text:
    CONSTITUTIONAL LAW — MARKET HOUSES.
    [Cuyahoga (8th) Circuit Court,
    December 24, 1903.]
    Hale, Marvin and Winch, JJ.
    Henry G. Slatmyer et al. v. W. J. Springborn et al.
    1. Section 216, Par. 4, 96 O. L. 88, Unconstitutional.
    The act oí October 22, 1903 (96 O. L. 20, known as the new municipal code), being an act of a general nature, the provisions of Sec. 26, Art. 2 of the constitution require that it shall have a uniform operation throughout the state; but inasmuch as it is provided by Sec. 216 of this act that after the first Monday of May, 1903, boards of public 'service shall have control of market houses and the constitution of all public works and authority to appoint a board for the construction of market houses in all the cities of the state except Cleveland, this portion of the act, exempting from its operation for an indefinite time members of the market house commission appointed under the provisions of the act' of April 26, 1898 (93 O. L. 668), and which applied to Cleveland alone, cannot have a uniform operation throughout the state, and, therefore, is invalid.
    2. Market House Commissioners Appointed Under Invalid Act not Entitled to Office Under Subsequent Invalid Act.
    Market house commissioners appointed under an act that was in violation of Sec. 26, Art. 2 of the constitution because, although upon a subject matter of a general nature, its operation was limited to a single city, and con- ( ferring upon them no legal right to act as such, cannot, by virtue of a subsequent act limited in its application to the same city, and, therefore, coming within the same constitutional inhibition, be entitled to continue in the performance of the duties of the commission.
    3. Resolution Continuing old Officers in Office Temporary Only.
    A resolution adopted by the board of public service, continuing in office all officers and employes theretofore appointed iri connection with any department or division of the city government, and providing that the “division and organization * * * existing * * * in all such work shall be maintained and shall continue until the same shall be changed in accordance with law,” does 'not have the effect of a permanent appointment, but is temporary only until the board of public service could take proper con-tool of tlie various matters entrusted to them under tiie new code, and when the hoard subsequently takes action discontinuing all further action, by a market house commission appointed under the unconstitutional act of April 26, 1898 (93 O. L. 668), and requiring all matters and property in their hands to he turned over to such board, the authority and power of said commission immediately ceased.
    Appeal by defendants.
    J. C. Hutchins and Goulder, Holding & Masten, for plaintiffs.
    Newton D. Baker, city solicitor, for defendants:
    The “market house commission act” of April 26, 1898 (93 O. L» 668, Sec. 2581-1 Rev. Stat.) a special act conferring corporate power. State v. Jones, 66 Ohio St. 453, 488 [64 N. E. Rep. 424; 90 Am. St. Rep. 592]; Horstman v. Street Ry. Co. 13 Dec. 670; State v. Beacom, 66 Ohio St. 491 [64 N. E. Rep. 427; 90 Am. St. Rep. 599].
    Subject of the erection of market houses one of a general nature, and the power to build such houses is “corporate power.” State v. Spellmire, 67 Ohio St. 77 [65 N. E. Rep. 619] ; State v. Pugh, 43 Ohio St. 98 [1 N. E. Rep. 439].
    Exercise of appointing power by general assembly. State v. Pugh, 43 Ohio St. 98, 99 [1 N. E. Rep. 439] ; State v. Jones, 66 Ohio St. 458 [64 N. E. Rep. 424; 90 Am. St. Rep. 592],
    Principle upon which curative acts may be passed. Cooley, Const. L-im. (5 ed.) 455 et seq.; Dillon, Mun. Corp. (4 ed.) Sec. 76; Horstman v. Railway Co. 13 Dec. 670.
   MARVIN, J.

The plaintiffs in their petition set out that they were severally appointed members of the market house commission *of the city of Cleveland on August 12, 1901, by the mayor of said city, and together they constitute such commission by virtue of such appointment.

They severally .subscribed to a prescribed oath of office to honestly and faithfully perform their duties as members of such commission, and they gave bonds as required by law, which bonds were duly approved by said mayor, and they thefeafter entered upon the performance or their duties as said commission, and since said time have been acting as said market house commission.

The defendants, W. J. Springborn, Daniel E. Leslie and Harris R. Cooley, are the duly elected, qualified and acting board of public service of said city of Cleveland. The defendants claim as such board of public service to have the right to interfere with the performance of any duties by said plaintiffs as such market house commission, and, unless restrained by the order of the court, will take possession of all the property, books, papers, documents, muniments of title, money and property of every kind, sort and description in the hands of the plaintiffs relating'to the erection of a market house in said city of Cleveland, and will wholly prevent the plaintiffs from performing any duties as such commission.

To this petition the defendants filed a general demurrer.

By leave of the court the plaintiffs, after the case was appealed to this court, filed an amendment to their petition, in which they set up a certain resolution adopted by the defendants as such board of public service, and the demurrer already mentioned is here treated as a demurrer to the petition as amended, the case being submitted upon the petition as amended, and the demurrer.

The plaintiffs were appointed as members of this commission by virtue of Sec. 2581-1 Rev. Stat., passed on April 26, 1898 (93 O, L. 668). This section provided for the appointment by the mayor of a market house commission consisting of three members, who shall serve for the period of five years and until their successors are appointed and qualified. This statute was repealed by the new municipal code passed October 22, 1902 (96 O. L. 101). The purpose of the enactment of the present municipal code, which was done at an extraordinary session of the legislature called together expressly for the purpose of passing such a co.de for the organization and government of municipalities as Should have a uniform 'operation throughout the state, and avoid that classification which had before existed arid which had been recently declared by the Supreme Court to be obnoxious to the constitution. By the terms of the act itself, the new code, so far as it repealed existing laws, and for all purposes having any bearing on the case under consideration, took effect on the first Monday in May, 1903. Unless then by reason of some other provision of the act, or some other fact to be hereafter considered the plaintiffs still hold their positions, they ceased to be members of the market house commission on that date.

Whatever rights the plaintiffs have to hold their positions claimed by them as members of the market house commission, and as constituting such commission, they have by virtue of Sec. 216 of the municipal code (96 O. L. 88), passed October 22, 1902, or by virtue of a resolution adopted by the board of public service of the city adopted on May 4, 1903.

Taking up, first, the provision of the statute referred to, by 96 O. L„ 66, Sec. 138, of the act, a department of public service for all cities is created, to be administered by either three or five directors, as may be determined by the council, these directors to organize as a board to be known as the “board of public service.”

By 96 O. L. 66, Sec. 139, it is provided that:

“The directors of public service shall be the chief administrative ■ au* thority of the city, and shall manage and supervise all public works and all public institutions, except where otherwise provided in this act.”

Act 96 O. L. 66, Sec. 140, provides that:

' “The directors of public service shall supervise the improvement ana repair of * * * market houses, * * * and the construction'of all public improvements and public works, except as otherwise provided in this act.”

Act 96 O. L. 66, Sec. 141, gives the management of all market houses to the directors of public service.

Act 96 O. L. 68, Sec. 145, provides that:

“The directors of public service may employ such * * * persons, as may be necessary for the execution of the powers and duties of this department, and may establish such subdepartments for the administration of affairs under said directors as may be deemed proper.”

One of the provisions of 96 O. L. 88, Sec. 216, is in these words:

“Provided, further, that whenever any city has in contemplation or in process of construction, any market house or houses, or public hall in connection therewith, the directors of public service may provide for the employment of three citizens of such city, to be named by them, who shall constitute a commission, which shall have power, subject to the approval of the directors of public service, to contract, in the name, of such city, for and supervise the building and furnishing of, any market bouse or houses or public hall in connection therewith, for such city.”

A further provision of said 96 O. L. 88, Sec. 216 (and this is the provision under which the plaintiffs claim their right to maintain this action) is in these words:

“Provided, further, that any person or persons heretofore appointed pursuant to the provisions of an act entitled * * * 'An act relating to market houses in cities of the second grade of the first class/ passed April 26, 1898 (93 O. L. 668), or by whatever authority for the purpose provided herein, shall continue to act for the purposes for which he or they were appointed, with the power herein granted and no others, -until the completion of the improvement in connection with which they were appointed.”

The statute under consideration is entitled “an act to provide for the organization of cities and incorporated villages,” etc.

Section 6, Art. 13 of the constitution provides that “The general assembly shall provide for the organization of cities, and incorporated villages, by general laws,” etc.

It seems clear, then, that this statute is an act of a general nature. The section of the constitution just quoted shows that it must be, and the •provisions of the act hereinbefore quoted or referred to are such that* even in the absence of the constitutional provision that acts for the org -.ni-zation of cities and villages shall be provided for by general laws, they are clearly of a general nature, except the last quotation made from 96. O. L. 88, Sec. 216.

In the case of Silberman v. Hay, 59 Ohio St. 582 [53 N. E. Rep. 258; 44 L. R. A. 264], in the opinion, on page 587, Judge Minshall says:

“It is well settled that the ‘general nature’ of a law must be determined by its subject matter; if this be general the law must be general.”

We have, then, to consider an act of a general nature, and it being such an act, it must, by virtue of Sec. 26, Art. 2 of the constitution, have a uniform operation throughout the state. Unless it has such uniform operation it is obnoxious to this provision of the constitution.

The last quotation hereinbefore made from 96 O. L. 88, Sec. 216' of the act seems a plain declaration that the act shall not have uniform operation throughout the state. It is there provided that notwithstanding the earlier provisions of the act that the board pf public service shall have control of market houses and the construction of all public works, and may appoint a board for the construction of market houses, still this, shall not be the case in any city in which by virtue of an appointment under Sec. 2581-1 Rev. Stat. there has heretofore been a market house commission. There can be no such commission under such appointment in any city hut the city of Cleveland.

In the case of Silberman v. Hay, supra, page 586, in speaking of an act general in its terms, but which can apply to no part of the state except Cuyahoga county, Judge Minshall says this:

“But, if its subject matter is not a proper subject of local legislation, this attempt to give it the form of a general law, can be of no avail, as has been frequently decided by this court. It is manifestly a local law, intended to apply to Cuyahoga county, and can apply to no other.”

,\nd he also says, speaking of this statute:

“"We entertain no doubt of the invalidity of this law.”

What has already been quoted from the same opinion gives the reason why no such doubt was entertained by the court. The same reasoning applied to the clause of the statute now under consideration, and under which the plaintiffs claim their right to act as a market house commission, results in leaving no doubt of the invalidity of that clause" of the statute. To hold otherwise would be to say that a law which goes into effect in all parts of the state except the city of Cleveland in May, 1903, shall not go into effect in that city until an indefinite time in the future, has a uniform operation throughout the state. In all other cities, by virtue of this statute, if a market house is to be built the entire subject of such building is under the supervision of the board of public service and its appointees, and that from the day the statute went into effect. In the city of Cleveland it may be one year; it may be five years before the erection of a market house will be under the control of the same board as is provided for all the other cities of the state. This seems to us to completely settle the. proposition that this provision is obnoxious to Sec. 26, Art. 2 of the constitution.

Another reason why it seems clear that the plaintiffs are not entitled to continue in the performance of the duties of a market house commission is that the statute under which they were appointed is clearly an act of a general nature relating to a subject which,- in the nature of things, is general in the cities of the state,, and yet that act confines its operations to cities of the second grade of the first class, of which there was but one at the time the statute was enacted, and therefore that act was invalid as being in contravention of the constitutional provision, that all acts of a general nature shall have a uniform operation throughout the state. This being true, the only possible ground on which, the plaintiffs could be entitled to continue in the performance of the duties of a commission must be that, though they were appointed under an unconstitutional statute, such statute can be made valid and legal by* the enactment of another unconstitutional statute. If the statute under which these plaintiffs were" appointed was unconstitutional, then they were not at the time of the enactment of the municipal code members of and did not constitute a market house commission. That being true, we have this situation: That in all cities of the state except one the board of public service, from and after the first Monday in May, 1903, had full control of the erection of market houses, either by themselves or through persons appointed by them, yet in the city of Cleveland certain men not at the time the code was enacted having any legal right to act as a market house commission are by virtue of that code made a market house commission for the city of Cleveland alone. Surely, it would seem as though there can be no doubt that this would be in violation of the provision of the constitution already quoted.

It is possible that but for the recent decisions of the Supreme Court of the state a different conclusion might have been reached, and it might, have been held that owing to the peculiar circumstances existing in the city of Cleveland at the time of the enactment of the statute of April 26. 1898 (93 O. L. 668), it was necessary that a commission should be appointed for that city which would not justify such appointment in the same way in any 'other city; but however that may be, the Supreme Court has decided in unmistakable terms that the efforts which have been made and to a greater or less extent permitted to prevail to avoid the provision of the constitution referred to will no longer be tolerated.

The only other authority under which the plaintiffs claim the right to continue as such market house commission is by reason of the adoption of a resolution by the board of public service, on May 4, 1903, in these words:

“Be it resolved by the board of public service that until further order of this board, all officers and employes heretofore appointed in connection with a department or division of the government of the city of Cleveland, and performing any functions which by the act of October 22, 1902, taking effect this fourth day of May, 1903, is placed under the authority, supervision and control of this board, shall continue in the employ of the city of Cleveland without further order under the designation heretofore attaching to said employment and at the salary heretofore paid therefor, and that the division and organization heretofore existing in all such work shall be maintained and shall continue until the same shall be changed in accordance with law. The object and purpose of this resolution being to legalize the employment of all persons now in the city’s ■employ heretofore operating under any other authority as predecessor to this board, and to preserve the orderly conduct of the affairs of this city and the performance of all such public work as is under the care and maintenance and control of this board. ’ ’

The only claim that can be made under this resolution is that the board of public service has appointed the plaintiffs to perform their duties as a market house commission by virtue of a provision of 96 O. L. 88, Sec. 216, hereinbefore quoted, which reads:

“Provided, further, that whenever any city has in contemplation or in process of construction, any market house or houses, or public hall in connection therewith, the directors of public service may provide for the employment of three citizens of such city, to be named by them, which shall constitute a commission,” etc. >

Clearly this resolution was not adopted by the board of public service with a view of making any appointments under this provision of the statute, but only that the affairs of the city in connection with their department should not fall into'confusion until such time as they might in pursuance of the authority vested in them by the statute take control of the various matters entrusted to them, and the resolution itself provided that those employes of the city referred to in the resolution were, only to continue in their employment until the further order of the board; and the petition in this case shows that on June 19, 1903, a resolution was adopted by the board of public service discontinuing all action of the market house commission and requiring them to turn over to the board of public service all matters and property in their hands pertaining to the market house, and on June 20, 1903, the plaintiffs received notice from the board of public service of this action, so that, whatever authority they derived from the resolution of May 4 was ended by the resolution of' June 19.

A peculiarity of the statute under consideration, which probably would not exist but for the want of time on the part of the legislature in preparing its several sections, is, that whereas, by Sec. 138, it is provided that the directors of public service shall organize a board of public service, yet in each of the sections following in which provision is made for the duties of such officers, instead of the term “board of public service” being used the language in each section is “the directors of public service.” As has been said, this has no bearing on the case before us, but is noticeable in the consideration of the statute.

Entertaining these views, the demurrer to the petition is sustained.

The questions involved in this case are of such importance that if counsel for the plaintiffs so desire the judgment' will be suspended until January 15, 1904, to give an opportunity for any application to the Supreme Court which the plaintiffs may desire.

Hale and Winch, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    MOTIONS AND ORDERS — RECEIVERS—CONTEMPT.
    [Hamilton (1st) Circuit Court,
    1904.]
    G-iffen, Jelke and Swing, JJ.
    First National Bank of Norwood v. Emil Clauss et al.
    1. Order Made Under Sec. 5475 Rev. Stat. to Pay Money to Receiver Final Order.
    Where, in a proceeding before a judge of the common pleas court, under Sec. 5475 Rev. Stat., to examine a person alleged to have in his hands money belonging to the judgment debtor, an order is made directing such person to pay the ..money to a receiver to be held by him until the further order of the court, such order is a final order, to which error may be prosecuted by such person.
    2. Judge Acting Under Sec. 5483 Rev. Stat. may Appoint Receiver to Hold Money in Dispute.
    The court or judge acting under Sec. 5483 Rev. Stat. is not authorized to settle disputes between the judgment debtor and a third person, but may appoint a receiver of the money alleged to belong to the jugdment debtor* to hold the same until such dispute is determined by a civil action.
    3. Court Cannot Imprison as for Contempt Party Disobeying Order Made, Under Sec. 5483 Rev. Stat.
    In the event the party refuses to comply with an order of the court made in pursuance of Sec. 5483 Rev. Stat. the court has no power to imprison as for contempt, .but the receiver appointed to hold the fund in dispute must resort to his remedy by action against the party so refusing.
    MOTION to strike petition from files.
    Emil Clauss, a pawnbroker of Cincinnati, secured three judgments before a justice of the peace against William Schaller, maker, and Michael Gaeb, indorser, on promissory notes. Transcripts of the judgments were thereupon filed in the common pleas court. Michael Gaeb-being execution proof, repeated attempts to collect by levy and execution were unavailing. On April 20, 1903, Emil Clauss filed an affidavit, reciting this fact and further reciting that the First National Bank of Norwood had in its possession certain property, to wit, money of said Michael Gaeb. Upon this affidavit, an order of appearance was issued and Thomas McEvilley, cashier of the First National Bank, received the same at 9:20 a. m. April 21, 1903. At that time the bank had no money in its possession belonging to Michael Gaeb, but did have an account on its books in the name of M. P. Gaeb, the said account being for money deposited with the said bank by Mrs. Pauline Gaeb, wife of Michael Gaeb, and being her own separate property. Mrs. Gaeb was and is the owner of a double store in Norwood, and conducted the business of saloon and bakery as M. P. Gaeb, and the money so deposited was in part from her rents and business. The amount in bank at the time of the service of the order, to the credit of M. P. Gaeb, was $242.02. The bank thereupon appeared and testified on April 22, that it had no account of Michael Gaeb, but did have the account of M. P.-Gaeb, but had paid out on said account $240 to the depositor during-banking hours, April 21, and the court showing a disposition to order the money paid the second time, as the money of Michael .Gaeb, counsel for the bank secured a continuance of the hearing for further testimony until April 27, when a stenographer was called and reported that testimony.
    Thereupon Thomas McEvilley, cashier of the First National Bank who testified as is shown by the record, and further offered to shotv that he had ascertained before he paid out the money that Michael Gaeb was-authorized by his wife to sign her name as “ M. P. Gaeb ” to her checks and that this was her 'separate money, which testimony the court refused to hear. At the conclusion of his testimony, the bank then offered as a witness, Mrs. Pauline Gaeb, who would have testified, had she been permitted, that the money deposited in the bank was her own money, that .she had authorized her husband to sign checks for her as M. P. Gaeb, and that it was money realized from rents and from her business that she was saving to pay her Dow tax. The court refused to permit this testimony and thereupon the bank offered as a witness, Emil Clauss, to prove the fact that she did business in her own name as M. P. Gaeb in Norwood, which testimony the court refused to hear.
    .The court entered judgment against the First National Bank of Norwood for $242.02, and ordered that the First National Bank of Norwood pay'the sum of $242.02, within five days, to Stanley V. Merrill, who was appointed receiver to receive and hold this money and to apply the same in accordance with the further order of the court. Due exceptions were taken to said rulings. The First National Bank now orose-cutes error to said judgment and findings.
    Wm. R. Collins, for plaintiff in error:
    Right of trial by jury. Section 5, Art. 1, constitution of Ohio. Hunt v. McMahan, 5 Óhio 132; Willyard v. Hamilton, 7 Ohio, (pt. 2) 111 [30 Am. Dec. 195]; Work v. State, 2 Ohio St. 296 [59 Am. Dec. 671]; Sovereign v. State, 4 Ohio St. 489.
    Party refusing to obey order cannot be imprisoned as for contempt, but receiver must resort to his remedy against him b.y civil action. White v. Gates, 42 Ohio St. 109, 112; Conklin, In re, 3 Circ. Dec. 40 (5 R. 78, 84); Union Bank v. Bank, 6 Ohio St. 254; 3 Freeman, Executions (3 ed:) 411, 416, 418; Drake, Attachment C. 36; Myers v. Baltzell, 37 Pa. St. 491; Russell v. Hinton, 1 Murph. (N. C.) 468; Farmers’ & Mechanics’ Bank v. Little, 8 Watts & Serg. 207 [42 Am. Dec. 293]; Sheldon v. Simmons, Wright 724; Exposition Ry. & Imp. Co. v. Railway Co. 42 La. Ann. 370 [7 So. Rep. 627]; Oppenheimer v. Bank, 20 Mont. 192 [50 Pac. Rep. 419]; Coleman v. Scott, 27 Neb. 77 [42 N. W. Rep. 896] ; Grace, Ex parte, 12 Iowa 208 [79 Am. Dec. 529] ; Schrauth v. Bank, 86 N. Y. 390, 394.
    Rogers Wright and John B. O’Neal, for defendant in error.
   PER CURIAM.

1. Where, in a proceeding before a judge of the common pleas court, under Sec. 5475 Rev. Stat., to examine a person alleged to have in his hands money belonging to the judgment, debtor, an order is made directing such person to pay the money to a receiver to be held by him until the further order of the court, such order is a final order to which error may be prosecuted by such person.

2. The court or judge acting under Sec. 5483 Rev. Stat. is not authorized to settle disputes between the judgment debtor and a third person; but may appoint a receiver of the money alleged to belong to the judgment debtor to hold the same until such dispute is determined by a civil action. Edgarton v. Hanna, 11 Ohio St. 323.

In the event the bank refuses to comply with the order the court has no power to imprison its officers as for a contempt, but the receiver must resort to his remedy by action against the bank. White v. Gates, 42 Ohio St. 109. Every opportunity will thus be given to the bank to make such defense as it may have.

The motion to strike the petition from the files will be overruled and the judgment affirmed.


author: SWING, J.

text:
    BENEFICIAL ASSOCIATION is.
    [Hamilton (1st) Circuit Court,
    June, 1904.]
    Giffen, Jelke and Swing, JJ.
    Phoenix Council No. 85, J. O. U. A. M. v. Margaret Bennett.
    By-law Denying Benefits to Delinquent Member Unseasonable, When.
    A by-law of a fraternal association is unreasonable, and will not be enforced, when it in effect provides that a member wbo becomes sick after being in arrears, and pays up all arrears, and during bis sickness tbe association accepts frpm bim all dues from time to time the same as are assessed against other members, is not entitled to tbe benefits of tbe order. But a by-law denying such benefits to a delinquent member wbo merely pays up, after be becomes sick, all dues owing at tbe time bis sickness commenced, is not unreasonable.
    ERROR to Hamilton common pleas court.
    This action was brought by Margaret Bennett against Phoenix Council No. 85, Junior Order of United American Mechanics, to recover $250 as death benefits, for which judgment was rendered in the common pleas. Bennett v. Phoenix Council, 14 Dec. 593. Cornelius Bennett, plaintiff’s deceased husband, became a beneficiary of the order, October 7, 1899, and died May 22, 1901, the result of a sunstroke, occurring the latter part of July or beginning of August, 1900. His dues were, paid up to and including August 11, 1900. On that date a letter was written by the councilor, the presiding officer of the lodge and ex officio member of its relief committee, recognizing deceased’s illness and inability to work. His illness was reported to the lodge, August 25. Sick benefits were refused upon the ground that he was in arrears when reported to the lodge. Deceased continued to pay his dues, sometimes falling in arrears and sometimes being ahead, but at the time of his death, May 22, 1901, was paid up to June 8. Section 1, Art. 21 of the local by-laws provides:

      “Aiiy member wbo shall allow himself to become in arrears for dues, and shall become sick or disabled, and apply for the benefits of this council, shall not be entitled to receive said benefits during such sickness or disability, even if he should pay all his indebtedness; nor shall he, in case of death, be entitled to funeral benefits. ’ ’
    Rogers Wright, for plaintiff in error.
    Joseph Fox and John R. Holmes, for defendant in error.
   SWING, J.

If Sec. 1, Art. 21 of the by-laws of the association means, that if a member become sick after being in arrears, and pays up all arrears, and during his sickness the association accepts from him all dues from time to time the same as are assessed against other members, but notwithstanding this he is not entitled to the benefits of the order, we think it is unreasonable and should not be enforced.

But we are inclined to hold that the true meaning of the section is, that the member is not entitled to the benefits of the order by the mere fact that after he becomes sick he pays up all back dues which were owing, by him at the time the sickness commenced. This might be just and proper.

In this case the member not only paid up all back dues but continued to pay all dues during a considerable time of his sickness. In either view of the rights of the parties the judgment should be affirmed.

Giffen and Jelke, JJ., concur.


author: WILSON, J.

text:
    COURTS — MAYORS—CRIMINAL LAV;
    [Franklin (2nd) Circuit Court,
    1904.]
    Sullivan, Wilson and Dustin, JJ.
    Valentine Kappes v. State of Ohio.
    1. Section 6529 Rev. Stat. Relating to Change op Venue, not Applicable to Matoes’ Courts.
    Section 6529 Rev. Stat., providing for change of place of trial before justices-of the peace, does not apply to criminal proceedings in mayors’ courts.
    2. Courts of Concurrent Jurisdiction Cannot Act at Same Time.
    Courts of concurrent jurisdiction cannot assume jurisdiction of the same person and same subject-matter at the same time. The jurisdiction of the court first acquiring the same is exclusive. Hence, a prosecution for unlawfully keeping a saloon open on Sunday, being commenced in the mayor’s court, a conviction for the same offense in a proceeding subsequently, brought before a justice of the peace can not be interposed as a plea in bar upon trial thereof in the mayor’s court.
    ERROR to Franklin common pleas court.
    C. D. Saviers and G. E. Trump, for plaintiff.
    W. B. Wheeler and M. E. Thrailkill, for defendant.
    On September 1, 1903, a warrant was secured before the mayor of the village of Marble Cliff, Franklin county, Ohio, charging Valentine Nappes with having kept open a saloon on Sunday. He was arrested and the case was set for hearing on September 8, before the mayor. On September 5, plaintiff in error was arrested by his porter for the same offense, upon a warrant secured before a justice of the peace in the same township. A plea of not guilty was entered, trial had, and accused found guilty and fined $25 and costs. When the case was called for trial before the mayor, the defendant interposed his prior arrest and conviction before the justice of the peace, as a plea in bar. The mayor rejected the plea in bar, and defendant was tried and found guilty and fined $100 and costs. The common pleas affirmed the judgment of the mayor.
   WILSON, J.

The judgment in this ease is affirmed. The provisions of Sec. 6529 Rev. Stat., relating to change of venue in justice of the peace proceedings do not apply to mayors’ courts, in criminal proceedings. If they did, the motion for change of venue and. the evidence do not disclose a ground for change under that section.

The made to order prosecution, in the court, of H. W. Garver, justice of the peace, is a nullity. Two courts having concurrent jurisdiction - capnot entertain jurisdiction of the same person and the same subject-matter, at one and the same time. The jurisdiction of the court first acquiring the same is exclusive. This is elementary. The cause is remanded to the mayor’s court for execution.

Sullivan and Dustin, JJ., concur.


author: •MARVIN, J.

text:
    EXECUTORS AND ADMINISTRATORS — PRINCIPAL AND SURETY — APPEAL—COURTS.
    [Cuyahoga (8th) Circuit Court,
    March 15, 1904.]
    Hale, Marvin and Winch, JJ.
    Henry A. Tidd, Admr., v. Meliss Bloch.
    1. Letters Testamentary not Necessary — Merely Evidence oe Appointment as Executor.
    A person eligible to appointment as executor of a will may be appointed as such by proper order of the probate court entered upon its journal without the issuance of letters testamentary. Such letters ara merely evidence of appointment.
    3. Surety Entitled to Reimbursement and has Lien, etc., When.
    Where a surety company upon an executor’s bond, who is also sole residuary legatee after the payment of certain legacies and debts of thg testator, takes from such executor a bond of indemnity, secured by a trust deed upon the residuary estate, conditioned to indemnify the surety company against all demands, liabilities and expenses, including attorney fees, incurred by reason of its having signed the bond as surety, and also to secure all premiums due it therefor, the surety company has, to the extent of any payments made under such obligation, for the executor, together with premiums due upon the bond, a lien upon the residuary legatee’s interest in the property covered by the trust mortgage, and upon sale of the property by an administrator <fe bonis non, for the purpose of paying the legacies, charged thereon and the debts of the estate, is entitled to payment out of the proceeds of the sale as against the interest of such residuary legatee and former executor, notwithstanding letters testamentary were never issued to the executor, whether the bond' could not have been enforced against it or not.
    3. Action by Administrator Under Sec. 6137 Rev. Stat. to Sell Land, a Civil Action — Appellate Jurisdiction.
    An action commenced either in the probate or common pleas court by an' administrator under Sec. 6137 Rev. Stat.', et seg., to sell real estate is a civil action, and the rights of all parties in the subject matter thereof may be determined by the court; and should such action be commenced in the probate and appealed to the common pleas court, the jurisdiction of the latter is as though the case had been originally commenced therein.
    4. Probate Court has Exclusive Jurisdiction as to Credits and Payment op Unsecured Claims. i

    The probate court has exclusive original jurisdiction, by virtue of Sec. 524 Rev. Stat., to determine what credits shall be allowed or disallowed to the administrator, and what unsecured 'claims shall be paid by him.
    Appeal from tbe court of common pleas of Cuyahoga county.
    T. H. Johnson, for plaintiff in error.
    Kline, Carr, Tolies & Goff, for defendant in error.
   •MARVIN, J.

Aaron Bloch, late a resident of this county, died testate, in March, 1897.

By his will he made certain bequests, and then bequeathed, after payment of his debts, all the residue of his estate to 'his widow, Meliss. Bloch, the plaintiff in error, and named her as executor of his will.

She declined to act as executor, and thereupon the probate court, of this county appointed Claude D. Fish administrator with the will annexed of the estate of said deceased.

On October 27, 1897, the probate court, on motion of said Meliss; Bloch, removed said administrator, making upon its journal the following entry:

“On this twenty-seventh day of October, 1897, the motion for the removal of the administrator filed by Meliss Bloch, widow and legatee under the will of Aaron Bloch, came on to be heard upon the exhibits and testimony and was argued by counsel; whereupon the court, being fully advised in the premises, does find that the bulk of the assets of said estate consist of the capital stock in The Bloch Billiard Table Company; that by the terms of the last will and testament of the decedent,. Meliss Bloch, after the payment of small legacies, is the residuary legatee of all said property; that she is capable of acting in her own right; that the debts of said estate are due to sundry persons in the amount of $670 and upwards; that with the payment or security of the debts, the further administration of the estate, to wit, the management of said capital stock, can best be subserved by permitting the legatee to-manage the same herself; that said administrator has committed no acts; of malfeasance or misfeasance in office, but has been a faithful, diligent and efficient administrator, and was not incompetent, nor did he procure said trust by misrepresentation, fraud or otherwise, and said administrator is in no sense, impeached by this order.
“It is therefore hereby ordered and adjudged that the motion to remove the administrator and terminate the trust, be and is hereby granted, and the. administrator is hereby ordered to make his final settlement within ten days, and the further administration of this estate, at the option of said legatee, be conducted by her and in pursuance of the statute authorizing a residuary legatee to give bond to pay debts, which shall be given to the approval of the court within ten days. ’ ’
“On this thirtieth day of October, 1897, it appearing to the court fey certificate of the clerk of the court of common pleas that one of the heirs of Aaron Bloch has begun an action in the court of common pleas to contest the will, and it appearing to the court that Meliss Bloch, residuary legatee under said will, should give a sufficient bond to answer for the assets of said estate, if the will of said decedent should be set aside, it is thereupon ordered that she give bond as residuary legatee in tbe sum of $18,000, on or before November 10, 1897, conditioned according to law, with sureties to be approved by the court, and the order of October 27, 1897, in regard to said bond is modified accordingly. ' .
“And it further appearing to the court that the former administrator has filed his final account and mates claim for compensation, the same is set for hearing November 4, 1897, at ten A. M., together with the application of said Meliss Bloch for her appointment as executrix* she having filed her affidavit as to what said estate consists of and the probable value thereof.”

Thereupon the said Meliss Bloch applied to The National Surety Company to become surety upon her bond, ordered by the probate court as hereinbefore set out. And on November 8, 1897, said surety company did execute a bond as surety for said Meliss Bloch, and the same was filed by her in said probate court, in pursuance of its said order. Said bond reads as follows:

“Know all men by these presents, that I, Meliss Bloch, as principal, and the National Surety Company, a corporation, and George Bloch as sureties, are firmly held and bound unto the state of Ohio, in the penal sum of $18,000, for the payment of which sum,’well and truly to be made to the said state of Ohio, we do bind ourselves, our heirs, executors, administrators, successors and assigns, jointly and severally by these presents.
“In -witness whereof, we hereunto subscribe our names this eighth day of November, A. D. 1897.
“The condition of the above obligation is such, that if the above named Meliss Bloch, sole residuary legatee and devisee of Aaron Bloch, and sole executrix of the last will and testament of Aaron Bloch, deceased, late of the city of Cleveland, county of Cuyahoga and state of Ohio, shall pay all the debts and legacies of the said Aaron Bloch, deceased, and the just charges of the administration, and shall pay over said estate to the person entitled thereto in case the will of the said Aaron Bloch be at any time set aside; then this obligation shall be void, otherwise the same shall remain in full force and virtue in law.”

Here follow the signatures of the parties.

Upon the filing of said bond as aforesaid the court entered the following upon its journal:

“Now comes Meliss Bloch, residuary legatee, and presents her bond as such, in the sum of $18,000, with Geo. R. Bloch and The National Surety Company as sureties to the approval of the court and it is ordered that said estate be turned over to her.”

And later said court entered the following upon its journal:

“It appearing to tbe court that Meliss Bloch, the residuary legatee_ herein, has filed her bond as such, the order hereinbefore made is found to be complied with, ’ ’ and the personal estate of the deceased was thereupon delivered to her by the administrator hereinbefore named.

No letters testamentary were ever issued to the said Meliss Bloch.

At the time of the execution of said bond by the surety company ‘the said Meliss Bloch, together with her son, George R. Bloch, entered' into an obligation in writing to said surety company, whereby they agreed to pay certain premiums to it for the giving of said bond, and Whereby they undertook and agreed to indemnify said company from loss on account of said bond, the language of the obligation in that regard being as follows:

“That-we will at all times indemnify and keep indemnified the ’company and hold and save it harmless from and against any and all demands, liabilities and expenses of whatsoever kind or nature, including counsel and attorneys’ fees, which it shall at any time sustain or may incur by reason, or in consequence of having executed said instrument, and that we will pay over, reimburse and make good to the company, its successors and assigns, all sums and amounts of money which the company or its representatives shall pay or cause to be paid or become liable to pay, under its obligations upon said instrument, or as charges and expenses of whatsoever kind or nature, including counsel and attorneys ’ fees by reason of the execution thereof, or in connection with any litigation, investigation or other matters connected therewith, such payment to be made to the company as soon as it shall have become liable therefor, whether it shall have paid out said sum or any part thereof or not.”

At the time of the giving of the foregoing instrument, the said Meliss Bloch and her said son, George R. Bloch, executed and delivered to F. H. Goff a warranty deed of certain real estate which was owned by the said Aaron Bloch at the time' of his death. This deed was expressed to be in trust.

“To secure The National Surety Co. of New York for any loss, damage, cost or expense it may in any manner sustain by reason of’ having signed as surety a certain bond in the sum of $18,000 for the said Meliss Bloch as executrix and residuary legatee under a will of Aaron Bloch, deceased, late of Cuyahoga county, Ohio, which will has been probated and is being administered in the probate court" of said county. When the liability of said surety company upon said bond shall have terminated and 'all premiums due to said surety, company for executing the same shall have been paid, said trustee shall reconvey said lands to said Meliss Bloch, her heirs and assigns.”

As has already been said, under the will of Aaron Bloch, Meliss Bloch was.given all the property after the payment of certain legacies and the payment of debts so that the real estate conveyed by this deed belonged to Meliss Bloch, subject to the payment of ? ach debts and! legacies and the costs and expenses of administering decedent’s estate.. Presumably the reason for having George R. Bloch join in the deed was, that-there was, at the time of its execution, a suit pending to set: aside the will of the testator which, if successful, would give to the som an interest in this property as an heir, but as that suit was unsuccessful’, it need not be considered in the determination of this ease.

Later, without any further order having been made by said probate court in relation to Meliss Bloch, Henry A. Tidd was appointed by said last-named court administrator de bonis non with the will annexed of the estate of said deceased. This appointment was valid and had the effect to take from Meliss Bloch any right of further administration, if she had any such right. On May 18, 1899, he filed his petition, as such administrator, in said probate court, setting out that there were debts of said decedent remaining unpaid, and praying for an order authorizing him to sell the real estate of the deceased, described in said petition, it being the same as that described in the trust deed to Goff. In this action Méliss Bloch, the heirs at law of Aaron Bloch, deceased, The National Surety Company, F. H. Goff, trustee, and various parties having or claiming liens upon said real estate, created in the lifetime of said Aaron Bloch, were made parties defendant.

The several defendants answered setting up their claims, and all consenting to a sale of the premises and that the avails of the sale should be brought into court and the rights of the parties thereto determined. Thereupon sale was ordered, made, reported and confirmed and the court then heard the case as to the rights of the several parties to the avails of such sale and entered its judgment thereon. From this judgment appeal was taken to the court of common pleas, where the case was tried and judgment had.

The answer of The National Surety Company and F. H. Goff, trustee, sets up a claim for. payments made and expenses incurred and ^premiums due under the agreement made with said company by Meliss jBloeh and George R. Bloch, and claimed that under the trust deed said company had a lien on the interest of Meliss Bloch in said real estate.

The present proceeding is brought by Meliss Bloch to reverse this judgment of the court of common pleas.

Complaint is made that the court fixed the amount owing to the surety company under the obligation given to it by Meliss Bloch and George R. Bloch, and finding the same to be a lien on said premises as against Meliss Bloch. It is urged, first, that as letters testamentary were not issued to Meliss Bloch, there was no authority for the giving of the bond by her on which the surety company was surety. The bond which she undertook to give and which the surety supposed she was giving is provided for in See. 5997 Rev. Stat., and reads:

“If the executor is residuary legatee, he may instead of the bond prescribed in the preceding section, give a bond in a sum and with two or more sureties to the satisfaction of the court with condition to pay all the debts and legacies of the testator and to pay over said estate to the persons entitled thereto, in case the will at any time be set aside.
“In which ease he shall not be required to return an inventory, unless it shall be made to appear to the satisfaction of the probate court that an inventory should be made and returned, whenever it appears that the probable value of said estate is less than $500.
“The executor shall not be liable for legacies paid to legatees other than himself, after twenty-four months from the probating of the will, and before an action to set the same aside has been commenced; the legatee,thowever, shall be liable to repay the legacy and interest thereon if the will be set aside.”

It will be noticed that the bond given is in exact conformity with 'this statute, so that, without doubt it could have been enforced against the surety company had letters testamentary been issued to Meliss Bloch.

As we. view this case, it is not necessary to determine whether the orders hereinbefore quoted, made by the probate court, constituted her the executor or not. There can be no doubt that the court might have made her such, by proper orders, even though no letters were issued to her. The letters are simply the evidence of her appointment. Just what language it would be necessary to incorporate in an order upon the court’s journal to constitute an appointment, we need not say, but it would seem difficult to use language more definitely declaring that one named as executor in the will should act in that capacity than was used when the court ordered that:

“The further administration of this estate, at the option of said legatee, be conducted by her and in pursuance of the statute authorizing a residuary legatee to give bond to pay debts, which shall be given to the approval of the court within ten days. ’ ’

And then, after a bond in exact conformity with the statute is given by her, the court uses this language in its order:

“Now comes Meliss Bloch, residuary legatee, and presents her bond * * *■ to the approval of the court and it is ordered that said: «estate be turned over to her.”

But whether by this bond the surety company was bound to pay •the decedent’s debts or not, it had the written undertaking, as herein-before shown, of Meliss Bloch, to indemnify it against any and all demands, liabilities and expenses, including counsel fees which it might sustain or incur by reason of having executed such bond and to pay the premiums for so executing it, and it had in the hands of its trustee, Goff, the deed to secure the performance of this agreement. It claimed to have made payments, to have incurred expenses and to be entitled to premiums on account of having so executed the bond. That being so, it would be entitled to reimbursement, and as against Meliss Bloch, it Avould have a lien on this real estate, whether the bond could have been enforced against it or not. Meliss Bloch was the residuary legatee. This real estate, under the will of her husband, was hers, provided she paid the debts and legacies and costs and expenses of administration. She agreed, for the purpose of keeping this real estate, that if the surety company would make these payments for her she would repay them and also pay their expenses and the stated premium. If they did this for her she could not escape liability to them.

It is further complained that the rights of the company as against Meliss Bloch could not lawfully be determined in the proceeding to sell real estate. Section 6137 Rev. Stat. provides that the executor or administrator, in order to obtain the necessary authority to sell real estate to pay debts, etc., “shall commence a civil action in the probate court or the court of common pleas,” etc. Section 6142 Rev. Stat. provides that:

“In such action the widow of the deceased, and the heirs, devisees or persons having the next estate of inheritance from the deceased, and all mortgagees and other lienholders, whether by judgment or otherwise, of any of the lands sought to be sold, and all trustees holding the legal title thereto or to any part thereof; * * * shall be made parties.”

Section 6145 Rev. Stat. provides that the court in which such action is pending, shall have full power to determine the equities between the parties and to order a distribution of the avails of the sale according to the equities and priority of lien as found by the court.

This action, then, has all the essentials of a civil action, and may be brought either in the court of common pleas or in the probate court, and in whichever court brought, the rights of the several parties in the subject matter of the action may be determined by such court. If brought in the probate court it may be appealed to the court of common pleas, as was done in this case, and the appellate court has the same jurisdiction as it would have had if the case had been originally brought in that court. Section 6407 Rev. Stat.

We hold, therefore, that the compion pleas court had jurisdiction, to determine the rights of the surety company as against Meliss Bloch,, and its judgment in that regard is affirmed.

It is further complained that the court fixed by its order what credits. should be allowed to the administrator and what unsecured claims should be paid by him.

Section 524 Bev. Stat. provides that the probate court shall have-exclusive jurisdiction to settle the accounts of executors and administrators. Section 6407 Bev. Stat. provides for appeals to the court of common pleas “from any order, decision or judgment of the probate-court in settling the accounts of an executor, administrator,” etc.

This appeal is distinct from the appeal provided for in the same-section in proceeding for the sale of real estate. It follows, therefore, that the court of common pleas exceeded its jurisdiction in determining-what credits should be allowed or disallowed to the administrator and what unsecured claims should be paid by him.

The judgment of the court of common pleas is so modified as to order the administrator, out of the avails of said sale, to pay to said surety company the amount found due to it from said Meliss Bloch, or so much thereof as shall not be required for the payment of debts-of the deceased, and the costs and expenses of administration as the-same shall be fixed by the probate court .upon the settlement of the: accounts of said administration in that court.

Hale and Winch, JJ., concur.


author: MARVIN, J.

text:
    COURTS — ADMIRALTY—WATER CRAFTS — LIENS.
    [Cuyahoga (8th) Circuit Court,
    February 29, 1904.]
    Hale, Marvin and Winch, JJ.
    Robert A. Shailer v. Mark H. Hanlon.
    1. Federal Courts Have Exclusive Jurisdiction or Actions to Enforce Lien Upon Water Crafts Under Sec. 5880 Rev. Stat.
    The federal courts of admiralty jurisdiction have exclusive jurisdictior of actions to enforce the lien upon water crafts created by Sec. 5880-Rev. Stat. for all debts' contracted on account of the building, repairing, furnishing, or equipping of. vessels navigating the waters within or bordering upon the state of Ohio. Such lien cannot be made the basis of an action in the state courts.
    2.-State Court May Construe Sec. 5880 Rev. Stat., Creating Lien Upon . - Water Crafts, When.
    A state court has jurisdiction to construe Sec. 5880 Rev. Stat.', creating a lien upon water crafts, in an action to recover the balance of the purchase price of a vessel, where the vessel is sold and the balance-due therefor is paid into court, and an alleged lienor, who is brought. into the action by interpleader, sets up his lien; and the state court, having all the parties before it, the money- under its control, and after construing the statute, has jurisdiction to direct to whom the money shall be paid.
    3. Supplies Furnished “On Account” of Water Craft Sufficient to Create-LlEN.
    To secure a lien upon a water craft under Sec. 6880 Rev. Stat., the evidence need not affirmatively show that the contract for supplies was made with the understanding on the part of both vendor and vendee that they were furnished on the credit of the boat; it is sufficient if the debt is contracted “on account” of the water craft, unless the evidence shows that the supplies were furnished upon the credit of the owner, charterer, or other persons, and not upon the credit of the vessel.
    4. Coal Sold in Bulk for Navigating Vessel and Other Purposes — Extent-of Vendor’s Lien.
    Where coal is sold in bulk to the owner of a steam vessel navigating the waters of Lake Erie, to be used in navigating the vessel and other purposes at the “crib,” but without distinction or separation, at the time-of its delivery, between that to be used for navigating the vessel and that to be used at the “crin, the vendor is entitled to a lien against the vessel under Sec. 5880 Rev. Stat., to the extent that the coal was used for navigating the vessel.
    Error to Cuyahoga common pleas court.
    Goulder, Holding & Masten, for plaintiff in error:
    Jurisdiction. The John E. Rumbell, 148 U. S. 1, 11 [13 Sup. Ct. Rep. 498] ; Moran v. Sturges, 154 U. S. 256 [14 Sup. Ct. Rep. 1019] ; The Glide, 167 U. S. 606 [17 Sup. Ct. Rep. 930].
    Defendant in error has no lien. The St. Jago De Cuba,'22 U. S. (9 Wheat.) 409; The General Smith, 17 XT. S. (4 Wheat.) 438; The Samuel Marshall, 54 Fed. Rep. 396, 401; Hazlehurst v. The Lulu, 77 U. S. (10 Wall.) 196, 197.
    No coal was sold “on account” of the vessel, as required under Sec. 5880 Rev. Stat.
    The coal was furnished to the company on an agreement as to prices that were to control for the year and there could be no lien. The Iris, 100 Fed. Rep. 104, 106; Cuddy v. Clement, 113 Fed. Rep. 454.
    Russell & Eichelberger, for defendant in error,
    cited:
    Section 5880 Rev. Stat.; Rodd v. Heartt, 88 U. S. (21 Wall.) 558; The John E. Rumbull, 148 U. S. 1 [13 Sup. Ct. Rep. 498]; Moran v. Sturgess, 154 U. S. 256 [14 Sup. Ct. Rep. 1019].
    Has no application whatever to this case.
    It is only proceedings in'rem that dre forbidden to state courts in enforcing these statutes. Hind v. Trevor, 71 U. S. (4 Wall.) 555; Wagoner v. St. John, 57 Tenn. (10 Heisk.) 503; Stewart v. Harry, 66 Ky. (3 Bush) 438; the act of congress of 1789.
    The interpretation of local statutes is for local courts.

      Section 5880 needs no interpretation, as its terms are so plain and conclusive that it only needs to be applied to the facts.
    The Ohio statute was not passed as were similar statutes in coast states to supply a seeming' defect in the admiralty law as to domestic vessels, but to give to the lake supply men a security similar to that of the maritime law at a time when it was held the jurisdiction of the admiralty courts did not extend to the lakes. This condition continued until the passage of the act of 1845 extending the admiralty jurisdiction to the lake,'subsequently nullified by the Propeller Genesee Chief v. Fitzhugh, 53 U. S. (12 How.) 443.
    The lien given by the Ohio statute is “coeval and coexistent with the liability,” add is superior to á mortgage and the purchaser takes the property subject to the lien. Johnson v. Ward, 27 Ohio St. 517.
    It is incumbent upon one seeking to deny the lien to show that exclusive credit was given to the owner or master. The Chusan, 2 Story 455, 457 [5 Fed. Cas. 680]; Peyroux v. Howard, 32 U. S. (7 Pet.) 324, 344. (i '
    The necessity of supplies furnished at a foreign port need not be proved as it is in such a case conclusively presumed. 2 Conklin, Admiralty (2 ed.) 596; The Grapeshot v. Wallerstein, 76 U. S. (9 Wall.) 129, 139; Hazlehurst v. The Lulu, 77 U. S. (10 Wall.) 192, 203.
    Necessity for credit is also presumed. Hazlehurst v. The Lulu, supra.

    That Hanlon has. an unsecured claim cannot prejudice the claim for which he has a lien under See. 5880 Rev. Stat. There can be no presumption that he waived such a claim. • The H. E. Foster, 3 Ware 165 [11 Fed. Cas. 952].
   MARVIN, J.

The original action was brought by Robert A. Shailer against The Standard Contracting Company, a corporation, to recover a balance due upon the purchase price of the steamer George T. Burroughs, which wás bought by the defendant from the plaintiff. By the contract of sale, the plaintiff guaranteed said steamer to be free of all liens. The amount remaining unpaid upon the purchase price is $950. The defendant in error, Mark H. Hanlon, was brought into the case by inter-pleader, the original defendant by one of its officers filing the proper affidavit that said Hanlon claimed a lien upon the steamer, and said Hanlon was thereupon made a party in the ease and filed his answer,, setting up that he had a lien and the nature thereof.

The steamer was used on Lake Erie in carrying supplies from the dock at the city of Cleveland, Ohio, to what is known as the “crib,” some five miles out in the lake from the dock.

The lien claimed by Hanlon grows out of the following state of facts:

Hanlon was a coal dealer in the city of Cleveland, and for a series of years prior to the year 1901 had furnished coal which was taken upon this steamer and used in part for the navigation of the vessel, and in part was unloaded at the “crib” and used there. Up to the year 1901 the coal so delivered by Hanlon to the steamer was paid for by the owner •or charterer of the steamer.

The steamer, during the greater part of that time, was owned by The Shailer & Schniglau Company, but on or about October 20, 1901, the boat was sold by that company to the plaintiff:. After such sale the boat was chartered by said Shailer & Schniglau Company from the -plaintiff:, and was used in the same way as it had theretofore been used. The owner of the boat, or the agent, made inquiry of Hanlon as to the price at which he would furnish coal to the boat for the season of 1901, •and Hanlon then gave the price at $1.95 per ton. Beyond this, no contract was ever entered into between the parties, except that from time to time during the season of 1901 the master of the boat, and sometimes •some other representative of the parties operating the boat, ordered coal to be delivered to the boat by Hanlon, and this was accordingly done. The coal furnished by Hanlon to, the boat during the season of 1901 •amounted to about 1,200 tons.

At the time that Hanlon first began furnishing coal to this boat it was charged by him directly to the steamer, but during the season of 1901 it was charged to The Shailer & Schniglau Company per Steamer George. T. Burroughs.

Of the coal thus delivered to the boat by Hanlon 225 tons were used for the purpose of navigating the boat. The balance was unloaded at the “crib” for other purposes.

No part of the coal furnished for the season of 1901 was paid for.

No distinction or separation was made, at the time the coal was delivered, between that which was to be used for the navigation of the boat and that which was to be delivered at the “crib.” The coal was simply delivered in bulk and from that bulk such part was used for this navigation as was necessary. Hanlon claims a lien for the coal used in navigating the boat, under See. 5880 Rev. Stat., which reads:

“Any steamboat, or other water craft navigating the waters within or bordering upon this state, shall be liable, and such liability shall be a lien thereon, for all debts contracted on account thereof by the master, owner, steward, consignee, or other agent, for materials, supplies, or labor in the building, repairing, furnishing, or equipping of the same.”

The original defendant comes ¡into court and admits the indebtedness on account of the purchase price of the boat and tenders payment to the party who shall be found to be entitled to such payment.

The court of common pleas held that Hanlon had a lien for the 225 tons used in navigating the boat, at the price of $1.95,per ton, as fixed as the value of the coal delivered, and ordered that the value of this amount at this price should be paid to Hanlon out of the money due from the original defendants.

On the part of the plaintiff in error it is claimed, first, that the court was without jurisdiction to determine this lien and direct the payment of the money to Hanlon, and, further, that even if the court' had jurisdiction, the facts do not entitle Hanlon to a lien.

As to the jurisdiction, it is settled that the liens upon water craft provided' for in the state statutes cannot be made the basis of an action in the state courts, but that the federal courts, having admiralty juris diction, have the exclusive jurisdiction in actions brought to enforce the lien. But that is not the present case. The boat has been sold. The money due upon the purchase price is brought into the state court. A construction of a statute of the state becomes necessary. We hold that the state court has the jurisdiction to construe the statute and that the money, being brought to the court by the party owing it, when the court has construed the statute, it has the jurisdiction to direct to whom it shall be paid. Otherwise, we should have this situation, that Hanlon was called upon to plead in this case. Being so called upon, he must either set up his claim, or ignore the court and commence an action in the federal court. If he had failed to assert his rights in the state court the court might have proceeded to direct the money to be paid to the plaintiff, even though a part of it were due to Hanlon, and the original defendant, being under the jurisdiction of the state court, would be bound to obey the order of the court, and then when Hanlon brought his suit in the federal court the original defendant might be required to pay again the amount of Hanlon’s lien, if it should be determined that he had a lien.

Though this question is not free from doubt, it seems to us that the better reasoning is that the court which has the parties -before it *and the money under its control, and having jurisdiction to construe the statute, should have the authority to direct to whom such money should be .paid. We hold, therefore,. that the court of common pleas had the jurisdiction to determine the rights of the parties in" this case.

There remains the question of whether Hanlon, under the facts, was entitled to a lien. Statutes similar to our own are in force in most, if not all, of the states. They were enacted because, under the .admiralty laws, liens were given only for supplies furnished to a vessel in a foreign port, but these statutes provide for. many things not provided for by the admiralty laws, and whether or not it would be necessary, in order to hold a lien under, admiralty law, for one furnishing supplies to a vessel to show affirmatively that the contract for supplies was made with the understanding on the part of both the vendor and vendee that.such supplies were furnished on the credit of the boat. "We hold that it is not necessary under our statute.

It is said, in the ease of Hazlehurst v. Steamer Lulu, 77 U. S. (10 Wall.) 192, decided by the Supreme Court of the United States:

“Experience shows that ships and vsssels employed in commerce and navigation often need repairs and supplies in course of a voyage, when the owners of the same are absent, and at times and places when and where the master may be without funds, and may find it impracticable to communicate seasonably with the owners of the vessel upon the subject.
“Contracts for repairs and supplies, under such circumstances, may be made by the master to enable the vessel to proceed on her voyage, and if the repairs and supplies were necessary for that purpose, and were made and furnished to a foreign vessel or to a vessel of the United States in a port other than a port of the state where the vessel belongs, the prima facie presumption is that the repairs and supplies were made and furnished on the credit of the vessel unless the contrary appears from the evidence in the ease. ’ ’

The syllabus in the same case reads:

“In the case of a lien asserted against a vessel supplied or repaired in a foreign p.ort, necessity for credit must be presumed where it appears that the repairs and supplies for which a lien is set up, were ordered by the master, and that they were necessary for the ship when lying in port, or to fit her for an intended voyage, unless it is shown that the master had funds, or that the owners had sufficient credit, and that the repairer, furnisher, or lender knew these facts, or one of them, or that •such facts and circumstances were known to them as were sufficient to put them in inquiry, and to show that if they had used due diligence they would have ascertained that the master was not authorized to obtain any such relief on the credit of the vessel. ’ ’

We hold that, under our statute providing for a lien for supplies furnished “on account” of such vessel is sufficient to give the person furnishing such supplies a lien, unless the evidence shows such supplies were furnished upon the credit of the owner, charterer, or some other person, and not upon the credit of the vessel.

Coming, then, to the question of whether because of the fact that the coal, for which this lien is claimed, was furnished in bulk with other coal, no lien could be upheld, we hold that to the extent that this coal was used for the navigation of the vessel Hanlon was entitled to his, lien. We think this holding is justified by the holding of the circuit court" of the United States for the first circuit, in the case of The Kiersall,. 2 Curt. 421 [14 Fed. Cas. 466]. In that case, a statute of 'the state of Maine was being considered. The facts were that certain parties, furnished materials for the building of two vessels of the same pattern and tonnage, in the same way, in the same yard, át the same time. A claim was made that the parties furnishing these materials were, entitled to a lien on each vessel for the materials furnished for both, and the court say upon this question, at page 423:

‘ ‘ The next question which has been argued in this appeal arises out of the following facts. The builders of this vessel were building another of the same tonnage and model in the same yard, at the same time while-this one was being constructed. The libellants furnished materials for-the two vessels without distinguishing between them.”

And on page 425, this language is used in the opinion:

"At the same time, I think that where materials are furnished for two specific vessels, though the original contract does not appropriate them specifically to either, yet when they are afterwards appropriated, they may properly be considered as furnished for that vessel, in the-construction of which they are used.”

As bearing upon the questions arising in this case, attention is called to the case of The H. B. Foster, 3 Ware 165 [11 Fed. Cas. 952] ,

Entertaining the views expressed in this opinion, the judgment of the court of common pleas is affirmed.

Hale and Winch, JJ., concur.


author: SULLIVAN, J.

text:
    BILLS AND NOTES — ATTACHMENT—EXECUTORS AND ADMINISTRATORS — COURTS.
    [Franklin (2nd) Circuit Court,
    October 23, 1903.]
    Sullivan, Wilson and Dustin, JJ.
    Oscar Orlopp v. Fred W. Schueller, Admr.
    1. Instrument Held to be Joint and Several Pbomissobt Note.
    A written instrument in the form following is a joint and several promissory note: “ I hereby certify to have received of Mr. Dan Deiss as a loan for three months $600. Columbus, Ohio, August 12, 1872, Oscar Orlopp. Emillie Orlopp;” and an action thereon may be maintained against one of the makers.
    2. Object of Sec. 5522 Rev. Stat., Requiring Nature of Claim to be set out.
    The provision of See. 5522 Rev. Stat., requiring the nature of plaintiff’s claim to be set forth in the affidavit for attachment, is to determine whether the claim is of such a character as will entitle him to an attachment.
    S.Attachment mat be Issued on Promissory Notes, When.
    An attachment may be issued in an action commenced on a promissory note when any of the statutory grounds for attachment exist.
    4. Affidavit in Attachment not Insufficient by Reason of Conflicting Dates in Amended Petition.
    An affidavit in attachment is not insufficient in law, in that it does not set forth the nature of plaintiffs claim, because the attachment was issued upon an affidavit filed with the original petition in which the date of the promissory note, which was the basis of the action, was set forth differently from that given in an amended petition filed in the case after the attachment was issued, thereby making the interest commence to run from a different date, when it appears the instrument is set forth in both the petition and amended petition in substantially the same form. The nature or character of plaintiffs claim is not determined by its date.
    5. Undetermined Legacy in Hands of Administrator may be Garnisheed Under Sec. 5531 Rev. Stat.
    An undetermined legacy in the hands of an administrator may be garnisheed, where it appears that upon the filing of the final account of the administrator the contingency of lack of funds to pay the legacy or part thereof is not likely, to arise. Administrators are public officers, and are included under the designation • other officers in Sec. 5531 Rev. Stat., which prescribes the effect of service of garnishee process upon public officers.
    6. Jurisdiction of Probate Court not Interfered With by Gabnisheeing Legacy in Hands of Administrator.
    An undetermined legacy garnisheed in the hands of an administrator under favor of Sec. 5531 Rev. Stat., is not thereby withdrawn from the custody of the administrator or the jurisdiction of the probate court, nor can such process interfere, In any^ way, with the settlement of the estate; the creditor, in such case, is only entitled to have applied toward the payment of his claim such part of the legacy as may ultimately, upon final settlement, be found due to the debtor.
    7. Common Pleas 'Court Cannot Order Administrator to bay Money into Court in Garnishee Proceedings, When.
    The court of common pleas, in issuing an order of attachment against property in the custody of an administrator appointed by the probate court, is without authority to order such officer to deliver or pay the same into court, until after a final adjudication by the probate court as to the rights of the debtor therein.
    S. Failure to Make Order Required by Sec. 5550 Rev. Stat. Does Not Affect Jurisdiction, ■When.
    The jurisdiction of the common pleas court in an attachment proceeding is not lost by its failure to make the order, provided for in Sec. 5550 Rev. Stat., requiring an administrator-garnishee, who has duly qualified and given bond, to deliver the amount of ’ an undetermined legacy in his possession into court, or require him to execute the prescribed bond in event he retains the amount in his possession.
    ERROR to the court of common pleas of Franklin county.
    A. H. Johnson and Henry Elliston, for plaintiff in error:
    As the plaintiff in error was a nonresident of the state and was not personally served with summons, and did not enter his appearance, jurisdiction could be acquired only by service by publication. Sections 5045, 5046 Rev. Stat.; Williams v. Welton, 28 Ohio St. 451.
    The affidavits should have stated the facts so the court could determine whether “the cause was one of those mentioned in the preceding section,” (See. 5045) and whether the notice was published six consecutive weeks, and when the service was completed. Alder son, Jud. Writs & Proc. 318, 319; Claypool v. Houston, 12 Kan. 324; Ogden v. Walters, 12 Kan. 283, 293; Harris v. Caflin, 36 Kan. 543 [13 Pac. Rep. 830]; Pindar v. Black, 4 How. Pr. 95; Fulton v. Levy, 21 Neb. 478 [32 N. W. Rep. 307] ; Britton v. Larson, 23 Neb. 806 [37 N! W. Rep. 681].
    Jurisdiction of the property of the plaintiff in error was lost when the garnishee answered. Oil Well Supply Co. v. Koen, 64 Ohio St. 422 [60 N. E. Rep. 603] ; Sec. 5550 Rev. Stat.; Davis v. Lewis, 8 Circ. Dec. 772 (16 R. 138) ; Crystal Spring Distillery Co. v. Vesper, 12 Dec. 524.
    Seizure and possession are essential to the court’s jurisdiction. Buckeye Pipe Line Co. v. Fee, 62 Ohio St.'543, 556, 560 [57 N. E. Rep. 446; 78 Am. St. Rep. 743] ; 4 Cyc. 654; Root v. Railway Co. 45 Ohio St. 222 [12 N. E. Rep. 812].
    The paper writing set forth in the amended petition is not a promissory note. It lacks the essential of a promissory note, in that it contains no certain promise to pay, and is only an acknowledgment of indebtedness. Daniel, Neg. Instr. Sees. 28, 36, 37, 38; 4 Am. & Eng. Enc. Law (2 ed.) 77, 82.
    The affidavit contains neither of the requirements of Sec. 5522 Rev. Stat. and is insufficient in law. Driscoll v. Kelly, 4 Dee. 124 (5 N. P. 243); Belmont Mining Co. v. Rogers, 6 Circ. Dec. 619" (10 R. 305); Cook v. Gasoline Engine Works, 10 Circ. Deo. 236 (19 R. 732) .

      Tbe property sought to be attached’was not subject to attachment •or garnishment, being a contingent residuary legacy in the hands of the garnishee as administrator, and no order of distribution having been made. Buckeye Pipe Line Co. v. Fee, 62 Ohio St. 543, 556 [57 N. E. Rep. 446; 78 Am. St. Rep. 743]; Humphrey v. Wood, Wright 566; ‘Colwell v. Bank, 2 Ohio 229; Taylor v. McDonald, 4 Ohio 149, Í55; Shinn, Attach. & Garn. Secs. 510, 516, 532; 4 Cyc. 396,409, 632; 14 Am. & Eng. Ene. Law (2 ed.) 765, 817, 828, 833* Woerner, Administration (2 ed.) *p. 390,Sec. 177; Nelson v. Stull,65 Kan. 585 [68 Pac. Rep. 617] ; Case Threshing Machine Co. v. Miracle, 54 Wis. 295 [11 N. W. Rep. 580] ; Conway v. Armington, 11 R. I. 116; Shewell v. Keen, 2 Whart. (Pa.) 332, 339; Weekes v. Gas Co. 22 Tex. Civ. App. 245 [54 S. W. Rep. 620] ; Byers v. McAuley, 149 U. S. 608 [13 Sup. Ct. Rep. 906; 37 L. Ed. 867]; Bentley v. Strathers, 5 Bull. 288; Picquet v. Swan, 4 Mason 443 [19 Fed. Cas. 600] ; Drake, Attachment- Sec. 452; Waple. Attachment Sec. 357; Overturf v. Gerlach, 62 Ohio St. 127, 129 [56 N. E. Rep. 653; 78 Am. St. Rep. 704]; Smyth v. Anderson, 31 Ohio St. 144, 146; Straus v. Wessel, 30 Ohio St. 211, 213, 214; Rockell, Prob. Prac. See. 676, 682, 694; Webster v. Bible Society, 50 Ohio St. 1, 15 [33 N. E. Rep. 297] ; Gray v. Case School of Applied Science, 62 Ohio !St. 1 [56 N. E. Rep. 484] ; Sees. 6075, 6195, 6128, 6211 Rev. Stat.; Dawson v. Dawson, 25 Ohio St. 443.
    The common pleas court will not take away from the probate court money or property over which the probaté court had acquired jurisdiction.
    To allow the property to be taken by the common pleas court in •attachment would take away the jurisdiction of the probate court to settle the estate. This the court will not permit. Byers v. McAuley, 149 U. S. 608 [13 Sup. Ct. Rep. 906]; Overturn v. Gerlach, 62 Ohio St. 127 [56 N. E. Rep. 653; 78 Am. St. Rep. 704]; Shewell v. Keen,' 2 Whart. (Pa.) 332, 339; Weekes v. Gas Co. 22 Tex. Civ. App. 245 [54 S. W. Rep. 620] ; Case Threshing Mach. Co. v. Miracle, 54 Wis. 295 [11 N. W. Rep. 580] ; 14 Am. & Eng. Enc. Law (2 ed.) 817, 828, 830.
    We contend that it was not the object of the legislature to include executors and administrators in the words “other officer,” in Sec. 5531 Rev. Stat. Executors and administrators must be expressly named in the statute before they can be garnisheed, and the statute cannot be made to apply to them in proceedings of attachment and garnishment by implication. 4 Cyc. 396, 409; Shinn, Attach. & Garn. Sec. 510; 14 Am. & Eng. Enc. Law (2 ed.) 817, 828; Woerner, Administration (2 ed.) *p. 390, See. 177; Conway v. Armington, 11 R. I. 116.

      The statutory remedy of attachment being in derogation of the common law must be construed .strictly in favor of those against whom the proceeding is employed and must be closely confined within the limits assigned by the legislature and cannot be extended by implication beyond the terms of the statute creating it. Felix v. Griffiths, 5fr Ohio St. 39 [45 N. E. Rep. 1092] ; Hoyman v. Beverstock, 4 Giro. Dec. 491 (8 R. 473) ; Taylor v. McDonald, 4 Ohio 149; 26 Am. & Eng. Ene.. Law (2 ed.) 662; 4 Cyc. 400.
    Where the intention is not clear, the question of public policy should have weight. Conway v. Armington, 11 R. I. 116; Overturf v. Gerlach, 62 Ohio St. 127 [56 N. E. Rep. 653; 78 Am. St. Rep. 704] ; Hurd v. Robinson, 11 Ohio St. 232, 237, 238. '
    Prior to the passage of this statute public officers were not subject to the process of attachment. Dawson v. Holcomb, 1 Ohio 275 [13 Am.. Dee. 618],
    The term “other officer,” as used in Sec. 5531 Rev. Stat., should be construed under the rule “ejusdem generis.” The meaning of the words “other officer” must be limited to and determined by the specific’ words of a like nature which they follow, and are presumed to embrace only such officers as are like or similar to those designated by the specific words. Sutherland, Stat. Constr. Secs. 268, 273; 26 Am. & Eng. Ene. Law (2 ed.) 609; 17 Am. & Eng. Enc. Law (2 ed.) 6; State v. Liffring,, 61 Ohio St. 39, 50 [55 N. E. Rep. 168; 46 L. R. A. 334; 76 Am. St. Rep. 358] ; Rutherfoord v. Railway Co. 35 Ohio St. 559, 563; Lane v. State, 39 Ohio St. 312, 313; Mechem, Pub. Oil & Off. Sec. 1; State v. Brennan, 49 Ohio St. 33, 37, 38 [29 N. E. Rep. 593].
    There is no office of executor or administrator created by statute. An executor or administrator is not entrusted with any portion of the sovereign functions of the government; nor is any public function to be exercised by him for the benefit of the public. His duties are that of a trust, under the instructions and control of the probate court.
    The circuit court held, on the authority of Byers v. McAuley, 149‘ U. S. 608 [13 Sup. Ct. Rep. 906; 37 L. Ed. 867], and Sampsellv. Samp-sell, 9 Circ. Dec. 510 (17 R. 455), that executors and administrators were officers of the court, and therefore included in See. 5531 Rev. Stat. .If they are officers of the court, which we contend they are not, it does, not follow that the legislature intended to include them in the words “other officer.” If that contention was to prevail, receivers and'all officers of the court could be garnisheed and the property in the custody of one court taken away by the process of attachment from another court. See also Seymour, In re, 4 Dec. 450 (3 N. P. 81); Shewell v> Keen, 2 Whart. (Pa.) 332; Stratton v. Ham, 8 Ind. 84 [65 Am. Dec. 754].

      Gamble & Gumble, for defendant in error:
    Summons upon an amended petition is not necessary, and the affi^ davit supporting an order of attachment is no part of the pleading:. See the notes of case in Sec. 5522 (4 ed.) Eev. Stat.
    Funds in the hands of an administrator are subject to attachment: before the order of distribution is entered.
    Defendant in error does not seek to obtain any greater rights in-the funds m the hands of said administrator than has the said Oscar-Orlopp, but only seek to hold intact, pending the determination of the-merits alleged in the petition,' the interest that said Oscar Orlopp has in. said fund. And if Oscar Orlopp has an interest in said fund, such: interest may be attached. Seeor v. Witter, 39 Ohio St. 218.
    The ease at bar does not in anywise embarrass or delay the closing up of the estate of Odo Orlopp deceased. The administrator can file his final account and close up, so far as the probate court is concerned, whenever he pleases, and if the estate is indebted to Oscar Orlopp we are entitled to have it paid to us, if we can establish the fact upon the trial of the case in the common pleas court, that the facts set out in the petition are true. /
    The court of common pleas has jurisdiction to test the right of who is entitled to the funds in the hands of an administrator. First Nat. Bank v. Beebe, 62 Ohio St. 41 [56 N. E. Eep. 485].
    There are many rights that must be worked out in the court of common pleas, notwithstanding the fact that the probate court has some jurisdiction of the subject matter, -and we insist that the only court which could possibly give us relief or a remedy for the protection of our rights is the court of common pleas. Overturf v. Gerlaeh, 62 Ohio St. 127 [56 N. E. Eep. 653; 78 Am. St. Eep. 704], relied upon by plaintiff in error, is wholly dissimilar to the case at bar.
    In some states by express statutes, funds in the hands of an administrator or other officer before an order of distribution, could nor be attached; but that construction of the law has since been abrogated by the legislature in Ohio. Sections 5530, 5531, 5538 Eev. Stat.
    The law cited by counsel for plaintiff in error applies to cases that are either considered under the common law or to eases governed by statutes wholly dissimilar to the statutes of Ohio. In states other than our own, the question herein involved has been decided both ways, but in the state of Ohio the identical question has been settled by the circuit court in the ease of Sampsell v. Sampsell, 9 Cire. Dee. 510 (17 E. 455).
    Section 2752 Wisconsin Eev. Stat., under which the Supreme Court of that state decided the case of Case Threshing Machine Co. v. Miracle, 54 Wis. 295 [11 N. W. Rep. 580], upon which, case counsel for plaintiff in error so confidently and completely, rely, is widely different from our own garnishment statute.
    Plaintiff in error erroneously assumes that this action. seeks to compel the administrator to at once pay into court the proceeds of this estate. Such is not the case. We only seek the enforcement by force of the attachment statutes to prevent the payment of the money by the administrator to Oscar Orlopp, and to compel said administrator to hold the interest in said estate of Oscar Orlopp pending the determination of the merits. This court has such power.
    If we have a right in this court after an order of distribution, then lunder the decision in Sampsell v. Sampsell, supra, and First Nat. Bank V. Beebe, supra, we have a clear right now.
    If the liability of the garnishee is certain and the only contingency is as to the amount thereof, it is not such a contingency as will prevent -.the claim from being liable to garnishment.
    The answer of the garnishee states that there will certainly be some money coming to the plaintiff in error, and so far as this court is concerned, it must rely upon the record. 14 Am. & Eng. Enc. Law (2 ed.)' 769.
    The court did not lose jurisdiction of the person or property. The cases relied upon by plaintiff in error, Davis v. Lewis, 8 Circ. Dec. 772 (16 R. 138), and Crystal Springs Distillery Co. v. Vesper, 12 Dec. 524, are not applicable to the case at bar.
    The failure to give a bond under Sec. 5550 Rev. 'Stat., in the case at bar has not deprived the court of its jurisdiction, nor could the court under the peculiar facts in this case have made the order relied upon by counsel for plaintiff in error. See also Hadlow v. Beavis, 1 O, S. C. D. 857 (42 Bull. 256) ; Polley v. Hicks, 58 Ohio St. 218 [50 N. E. Rep. 809; 41 L. R. A.. 858] ; Phipps v. Hope, 16 Ohio St. 586; Beach, Contracts Sec. 203; Griffith v. Holman, 23 Wash. 347 [63 Pac. Rep. 239; 54 L. R. A. 178;.83. Am. St.-Rep. 821]. .
   SULLIVAN, J.

On January 8, 1902, defendant in error brought suit against plaintiff in error, in the court of common pleas of Franklin county, to recover from plaintiff upon a certain paper writing, designated in the petition as a promissory note, averring the same to have been executed by plaintiff in error about the year 1875, in the sum of $500 payable to defendant’s testate, and that he was unable to state the date at which said note matured or the rate of interest it bore, but that the same was past due.

It was further averred that plaintiff, in 1878, removed from the state of Ohio to the town of Atcheson, in the state of Kansas, and is now and ever since the year 1878 has lived beyond and without the jurisdiction of the state of Ohio; that through some inadvertence said note had been either lost or mislaid, but that in a reasonable time a copy thereof would be filed with the. court. Then followed the averment, that no payments had been made on said note; that there was due defendant in error on the same $500, with interest from 1875; that by the last'will of Oscar Orlopp, late of Franklin county, deceased, plaintiff in error was named as legatee; that the estate of said deceased testate was solvent; that the property bequeathed to plaintiff in error was within the county of Franklin, state of Ohio. Defendant in error prayed for a personal judgment, for amount of said note and interest thereon from 1875.

On the same day, January 8, 1902, defendant in error filed an affidavit in the clerk’s office in which he set forth that he had commenced an action against plaintiff in error in the common pleas court of Franklin county, Ohio, upon a promissory note executed by plaintiff in error to the deceased Daniel Deiss, for the sum of $500, with interest from 1875; that said claim was just, and said defendant in error ought to recover said amount and interest thereon from the year 1875; that plaintiff in error was a nonresident of Franklin county and state of Ohio; that affiant had good reason to believe and he did believe that Charles W. Haldy, administrator, with the will annexed of the estate of Odo Orlopp, who died within said county of Franklin and state of Ohio, had property of the plaintiff in error in'his possession liable to be attached in said action, consisting of money or other chattel property, and that the facts stated in said affidavit were true. Upon which affidavit the clerk of the common pleas court issued an order of attachment, and notice of garnishee to the said Charles W. Haldy, administrator.

On January 13,-1902, defendant in error filed an amended petition in the common pleas court. The amended petition set out a copy of the obligation averring that the paper writing was either a contract or a promissory note, but the same paper writing referred to in the original petition. The amended petition sets forth a copy of the paper writing which is in words and figures as follows:

“I hereby certify to have received of Mr. Dan Deiss as a loan for three months, $500.
“Emillie Orlopp.
“Oscar Orlopp.
“Columbus, Ohio, August 12, 1872.”

On January 9, 1902, order of attachment and garnishee was served upon Charles W. Haldy, administrator of the estate of Odo Orlopp, deceased, by handing him personally a certified copy of same. Publication of the proceedings was made as provided by law. On March 14, 1902, the plaintiff in error filed a motion asking that said attachment be discharged for the several reasons set forth in,said motion, appearing for the purpose only of making said motion, and without any intention of entering his appearafice for any other purpose, or submitting to the jurisdiction of said court, over his person.

This motion was overruled, to which an exception was taken by plaintiff in error, to which action of the court in overruling said motion plaintiff prosecutes error to this court. A bill of exceptions was taken, bringing upon the record all of the testimony produced upon the hearing of said motion. The garnishee made answer in the case March 18, 1902, and it shows that there will be in his hands about the sum of $1,500, coming to plaintiff on his legacy.

Whilst the motion sets forth several grounds and the same grounds in several different forms, there are but three insisted upon by plaintiff in error, in his brief. Counsel for plaintiff contends first, that the affidavit is insufficient in law to maintain an attachment because of the difference between the date of the instrument sued upon, as set forth in the original and amended petitions, and therefore a different date from which to compute interest; in other words, the attachment being issued upon the affidavit filed with the original petition setting forth a different date from that appearing in the amended petition, and a different date from which interest should be computed, the nature of the claim was not set forth in the affidavit. The statute requiring the nature of the claim to be set forth in the affidavit is for the purpose of determining whether it is of such a character as entitles the party to an attachment. In an action upon a promissory note, a party may have an attachment if any of the statutory grounds upon which it may be issued exists.

The date of the instrument does not determine its character. The instrument set forth in the amended petition is substantially in form the same as referred to in the original petition. It is evidently the same debt, and in form and substance it is a joint and several promissory note, and upon which either a joint or several action may be maintained. The affidavit, therefore, we think good.

Second. Counsel for plaintiff in error contend that a legacy, the amount of which has not been fully determined by a final account of an executor or administrator, cannot be attached. Under this contention he claims that no legacy can be attached and the executor or admin-dstrator garnisheed. In support of this claim he cites a number of .authorities. We are of the opinion that under See. 5531 Rev. Stat., an undetermined legacy in the hands of an administrator or executor may be garnisheed; that administrators and executors are included under the designation of “other” officers in the above section. When referred to in a number of authorities they are designated as officers of court. We refer specially to the ease of Byers v. McAuley, 149 U. S. 608, 615 [13 Sup. Ct. Rep. 906; 37 L. Ed. 867], quoting:

“An administrator appointed by a state court is an officer of that court; his possession of the decedent’s property is a possession taken in obedience to the orders of that court; it is the possession of the court,” * * * .

Were it not for the section above referred to we would not be prepared to say that a legacy could be attached, especially if the amount of the legacy was undetermined. The answer of the garnishee shows that he will have, upon final settlement of the estate, about $1,500 to be applied to the legacy of plaintiff in error. We hold it is subject to attachment, citing in support of this holding, Stratton v. Ham, 8 Ind. 84, 85 [65 Am. Dec. 754], and also Byers v. McAuley, supra, from which we quote “all remedies to which parties may be entitled against officers, not involving the withdrawal of the property or its proceeds from the custody of the officer and the jurisdiction of the court they may pursue.” The process given parties by See. -5531 Rev. Stat., does not withdraw the property from the custody of the officer or the jurisdiction of the court, or in anywise interfere with the proceedings of the probate court in the settlement of an estate, but is a remedy providing what a creditor may have to subject to the payment of a claim against a debtor who, upon a final settlement of an estate, may be entitled to receive money or property as a legacy. Upon the remaining question, that the court lost jurisdiction over the property because upon the answer of the garnishee, it made no order as provided by Sec. 5550 Rev. Stat. We are of the opinion that the above section does not apply, where property is garnisheed in the hands of any one of the officers designated in Sec. 5531 Rev. Stat.

The service of process of garnishment upon an officer binds from date of service only such interest in the funds in his hands as may 'be •determined as belonging to the debtor, by the court, under whose orders the officer holds such funds. The court issuing the order of attachment, has no power to order the funds taken from the custody of the court holding it. The order is limited to the amount that may be found coming to the legatee or distribution upon final settlement of the estate. Such, order binds only such interest in the funds as may ultimately be found belonging to the debtor. The money being already in the custody of an officer who has given bond, the undertaking required by Sec. 5550' Rev. Stat. has no application.

The court issuing the order of attachment is without authority to-require any part of the property or money held by an officer under process of the court, whose officer he is, paid into court issuing the order of attachment until a final adjudication by the court having custody of the funds. No bond could be required of such officer because the-extent of the debtor’s interest cannot be known until a final adjudication by the court having custody of the funds. The court below acquired no-jurisdiction over the person of the plaintiff, but did acquire jurisdiction over the thing and did not lose it. We find no error of record prejudicial to plaintiff in error and the judgment is affirmed at costs of plaintiff in error.

Wilson and Dustin, JJ., concur.