text:
    (Eighth Circuit — Cuyahoga Co., O. Circuit Court,
    Dec. Term, 1897.)
    Before Hale, Marvin and Caldwell, JJ.
    THE CASE SCHOOL OF APPLIED SCIENCE v. SAMUEL K. GRAY AND ECKSTEIN CASE, EXECUTORS.

      Legacy — When interest on to commence—
    When no time is fixed in the will for the payment of a general legacy, and there are sufficient assets in the hands of the executor for the payment of all debts and legacies, though there is not enough money on hand to make all such payments at the expiration of one year from the date of the executor’s bond, such legacy bears interest from such expiration of the year.
    Error to the Court of Common Pleas of Cuyahoga county.
   Marvin, J.

The Case School of Applied Sience v. Samuel K. Gray and Eckstein Case, executors of the last will and testament of Laura K. Axtell, deceased,comes here upon a petition in error seeking to reverse the judgment of the court of common pleas of this county. A suit was brought in that court by the plaintiff in error, a corporation, to recover a legacy bequeathed to it by the testator, Laura K. Axtell.

This will was admitted to probate, and on the 15th day of August, 1890, the defendants gave bond* as execcutors, and letters testamentary were issued to them.

Two bequests were made in the will to the plaintiff in error:^one for $50,000, and another^for $1,000.

The executors filed an amended answer,from which it appears that though the assets of the estate were sufficient to pay all legacies, there was not sufficient money in the executors’ hands to pay in full until'November 4, 1895, when a bequest to the defendants’ testator .under the will of Levi Kerr was paid to these executors, by _the executors of said will of Kerr; letters tes'tamentary were issued on the will of Kerr prior to the death of' Axtell, so that this legacy from Kerr to Axtell was a part of the estate of Axtell at the time of her death. It was not in the hands of the executors of Axtell until the 4th of November, 1895, but it was at her death a part of her estate, and if a proper inventory was made of her estate when the execuctors made their return to the probate court, that legacy was inventoried.

On the 29th day of November, 1890, the executors of Axtell paid on this legacy, the sum of $22,537.50, by surrendering a note held against the plaintiff, which, at that date, amounted to that sum.

On the 6th day of February, 1896, the executors paid upon the legacy, the additional sum of $20,000.00. So that in the aggregate there has been paid, $42,537.50, on the two legacies, they aggregating $.51,000.00. There remains, then, due upon the principal of these two legacies, $8,462.50.

Some time prior to the 18th of August, 1896, the executors of Axtell filed their account in the probate court, and on the date last named, an order of distribution was made by such court — the order which is provided by statute, that the fund remaining in the hands of the executors be paid to the parties entitled by law to receive the same.

The case was submitted to the court of common pleas on the pleadings, showing substantially the facts above stated, and that court entered a judgment for the plaintiff for $8,785.40. .. .

The answer admitted that there was due to the plaintiff the balance of the principal of those two legacies, together with interest from the day on which the order of distribution was made in the probate court, the 18th of August, 1896, and a computation shows that the court of common pleas allowed interest from that date, and gave judgment for the amount as thus computed.

The plaintiff in error complains that the time from which the interest was computed, was wrong; that it should have been allowed from an earlier date.

As already said, letters testamentary were issued to these defendants on the 5th of August, 1890, so that more than six years elapsed between the time of the issuing of the letters testamentary and the time of the making of the order of distribution; the claim on the part of the defendants being, that the interest should commence frcm the last named date. Now, it seems to us to be settled that an error was committed in 'fixing the date from which interest was to be computed.

The case of Webster v. The Bible Society, is a case that went to the supreme court from this county; it is found in the 50 Ohio St., being the first case in the volume. The question in that case was, whether the statute of limitations ran against the payment of the legacy,the time having been something like forty years from the probate of the will and the issuing of letters testamentary, to the time when the suit was brought for the payment of the legacy by the Bible Society.

The account was filed by the executors of the will of Mr. Weddell in the probate court but a short time before this suit was brought, and an order of distribution was made, and if the claim made by the defendant here is the law, it would seem as though that claim ought not to have been declared barred by the statute of limitations, because the claim made here is, that the right of the legatee to receive payment of his money is when the probate court makes its order of distribution. Yet the language of the judge, speaking for the court, on page 17, is: “In any view that may be taken of our statutes, the cause of action accrued not later than four years from the date of the administration bond. ”

The court made its order of distribution, as said before, in that case, not long before that suit was brought; but the court held that the action was barred by the statute of limitations because the legatee had the right to the payment of its money either at the end of one year, or four years from the date of the bond of the executors, although no order of distribution was made.

This court, in the case of Webster v. Bible Society, held that the time when that legacy became due was at the end of one year from the date of the executor’s bond, and although the case was reversed, the supreme court did not pass upon that question. There is no intimation, «s we read this case, that the supreme court would have reversed the case upon that proposition. We have the authority of this court then, for saying that the date from which interest should have been computed, is one year after the .giving of the bond by the executors.

A case was cited on the hearing ¡which we have examined, from the 23rd Bulletin, page 438. In that case there were certain monies placed by will in the hands of a trustee, and the income was to be paid to a person named in the will — the widow of the testator; she had an ante-nuptial contract, but the will provided that the contract should be carried out. The claim was that the legatee, the Widow, was entitled to her legacy from the time of the death of the testator. And Judge Phillips, before whom the case was heard, cited numerous authorities, that the interest would not begin to run until a reasonable time after the death of the testator,' although if there was property of the estate, though not money, with which to pay the bequests sometime, interest should begin at the end of one year; the language used is “one year from the death of the testator,” although our supreme court has said “one or four years from the date of the bond,” without reference to the death of the testator.

We understand that the general rule in America is that the legacy is payable if there is money to pay it one year from the date of the bond, if there is property sufficient to pay the legacy though sufficient money has not yet been realized, then the legacy will bear interest from one year :a£ter the date of the bond. Rice’s American Probate Law ■& Practice, page 373, under the heading “Rules Applicable 'to Interest,” uses this language:

“If a general legacy be given with no time of payment fixed, it begins to draw interest one year from the date of •the letters, when it becomes due.”

Dayton on Surrogates 3d edition, pp. 464-5 says:

“When no time of payment is fixed, the executor is by law allowed one year from the testator’s death to ascertain and settle his affairs, at the end of which time the court, for the sake of general convenience, presumes the personal estate to have been reduced into possession. Upon that ground, interest is payable from that time, unless some earlier period is fixed by the will.”

The same language is used in Williams on Executors, vol. 2, bottom page 1424, and a large number of authorities ■are there cited in support of the proposition.

Giauque on Settlement of Decedent’s Estates, 3d edition, page 155, says: “As a general rule, a legacy bears interest beginning one year from testator’s death.”

We are cited to section 3181, Revised Statutes of Ohio, on the matter of interest. That section reads:

“In cases other than those provided for in the two preceding sections” (and these are provisions as to the payment of interest on judgments and bonds where interest is named), “when money becomes due and. páyable upon any bond, bill, note, or other instrument of writing hereafter made upon any book account or instrument hereafter entered into, and upon all judgments, decrees and orders of any judicial tribunal, for the payment of money arising out of a contract made or other transaction which hereafter occurs, the creditor shall be'entitled to interest at the rate of six per cent, per annum, and no more.”

Williamson, Cushing & Clark; for Plaintiff in Error.

IP. J. Jerome, for Defendant in. Error.

It is urged that money cannot be due and payable until one is entitled to bring suit for it, and that one would not be entitled to bring suit for his legacy at the end of one year when the estate is still in the.process of settlement. The object of this section of the statute is to prescribe the rate of interest where there is no contract as to the rate, and it may well be doubted whether, beyond fixing the rate of interest, it has any application to a legacy. There is a provision of the statute, however, (sec. 6128), that one may have a legacy paid before any distribution is ordered, by giving a bond. And in commenting upon this section the supreme court, on page 17 of 50 Ohio St., in the case of Webster et al. v. Bible Society, uses this language:

“It may be fairly inferred from the statute, that, a legatee may sue for the payment of his. legacy before- the expiration of the four years; but when he does, he may be compelled to give the bond and security therein provided "for.”

Without determining whether a suit could have been maintained for this legacy at the end of one year, the estate being in the situation it was, to-wit, the executors being without sufficient money to pay, but always having more than enough property, we hold that the plaintiff is entitled to recover interest from the expiration of one year from the date of the bond of the' executors, and the court below having held otherwise, the ease is reversed.for that error.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    (First Circuit — Hamilton Co., O., Circuit Court
    Nov. Term, 1897.)
    Before Cox, Smith and Swing, JJ.
    ANNA L. KINSELLA v. E. L. DeCAMP.

      Correction of erroneous journal entries — Power of court—
    1. A court of record has the right at any time to make its journal speak the truth — that is, to show what the action or judgment of the court really was; and when by mistake, fraud or otherwise, there appears on the journal what purports to be the action of the court, as that a particular judgment was rendered or order made, when in fact no such judgment had been rendererd or order made, the court has full power, at the same or a subsequent term, on its own motion, or that of a party in interest, to strike the same from the journal or make it conform to that really made.

      Correction of judgment during same term—
    2. Where a judgment has been rendered or an order made at one term of the court, which has been correctly entered upon the journal, and no motion for a new trial has been filed, but the court, on reflection or otherwise, becomes satisfied that it should not have been made or entered, it may at the same term of the court be vacated, by it, under the general power of courts of general jurisdiction to control its judgments during the term at which they were rendered. But this only applies to courts of general jurisdiction which have regular terms.

      Same — Powers of probate court to modify or vacate its judgments—
    3. But this rule does not apply to courts of probate under our constitution and laws. They are “open at all times, ” and no terms thereof are provided by law, except by sec. 6355, Rev. Stat., which gives to such courts power in certain cases to vacate or modify their own judgments after the term, at which they were made, for which purpose it shall be considered as holding in each year, three terms of four months each. But this has no application to proceedings for the settlement of the estates of deceased persons.
    Same—
    4. On the facts hereinafter stated which show the sustaining of exceptions by the probate court to an account filed by the executor of the will of a deceased person, and finding a balance in the hands of the executor which he is ordered to distribute, and which order was correctly entered upon the journal of said court, such court had no power thereafter to enter another order vacating the same, though such last entry recites that the first was - made ‘ ‘ under a misapprehension of fact and by inadvertance;” and such action was a nullity. And where, before such last action, a suit had been brought upon the bond of said executor,based on the refusal to distribute the estate in accordance with the first judgment, the fact that such first iudgment was so attempted to be set aside, or that the plain tiff J[appeaIe(Tfróm the last judgment, is not a bar of the plaintiff’s right to recover.
    Error to the Court of Common Pleas of Hamilton county.
   Smith, J.

In this proceeding in error the plaintiff seeks the reversal of a judgment rendered in favor ' of the defendants, in an action brought by the former against the latter.

On the trial in the court of common pleas, a finding of facts and of law was made, and^the question submitted is, whether the facts found warranted the judgment as rendered.

- In brief, the facts found were as follows: E. L. DeCamp was the executor of the will of Wm. C. Kinsella, deceased, and on January 15, 1894, on the settlement of the final account of said executor, the plaintiff having filed exceptions thereto, the probate court of this county heard such exceptions, and an entry was made by such court, finding that on the settlement of said account, there was a balance in the hands of said executor, due the estate of Kinsella, less the costs of court,of $932.21, which he was ordered to distribute according to law and the will of the testator. •

That on the 16th of February, 1894, the plaintiff, the sole legatee under the will of Kinsella, and entitled to any balance in the hands of the executor, demanded payment of said sum of $938.21.of DeCamp, which was refused, and on March 3, 1894, this action was brought on the bond given by DeCamp as executor, against him and his sureties to recover said amount so found due.

That on April 30, 1894, an entry was made by the probate court as follows:

“On motion of Elizabeth L. DeCamp, executrix herein, made in open court in the presence of counsel for Anna L. Kinsella, and it appearing to the court that the order of the 15th day of January, A. D. 1894, was made under a misapprehension of fact and by inadvertence, it is hereby ordered that said entry be, and the same is vacated and held for naught. And the exceptions of Anna L. Kinsella to the final account of said executor, are hereby continued for the further consideration of the court,to all of which said Anna L. Kinsella, by her counsel excepts.”

And afterwards,on February 7, 1895, an entry was made by said court in said proceedings, overruling the exceptions to the account. To this Anna L. Kinsella excepted and gave notice of appeal, and afterwards gave the bond and perfected her appeal to the common pleas, which is still pending therein. As a conclusion of law the court of common pleas held that plaintiff could not maintain this action and dismissed the same at her costs. Was this action of the'court right?

The only defense interposed to the action (except the denial of a demand on the executor for payment) was,“that on the 30th day of April, 1894, the order of the probate court of Hamilton county, set forth in the petition, was vacated and set aside by said court.” It is said however, by counsel, that the ground upon which the court of common pleas decided the case against the plaintiff was, that if it should be conceded that the probate court had no power to vacate the judgment as was done, or attempted, by the entry of April 30, 1894, yet the plaintiff in error waived her right to object thereto by appealing from the decision afterwards made by the probate court, on the questions raised by the same exceptions to the account of the executor. So that, on the pleadings in the case and the finding of facts made by the court of common pleas, two questions are presented and have been argued, viz: 1st. Whether the probate court had any right or authority at the time it attempted to do so, (April 30, 1894), to vacate the order or judgment entered Jany. 15, 1894, finding the balance then in the hands of the executor, and ordering its distribution; and if not, whether such action was void or simply erroneous. And 2d, if the court had not such right,and the action was void, whether the subsequent conduct of the plaintiff so waived it, as to put it out of her power in this action to claim that it was void.

In the first place, we may say that we recognize to the fullest extent the right of any court at any time to make its journal or record speak the truth — that is, to show what the real aotion of the court was. For instance,if by mistake or fraud there appears on its journal what purports to be the action of the court, as that a particular judgment was rendered, or order made, when in fact no such judgment or order had been rendered or made,the court has full power to erase such pretended order or judgment from the journal,or by proper entry thereon, to vacate the same and hold it for naught, on its own motion, or that of a party in interest, —and in our judgment,though such action is not had at the term at which the entry of the vacated order appears to have been made. Or,if by reason of a clerical error, or by mistake or wrongful conduct of any one, the real judgment of the court as rendered or announced is not correctly placed upon its journal, the court, certainly during the same term, and probably at a subsequent term, if a court of 'general jurisdiction having stated terms, is authorized to correct the same and make it speak the truth — without resort to the proceedings warranted b.y sec. 5354 and post, of the Revised Statutes. Whether, if a certain specified judgment has been announced by a court, and that judgment has been correctly entered upon the journal of the court,and no motion for a new trial had been interposed as provided for by law, but the court subsequently, on reflection it maybe, becomes convinced that the decision so rendered and entered was wrong, may at the same term of the court at which such judgment was entered vacate the same, is a question as to which we have doubt, but are of the opinion that the law does confer such discretion and power. But if it does, we think it applies to courts of general jurisdiction and which have regular terms only.

But so far as-we can see, courts of probate under our constitution and laws are not of this character. It is in the language of the constitution, “open at all times’’, and so far as we are advised,no terms of said court are provided for by law, except by sec. 5355, which gives to such court power in certain cases to vacate or modify its own judgments after the term at which they were made, and in estimating time that such court shall for that purpose be considered as holding in each year three terms of four months each, the first commencing on the first of January of each year; and by sec. 6468, which provides that in the exercise of criminal jurisdiction it shall be considered as holding monthly terms, commencing on the first Monday of each month.

But as we understand it, it has been expressly held by the supreme court in 26 Ohio St., 357, that the provision made by sec. 5365 as to terms of said court have no application whatever to proceedings for the settlement of the estates of deceased persons, and the remedies pointed out for the correction of the accounts of executors and administrators by other statutes than 5354 and post, must be pursued. This case is important as holding that in such cases as the settlement of such accounts there are no terms of the pro.bate court.

We are led to the conclusion then, that where in the settlement of an account of that kind, and where, as in this case, there were exceptions to the account of the executor, and a decision is made by the court, and that decision is properly entered upon the journal or record of the probate court, it is final unless reviewed or changed in some manner pro-vided for by the law regulating the settlement of estates of deceased persons — and that the probate court in such case has not the right to vacate such order or judgment otherwise, and that an order made long after the entry of the original judgment, as was done in this case, was a nullity, and the original order stands in full force. If, however,no such judgment as that of Jany. 15, 1894, was ever rendered by the probate court,and the same was without the authority of the court placed on the journals thereof, “under a misapprehension of fact, and by inadvertence,” as before stated, the court had the right,on discovering the fact, to strike it out and hold it for naught.

The question for decision in this case, is what does the record show as to this.

In the first place, the petition avers that on the 15th of January, 1894, it was found, adjudged and considered by the court, that there remained in the hands of said DeOamp, upon the settlement of his said account,” the said balance found to be in his hands ($938.21), which he was ordered to pay over and distribute according to law. The answer of the defendant expressly admitted that the order was made by the court as alleged in the petition — so that there was no controversy or issue made in the pleadings as to this.

The court at the trial also found that on the 15th of January, 1894, an entry was made by the probate; court as set out in the finding of facts. So that it seems clear that the judgment so entered at that time was the judgment of the court and was entered by the cour.t as made by the court. If this be so, it would seem that the case would be brought within the doctrine hereinbefore stated, and that the probate court had no right to vacate it as was attempted to be done by the entry of April 30, 1894, notwithstanding the statement therein that it (the order of Jany. 15, 1894) “was made under a misapprehension of fact and by inadvertence”. Those words might well mean that the court on reflection had become convinced that the decision before made- and placed upon its journal was contrary to the evidence1 submitted, and therefore was made by inadvertence. If^the court had a right to do this when it did, and as it did, it would have the right to do it ten years after that time, which would be contrary to settled and acknowledged principles of law, and could not be properly done by any court of general or special jurisdiction without express authority to do it .conferred by the statute..

F. F. Oldham, for Plaintiff in Error.

Robert Ramsey, for Defendant in Error.

If the action of the court on April 30, 1894, vacating the-judgment of January 15,1894, was invalid and void, as we feel compelled to hold it was, on the record before us, the original judgment remained in full force and effect,and the fact that the probate court afterwards proceeded to re-hear the matter and render a different judgment, and that the-plaintiff in error took an appeal therefrom,did notin any way affect the first judgment, or operate to waive the right of such plaintiff to show in this action that the original judgment stood in full force.

The judgment of the court of common pleas will therefore-be reversed. But instead of rendering a judgment on the-finding of fact in favor of the plaintiff, for the amount sued for, as we perhaps might do, we have thought it best, in view of the doubt that may possibly exist as to the ground upon which the probate court acted in making the entry of April 30, 1894, to remand the case for a new trial, if desired by the defendant in error, or for such other proceedings as may be warranted by law. In the event of such-new trial, it can doubtless be shown, what was the ground’ upon which the probate court acted, and whether, in view of the law as we hold it to be, such action was valid or void,


author: "Caldwell, J.

text:
    (Eighth Circuit — Cuyahoga Co. O. Circuit Court
    Jan. Term, 1898.)
    Before Hale, Marvin and Caldwell, JJ.
    GRANSON MOSBY v. THE CLEVELAND STREET RAILWAY COMPANY.

      Olaim for personal injuries — Settlement only to be set aside for fraud—
    Settlement of a claim for and a cause pending to recover damages for personal injuries will not be set aside unless there is clear evidence of fraud and undue influence.

      Same — What will not be considered fraud— -
    That the injured person had not fully recovered, could neither read nor write, and his attorneys were not present and had no knowledge of the settlement, will not be sufficient to warrant the setting aside of such settlement.
    (Decided February 26, 1898.)
    Appeal from the Court of Common Pleas of Cuyahoga county.
   "Caldwell, J.

This is the case of Granson Mosby against The Cleveland City Railway Company, a corporation.

The plaintiff in this case, Granson Mosby, was engaged in trucking about the city; he had á horse and a wagon and did trucking around the city, hauling ashes and anything he could find to do; he was upon the track one day, and a motor of the defendant railway company came in contact with his wagon and broke it up ' considerably, and injured his horse so that it died, and he was thrown to the pavement and pretty seriously hurt; he was taken to the hospital and treated by the physicians of the Cleveland Street Railway Company. After he had been there over a month and was somewhat improving, the agent of the street railway company went to see him, and between them they began to talk about a settlement of the claim — Mosby had then brought his suit. This talk resulted in a proposition on his-part, and not exactly a proposition on the part of the agent but a suggestion of what he would try to get the railway company to do, which was a settlement of $500.00. A day or two after that, the agent appeared at the hospital again, and the arrangemeunt was completed, the writings properly drawn and receipted, and the paper signed which authorized the railway company to have the case dismissed in the common pleas court, which has been done.

This action was then brought. Mosby, it seems, was after-wards dissatisfied in regard to the settlement he had made, and this action was brought to set aside the dismissal of that case and to set aside the settlement. The money was not tendered back, nor paid back. Perhaps that would not make much difference. Now, there is no evidence that the railway company in any way acted fraudulently in making this contract with Mosby, nor is there evidence that it took any undue advantage of him. There is something said about his condition. But the evidence does not show that his condition was such but that he could make a contract at that time. And there is considerable said about his attorneys not knowing about it. There is some evidence going to show that Mosby did not want his attorneys to know it, and the court is • very well aware, just as all attorneys are, that a client sometimes doee> not care to have them know that he is acting in his own behalf, and his attorneys say this was the case here; it is evident in this case that their client was not going to share with his attorneys; there is something in that; very likely there was; anyway it is said that Mosby was a colored man who could neither read nor write, and was very ignorant of the methods or proceedings of this kind,and it was undue advantage to settle with him in the absence of his attorneys and without their knowledge.

That is really the only claim that is made here; but it would seem to us a bad precedent to establish, that an ignorant man, merely because he has not an attorney when he makes a contract, and because he can neither read nor write, and no advantage taken of him in any way or manner, may avoid his contract — it seems to us it would be a bad precedent to hold that in a case of that kind the contract should be set aside. It would lead to quite an upheaval of contract relations. It is too radical a ground to take. We can not do it.

Hessenmueller & Bemis, for Plaintiff.

Squire, Sanders & Dempsey, for Defendant.

We do not know anything about the circumstances — ■ whethor Mosby could ever have recovered a cent or not; but it would seem that if he had'a clear case against the railway company, he had settled for a pretty small amount according to the way those things usually go. But Mosby knew the circumstances. The agent talked over with him how this accident occurred, who was to blame, and whether he could recover or not. And.it would seem to us from the talk that took place there between him and the agent that the agent did not mislead him at all, did not undertake to palm off upon him any theory that it was entirely certain that he might recover, or . might not; that there would be a conflict in the evidence.

We can not say that there was any such advantage taken of him in his settlement that would lead to his being allowed to withdraw from his contract.

We allow a judgment in favor of the defendant, and the petition of the plaintiff is dismissed.


author: Shearer, C. J.

text:
    (Second Circuit — Franklin Co.O.Circuit Court
    Jan. Term, 1898.)
    Before Shearer, C. J., and Summers and Wilson, JJ.
    OHIO ex rel. DeWITT C. JONES v. GEO. BELLOWS et al.

      Section 1221, Revised Statutes, construed— '
    1. The word “found” in this section is jurisdictional,and means being present in the county.
    “Violence” means, the unlawful use of physical force or other agency to cause death. It does not include mere accident or casualty.

      Coronel — When to hold inquest—
    2. The coroner is authorized and required to hold an inquest uppn a dead body lying in his county, when he knows, or has reason to suppose, the death was caused by unlawful means.
    Appeal from the'jCourt of Common Pleas of Franklin county.
   Shearer, C. J.

This is an action prosecuted by the state of Ohio, upon the relation of DeWitt C. Jones, a tax payer, against the board of county commissioners, the auditor, the treasurer and the coroner of Franklin county to enjoin the allowance and payment out of the treasury of said county of certain fees and charges of said coroner for his official services in and about an inquest held upon the dead body of one Richard Olaprood, who came to his death on the 5th of September, 1897, in a street fight with one ’ George Robinson, in the presence of a large number of spectators,

Substantially, the grounds upon which the injunction is demanded are that the inquest was unwarranted and illegal because the body of Olaprood was not “found” under circumstances creating doubt or uncertainty as to whether he came to his death by violence, nor as to how or by what means or by whose hand he came to his death; thar said killing was not a case which, within section 1221, Revised Statutes, authorized an inquest; that such inquest was un.necessary and ineffectual for any purpose contemplated by law, and a wanton assumption of power by the coroner in •order to obtain money from the county treasury in fraud of the rights of the relator and of the public,

The defendants, by their answer, assert the legality of the ■action of the coroner, and aver that at the time of the killing of Olaprood he, the coroner, was absent from the city .of Columbus on official business; that upon his return he was informed of the killing and went to the place where the homicide occurred, and learned that the body had been removed to the morgue; that he repaired to the morgue and found the dead body which bore evidence of having come to its death by violence. Meantime thd witnesses of the killing had dispersed and gone; that he thereupon caused subpoenas for witnesses to be issued, and held an inquest, and ■filed his report as required by law.

Defendants further allege that the, condition of the body, and the facts surrounding the death, were such that the -ends of justice required that an inquest be held for the purpose of determining the cause of the death of the deceased, as well as the manner in which the violence was inflicted and the person or persons by whoiq the death was caused; and that defendants in all things in the premises acted in .good faith; that the fees charged are reasonable and in accordance with the statute,

It is further alleged that said coroner had no knowledge •or information as to the cause of said death except as he -derived it from said inquest.

- The averments of the answer above- recited are controverted by the reply.

The court below granted a perpetual injunction. The ■defendants appeal, and the cause is submitted to us upon the pleadings and certain affidavits and other documents -eonstituting part of the report of-the inquest.

The facts as disclosed by the .evidence are that on Sunday the 5th of September, 1897, one George Robinson and Richard Olaprood engaged in a fight in Court Alley in the city of Oolumbus, and Olaprood was fatally stabbed by Robinson, dying instantly. Quite a large number of people were present during the broil and saw Olaprood fall dead. Shortly after the killing the police appeared, arrested Robinson, and took him to the city prison and the dead body to the morgue.

Later in the day the coroner, who had been absent from the city, returned and was told that a^man had been killed in Court Alley. He went to the place and found the body had been removed and Robinson arrested. He then went to the morgue, viewed the body which showed evidence of death by violence, caused a post-mortem examination to be made, and held an inquest. A large number of witnesses were examined, and it was found that the cause of the death was a stab in the heart inflicted by Robinson.

It is contended on behalf of the relator that the facts stated did not authorize the coroner to hold an inquest; that the holding of the inquest was an abuse of power, and that the payment of fees therefor would-be a fraud upon the relator and the public.

To resolve this question requires a construction of section 1221, Revised Statutes, which provides that “when information is given to any coroner, that the body of a person whose death is supposed to have been caused by violence, has been found within his county, he shall appear forthwith at the place where such body is, shall issue subpoenas for such witnesses as he deems necessary, and administer to them the usual oath, and proceed to inquire how the deceased came to his death; if by violence from any other person or persons, by whom, whether as principals or accessories before or after the fact, together with all the circumstances relating thereto” etc. This section further pro'vides^that the testimony shall be reduced to writing, subscribed by the witnesses, and with the finding, etc. returned to the clerk of the court of common pleas. That the coroner,if he deems necessary, shall hold the witnesses to bail for their appearance at the court of common pleas, or, in default of bail, commit them to jail.

By section 1222 he is required to arrest the party found to have caused the death, if present, or 'if not present, to inform a justice of the peace and-the prosecuting attorney of the facts found, in order that the slayer may be dealt with immediately according to law.

The coronial office is of ancient origin, and its duties, while they have undergone some changes, are substantially the same as they were under the English common law. These duties are in many respects judicial, and their exercise, except in case of gross abuse, should not be interfered with.

Of course, it is not in every case of death from unknown causes that the coroner would be authorized to hold ah inquest; but if he knows,or has reasonable ground to believe, the death was the result of violence, or unlawful means, the coroner not only may, but is required to, hold an inquest. Violence, in the sense used in the statute, means force unlawfully exercised, as distinguished from mere accident or casualty. See Anderson’s Law Die. 1091. Also Lancaster Co. v. Holyoke, 21 L. R. A., 394 and notes.

The report of Muzzy v. The Commissioners of Hamilton Co., 2 West. Law Jour., 426, cited by counsel for the relator, is not official. It is a- mere “editorial note.” And we are not inclined, for reasons stated further on, to accept the editorial opinion of what the court in fact decided. It may be that the coroner “has no power to hold an inquest except in cases where the .cause of the death is'unknown”; but such holding, it seems to us, ignores a very important duty imposed upon the coroner aside from determining the cause of the death, namely, the securing and preservation of the evidence of the crime while the facts are recent and the circumstances unchanged; also the securing of the attendance of witnessses before the grand jury. These duties are specially enjoined by law upon the coroner, and, if omitted, in many cases the state would be unable successfully to prosecute the guilty party.

It was said by Mercur, J. in Lancaster Co. v. Mishler, 100 Pa. St., 627, “that the duty of a coroner to hold an inquest rests on sound reason — nn that reason which is the life of the law. It is not a power to be exercised capriciously and arbitrarily and against all reason. The object of the inquest is to seek information and obtain and secure evidence in case of death by violence or other undue means. If there be reasonable ground to suppose it to be so caused, it becomes the duty of the coroner to act. If there be no reasonable ground to suspect that the death was not a natural one, it is a perversion of the whole spirit of the law to compel the county to pay him for such services.”

In that case the deceased died at an advanced age, at home, surrounded by his family and having been attended •during his illness by a regular practicing physician; his death was natural, and there was nothing suspicious, sudden ■or extraordinary about it.

We are, therefore, of opinion that where a person has come to his death by violence, as hereinbefore defined, whether in the presence of third persons or not, it is the duty of the coroner to hold an inquest, not only to ascertain the cause of the death, but whether a crime has been committed, who the perpetrator is, and to secure and preserve the evidence to the end that justice may not be defeated,

The word “supposed” in the statute does not necessarily imply doubt, uncertainty or ignorance of the cause of the death.' It is broad enough to include both suspicion and knowledge. If the coroner either knows or suspectb the death to have been by violence, he may act.

We are not Impressed with the contention that the word “found,” as used in sec. 1221, is to be understood in the restricted sense"of's“discovered”, or “found by accident or search,” but rather^in the broader sense of being' present within the coroner’s jurisdiction,

A dead body^may'be discovered within the county by accident, its existence"not previously having been suspected; it may be discovered by search — its existence being known, but its whereabouts unknown; it may have been struck dead, as in this case, in the presence of a multitude, and the assailant may be known. In all such cases, the body is “found”. In'Illinois “found” is treated as synonymous with “lying”.' Rev St. Ills., 1883.

A person may"die in his own home, surrounded by his friends, and undeNcircumstances which indicate a natural death, He is"jburied in the public cemetery on the family lot, and his grave is marked with his' name and the date of his death. Subsequently circumstances may give rise to the suspicion of poisoning, or other^foul play, as the cause of his death. Can^the'coroner exhume the body and hold an inquest thereon? The^answer is “No”, if the contention of the relator is sound; for the body is not “found”. Its existence and whereabouts are known; it died in the presence of friends, and was^buried by them, and the cause of the death was supposed to^be “known”. But will it be claimed that under the circumstances just stated the coroner could not lawfully!¡hold an inquest? It will not do to say that he is without power'to^act unless the dead body is “found” in the sense insistednjpon^by the relator. That is not the test; neither would the^ends of justice be subserved by such interpretation of the statute. If knowledge comes to the coroner thaNthere is "a dead body within bis jurisdiction which there is reason to believe came to its death by violence, as distinguished from mere accident or casualty, he is authorized to hold an inquest thereon, not only for the purpose of determining the cause of death, but to discover the guilty party, if any, and to ascertain and preserve the evidence, and to take the steps pointed out by the law to secure the attendance of the witnesses in court.

Mr. Dillon, and George Jones, for Relator.

Dyer & Williams, for Defendants.

The coroner must act in good faith — not capriciously or arbitrarily. He may not act where there is no ground to suspect violence was the cause of the death.

We find no cause to doubt the good faith of the coroner in this case, and think his action not only was justified by the circumstances, but was required by the law.

Injunction dissolved/ and petition dismissed.


text:
    (First Circuit — Hamilton Co., O., Circuit Court
    Nov. Term, 1897.)
    Before Cox, Smith and Swing, JJ.
    THE CHICAGO LABEL AND BOX CO. v. WASHBURN.

      Sunday — When not excluded in computation of time — Motion for new trial.

    Under sec. 5307, R. S., a motion for new trial must be filed within three days after verdict rendered, and where one of such three days is a Sunday, it is counted unless it is the last of the three days, when it is excluded under sec. 4951, R. S.
    Error to the Court of Common Pleas of Hamilton county.
   Smith, J.

The error assigned in this case is, that the court of common pleas set aside a verdict which had been rendered in that court in favor of the plaintiff in error against the defendant in error, and granted a new trial.

The verdict in the case was rendered on Friday, June 18, .1897,' — -and the motion for new trial was filed on Tuesday, June 22, 1897. Sec. 5307,.requires such a motion to be filed within three days after the verdict was rendered This was not filed until the fourth day thereafter, The second day after the day on which the verdict was rendered was Sunday, and it .was claimed that that day should be excluded in the computation, and therefore that the motion was filed in time, and that the court hadjauthorityjjto grant the motion for a new trial. •

Johnson & Levy, for Plaintiff in Error.

J. A. & M. Caldwell,and A. W. Bruch, contra.

Sec. 4951. Revised Statutes is as follows: “Unlessotherwise specially provided, the time within which an act is required by law to be done shall be computed by excluding the first day and including the last, and if.the last be'Sunday, it shall be excluded. ’’ This- applies to all computations of time under the provisions of our code of civil procedure, and must apply in this case, as no special provision is made as to motions for new trials. And whatever may have been the rule in cases of this kind at common law, the express provision of the statute must govern.

The court then having no right to entertain or]grant the motion, its action in doing so was erroneous and will be reversed, and the cause remanded to that court to be proceeded in according to law, which will be to enter judgment upon the verdict rendered, unless for good cause shown.


author: Caldwell, J.

text:
    (Eighth Circuit — Cuyahoga Co., O., Circuit Court
    Jan. Term, 1898.)
    Before Hale, Marvin and Caldwell, JJ.
    FRANK WINDERS v. ROBERT A. HUDSON.

      Appeal from J. P. —Failure of applicant to file transcript, etc., within statutory time — Fjfect—
    Where on appeal of a case from a J. P.,the appellant has failed to file the transcript and other papers with the clerk of common pleas within thirty days from the rendition of the judgment -appealed from, the app^lleeknay have the case docketed in the common pleas and ask for a judgment in his favor similar to that entered by the J. P., and it is then too late for the appellant to file a cross-petition to have the judgment of the J. P. vacated upon the ground of want of jurisdiction.

      Bill of Particulars — What sufficient to give J. P. jurisdiction-—
    It is sufficient to give the J. P. jurisdiction if the Bill of Particulars filed with the J. P. gives the adverse party a fair intimation of plaintiff’s claim.
   Caldwell, J.

In the case of Frank Winders v. Robert A. Hudson it seems that Winders is the secretary of a state board existing at Columbus, before whom the physicians, under the law passed at the last session of the legislature, are required to register. The secretary of the board sent out a publication — -a circular, asking physicians to send their diplomas to the board,and if sent by mail, they would be returned by mail; if sent by express, they would be returned by express; and Robert A. Hudson sent his diploma,and it was not returned to him. How much search was made for it, does not appear- — -it is not important in this case — Rut in due course of time, he brought suit against Frank Winders, secretary of the board, to recover damagés for the loss of his diploma, and that suit was brought before a justice of the peace in this city. It went by default, and a judgment was had in the case, for two hundred and seventy-five dollars ($275) as the value of that diploma.

Winders undertook to appeal the case, or to take the case up to the common pleas court, but failed to file the transcript in time — took it in too late — -and by some authority, authority from some judge, he was permitted to file it. Then a motion was made to strike it off, and it was stricken off. Then Hudson took the transcript and filed it in the common pleas court, and thereafter filed a motion to have judgment entered upon it in the common pleas court under a provision in the statute. This was opposed by Frank Winders, and the court overruled Winders’ objection to the judgment being entered in the common pleas court, and Winders brings his petition in error into this court, not to affect anything that the justice of the peace did in the case, but to claim that the rendering'of the judgment in the common pleas court was error, and the case turns largely upon section 6588:

“If the appellant shall fail to deliver the transcript and other papers, if any, to the cierk, and have his appeal docketed as aforesaid, on or beforé the thirtieth day from the rendition of the judgment-appealed from, the appellee may, thereafter, at the term of said court next after the expiration of said thirty days, file a transcript of the proceedings and judgment of such justice, and the said cause shall, on motion of the appellee, be docketed; and the court is authorized and required, on his application, either to enter -a judgment in his favor similar to that entered by the justice of the peace, and for all costs that have accrued in said court, and award execution thereon; or such court may, with the consent of said appellee, dismiss the appeal at the cost of the appellant, and remand the cause to the justice of the peace, to be thereafter proceeded in as if no appeal had been taken. ”

The court is authorized and required, on the application of the party getting the judgment before the justice of the peace, to enter judgment in his favor similar to that entered by the justice of the peace. Winders interposed to have the court refuse to enter that judgment, and we are not certain but that interposition might be made if made in the right way. If a cross-petition should be filed at the time the motion is made, or thereafter before the judgment is entered, asking to have that judgment vacated, or to have the court at least refuse to enter judgment -upon it on the ground that the justice acted entirely without jurisdiction, we are not certain but that it might be done, and the party, on such a cross-petition, might proceed and have the entire judgment vacated and set aside,and get affirmative relief to that extent. A recent holding in the supreme court would seem to show that that would be á direct attack upon that judgment, but that the party could interpose and present his defense that he should have presented before the justice of the peace we think can not be done. In other words, if he has been in default before the justice of the peace, and error has occurred in the justice’s court he has failed to except to and take the case to the higher court upon proceedings in error or by appeal, he can not resort to these proceedings to correct such errors.

It is claimed in this case that the bill of particulars that was filed before the justice of the peace, was so indefinite that it failed to give the justice of the peace jurisdiction of the action. It must amount to that, because, if it was not so indefinite as to fail to give him jurisdiction, we can hardly see how it would be sufficient ground to interpose matter before a higher jourt in the manner in which this was attempted; but while the statute prescribes what the bill of particulars shall set forth, the terms are so general that the bill of particulars seems sufficient if it only gives the party a fair intimation, a fair understanding, of what will be claimed. That it is sufficient that a justice of the peace could have jurisdiction without any bill of particulars or without any complaint, and without the parties coming and submitting their issues to the justice, we think would be doubtful, very doubtful. It is a court of limited jurisdiction, and when the statute prescribes how a court shall act and what shall be sufficient to give the court jurisdiction of a cause of action, that must prevail. But we think there was enough in this bill of particular to give the court jurisdiction of the action. That being so, we think that nothing short of a plea in the common pleas court at the time the common pleas court is asked to enter a similar judgment, or a like judgment — nothing but a plea setting forth want of jurisdiction on the part of the justice of the peace, by way of cross-petition, under which there may be asked affirmative relief, perhaps, against the -judgment — nothing short of that, we think, can avail.

Piarle & Thompson, for Plaintiff,in Error.

Hadden & Paries, for Defendant in Error,

It is claimed that this judgment is án outrage and a monstrous thing; and it is very likely that that may be so; we are not here to determine that matter, but it very probably is — we might state it that strong. The idea that a diploma which might be duplicated, perhaps, for a small sum, for a very small amount of money — that a party should have to pay two hundred and seventy-five dollars ($275) for its loss, would look very strange; but that is a matter that any party -can easily have accomplished with that kind of judgment against him, if he will stay away from court. That is ex-actly what Mr. Winders did. He staid away, and consequently this judgment was gotten against him. We are sorry that Mr. Winders has been so derelict in attention to this matter, and the judgment is one that if we found any way possible, we would be glad to relieve him from, but we do not see any way to do so.


text:
    (First Circuit — Hamilton Co., O., Circuit Court
    Jan. Term, 1898.)
    Before Cox, Smith and Swing, JJ.
    I. G. SIMPER v. ANDREW BENTLEY.

      Replevin — Wrongful possession must appear—
    The gist of replevin is unlawful possession of the property. Where therefore, defendant has disposed of the property and is fno longer in its possession,[the proper remedy is not replevin, but an action for unlawful conversion.
    Error to the Court of Common Pleas of Hamilton county.
   Smith, J.

We are”of the opinion that the second defense interposeu by the defendant to the petition of replevin filed against bim by the plaintiff, charging him with the illegal detention of a cow on which plaintiff averred he had a chattel mortgage, and to the immediate possession of which he was entitled, set up a good defense to the action, and that the court of common pleas did not err in overruling the demurrer filed thereto. The answer substantially averred that at the time the action was commenced and when summons issued, the cow in question was not actually or constructively in defendant’s possession,which fact plaintiff knew at the time he commenced his action. That if he ever had possession of the property, he had parted with the same in good faith and without any knowledge of plaintiff’s claim thereto, long before the action was commenced, all of which plaintiff knew when he commenced his action.

G. B. Werner, for Plaintiff in Error.

Gorman & Thompson, for Defendant in Error.

The gist of the action of replevin, is the unlawful detention by the defendant of property to the possession of which the plaintiff is entitled. On the averments of this answer paintiff was not detaining the property from the defendant at all,for he had in good faith disposed of the same long before the suit was commenced, as the plaintiff well knew. His remedy therefore, if he had any against the plaintiff, was for an unlawful conversion of his property, and not by replevin to recover the possession of- it. And in our opinion, the provision of our statute, sec. 5827, that in replevin cases, where the property is not taken by the officer, or is returned to the defendant on plaintiff’s failing to give bond, the action shall proceed as one .for damages, does not apply to a case of this kind; but to one where the replevin is properly brought,and the property can not be found, or is returned to the defendant as above stated.

The overruling of the demurrer being the only error assigned, the judgment will be affirmed.


author: Caldwell, J. Judge Marvin

text:
    (Eighth Circuit, Cuyahoga Co., O., Circuit Court,
    Jan. Term, 1898.)
    Before Hale, Marvin and Caldwell, JJ.
    JOHN D. McCLAIN v. ROBERT E. McKISSON, Mayor of the City of Cleveland; DARWIN E. WRIGHT, Director of Public Works of the City of Cleveland; HORACE L. ROSSITER, Director of Accounts of the City of Cleveland; CHARLES W. CHASE, Treasurer of the City of Cleveland. THE STATE OF OHIO, on the Relation of JOHN D. McCLAIN v. HOWARD H. BURGESS, City Clerk of the City of Cleveland. THE STATE OF OHIO, on the Relation of JOHN D. McCLAIN v. THE COUNCIL of the City of Cleveland, and the members thereof.

      Action by taxpayer to enjoin illegal contract by city on third party’s agreement to pay costs—
    A tax-payer may bring an action to xestrain the city from entering into an illegal contract under sec 1777, R. S., after having requested the city solicitor to do so as required by sec. 1778, R. S., and his refusal; although one of the competing bidders for the contract who may be the beneficiary ot such action, has agreed - to indemnify such tax-payer against all the costs and expenses he may incur thereby, it appearing that such tax payer intended to bring the action, but was unable to pay the costs and expenses himself.

      Record of proceedings of council — Duty of clerk — Correction by council — Mandamus—
    It is the duty of the clerk of the city council to make an accurate record of the proceedings of council, and the council has the power to determine whether thejournal truly sets forth its proceedings; but when the record of the previous meeting of the council .is read at a succeeding meeting under the rules adopted by council, and council has corrected and disposed of the journal, the clerk has no further right and therb is no further duty enjoined upon him by law to correct the same, and mandamus will therefore not lie to compél him to do so.

      Same — Power of council over its journal—
    A municipal council is a legislative body clothed by law with the power to correct and dispose of the journal of its proceedings, and in the absence of any charge of fraud or corruption in the action of the council in correcting its journal, its action is final and conclusive,and courts have no right to interfere therein.

      Power of council, after rejecting all bids, to reconsider its action—
    The council has the power, after having once voted to reject all bids offered for a public contract, to reconsider its action and accept one of the bids, where no rights have vested under the first action of the council,or where its first action has not so fully disposed of the matter that council could not take any further action in the matter.

      Same — Power of council to accept next lowest bid without re-advertising—
    Council, after having rejected all bids for a public contract, may, at a subsequent meeting, without re-advertising fcr bids, reconsider its first action, and award the contract to one of the original bidders.

      Power of council of Cleveland, under Federal Plan Law, to advertise for bids under sec. 2419, B. S.

    “Ihe Federal Plan Law” leaves the right to the council of the city of Cleveland, to proceed under sec. 2ál9, to advertise for and dispose of bids for furnishing a pumping station for the waterworks of that city, and under that section has the option to award te contract to the next lowest bidder, if in their opinion the lowest bidder can not be depended upon to do the work with ability, promptness and fidelity, and courts can not interfere with that option in the absence of any charge that the council acted fraudulently or corruptly.
   Caldwell, J.

The city of Cleveland desired a pumping engine of certain capacity, power and dimensions, to be placed in the Division Street Pumping Station, for use in pumping water, as a part of its water-works system. The city council requested the director of pub ic works to advertise for bids for the same. The director called for bids. In response to his call a number of bids were received. One of these bids, by the Holly Manufacturing Company, was numerically the lowest bid. The Edward P. Allis Company was the next lowest bid that could be considered. The bids were opened. Thereafter, on. January 20th, 1896, the council rejected all the bids; which action is known as “File Number 9520.”

Up to this point in the proceedings, it is agreed that the action of the city officers and council was regular and according to law; and it is claimed on behalf of the plaintiff, that all action on this subject taken after January 20th, 1896, is irregular and without any warrant in law.

On the 27th day of January, 1896, a motion was made to reconsider the action of January 20th, 1896, rejecting all the bids. This was at the next regular meeting after the meeting of January 20th, 1896. ' The plaintiff claims this motion was lost, because a majority of all the members elected to the council did not vote in favor of it. This is •denied by the defendants. There are twenty-two members elected to the city council, and at all these times they were all living and qualified to sit and act in the meetings. The Chair announced the motion as carried. Then a motion was made and carried, accepting the E. P. Allis Company bid. At next council meeting, the clerk of the council had made up the minutes of the meeting of the 27th of January as showing that the motion to reconsider had been carried by a vote of twelve in its favor. Upon a reading of the minutes, the correctness of the same in tlis respect was challenged; but the council, by a vote of sixteen for and five against, voted to approve the journal as read. Thereupon this action was brought on January 31st, 1896, to enjoin the city officers from carrying out the purpose of the council to award the contract to the E. P, Allis Company.

On February 5th, 1896, the plaintiff, in the name of the state, brougbUan action in mandamus to compel Howard H. Burgess, city clerk, to correct the council record of the meeting of January 27th, 1896, so as to make it appear and read that said motion to reconsider had only eleven votes in its favor, instead of twelve votes as the record reads, and to have the record or journal show that the motion was lost.

After these two actions were appealed to this court, an action in|mandamus was commenced in this court by plaintiff on behalf of the state, against the city council and the members' of the council, asking substantially the same relief as is asked against'the clerk in the action against him.

These three cases have been tried together in this court, with the understanding that if the court shall award the writ in either or both of the cases in mandamus, then the court may take its judgment therein as res judicata in determining’the rights of the parties to the injunction case.

These cases present the following questions for the considerations of the court:

1. The right of John D. McClain to bring these actions.

2. Shall the court order the city clerk to correct the council journal.

3. Shall the eourt change, or order the council to change its journal.

4. The right of the city council to reconsider the motion of January 20th, 1896, by which motion it rejected all the bids.

5. Had the council authority to award the contract, after it had voted to reject all bids.

6. Can the contract be awarded to one who is not the lowest bidder?

These questions will be considered in the order in which they are stated.

First. The right of John D. McClain to bring these actions.

The plaintiff, under sec. 1778, Revised Statutes, served notice upon the director of law of the city, requesting him to bring these actions, who did not bring them, and thereupon the plaintiff instituted these proceedings. .He has been placed upon the witness stand to testify as to how he came to bring these actions, and his motives in doing so. From his testimony it appears that he was approached in this matter by the Holly Manufacturing Company, and that the Holly Manufacturing Company has promised to indemnify him against the costs and expenses in prosecuting these actions. .He testifies that he wanted to bring these actions himself, but was not able to undertake the payment of the costs and expenses should be fail in them. He is not a resident of the city of Cleveland, but owns property in the city upon which he pays taxes. Some portions of his testimony tend to show that he was manifesting much interest in this contract and the proceedings to let the same, prior to January 27th, 1896; but it does not appear that he is in any way connected with the Holly Manufacturing Company, further than above stated; and he does testify that his purpose in bringing these actions is to restrain the city of Cleveland from entering into what he regards an unlawful expenditure of money, in that the city of Cleveland is proposing to accept a bid which is not the lowest bid by about ten thousand dollars.

We think, under these facts, that the plaintiff had the right to bring these actions; and that, while his success in them may prove beneficial to the Holly Manufacturing Company, yet we think he is sincere in his claim that his principal object is to restrain the city from entering into an unlawful contract. We therefore hold, that he had a right to bring these actions.

Second. Shall the court order the city clerk to correct the council journal.

Sec. 1755 says:

“The clerk shall attend all the meetings of the council, and make a fair and accurate record of all its proceedings, and of all rules, by-laws, resolutions and ordinances passed by the council, and the same shall be subject to the inspection of all persons interested; and in case of his absence from any meeting, the council shall appoint one of its own number to perform his duties for the time.”

Sec. 1679 provides:

“The council, and when of two branches, each branch, shall be the judge of the election returns, and qualifications of the election returns, and qualifications of its own members; shall determine the rules of its procedure, and keep a journal of its proceedings, and may compel the attendance of absent members in such manner and under such penalties as may by ordinance be prescribed.”

It must be conceded that the record required to be kept by the clerk as provided in sec. 1755, is the same as the journal required to be kept by the council in sec. 1679. Construing these two sections together, it is apparent that the council has the right to determine when the journal truly sets forth its proceedings; and this section gives to the council the right to adopt rules governing its procedures. Under this authority, the council has adopted certain rules of procedure, in which it has provided that at each regular meeting of the council, the president of the council shall cause the journal of the preceding session to be read and disposed of, unless otherwise ordered by the council. These provisions of the law were intended to require the clerk to make an accurate record of all the doings of the council while in session, which record should be presented to the council at its next meeting for examination and for such corrections as the council should determine were necessary, to make the journal fully conform to the action of the council. After the journal has thus been corrected and disposed of by the council, the clerk has no further right to change the same. There is no longer any duty enjoined upon him by the law to correct the journal of the council. Mandamus can be brought against him only to compel him to comply with some plain duty placed upon him by the law. If then, after the journal has been corrected and disposed of by the council, he no longer has any right to change the same, and no longer is under any such legal obligation, then the court will not order him to do what he is not authorized to do by law.

From this it follows that the proceedings against the city clerk are not well founded, and the petition will be dismissed.

Third. Shall the court change, or order the council to change its journal.

'As the basis of this action, it is claimed that when the vote was taken on the 27th day of January, 1896, to reconsider the motion of January 20th; 1896, rejecting all bids, the motion was not carried by a legal vote. There were present in the council at that meeting, twenty-two members. Upon-the roll-call on that motion,eleven members voted in favor of reconsidering and awarding the contract to B. P. Allis and’ Company, and ten voted against the reconsideration. The question to be determined from the vote is in part, if not wholly, whether councilman Jackson voted at all on that motion. The evidence shows that when the roll was called, it was customary for the clerk to look at a councilman when he called his name, and the councilman’s assent was often given by a nod of the head, or his dissent by a shake of the head. The evidence’, we think, shows conclusively that when the roll was called-, councilman Jackson looked at the clerk and nodded his head. The clerk tallied him as voting in favor of the reconsideration. The clerk announced the vote as twelve in favor of reconsideration, and ten against it. At this point in. the proceedings there was much confusion in the council chamber, and one member of the council arose and claimed that two members had not voted. Then it was claimed that councilman Jackson had not voted. Mr. Jackson tried to stop the person who was'making this claim, and told him to let it pass; and when he did this,, he knew that he was tallied as voting in favor of the motion. The matter was pressed, until Mr. Jackson said that he had not voted, and desired to be excused from voting, as he had been sick and absent, and was not very -familiar with the matter under consideration. Thereupon the couacil voted eighteen in favor of excusing him, and two against. There was some talk after this action was had in the council, among the members, as to whether eleven votes in favor of the reconsideration would carry the motion; and it is claimed that some official of the city, who was present in the council chamber, gave it as his opinion that the motion would be carried if only eleven members voted in favor of it. The evidence shows that the journal clerk, who writes up the record for the city clerk, commenced to write the record as soon as possible after the meeting; that this clerk poceeded to write the minutes of the meeting of January 27th, 1896, and had written some portion of them, when the city clerk found that the minutes were being written up as showing that only eleven members voted in favor of the reconsideration. Thereupon he had certain portions of the minutes erased and written up as showing that twelve members voted in favor of the motion; and the journal as thus written, was presented to the city council at its next regular meeting; and when read, a motion was made to strike out the number twelve, and insert number eleven as voting in favor of the motion. Mr. Jackson then said to the.council that he had undoubtedly given the clerk to understand, by the nod of his head when the roll was called, that he voted in favor of the motion. The vote was taken by the council, and after a full consideration of the matter, the council voted sixteen in favor of approving the journal as it was written, and five members voted against it.

The law requires that a majority of all the'members elected to the council are necessary to carry the motion of January 20th, 1896, and the rules of the council provide:

“That any action of the council as tj the passage of an ordinance for the payment c.f claims may be reconsidered by motion if the motion to reconsider be made not later than the,next regular meeting after such action was taken; and also that every member present shall vote on the call of the ‘yeas’ and ‘nays’ unless excused by the unanimous consent of the council.”

The city council is a legislative body, and the question which is here presented, is one which relates to its proceedings as such a body; and it affirmatively appears that the question which is now submitted to this court upon mandamus, was made in the council itself; and upon consideration after hearing evidence on the question of approving the journal, this legislative body determined that its record, as made, was according to the facts. There is no suggestion of fraud, or collusion, or bad faith, and the court is asked to determine whether the council reached the right conclusion or not, in approving its journal. We think that the jurisdiction of the council in this matter is final and conclusive, in the absence of any charge of fraud or bad faith in the matter, and that this court will not inquire into the accuracy of that record any more than it will inquire into the motives which prompted the members of the city council in voting as they did. We think it is not clear by anv means that the council did not determine this question correctly, upon the evidence as it is presented before us. There is no doubt, as Mr, Jackson and the clerk both testify, that he voted in favor of the motion. Whether he intended to so vote or not, it does appear that he did not vote, and it appeared to the council when they approved their journal, .that he intended the clerk to understand that he voted in favor of the motion, and the members had not all voted to excuse him from voting as the rule requires.

' The petition against the council asking the court to change, or order the council to change its journal, is dismissed.

Fourth, The right of the city council to reconsider the motion of January 20th, 1896, by which motion it rejected all the bids.

If the council has not this right, then the motion to reconsider, it is claimed, has no effect; and the action of the council still stands, that all the bids are rejected. Beach on Public Corporations, sec. 866, says:

“The general rule is settled beyond dispute, that action taken by the town meeting may be reconsidered and rescinded at the same meeting, or at any adjourned, or at any other subsequent meeting; and a vote not to reconsider a previous vote taken at the same meeting, does not abridge the power of after-meetings over that vote. Where there is a vote in the negative, the voters may nevertheless, at the same or any other meeting, rescind the vote, and pass measures in the affirmative, or they may take inconsistent action without formally rescinding the vote. If the votes are repugnant, the former is rescinded by implication.”

And in sec. 297:

“It is the undoubted right of corporate bodies, unless clearly restrained by legislative enactment, to reconsider a vote as often as thd_y see fit, or to rescind the same, provided vested rights are not disturbed, up to a time when by a conclusive vote, accepted as such by itself, a determination has been reached. They may adopt rules as to the time when reconsideration may be moved, and it is not necessary to the validity of the resolution to reconsider, that it should be moved by one who voted originally with the majority; and a board of aldermen, which has indefinitely postponed action on a resolution of the common council, can afterwards rescind that action, and pass the resolution.”

There are a large number of authorities cited in the note that fully sustain the text of the author.

To the same effect is sec. 290 in Dillon on Municipal Corporations:

“At any time before the rights of third persons have attached, a council or ether corporate body may, if consistent with its charter and rules of action, rescind previous votes and orders. ’ ’

The rule of the council governing the matter of reconsid-eration has already been given. The rule, however, has some limitations:

“If a vote of the town has given a cause of action against it, no subsequent proceedings can impair or dispute this vested right; and it is generally true that rights of third parties resting on a vote, cannot be divested by reconsideration.”

Another exception to the general rule is:

“If a vote has accomplished its purpose, and wrought out the intented result, its force is spent, and an attempt to reconsider it is futile.”

These authorities seem to establish the right of the city council to rescind the motion of January 20th, 1896, unless it shall appear that under the motion of January 20th, 1896, there had become vested rights, or that that motion so fully disposed of the entire subject matter, that the council could take no further action upon the same.

' Had the city council awarded this contract to the Holly Manufacturing Company, instead of rejecting all bids, then we can see how the Holly Manufacturing Company would have had, under that vote, a vested right; but it is equally clear that, under the vote to reject all bids, the Holly Manufacturing Company obtained no vested right. The motion to reject all bids, did not dispose of the matter, before the council so fully that it could not reconsider. There is no such limitation in the law, and authorities, so far as we have seen any upon the subject, are that the council, after rejecting all bids, may reconsider that vote, and award the contract; or, if the contract is awarded to n bidd er, and he ref fuses or fails to enter into the same, the council may thereafter award the contract to another bidder. In Ross v. Stockhouse, 114 Ind. 200, it is held that

“A board which has rejected all bids received in pursuance of due notice of the letting of a contract for a street improvement, may at a subsequept meeting,' without a re-advertising for bids, reconsider the vote of rejection and .award the contract to one of the original bidders.”

In Kinsell v. The City of Auburn, 7 N. Y. Supplement 817, the court decided:

“The common council may reject any or all of the proposáis, if tbey shall deem it for the interest of the city; and if either of said proposals is deemed favorable to the city, the common council may direct the mayor and city clerk to contract with the party whose proposal is accepted.”

In this case, after bids for constructing a sewer were opened, and the council passed a resolution awarding the contract to the lowest bidder, he failed to enter into the contract, and .the council at the next meeting reconsidered the motion awarding the contract, and awarded the contract to the next¿lowest®bidder. The court held-that the proceeding was legal.

It is apparent™then, from the very nature of the proceeding, and from the authorities, that the council had authority to aawrd the contract after it had voted to reject all bids.

Sixth. Can the contract be awarded to one who is not the lowest bidder?

This question involves an examination of the statutes, to determine under which provision this contract was let. See. 76 of the Federal Plan Law, points out how the city is to proceed in case of an improvement or repair or purchase of supplies, where the cost exceeds five hundred dollars; and paragraph 5 of that section provides:

‘‘If the work bid for embraces both labor and material, they shall be separately stated, with the price thereof.”

Paragraph 6 reads:

‘‘None but the lowest and best responsible bid shall be accepted when such bids are for labor and material separately, but the council may, at its discretion, reject all the bids, or accept any bid which may be the lowest aggregate cost, when recommended by the board of control.”

This provision of paragraph 6 seems to refer entirely to cases where labor and material may be bid for separately; that separate bids may be tendered and accepted when they are the lowest and best responsible bide; but if the fractional bids are not lower than any one bid which includes all the fractional parts, or is the aggregate of all of them, then the aggregate bid may be accepted.

Sec. 794, applies to cities and towns and villages among other corporations and boards, but this section makes it imperative that the officer, board or authority calling for the bid, shall require separate and distinct proposals to be made for furnishing the materials for doing the work, or both, in their or his discretion, for each separate and distinct trade or kind of mechanical labor or employment, or business necessary to be used in making such public improvement. In this respect, the statute is similar to the one in the Federal Plan Law. It would seem from the notice inviting the bids, that the city was not proceeding, as to the character of bids, under either of these provisions of law. The notice fully provides for a pumping engine, and that all steam pipes, fixtures, water pipes, mains, valves and labor are to be furnished with the pump. The bid called for is a unit, and gives no opportunity to anyone to bid separately on material or labor or anything else called for in the notice. The Federal Plan Law places the waterworks of the city under the management of the director of public works of the city, who takes the place of the trustees or board under the provisions as provided for in the general law of the state pertaining to waterworks; and any authority in the law vested in the trustees or. board, is now vested in such director.

Sec. 2415 provides:

“The trustees or boird shall be authorized to ,make contracts for the building and machinery of waterworks, buildings, reservoirs and the enlargement and repair thereof,and the manufacture and laying down of pipe, and the furnishing and supplying with connections of necessary fire hydrants for fire department purposes, and keeping the same in repair, and for all other necessary' purposes to the full and efficient management and construction of waterworks.’’

Sec. 2419 provides:

“The trustees or board, before entering into any contract for work to be done, the estimated cost of which exceeds five hundred dollars, shall cause at least two weeks notice to be given in one or more daily newspapers of general circulation in the corporation, that proposals will be. received by the trustees for the performing of the work specified in such notice; and the trustees shall contract with the lowest bidder, if in their opinion he can be depended on to do the work with ability, promptness and fidelity; and if such be not the case, the trustees may award the contract to he next lowest bidder, or decline to contract, and advertise again.”

The notice seems in all its parts and purposes to have been made under this section of the law. It is not made to harmonize with the purpose and intent of the provisions of the Federal Plan Law, nor of the general provisions of the law as found in section 794; nor do the bids in any manner purport to be made under those sections; and it is evident that those sections were not intended to apply to a matter of this kind. And sec. 2419 is one under which the city authorities had a right to call for bids. They have called for bids under this section. The bids have been made to conform to these provisions, and it is under-this section that the authority of the city to award the contract is to be determined. This section gives to the city an option to award the contract to the lowest bidder, if in their opinion he can be depended upon to do the work with ability, promptness and fidelity; and if such be not the case, then they may award it to the next lowest bidder, or decline to contract. This section places this option entirely upon the opinion of the city authority, and the court certainly cannot interfere with that opinion.

In this case, proof has been introduced as to the character of the bidders, and it is claimed that the Holly Company is fully capable of doing this work with ability,promptness and fidelity. There is no claim here that the eity is in any manner acting fraudulently or by way of collusion to •evade the intent of this statute; and for aught that appears in the case, it is acting honestly, and with an opinion that has to it some foundation. The city under this statute had ihe right to reject the Holly bid, and accept the bid of the Allis Company. The duty and discretion of deciding this question is imposed upon the city authorities, and not upon •ns. 10 C. C. R., page 74,

The plaintiff’s petition for an injunction is dismissed.

Judge Marvin

delivered a dissenting opinion as follows:

I agree with the result reached in the two mandamus ■cases; but I have not been able to agree with my associates in the injunction case. The Federal Plan Law, it seems to ■me, undertook to, and, I think, did provide a plan of government for the city of Cleveland, and a means of letting contracts by the city of Cleveland. If it be true that the director of public works of the city of Cleveland has all the authority that the trustees of waterworks have under the general statute, then it would seem to follow that the contract in a case like this must be let by the director of public ■works. Section 2415 of the statute provides that the trustees of waterworks may make contracts. Now, so far as I have understood this case, it has not been claimed that the director of public works could have let this contract. The •city authorities do not seem to have acted on that idea; and it was awarded by the council.

It must be conceded that as to the course to be pursued in a ease like this the legislation is not plain. Section 76 ■of the Federal Plan Law provides:

“When the corporation makes an improvement or repair, •or purchases any supplies, the cost of which will exceed $500, it shall proceed as follows:

"‘Then follows the various sub-divisions of the section, No. 6 being as follows:

“None but the lowest and best responsible bid shall be accepted when such bids are for labor and material separately, but the council may, at its discretion, reject all the bids or accept any bid which may be the lowest aggregate cost, when recommended by the board of control.”

Now, it is conceded that it is not plain as to what is to be done, except where the bids are to be separate- — -for different things to be furnished or done. This subdivision, as has been said in the opinion already delivered, is substantially like section 794 of the statute. That section is construed, in the main, with section 799, in 39 Ohio. St, Reports, where Judge Doyle delivered the opinion. In that case Judge Doyle took occasion at least twice in the opinion to say that the court does not undertake to say, under the language, that the contract is to be let to the lowest and best bidder, whether there is a greater discretion than where it is to be let to the lowest bidder. But pursuing the matter for a moment further as to whether the contract is to be awarded by the council or director of public works, As I have said, the council seems to have proceeded upon the idea that it was to be awarded by the council; and I believe that that was the intention of the federal plan and of this subdivision 6 of the statute, although the language is not plain, and there is no other provision, so far as I know, and I have looked with some, care, for the letting of contracts. Now, that being so, if this contract is to be let under that statute, it must be either let to the lowest and best responsible bidder-, or to the lowest responsible bidder. My own opinion is that in no event can the contract be let to any but the lowest bidder; and if he is not the best bidder, the council may reject the bids and again advertise. I think the whole spirit of the statute requiring competitive bidding is in accordance with that view.

The only general statute which provides for letting to the lowest and best bidder is section®794, and, as I have said, the supreme court, in the^ case to which I have called attention, where the decision was made by Judge Doyle, expressly avoided determining whether there may be a letting of the contract to other than the lowest bidder.

Under section 2419, which has been constructed by the Circuit Court of Hamilton county, to which attention has been called in the opinion already delivered, the discretion is plainly left with the public authorities; because that provides that the contract shall be let to the lowest bidder if in their opinion he can be depended on to do the work with -ability, promptness and fidelity; and if such is not the case, the. contract may be let to the next lowest bidder. There is clearly a discretion left. There is a discretion left under my construction of this statute, subdivision 6 of section 76. If in the judgment of the authorities - the lowest bidder is not the best bidder,they may reject all bids. Now, to illustrate the difficulty that I think comes from taking any other view — the object of the statute being to secure the benefit of competitive bidding — Lake this case: The answer, among other things, says that the pump, with the appurtenances, that the E. P.Allis Co, propose to furnish, weights 100 tons more than the one that the Holly Co. proposes to furnish. But it does not follow that because the E. P. Allis Co. will furnish the apparatus desired for $64,000, weighing so much more than the one that the Holly Co. propose to furnish, that the Holly Co., if it had the opportunity to bid for an apparatus of this additional weight, would not still be the lowest bidder. There has been no opportunity, so far as appears in this case, for anybody to bid on a pump that should weigh the additional 100 tons; and it would seem to me that, the course to be pursued would be to reject all these bids and advertise again. If it is desirable that the pump and its appurtenances shall weigh 100 tons more than it is said the Holly Co. apparatus weighs, let the advertisement indicate the weight the apparatus shall have — that it shall not be less than a given amount. It seems to me that it is in direct violation of the spirit of the statute to say that a contract may be let to a bidder not the lowest, who is a responsible bidder and who complied with the conditions of the notice; and in my judgment, in a case like this, where the separate parts are not to be bid for separately, it must be Jet to the lowest bidder or not let at all. Then there is subdivision 8 under this section:

“If two or more bids are equal for the whole or any part of the work, but are lower than any others, either may be accepted, but in no case shall the work be divided between them. ”

It, therefore, seems to have been the intention of the legislation to let these contracts to the lowest bidder who can conform to all the requirements, and who is responsible and will give the proper bond.

Now, without stopping to give any others, these are some of the reasons for dissenting from the opinion of the majority of the court in the case brought by McClain for an injunction.


author: Day, J.

text:
    (Third Circuit — Hardin Co., O., Circuit Court
    Feb. Term, 1898.)
    Before Day, Price and Norris, JJ.
    JOHN T. HARRIS v. MAGDALENA WESTERVELT.

      Proceeding to recover concealed assets and for removal of ' administrator ean be joined—
    It is not improper to join in one proceeding, an application for the recovery of concealed assets of an estate, and for the removal of the administrator of such estate: and the mere fact of such joinder, will in nowise affect or change the character of either proceeding with respect to appeal.

      Appeal — Proceeding to recover concealed assets—
    Appeal lies from a final order in a proceeding to recover concealed assets, by express provision of sec. 6407, Rev. Stat. There is no similar provision with reference to removal proceedings, and in such matter appeal does not lie.
    Error to the Court of Common Pleas of Hardin county. g On June 11, 1896, the plaintiff filed in the Probate Court of Hardin county, his application, in form an affidavit, setting forth,in substance,that he was a creditor and interested injihe proper administration of the estate of William Westervelt, deceased; that the defendant Magdalena Westervelt was widow of the deceased William Westervelt, and administratrix of his estate; that the said administratrix unlawfully and fraudulently conceals and withholds from the inventory and refuses to have inventoried as assets of the said estate, certain pesonal property .described, and of the value of some-11,600.00; that there aré unsettled claims and demands existing between the administratrix and the estate; which .are the subject of controversy between the said administratrix and affiant and other..creditors and interested persons; and praying for the removal of the administratrix, the appointment of a new one, and that a proceeding as provided by law be had to this end, that said concealed property be added to the inventory as assets of the said estate. On the 22nd of June, 1896, upon notice, the probate court heard and disposed of the application. An entry was made upon the journal finding in favor of the administratrix on all the propositions involved, and against the applicant Harris; that no controversies exist beween the administratrix and creditors of the estate with respect to unsettled claims and demands; that the personal property, set out and described in the application and said to be concealed assets of the said estate,is not assets of the estate, but is the property of the said Magdalena Westervelt; that no cause is shown for the removal of the administratrix, and the application is disallowed and dismissed with a judgment against Harris for the costs of the proceeding. Harris gave notice of his intention to appeal the matter to the court of common pleas, and, within the time provided by the statute, gave an undertaking for. appeal in an amount fixed by the court, and perfected an. appeal if the matter is appealable under the provisions of the statute. The common pleas court, on motion, dismissed the appeal on the ground: “No appeal lies from the order of the probate court in said proceeding.” Harris saved an exception to this ruling of the court, and prosecutes error here to obtain reversal of the order dismissing the appeal.
   Day, J.

The single question presented by this record is: Does appeal lie, under the provisions of law, from the probate court in such matter or proceeding? And the question can only be correctly answered by a proper determination of the character of the proceeding. The statutory provisions for appeal from the probate to the common pleas court, are simple and so clear and definite as to leave but little, if any, room for difference of opinion as to what matters are and are not appealable. And as in this case, the controversy is not as to the law of the case- — -as to what the provisions of law are, but rather as to the character of the proceeding itself. Is it of such character that, under the plain provisions of the statute, appeal lies?

What then was this proceeding? If it was merely to obtain the removal of an executor or administrator and the appointment of a new one, no appeal lies. In such case the statute makes no provision for appeal; and the sfippreme court has held that none lies. If, however, it was a proceeding against a person suspected of having concealed, embezzled or conveyed away property or assets of the estate of a deceased person, by the express provision of section 6407, Revised Statutes, it is appealable. If such was the character of the proceeding in question, an appeal was properly perfected,and the lower court was in error in summarily dismissing plaintiff out of court,

Counsel for defendant, with zeal and persistence, asserts it was a proceeding to procure the removal of the.administratrix, and of course not appealable, there being no provision for appeal in such case. Counsel for plaintiff, with equal zeal and persistence, contend it was a proceeding against a person suspected of having concealed property and assets of the estate of William Westervelt deceased, and appealable of course, by the express provision of the statute. It may, with propriety, be said that both are to an extent right, from the standpoint assumed by them. A careful reading of the complaint filed by Harris discloses, that it was a proceeding to procure the removal of an administrator and the appointment of another one. It was also “a proceeding against a person suspected of concealing assets of the estate;” and, that a proceeding of such dual character was entirely legitimate and propór, there can be but little, if any, doubt. The alleged improper administratrix and concealer of assets, consisted of one and the same person; and it is the policy of the law to minimize litigation in the number of actions and proceedings that may properly be instituted and maintained; and to that end, by express provision of law, the joinder of various differing causes of action, in a single proceeding is provided. It would seem, therefore,that it could not be improper, if under the provisions of sec. 6017,Revised Statutes,a creditor desired the removal of an administrator, and also, under sec. 6053, desired to proceed against the same person for concealing assets of. the estate, to unite the two in one complaint and pray relief concerning both in the one proceeding. That is precisely what was done in this case,and we think properly.

The first complaint contained in the motion is that the administratrix is concealing property and assets of the estate, and the property is described with particularity. The second complaint is that there are differences existing between the administratrix and the creditors of which the affiant is one, as to claims of the administratrix, that are liable to lead to litigation,as ground for the removal of the administratrix. The prayer ie, for removal of the administratrix and the appointment of another one; and, suoh proceeding as will add the concealed property to the inventory, as assets of the estate.

Frank G. Daugherty, for Plaintiff in Error.

Smiok & Hoge, for Defendant in Error.

The questions raised and presented by the affidavit filed, were submitted to and decided by the probate court, and final judgment entered thereon. All the propositions' involved were adjudged, and the judgment, if allowed to> stand, will constitute a bar to any. subsequent proceeding against the administratrix for the same alleged concealment of assets of the estate; so that a final judgment was entered against the plaintiff in a proceeding against a per-' son suspected of concealing assets, from which plaintiff has the right of appeal in virtue of the provisions of the statute, unless something has intervened by which the right of appeal has been taken away. Nothing has intervened- — -nothing unusual has got into the case, unless it is unusual to hear and determine two separate independent propositions in one proceeding; and it is not claimed or believed, that the-mere fact that the ‘'proceeding tgainst a person suspected of concealing assets,” was disposed of in connection, and in the same proceeding, with an ‘‘application for the removal of an administrator”, would change its character in any respecter in any way affect the matter, so as to make it nonappealable. If this is correct,the right of appeal remained unaffected, and the plaintiff in error having taken the necessary steps in time, perfected an appeal in the matter, and the lower court was in error in dismissing it.

The judgment is reversed, witn co3ts. The motion to dismiss the appeal is overruled and the cause remanded for further proceeding according to law.