury, could not prevent the plaintiff from recovering damages to some amount. No plea or notice of matter in mitigation is requisite; and this circumstance ought not to effectuate a denial of justice, when the evidence in mitigation, by way of repelling the proof of malice, tends to prove the truth of the charge.”

In the 82 Ohio St., 604, the court holds, in the second paragraph of the syllabus:

“In an action of slander by a woman, where the alleged defamatory words impute to her a want of chastity, specific acts of sexual intercourse by her cannot be given in evidene, for any purpose under the issue made by a general denial.” And holds that where her character for chastity is impugned, specific acts of' sexual intercourse cannot be given, but her general reputation for that vice of character can be assailed in mitigation of damages. The court, in the discussion of this case, clearly says, in the face of the authority of the 5 Ohio St., which has never been overruled, that the absolute truth, under a-general denial, cannot be given in evidence. Since they have given us our choice between these two eases, we think that the 5 Ohio St. is sustained by the better reasoning;, and that it is proper, and ought to be the rule to admit evidence that would go, as is said by Judge Bartley, “to the entire satisfaction of the jury” of the truth of the charge;-, always, however, circumscribed and limited in the charge of the court to its purpose, and that its purpose is only-mitigation; and that it cannot defeat a recovery in any event, but only to mitigate the damages by disproving-malice.

But it is not really necessary to decide this point in this» case. This deposition shows that what it contains could not have been known to Hilbrant; and, therefore, restricted as it should and ought to be in mitigation of damages-alone, by disproving malice, it could not have any such effect; if limited, it would amount to absolutely nothing;, and therefore there was no error in the exclusion of that evidence for that reason. He knew nothing about what was contained in that deposition.

The last question is as to whether the damages awarded are excessive. The facts in this case show that these parties were out hunting — that is, this crowd; and, among them was Simmons, the plaintiff. There is evidence tending to show that there was a rabbit shot on the farm of Mr. Hilbrant. Whether that be true or not, they got into a controversy with Hilbrant; a quarrel ensued; Hilbrant’s son was called, and came with some stones in his hands:; --¿they had a war of words; a charge was made by one of the «parties that Hilbrant had cut the fence of a neighbor; the . attention of Simmons was called to that, and he stated that -;.4hat was true; that they had tracked a man with large feet . and pigeon toed into his lane. And, under this kind of provocation, this retort was made which amounted to this «■slanderous charge. There is no evidence anywhere in this ...record that shows that Hilbrant, with malice (which is the .ureal foundation of slander) on any other occasion than when ■¡•he was in the heat of anger, and near this party who seemed to live in a glass house and threw the first stone and got back this retort that amounted to this slanderous charge- — ■ vthere is no evidence, I repeat, either before or after, that he repeated this slander, or in any way aggravated it; and -.-the court is of the opinion that the damages given are excessive; and our judgment is that the plaintiff be required to remit $500, of this judgment of $800, and if this is done, the judgment so reduced will stand; otherwise, it will be reversed and remanded.

Kibler & Kibler, on behalf of Plaintiff in Error.

S. M. Hunter and Fulton & Fulton, on behalf of Defendant in Error.

Smyser, J., dissents from first proposition of the syllabus.


source: Caselaw Access Project

author: Douglass, J.

license: Public Domain

text:
    (First Circuit — Hamilton Co., O., Circuit Court
    Jan. Term 1899.)
    Before Adams, Douglass and Voorhees, JJ. (Of the' Fifth sitting in the First Circuit.)
    MATTHEWS et al. v. LEWIS, AUDITOR.

      Salo of property for dilinquent taxes—
    (1). An entry “payment not tendered” is not sufficient to authorise the placing of property, on the delinquent' tax list.
    12). The requirements of sec. 2864, R. S., as to advertising delinquent tax sale, and sec. 2870, E. S , fixing the third Tuesday of January for the sale must both be complied with.

      (3). “Want of time to prepare delinquent tax list",is not one of the reasons under see. 2904a, R. .S, for postponing advertisement of delinquent tax sale. “Mistake or inadvertance” are the only reasons provided by the statute.
    Appeal from the Court of Common Pleas of Hamilton county.
   Douglass, J.

This is an action brought by a property owner to enjoin the auditor from offering his property at forfeited sale on the second Monday in April, 1898; the case was tried on an argeed statement of facts.

1. We hold that this property was never legally put upon the delinquent list because the treasurer did not sufficiently state his reason for not collecting the taxes on this property in his certificate to the auditor in August, 1896, under section 1101. The only reason given is “payment not tendered”. We hold that this is not a sufficient compliance with the statute.

2. The property was not legally offered at delinquent tax sale. Section 2870 provides that this sale shall be held by the treasurer on the third Tuesday in January. An amendment to section 2861 provides that the auditor should advertise this sale between the 20th of December and the first Monday in February, This dees not have the effect of changing the positive requirements of section 2870, which fixes the day for the sale. It was possible to comply with section 2861 as amended, and at the same time to obey section 2870, which should have been done.

3. The forfeited sale, held by the auditor in April, 1898, was not held according to law. Section 290áa provides that where the auditor has omitted to advertise the forfeited sale for the second Monday in December “by inadvertance or mistake”, he may advertise the sale on the second Monday in April of the following year.

By the agreed statement of facts in this case, it appears that the auditor did not so fail to advertise the sale for the ■earlier date “by inadvertence or mistake”, but because “he 'was unable at the time to prepare said list for advertisement, owing to a pressure of business in his office.” This did not authorize the postponement of the sale under section 2904a,

Same judgment as was rendered in the common pleas court making the injunction perpetual.


author: Voorhees, J.

text:
    (First Circuit — Hamilton Co., O., Circuit Court
    —Jan. Term, 1899.)
    MARY NETTING v. CLARA T. STRICKLAND, Adm’rx., et al.

      Guardian — Removal from State — Jurisdiction of Probate Court—

    (1) . The probate court of a county in this state having appointed a guardian for the person and estate of a minor, does not lose jurisdiction of such guardianship by the removal of the guardian from this state, and may compel the foreign administratrix of such guardian after his decease to account to said ward.
    Before Adams, Douglass and Voorhees, JJ. (Of the Fifth,sitting in the First Circuit.)

      Same — Service upon foreign administrator or guardian removed from state—

    (2) . Service upon said foreign administratrix can be had by publication or by the voluntary appearance of such administratrix; and the court has full jurisdiction to hear and determine the amount due from said former guardian to said ward, and order said amount to be paid by such administratrix.

      Same — Removal of guardian — Jurisdiction of Probate Court—
    (3) . The jurisdiction of the probate court over the guardianship having once attached, cannot be ousted by the removal of the guardian from the state in which the appointment was made, or by the removal of the trust property.
    Error to the Court of Common Pleas of Hamilton county*
   Voorhees, J.

The record in this case shows, that Dudley W. Strickland, now deceased, was on August áth, 1876, appointed and qualified as guardian of Mary Gomersall, plaintiff in error, a minor, by the probate court of Hamilton county, Ohio. January 20th, 1879, a new bond of the guardian was required, and given with the defendants in error, Henry M. Oist and David M. Hyman, as sureties. Dudley W. Strickland died on or about February, 1892, intestate. Some years prior to his death he removed from the county of Hamilton and state of Ohio, where he resided at the time he was so appointed guardian, to the city of Chicago, in the state of Illinois, where he resided at the time of his death.

On the 20th day of February, 1892, defendant in error Clara T. Strickland, was by the probate court of Cook county, Illinois, duly appointed and qualified administratrix of the estate of said Dudley W. Strickland, deceased.

On May 5th, 1897, Mary Gomersall, now Mary Netting, plaintiff in error, caused a citation to issue out of the probate court of said Hamilton county, against Clara T. Strickland, administratrix of the estate of said Dudley W. Strickland, deceased, requiring her to file in said court an account in the matters of the guardianship of said Dudley W. Strickland of the estate of said Mary Gomersall.

On May 15th, 1897,' the administratrix Clara T. Strickland filed an answer to said citation, in which she says, among other things, that she has no knowledge as to the estate of Mary Gomersall, the ward of her intestate, and does not know whether sMd Dudley W. Strickland was indebted to his said ward in any sum whatsoever, and therefore is unable to file any account therein.

To this answer of the administratrix exceptions were filed by said Mary Gomersall, and the probate court sustained the exceptions, and proceeded to hear the cause on evidence, and on such hearing the court found in favor of the plaintiff in error in the sum of ten hundred and seventy-five dollars, with interest from November 16th, 1887, to April 23rd, 1891, and finding the total sum due plaintiff from said Dudley W. Strickland, guardian as aforesaid, to be two thousand thirty seven dollars and eighty eight cents. To all of which finding of the court, the said sureties, Henry M. Cist and David M. Hyman, excepted, and gave notice of appeal to the common pleas court.

The cause coming on for trial on appeal in the common pleas, July 2nd, 1898, the court found that the probate court had no jurisdiction of the cause; that the probate court of Hamilton county had no jurisdiction to settle the accounts of the said Dudley W. Strickland, guardian, with the said Clara T. Strickland, as administratrix, and therefore dismissed the proceedings.

2 To which ruling the plaintiff in error excepted, and prosecutes her proceeding in error to this court.

The record presents the question: Had the probate court of Hamilton county jurisdiction of the subject matter of the action or'proceeding in citation, commenced by plaintiff in error, against Clara T. Strickland, as administratrix of Dudley W. Strickland, deceased, as late guardian of plaintiff in error ? To state the question in another form: Could the probate court of the county where the guardian was appointed, require such guardian after he removed from the county and state, to account for the trust estate in his hands?

If by the removal of the guardian from the county and state where|he was appointed, the probate court lost its jurisdiction over the trust estate or subject matter of the trust, it^is^then a grave question whether the court could again obtain jurisdiction over the subject matter, and of the personal representative of the deceased guardian in a proceeding such^as was commenced in this case by citation.

Section"527 Revised Statutes, provides

“The jurisdiction acquired by any probate court over a matter or proceeding, is exclusive of that of any other probate court, excepting where otherwise provided by law”.

The first question then to be considered is, did the probate court lose its jurisdiction of the subject matter of the trust, when the guardian removed from the state? Section 6272, Revised Statutes, provides, among other things:

“That the removal from the state of any person who has been heretofore, or who may be hereafter appointed guardian, shall of itself determine the guardianship of such person”.

Removal from the state of a person who has been appointed a guardian of another, without action of the court making the appointment, terminates the guardianship.

By force of the statute, the guardian’s official mantle falls when he removes from the state in which he was appointed. When his office is gone, he cannot have the official custody or control of the trust property; it by operation of the law must remain in the custody of the law, and a trust never wants for a trustee if a trust is once properly created; the incompetency, disability, death, or non-appointment of a trustee shall not defeat it.

The probate court has inherent jurisdiction over the trust property in such a case, and its jurisdiction cannot be taken from it, excepting as provided by law. Upon such removal of the guardian from the state, it was the right, as well as the duty of the probate court by which the guardian was appointed, to enforce the return by the guardian of his accounts required to be filed by law in such court by the guardian, and this to be done, either with or without complaint being first made. Revised Statutes of Ohio, sec. 6275.

The jurisdiction of probate courts over the settlement of the accounts of guardians is exclusive; and such court has power to compel settlement of accounts by non-resident guardians, or on their default to ascertain the amount upon evidence.

Schwab v. Rappold (Ham. Co. Dist. Court) 12 W. L. B. 197 — Newton v. Hammond 38 Ohio St. Rep., 430, 436.

The trust of a guardian expires at the date of bis removal from office, and by the fourth sub-division of section 6269, Revised Statutes, the guardian shall fully account for, and pay over to the proper person all of the estate of his ward remaining in his hands. Over such accounting the probate court has exclusive jurisdiction. German v. Taylor, 43 Ohio St., 86, 89.

When any guardian has died before the settlement in court of his guardianship accounts, it shall be the duty of the executor or administrator of such guardian to settle up said accounts in the same manner as such guardian ought to have done. Section 6291, Revised Statutes. And said section further provides, that any body having an interest in the settlement of such account, or the court by which such guardian was appointed, of its own motion, may compel such settlement to be made by the administrator or executor of such guardian by citation to be issued, returned and proceeded upon according to the provisions of law which may then be in force for the settlement of decedent’s estates.

The settlement by the administrator of the deceased guardian is the same in effect as if made by the guardian himself. Broiden v. Mercer, 44 Ohio St., 345.

The probate court of Hamilton county having made the appointment of said Dudley W. Strickland, as guardian of the plaintiff in error, and said guardian having removed from the state of Ohio, by force of the statute, (section 6272), his office of guardian was then determined; and he failing to settle his accounts as such guardian in his life time, his administrator can be cited, under section 6291, Revised Statutes, for settlement by the probate court making the appointment,

Our next inquiry will be, as to how, if at all, can the court, issuing the citation, obtain jurisdiction of the person of the administratrix of the estate of said Dudley W. Strickland, deceased, who died in the state of Illinois, and the said administratrix also residing in said state of Illinois.

Section 6330, Revised Statutes, provides;

“The said court, (meaning the probate court) shall have full power to hear and determine all matters relative to the manner in which the trustee has executed his said trust, and as to the correctness of his accounts rendered as aforesaid; and to require any trustee, created as aforesaid within such county, on the determination of his said trust, or on the removal or resignation of such trustee, or in case of the death of the trustee, to require his executor or administrator to render a final account of the manner in which he has executed his said trust, and to hear and determine all matters, relating thereto, in the same manner as the accounts of executors and administrators are required by law to be settled”.

Section 6196, of the Executor’s and Administrator’s act, provides for service, if the defendant be a non-resident, as follows:

“If such executor or administrator shall reside out of this state, the court being satisfied of that fact, either before or after the return of the citation, may order such non-resident to be brought into court, by publication in some newspaper of the county in which the petition is filed, for six consecutive weeks before the time fixed for the hearing of said cause; or in case no newspaper be published in the county, then to be published in some newspaper having a general circulation in said county.”

By these sections, taken in connection with section 6405, there is ample provision made for obtaining jurisdiction of the person of such non-resident defendant.

The section above provides:

“When notice of any proceeding in a probate court shall be required by law, or be deemed necessary by the probate judge, and the manner of giving the same shall not be directed by statute, the probate judge shall order notice of such proceedings to be given to all persons interested therein, in such manner and for such length of time as he shall deem reasonable”.

By the fifth sub-division of section 5048, Revised Statutes, it is provided that;

‘‘In actions against executors, administrators, or guardians, when the defendant has given bond as such in this state, but at the time of the commencement of the action is a non-resident of the state, or his place of residence cannot be ascertained”, service may be had by publication.

With these provisions of the statute providing for service upon a non-resident defendant, we see no reason why jurisdiction of the person in an action like this one, cannot be had by publication. But it is not necessary to determine this question in the present case as affecting the question of jurisdiction over the person of the defendant Clara T. Srickland, as administratrix of the estate of Dudley W. Srickland, deceased, because she, as such administratrix, entered her appearance to this proceeding and filed her answer.

A person by filing an answer, with leave of the court, thereby becomes a party to the action, without formal order making him such. Rosenthal v. Sutton and Lease, 31 Ohio St., 406.

If the contention of counsel for defendant in error, that the administratrix of Dudley W. Strickland, deceased, residing in Illinois, cannot be compelled to appear in the probate court of Hamilton county, this state, were correct, yet she may do so voluntarily.

As held in Lampton et al. v. Nichols, 2 Cincinnati Superior Court Reports, 55, a foreign administrator cannot be compelled to appear in our courts, though he may do so voluntarily. By filing her pleading or answer in the probate court to the citation proceedings instituted by the plaintiff in error, the administratrix of Dudley W. Strickland made herself a party to the action, giving the court jurisdiction over her in her representative capacity. Therefore, in our opinion, the probate court of Hamilton county had jurisdiction of the subject matter, the- trust property, and of the person of the representative of the deceased guardian. When a guardian has died before the settlement in court of his guardianship accounts, it shall be the duty of his executor or administrator to settle, Revised Statutes, section 6291.

The proceeding commenced in the probate court was brought for the purpose of compelling an accounting by the administratrix of Dudley W. Strickland, deceased, of his guardianship. An accounting must precede the judgment, as the amount of the judgment cannot otherwise be ascertained, and the settlement by the administratrix of the deceased guardian shall be the same in effect as if made by. the guardian himself. Section 6291, Revised Statutes.

The amount due the ward, when so ascertained, shall be ordered paid by the court.

Such a settlement of a guardian’s accounts, and the determination by the probate court of the amount due the ward, shall, m the absence of fraud and collusion, conclude the sureties in an action against them upon the guardian’s bond. Braiden v Mercer, 44 Ohio St., 339.

In Gardner, Adm’r., v. William Ashbrook et al., decided by supreme court of Ohio without report, 34 Bull,, 287, it was held:

“The finding by the probate court of amount which the administrator, or guardian, or assignee, has to pay over, and order by that court for him to pay the amount, if free from collusion or fraud, is conclusive upon the sureties unless an appeal has been taken, or tim judgment has been reversed on error”.

The theory of these decisions sustains two propositions pertinent to this case:

First: The appointment and qualification of the guardian conferred upon the probate court of Hamilton county jurisdiction of the trust property.

Morris L. Buchwalter, W. H Jones, for Plaintiff.

C. Bentley Matthews, for Defendant.

Second: The jurisdiction so conferred, is exclusive in all respects in which it is adequate. Havens et al. v. Horton, Jr., 53 Ohio St., 342.

This case is clearly distinguishable from that of Gilbert v. Gilbert and Pope, decided by the eighth circuit, reported in 13 Circuit Court Reports, page 29. In that case there was no appearance or answer by the non-resident guardian in the proceeding in citation in the probate court of Cuyahoga county, the county in which the guardian was appointed; therefore, the probate court did not have jurisdiction of the person of the defendant guardian. The court say, in coming to a conclusion;

“That under the circumstances of this case the jurisdiction of the probate court cannot be sustained.”

The sureties of the guardian, the defendants in error, Henry M. Cist and David M. Hyman, excepted to the finding of the probate court and appealed the cause to the common pleas. We are of opinion they could so appeal under section 6407, Revised Statutes.

The common pleas court erred in its finding and holding that the probate court had no jurisdiction of the cause; that the probate court of Hamilton county had no jurisdiction to settle the accounts of the said Dudley W. Strickland, deceased, with his administratrix, and in dismissing the proceedings, and for these errors the judgment of the common pleas is reversed, as being contrary to law, and the causéis remanded to the common pleas for further proceedings.


author: King, J.

text:
    (Sixth Circuit — Williams Co., O., Circuit Court
    —Oct. Term, 1898.)
    Before King, Haynes and Parker, JJ.
    L. M. ALTAFFER et al. v. JOHN W. NELSON, MAYOR, etc., et al.

      Refunding Bonds — Power of Council — Must not exceed in amount original bond issue—
    (1) Under sec. 2701, R. S., a municipality is authorized for the purpose of extending the time of payment of a bonded indebtedness which the corporation is unable to pay at maturity, or when it appears for the best interest of a municipal corporation, to issue refunding bonds “so as to change, but not to increase the indebtedness,” in such amounts and at such rates of interest as the council deems proper. Where therefore outstanding bonds are refunded before their maturity, at a lower rate of interest and at longer time, the council is authorized to issue refunding bonds to an equal amount as the original bond issue. But whero such original bonds were sold at a premium, the council has no authority to provide for the issue of additional bonds in excess of the original bond issue to compensate the holders of such original bonds for the premium so paid on the original bonds,nor can such an issue of additional bonds be authorized by a separate resolution or ordinance, and bonds issued for such purpose are invalid.

      Same — Bonds executed and sold before time fixed in ordinance for their issue — What not innocent purchasers—

    (2) . Where the ordinance for the issuing of bonds provides that such bonds should be issued on a certain day, and the bonds in fact are dated on that day, and show that they were signed by the proper municipal officers on that day, and before that day, and before the date the ordinance itself could go into operation under the statute, an injunct’on was allowed restraining the respective municipal officers from issuing such bonds, but as a matter of fact such bonds were signed by the officers and issued before such injunction was allowed, the purchasers thereof who acquired possession of them in such an ' irregular manner, can not be considered innocent purchasers, and are not entitled to any rights as such.
    Error to the Court of Common Pleas of Williams county.
   King, J.

This action was brought in the court of common pleas of Williams county to enjoin the defendants, in their official capacity, from issuing certain bonds, twenty-five hundred dollars in amount, or, if the same should have been issued, enjoining tha levy or collection of any taxes to pay the said bonds, This action, after a trial in the common pleas court resulting in a judgment for defendants, is, by petition in error, brought to this court, and is heard here upon the petition and answer and exhibits attached. From these pleadings it appears that on January 4, 1897, the village council of Bryan passed an ordinance, which was, on January 28th published in a proper newspaper. This ordinance is entitled “An ordinance to provide for the issue of bonds to raise money to pay the indebtedness of the village of Bryan arising from the refunding and exchange of the waterworks bonds of said village.” It further appears from the pleadings that on May 16, 1892, the council passed an ordinance authorizing the issue of certain bonds, amounting to $30,000, which bonds were issued and sold for $33,012; and in March, 1893, passed another ordinance providing for the issue of $15,000 of bonds, which bonds were issued and sold. These bonds, these two ordinances recited, were for the purpose of raising money to construct waterworks, and were in pursuance of a special act of the legislature authorizing the village of Bryan to construct waterworks. The $15,000 of bonds were sold for $15,177.25 That on January 18, 1897, an ordinance was passed entitled

“An ordinance providing for the issue of bonds of the village of Bryan, Ohio, in the sum of forty-five thousand dollars, for the purpose of refunding and extending the time of payment of certain indebtedness of said village.”

That ordinance was published on January 21st, and the bonds provided for in it were prepared, duly signed and issued to the owners and holders of the bonds provided for in the two ordinances passed in 1892 and 1893, in exchange for said bonds, and, clearly, with the intention to refund them, the bonds issued under the last named ordinance being for a less rate of interest, perhaps, than the original bonds, and the time of payment was extended some eight years beyond the date fixed by either of the first ordinances, It is a fair construction of the ordinance providing for the issue of these $45,000 of bonds, that it was a refunding ordinance.

.The contention of the plaintiffs is that the issue of the $2,500 worth of bonds provided for under the ordinance of January 4, 1898, is illegal, because it appears from the ordinance itself that it was for the purpose of paying an indebtedness arising out of the refunding of the waterworks bonds. This contention is strenuously denied by the defendants. The whole theory of the defendants’arguments in this case is based upon the proposition that the bonds issued under the first two ordinances — the original waterworks bonds — were illegal, because the act of the legislature authorizing the construction of waterworks and the issue of bonds thereunder to pay for the same, was unconstitutional, and that the bonds issued thereunder were illegal, and being so illegal, the owners and holders of these bonds had a valid claim against the village of Bryan for not only the face value of the bonds, but also as well for any premiums they had paid when they purchased the.same; in other words, it appearing that they had paid for these bonds $48,189.25, that the owners had a claim which they might assert at any time against the village of Bryan for that sum of money, and that it was in recognition of this claim that the council proceeded to do two things.

First, to provide by ordinance for the issuing of $45,000, of legal and valid bonds with which to take up the old ones; and, second, to compromise, adjust and settle the claim for the premiumsTby issuing $2,500 of bonds directly to the owners and holders of the old bonds, and that these owners and holders magnanimously refrained from making any charge for interest. These old bonds, bearing a part of them five per cent,and the balance five and a half per cent., if the owners had a claim for the money advanced, they would clearly be entitled to six per cent, interest upon the sum advanced, and the difference between the amount which had been paid them under the terms of the bonds and that which the law allows upon claims founded upon contracts, express or implied, would be still due to them. This amount of interest (which we have not computed), together with the difference between the $2,500 and $3,379,it is said the owners have thrown off or are not claiming, and that the matter was adjusted and determined in this ordinance of January 4th.

This argument as to premiums paid, or as to the right of the bondholders to maintain an action against the village for the money advanced on the theory that the bonds were illegal, is really not germane to the question at issue. We would not know that there was a refunding ordinance except for the fact that it is pleaded, but the pleading of it does not necessarily render it material to the determination of the question at issue. The ordinance authorizing the Issue of these bonds recites, in the title, that the bonds are issued “to raise money to pay the indebtedness of the village of Bryan arising from the refunding and exchange of the waterworks bonds of said village.” The first section recites that the owners and holders of the $45,000.00 of bonds, having surrendered them to and exchanged them with the village for its bonds issued for the purpose of taking up and refunding said waterworks bonds, at a reduced rate of interest and running for a longer period of time, that in the opinion of the council and so declared that by reason of these premises there is justly and equitably due from said village to the person or persons so surrendering and exchanging said waterworks bonds, at least the sum of $2,500.00. The second section provides for the issue of these $2,500,00 of bonds, and describes them. It is contended by the defendants that this issue of bonds is controlled by and was made under section 2701, Revised Statutes; and this section provides that, for the purpose of extending the time of payment of any indebtedness which the corporation is unable to pay at maturity, or when it appears for the best interest of a municipal corporation, that the council shall have power to issue bonds “so as to change, but not to increase the indebtedness,” in such amounts and at such rates of interest as the council deems proper; and further provides that no indebtedness shall be so refunded or extended until it shall be first determined to be an existing, valid and binding obligation by a formal resolution of the council, which resolution shall also state the amount of the existing indebtedness to be refunded or extended.

The first section of this ordinance may be well held to be such a resolution, in that it declares that this indebtedness is justly and equitably due, and that it is in the sum of $2,500.00, and that the village ought to make provision for its payment and discharge; so that, so far as the resolution is concerned, we think the council complied with that provision of the statute. But when we return to the question of what these $2,500.00 of bonds was issued for, we are, of necessity, confined to the recital contained in this ordinance ■ — for the ordinance passed on January 21st, does not aid us, except as under it it is alleged $45,000.00 of bonds were issued as refunding bonds — issued under the provisions of section 1701, Revised Statutes, it may be, or possibly under the provisions of sections 2711-12, 13 and 14, Revised Statutes, the act passed in 1891. But under either of these statutes, is it an ordinance providing for the issue of refunding bonds? The latter statute provides that a village may refund its indebtedness when it can be done at no higher rate of interest, but not otherwise, and at a rate of interest not exceeding five per cent, per annum, payable semi-annually, and by implication it may be held that the bonds are to be issued in the same amount as those to be taken up and cancelled — while section' 2701, Revised Statutes provides that defendants’ attempt at refunding shall be subject to the limitation that it shall not increase the indebtedness; so that, so far as the indebtedness represented by the bonds outstanding which were refunded under the ordinance of January 21st is concerned, that indebtedness might be changed within the provisions of the statute, but it could not be increased.

Now, the council in passing this ordinance of January 4th, which precedes the other in date, have made their own stipulations and definitions of the indebtedness and the evidences which they propose to issue for the debt. Can we disregard their recitals made in their own interest and upon which the issue of bonds sought to be enjoined is founded ? It must be conceded that if there be no ordinance or resolution authorizing this issue of bonds, then they would be illegal. The bonds rest for their validity upon the provisions of this ordinance, and none other, and the provisions of any other ordinance not referring to them do not aid the defendants in their authority or right to issue these bonds.

We must turn to this ordinance, then, to ascertain what it was that the council were issuing bonds for, and to find out, if possible, what indebtedness it was proposed to pay or liquidate by their issue. There is nothing in this ordinance, nor any other to which we are referred, that fixes this indebtedness as any other than that arising from the expense of the refunding and exchange of the waterworks bonds. Now, if that is the source of this indebtedness, then no statute gives to the defendants the power to issue these bonds, for, the refunding of an indebtedness must be without increasing it, as I have before stated; The first section of the ordinance declares that by reason of taking up and refunding the former issue of waterworks bonds “there is justly and equitably due from said village to the person or persons so surrendering or exchanging said waterworks bonds at least the sum of $2,500.00.” This is all that is said about the debt or its origin in the ordinance, and that amounts to but little, if anything. We may, then, look at the title, and here we get a little more light; for we are told that the debt arises from the operation or process of exchanging and refunding the waterworks bonds. But in neither the title nor the ordinance are we told in what manner or how it was that this indebtedness was incurred in making this exchange — how it was that the village became-indebted to the owners of the old bonds in the sum of’ $2,500.00. We are left entirely to assumption on that ground; we are left entirely to the argument of counsel who-say “why, it is evident from the answer in the case that when these bonds were sold at public auction to the highest bidder, .that the owners who purchased bid $3,300.00 more and above the par value of these bonds.” Again, we are told in argument that the law under which these bonds were-issued was unconstitutional, though it never yet has been-so adjudged, and that the owners and holders might surrender the bonds and have a claim against the corporation-for the amount of money they had advanced.

We take no stock in the argument that they might secure from the corporation more money by throwing up this illegal contract, into which they had knowingly and voluntarily entered, than they could have obtained by living up to its terms. But, without discussing that, the whole basis for this argument rests upon facts which appear in other ordinances, that there did exist in the minds of the bondholders a claim which possibly they might have asserted; but the ordinance under which these bonds were issued tells-us in its recital that these bonds are issued to pay an indebtedness arising from refunding these bonds. Now, if they may not increase that indebtedness — and the statute so reads — then they may not by a separate contract, or a separate resolution, create, originate or establish an indebtedness which, added to the refunding bonds, would increase the original debt. This transaction stands upon the face of it as if, by a valid ordinance, the counsel had undertaken to refund certain of its bonds, and perhaps for the reason that those bonds were not.yet due, had offered to the owners and holders a bonus of $2,500.00 to come in and exchange them. That is this transaction, fairly, reasonably and justly construed. It does not need discussion nor elaboration to show that such a transaction would be illegal, as we must hold this to be,

, It is urged that the bonds were issued before the allowance of this injunction, and therefore the injunction would be futile, or would affect the bonds in the hands of innocent purchasers who are not parties to this action and who ought to be made such parties before an injunction should be allowed; and it is also urged that no injunction ought in any event to be allowed because it would affect the title and right of these innocent purchasers to the bonds in question.

We are not disposed to determine what are or would be the rights of innocent purchasers of these bonds. The ordinance, as I have before stated, was passed on January 28th. If it is one of those within the provisions of the statute providing that it shall take effect ten days after its passage, it did not take effect until February 7th, and on February 6th, the temporary injunction allowed in this case was served upon defendants. We do net think it necessary to determine whether the publication was necessary, of this ordinance, or not. The ordinance itself, by its own terms, provided that it should take effect from and after its due passage and publication. This would seem to imply that it was necessary to publish it before it could go into effect. But the ordinance also provides that the bonds in question should be dated March 1, 1897. A copy of one of the bonds, attached to the answer, shows that it was dated March 1, 1897, and the officers who signed it certify over the corporate seal of the village that they did on March 1, 1897, affix their hands and seals thereto. We think these bonds could not have been legally sold until signed by the officers required or authorized by law to sign them, and as the bond shown as an exhibit appears upon its face to hare been signed upon March 1st — we will not assume that it was signed earlier,for that would contradict the recital of the bond; nor do we think the bond could have been legally sold before it was authorized to be issued, and the authority to issue provided that it could be issued on March 1st, or thereafter. We think if these bonds were issued in January, as is alleged and claimed in the answer, before the expiration of the ten days after publication of notice, before the bonds were to be dated, and before the officers signed or executed them, the purchasers and holders cannot claim to be innocent purchasers and holders, and that contention will not avail the defendants. We 2nd, therefore, that the plaintiffs were entitled to an injunction as prayed for in the petition.

Therefore, because the judgment rendered by the court of common pleas is contrary to law, the same will be reversed, and this court proceeding to render the judgment which the court below ought to have rendered, we order and decree that the injunction prayed for be granted and made perpetual.

We also hold under the statutes that plaintiff’s attorneys should be entitled to recover as a part of the costs in the action which it is adjudged that defendants must pay, reasonable counsel fees, both for their services in the court of ..common pleas and in the circuit court, which reasonable counsel fees we find and adjudge to be $250, and order these to be paid by defendants, and also that defendants pay the costs of this action.

John M. Killits and John B. White, for Plaintiffs.

C. S. Bentley, M. M. Boothman and Scott & Schrieder, for Defendants.


author: Smith, J.

text:
    (First Circuit — Hamilton Co., O., Circuit Court
    Jan. Term, 1899.)
    Before Smith and Swing, JJ.
    JOHN A. POLL v. OPPENHEIMER, BRO. AND COMPANY.

      Bill of exceptions — The entry upon the journal of the allowing and signing of the bill must be made within fifty days—
    Under the last amendment of sec. 6302, R. S., of March 22, 1892, (89 O. L-,125) bills of exceptions must not only be allowed and signed within fifty days after the overruling of a, motion for new trial, but the entry of the allowing, and signing of the same upon the journal must also be made within the fifty days; and where a bill of exceptions was allowed and signed within the fifty days, but by inadvertance the entry upon the journal of such fact was not made within the fifty day», the court can not afterwards by a nunc pro tunc entry as of the time of the allowing and signing of the bill of exceptions cure the defect, and give validity to such bill of exceptions.
    Error to the Court of Common Pleas of Hamilton county.
   Smith, J.

The errors assigned in this cause, all arise upon a bill of exceptions, which it is claimed by the counsel for plaintiff in error must be considered by us, while counsel for defendant in error urge that the alleged bill of exceptions cannot properly be considered by us for the reason that it is shown by the transcript of the journal entries, (which is filed as required by law in error cases), that there was no allowance of said bill of exceptions by the trial judge, placed on the journal of the court, until long after the time that the statute requires it to be done, to make it of anr* force or validity.

The facts as to this matter, as shown by the transcript, are these: On March 12th, 1896, the jury returned a verdict for the plaintiff below. On March 14th, a motion for a new trial was filed, which was overruled September 24th, and a judgment entered upon the verdict, to all of which the plaintiff in error excepted. On February 8, 1897, four and a half months after the overruling of the motion for a new trial, an entry was placed upon the journal of the court “that the bill of exceptions taken in this case, duly allowed, signed and sealed at the October term of the court, 1896, on November 7, 1896, was by the inadvertance of defendant’s counsel, omitted to be marked filed, and that by a like inadvertance of the defendant’s counsel, no entry of the allowance and signing of the same was written or presented to the •court or to the clerk thereof, or entered on the journal at the time of said allowance and signing”, on motion of the defendant Poll, it was ordered, “that said bill of exceptions be filed, and that an entry be now made the 8th day of February, 1897, it being the January term of this court, for good cause shown as of the time and date of said bill of exceptions, to all of which plaintiff's counsel excepts and objects.” And on the same day this entry was made on the journal: “The bill of exceptions allowed, signed and sealed in this case by the trial judge on the 9th day of November, 1896, at the October term of said court for the year 1896, is hereby ordered to be made a part of the record in the case,and this order is made of the date and time of the signing of said bill of exceptions, to all of which the plaintiff excepts and objects on the ground that the court bas no power or authority to make this entry.”

“February 8th, Minn., 355. Bill-of exceptions filed as the bill of exceptions itself appears on its face to have been signed by the trial judge, November 7th, 1896, and filed February 8th, 1897.”

The question then arises whether on this state of facts the court can properly look at this bill of exceptions for the purpose of considering the question which would be raised, thereby if it were before the court.

Section 5302, Ohio Revised Statutes, as it now appears in. the last edition of the statutes by Judge Bates, was in force at the time of trial, and governs this case. This provides that the bill of exceptions mast be allowed and signed within fifty days after the overruling of a motion for a new trial unless, as provided by section 5208, the trial judge shall be absent from the district or circuit, in which case certain other steps are to be taken. It further provides that the bill of exceptions shall be filed with the pleadings and -‘an entry of the allowance and signing .of the same must be entered upon the journal of the court, within the time fixed for such allowance and signing. ” The section then provides that when the exceptions are not allowed and signed during the progress of the trial, the party excepting must submit the bill to opposite counsel, not less than ten days before the expiration of the fifty days, and to the trial judge not less than five days before the expiration of the fifty days. It is further provided that the trial judge or judges may in their discretion extend the time of signing such bill, for not exceeding ten days beyond the expiration of the fifty days, which extension must be endorsed on the bill by such judge or judges.

Under this section the supreme court has held in Pugh v. State, 51 Ohio St., 116, that the provision for the submission of the bill to opposite counsel for examination not less than ten days before the expiration of the fifty days was intended as a condition to the power of the trial judge to sign a bill of exceptions within the fifty dajs, and when the condition is not complied with,- it is the duty of the judge to refuse to sign if, unless consent of opposite party be given. And so in 54 Ohio St, 323. It is evident that the provisions as to the time in which the bill is to be submitted to opposite counsel for examination, and to the judge for signing, and that the judge shall indorse on the bill any extension of time for signing it, are mandatory, and the same was so held in 57 Ohio St., 348.

A. J. Cunningham, Attorney for Plaintiff in Error.

Cobb & Howard, Attorneys for Defendant in Error,

Certainly these provisions of the section are not more mandatory in their nature or in the language used than is the provision which requires that “an entry of the allowance and signing of the same must be entered upon the journal of the court within the time fixed for such allowance and signing,” and it is certain that this was not done in this case.

Under very different statutes it has been held by our supreme court that while it was necessary that the journal should show the allowance and signing of the bill of exceptions, and that if it did not it could not be considered by a reviewing court, it was also held that the omission to have the journal show this, might be corrected, (if such allowance had in fact been duly made by the court), at a subsequent time by a nunc pro tunc entry even long after the time for the allowance of the bill had expired, But in such former statutes there was no provision like that in the present statute, that an entry of such an allowance and signing of the bill must be entered on the journal of the court within the time fixed for such allowance, The former holdings of the court that such failure can be cured by a nunc pro tunc entry after the time fixed for the allowance, we think do not apply to the statute as it now stands. We feel compelled therefore, in the light of the holdings of the supreme court as to the mandatory character- ■ of the provisions of the statute now in force, to sustain the motion of counsel for defendant in error to strike the bill of exceptions from the files, and affirm the judgment of the court of common pleas, with costs, but without penalty.