text:
    NEGLIGENCE — COMPROMISE—EVIDENCE.
    [Lucas (6th) Circuit Court,
    January 14, 1902.]
    Haynes, Parker and Hull, JJ.
    Lake Shore & Michigan Southern Ry. Co. v. Fred Vogelson.
    1. Failure to Speak Tends to Impeach Subsequent.
    The fact that a man does not speak when he is naturally expected to speak or when it is his duty to speak, tends to impeach his testimony when he after-wards testifies to facts that were not stated under such circumstances. Rule applied to failure to include in a statement immediately following an injury to a railroad employe, that a hand-hold on the car was defective or came off.
    2. Failure to Establish Custom oe Signaling.
    Unless it is made to appear that it was the custom of a railway company, in the use of a pony engine or “pusher,” in helping trains over a grade, to give a signal when about to cut such engine off, thereby causing more or less of a jerk to the train, evidence that no such signal was given does not establish negligence on the part of the railway company, unless it appears that it was done in an unusual manner.
    3 Compromise — Verdict Against Weight oe Evidence.
    Where it appeared that an employe, after an injury, was sent to a hospital by a railway company, for medical attendance, and afterwards accepted a certain sum of money and signed a receipt in full for all claims against the company growing out of the accident, and afterwards remained in their employ for. over two years without complaint, accompanied by testimony as to his mental soundness when he signed the receipt, as opposed to the employe’s own testimony, in a suit brought four years after the accident, a finding against the claim of settlement, was held to be against the weight of the evidence.
    Heard on Error.
    E. D. Potter, for plaintiff in error.
    Harvey Scribner and W. A. Owen, for defendant in error.
   HULL, J.

The defendant in error in this action was the plaintiff below, and brought his action against the Take Shore & Michigan Southern Railway Company to recover for personal injuries which he claimed he sustained on account of negligence of the railway company. The case was tried to a court and jury, and at the conclusion of the plaintiff’s testimony, the defendant moved the court to instruct the jury to return a verdict for the defendant. This motion was overruled and the case proceeded and a verdict was finally returned by the jury in favor of the plaintiff for the sum of $500. Motion for a new trial was made by the defendant, which was overruled and a judgment entered in favor of the plaintiff for the amount of the verdict, and it is to reverse this judgment that a petition in error was filed in this court

There were two general defenses by the railway company

First. That it was not guilty of negligence.

Second. That whatever claim the plaintiff had against the company was settled, and that for a valuable consideration, he released the company from all liability.

Evidence was offered to sustain both these defenses.

The plaintiff in error claims that the court erred in refusing to take the case from the jury at the conclusion of plaintiff’s testimony; and next, in overruling the motion for a new trial, on the ground that the verdict was not sustained by sufficient evidence and was therefore contrary to law.

Although some other questions, are made in the record, these are the only questions that are pressed here, and the only ones of sufficient importance to consider in the discussion of the case.

The accident occurred in the western part of the city of Toledo, near Air Eine Junction and near the overhead bridge of the Michigan Central Railway Company. Vogelson was a brakeman on a freight run between Toledo, Ohio, and Elkhart, Indiana, and on the day of his injury, May 17, 1897, he was starting with his train for Elkhart. In order to help the train start and push it over the grade, it was pushed by a pony engine to a place near the overhead bridge mentioned.

The pony engine is called a “pusher,” and when in the judgment of the conductor of the pony engine, it was not necessary to go further, the custom was to cut off the engine or “ pusher ” and the train then proceeded on its way without further assistance.

On this occasion, when the pony engine was cut off from the train, Vogelson was on top of the caboose, which was immediately in front of the pusher, and he fell off, his claim being that the locomotive was cut off without warning, and so suddenly that the slack, of the train was thereby suddenly released and he was thrown, or jerked off the top of the caboose by the jar or jerk that was occasioned by the cutting off of the pusher; and that is one of the acts of negligence complained of, to-wit, that the locomotive was cut off so suddenty as to constitute negligence, thereby jerking him off the top of the caboose; and it is further claimed, that no signal, by whistling or otherwise, was given him of the intention of the engineer to cut off the locomotive, and that was also negligence.

Vogelson testifies that as he stood on the roof or deck of the caboose, he could see that the locomotive was cut off, or about to be cut off, and he heard the noise of the train as the slack was let out, and knew that there would be a jar or jolt; that to guard himself, he took hold of the iron hand-hold or “ grab-iron,” which is a round iron, three or four feet long, immediately over the door of the cupola of the caboose; that be took hold of this to protect himself, and he claims that when the jar came, the hand-hold was pulled out, at both ends, came off the framework of the caboose, and that he then fell off and was injured in his knee and his back. He jumped up as soon as he struck the ground and climbed up on the caboose and went on his way to Elkhart, not thinking at that time that he was very seriously injured, his injury not causing him a great deal of pain, although he limped some therefrom.

The railway company denies that the pusher ” was cut off with any more suddenness than usual, or that it was done in a negligent manner, and denies that this hand-hold or grab-iron was out of repair, or improperly fastened to the caboose, and denies that it pulled out as Vogel, son claims that it did.' And the railway company claims that the manifest weight of the evidence is in favor of its contention, and that, therefore, the court erred on this branch o'f the case in not granting a new trial; and the company claims further, as has been stated, that Vogelson afterwards settled with the company and released it from all claims.

Vogelson in his testimony stated his claim as to the facts substantially as I have given them. When :he reached Elkhart, he met there George Beck, who was a claim agent of the company, and Beck told him that he wanted a statement of the accident, and Vogelson, in the presence of his brother, E. E. Vogelson, who was at that time living at Elk-hart, gave Beck a statement of the accident, which was reduced to writing by Beck and signed by Vogelson.

In this statement, which is attached to the bill of exceptions, he gives his version of the accideut and says that when they were near the Michigan Central overhead bridge “the pony engine was uncoupled from the rear end of caboose and the slack went back and I was thrown of the caboose on to the ground. I don’t know which pony it was. I consider that I was thrown off caboose on account of the engineer of pony engine shutting off too quick and without warning. It is the custom for the ponys to go as far as depot at Air Line Junction. I was in a position on caboose where I could see that the engineer shut off suddenly, and I made an effort to save myself but could not do so. I lit on my feet, ánd my back struck a rail, bruising back. Continued with my run on to Elkhart and expect to continue with work without laying off. No physician required.”

He states his residence and the fact that he is married and has children and has been in the service of the company three years. That is signed by him and signed by his brother, E. E. Vogelson, as a witness. This statement was written on a printed blank, and the printed part of the paper recites that “ said injuries wére not' due to any negligence or carelessness on the part of any boss, foreman, engineer, conductor or yardmaster in the employ of said company,” etc.

Another paper, bearing the same date, was also offered in evidence, signed by Vogelson. This paper purports to release the company from all liability. It is a printed blank. It says in substance, that in consideration of the payment of one dollar and his re-employment by the company, the company is released from all claims arising out of injuries set forth therein. There is at the end of the paper, a receipt for one dollar, signed by Vogelson. Vogelson claims that he knew nothing of this second paper, that is, the white paper, but admits signing the yellow paper, being the one first above referred to. Beck testifies to Vogel-son’s having signed both papers. It was the duty of Vogelson, when this accident occurred, to state the facts to his conductor, in order that he might report them; and, ón their way to Elkhart, he met the conductor on the train and told him what had occurred, that he had been thrown off the train.

According to the testimony of the conductor, he said nothing to him about the hand-hold having been out of repair, he made no mention of that, but did tell either the conductor or the brakeman, that he took hold of the hand-hold with his crippled hand — it seems that he had one finger off of one hand — and that if he had taken hold with his “good hand,” he could have held on.

This Vogelson denies. He also talked with the other brakeman, Mr. Felton, on the way to Elkhart, and told him about his being jerked off from the top of the caboose, but said nothing to him about the handhold being out of repair or pulling off.

Vogelson claims that the screws that fastened the hand-hold at each end of the iron pulled out; that when he got back on the top of the caboose, he drove them in again with a coupling-link and left them in that condition. No other witness testifies to this hand-hold being out o repair. The two car inspectors at Toledo, Mr. Phillips and Mr. Kundz<-inspected the caboose just before it left Toledo, and they testified that the hand-hold was in good repair. No one is called from the yards at Elkhart to testify that the hand-hold was out of repair. Both the con ductor and the other brakeman upon the freight train testify that they used this hand-hold frequently upon this trip and that it was not out of repair.

The hand-hold was immediately over the small door of the cupola of the caboose and was used by the men in getting in and out of the cupola and was necessarily used frequently both by the conductor and the brakemen, in making the trip.

About midway between Toledo and Elkhart, Vogelson exchanged places with the other brakeman, Felton, the latter taking the rear end and Vogelson went to the front, so that Felton was on the caboose the rest of the trip, and he testifies that he saw nothing out of order with the hand-hold.

It would seem impossible for this hand-hold to have been pulled out and the screws pulled out of the wood and then driven back in again by Vogelson in such a way that it would not have been discovered.

Vogelson’s claim that this hand-hold pulled out, on this occasion, rests entirely upon his own uncorroborated testimony. Besides that, as appears from the written statement which he made at Elkhart to Mr. Beck, he said nothing to him at that time, the next day after the accident about the hand-hold pulling out. Vogelson claims that Beck did not read this statement to him; he admits that he signed it, but says that Beck did not read it to him; he says that he made a statement to Beck telling him the facts about the accident, and Beck took it down in writing, and then he, Vogelson, signed it, but Vogelson does not claim in his testimony that he said anything to Beck about the hand-hold being out of repair.

There is no claim made that the statement of the facts of the accident, as set down by Beck in this paper, was not as given to him by Vogelson on the next day after the accident occurred; nor does E. F. Vogelson, the brother, who was present, make any claim of that kind in his testimony.

This caboose, according to the undisputed testimony, was comparatively a new car. The hand-hold was fastened at either end with long screws, nearly three inches in length, which were set into a piece of oak some two inches thick, or thereabouts, going entirely through that and a small distance into the pine of the car, and this oak piece was securely fastened to the side of the car. If the hand-hold had pulled out, as Vogelson claims, it seems almost impossible that he would not have stated this to Mr. Beck, in Elkhart, the next morning after the accident. ■ To have had a hand-hold so insecurely fastened to the side of the car as to pull out in this way, would have been a very serious defect in a car and probably would have been negligence on the part of the company if the defect had existed for any length of time, and when he was called upon to make his statement to the claim agent, being a railroad man of some experience and having had two accidents before this in whieh he had signed papers, he knew the purpose of asking for this statement; he knew that it was to be sent to the offices of the company to be kept there on file as his version of the accident; he knew the importance of stating all of the facts that would be favorable to him if' he contemplated making any claim against the company for damages; but, notwithstanding all this, and notwithstanding, further, that it was his duty as an employe of the railroad company to state all of these facts, he says nothing whatever at this time in regard to the hand-hold being out of repair.

It seems to us that the manifest and clear weight of the evidence is against him upon that proposition. He is contradicted by the conductor and by the brakeman upon this very train; he is contradicted by his own statements made upon the trip upon which he was injured and by his failure to make this statement to Mr. Beck, upon the day after the accident. And the fact that a man does not speak when he would naturally be expected to speak, or when it is his duty to speak, as in making a statement of this kind, tends to impeach his testimony when he afterwards testifies to facts that were not stated under these circumstances.

The court of common pleas instructed the jury that so far as any claim for want of a signal was concerned before the engine was cut off no evidence of negligence had been offered against the company, for it had not been shown that it was the custom to give a signal before the pony engine was cut off. This ruling we think was correct.

It was claimed that the engineer of the “ pusher” was negligent in cutting off as suddenly as he did, Vogelson claiming that he was thereby jerked off of the top of the caboose. He made this claim immediately after the accident and he made it in the statement which he signed before Beck. A large number of witnessess, perhaps nearly all of the witnesses, except Vogelson himself, testify that the locomotive was cut off in the usual way. It is true that sometimes this occasions more of a jar than at other times; it is impossible for an engineer to cut an engine off in exactly the same way every time. It was known that it would cause some jar or jerk to the train and the men expected it and Vogel-son knew that this was coming.

Without reviewing the testimony upon that point, it appears to us to be doubtful, at least, whether he ought to recover upon that ground, the weight of the testimony perhaps appearing to be against him upon that proposition; but still he testifies himself positively that there was a very severe jerk at the time the locomotive was cut off, much harder than usual, and that he was unable to stand on top of the roof, and if it was cut oft with such a jerk as he testifies to, it would doubtless constitute negligence on the part of the company, and the court properly overruled the motion of the railroad company to direct a verdict for the defendant.

Coming to the other defense: It is claimed that whatever claim Vogelson had against the company was settled and released. On the day following the accident he signed the paper to which I Jiave referred, a printed blank, agreeing upon the face of it to release all claims in consideration of his re-employment and the payment of one dollar. He testified, however, that he had no knowledge of signing such a paper, that he only signed one paper, and he is corroborated by the testimony of his brother; and perhaps the weight of the testimony is in favor of Vogelson as to this claim.

Vogelson continued with his work after May 17, but his knee grew worse and its condition became very serious, and on October 11, following, he went to the hospital, under the care of the railway company and at their expense, and had an operation performed upon his knee, which had gotten into a very bad condition. He had two or three operations performed upon the knee, water having collected at the knee-joint. After being at the hospital two or three weeks, he went back to his home at Toledo and was around and about and occasionally called at the office of Mr. Brown, the claim agent of the company in the city, and Brown promised to do what he could for him; and finally Brown received a letter from the company saying that they offered to settle with Vogel-son for $40.00. Brown testifies that he told Vogelson this; and that a day or two after that, he received the money from the company and went to Vogelson’s house and met him there, and that Vogelson agreed to the settlement and agreed to accept forty dollars; that he paid it to him and Vogelson then signed a receipt, and, a full and complete release of all claims against the railroad company.

The release recites that: “For the consideration of forty dollars received to my full satisfaction of the Lake Shore & Michigan Southern Railway Company, I hereby release and discharge the said company from all claims and demands against it, and especially from all liability to me for personal injuries of whatever kind, nature or description! received by me at Air Line Junction, Ohio, on May 18, 1897, by being thrown from top of caboose to the ground, injuring my back and right knee; and for said consideration said company is hereby released and discharged from any and all claims and demands in any manner arising from or growing out of said accident; also from part loss of time and wages while I was unable to work on account of said accident. Received payment October 27, 1897. Fred Vogelson.*’

This was witnessed by Ross Buckmaster and Geo. B. Brown, agent of the company. Mr. Vogelson claims that at the time he signed that paper he was not in a condition mentalfy to understand what he was ■ doing. He admits that Mr. Brown came to the house and he remembers j receiving $40.00. Further than that, he says his recollection is not distinct and he supposed that whatever he did sign was simply a receipt for the $40.00 paid him by the railway company; that he expected more and that he had no intention to sign a release in full.

No witness other than himself testifies that Vogelson was at this time insane or in such a mental condition that he was unable to understand what he was Jdoing, in the ordinary affairs of life. Dr. Bowman, who was his physician at that time, testifies that his understanding was not very acute at ¡that time; that he had suffered a great deal from his injuries and that physical suffering always affects the mind; that he was in need of money, and that, in his judgment, he would have been willing to sign almost anyipaper in order to get money to help him, but he does not testify that Vogelson was mentally unsound or incapable of understanding such a paper.

Mr. Brown testifies, as to all the facts and circumstances surrounding the transaction, that he was entirely friendly with Vogelson; that Vogelson met him at the door, resting upon one crutch; that he talked the matter over with him and paid him the money; that he called young Buckmaster, his brother-in-law, to witness the paper, and that the paper was read over to Vogelson.

Vogelson went back to his work on the following February and he continued to work for the company during that year, off and on, his limb troubling him at times. And during the year 1899, he continued to work for the company, sometimes on one job and sometimes on another. He made no complaint during all that time that any advantage had been taken of him in the signing of this receipt, but he stated, according to the testimony of Mr. Bennet, the conductor of the freight train, that he had settled with the company; and made the same statement to Mr. Felton, the other brakeman, and substantially the same to Mr. Whiting, who was a clerk for the company.

These men, especially the conductor and brakeman, were friendly.to Mr. Vogelson, and Bennet and Felton were fellow trainmen with him. It does not appear that they were seeking to take any advantage of him. They say that he voluntarily told them what had occurred; that he had settled with the company.

We are of the opinion that the evidence in this case shows that Mr. Vogelson did, on October 27, 1897, voluntarily settle his claim, whatever he had, against the railway company. We are unable to believe that he at that time was in such a condition that he did not understand what he was doing. He had been working for the company up to about October 11, when he became worse and went to the hospital. He seemed to comprehend what occurred at the hospital and the operations that were performed. He was apparently able to leave the hospital when he was discharged from it, at least, he came home again and was up and about the house. He called at the office of Mr. Brown, in Toledo, and talked with him about his case occasionally, and no witness, except Vogelson himself, testifies to anything which would indicate mental unsoundness on his part or inability to understand fully what occurred at the time this paper was signed. We think that the evidence that he settled at that time and that he fully understood that he was settling, is full and convincing.

He remained with the company after that time for a period of over two yeará, without any complaint. In considering this branch of the case we must also consider the fact that the claim that he had against the company, and which he must have known, was at best, a very doubtful claim. We are of the opinion that his claim that the hand-hold was pulled out, was not sustained by the evidence; that his statement as to that is not true, and that his claim that the locomotive was cut off in such a manner as constituted negligence; is very doubtful. Now» having a claim of this kind, he was doubtless willing to make such a settlement as he could with the railway company.

His request, after his knee became worse, was, not that the railway company should pay him any substantial sum for damages, but that they give him some employment easier and lighter than he had before, or that they permit him to go to the hospital at their expense in order that he might have an operation performed. These two requests were granted. His request after the operation had been performed was that he might have employment in his injured condition, and he was given jobs that he could do. During all that year of 1898 and 1899 he was working from time to time for the company in different capacities and without any complaint that advantage had been taken of him, until about the last of December, 1899, when he quit the employment of the company, and on January 2, 1901, a little less than four years after his injury, he began this action.

His injury turned out to be quite serious; his knee was so hurt that it has never fully recovered; he is still lame and the injury probably is permanent. The amount of the verdict was small, $500, and indicates a compromise on the part of the jury. Had he been entitled to recover against the company, by reason of negligence, for the injuries which the evidence shows he sustained, and the condition he is now in, he would have been entitled to a much larger sum than $500.

I only speak of this to show that the jury that heard the case, some of them at least, must have been very doubtful of the plaintiff’s claim. We can only decide this case according to the evidence and according to law, and while we may sympathize with Mr. Vogelson in his condition, the only question here is, whether his injuries are due to the negligence of the company, and whether he has settled and released any claim that 'he may have had against the company; and after a very careiul examination of the record, we have reached the conclusion that the verdict is not sustained by sufficient evidence ; that the finding of the jury that he did not settle with the company and release it, is manifestly against the weight of the evidence, and that the court for this reason erred in overruling the motion for a new trial. We find no other error in the record.

For these reasons the judgment of the court of common pleas will be reversed and the case remanded.


source: Caselaw Access Project

author: SWING, P. J.

license: Public Domain

text:
    TRIAL — SANITY.
    [Hamilton (1st) Circuit Court,
    1902.]
    Swing, Giffen and Jelke, JJ.
    Rosselot v. State.
    1. Section 7240, Rev. Stat., is Mandatory.
    Section 7240, Rev. Stat., requiring a court, upon tlie trial of a person indicted for a crime, and suggestion by his counsel and physician’s certificate of his insanity, to submit the question thereof to a special jury, is mandatory.
    2. Denial oe Statutory Right — Reversible Error. ,
    Where a court refuses to impanel a special jury to try the question of the insanity of a person on trial for homicide, there being no suggestion in the record that his attorneys did not suggest, nor present a physician’s certificate of such fact, but the court determines himself that the defendant is sufficiently sane to proceed with his trial, the accused is denied his statutory right to have his sanity tried by a jury as provided by Sec. 7240, Rev. Stat., for which a verdict of guilty will be reversed.
    Heard on Error.
    Shay & Cogan, for plaintiff in error.
    Louis B. Sawyer and Arthur C. Minning, contra.
    Hoffheimer, Morris & Sawyer, prosecuting attorneys,
    cited:
    As to the construction of Revised Statutes, Sec. 7240. Authorities gathered in Nobles v. Georgia, 168 U. S. 398, 406 [18 S. Ct. Rep. 87] ; State v. Reed, 7 So. Rep. 132 [41 La. Ann. 581] ; Ohio Life Ins. Co. v. Goodin, 10 Ohio St. 557; 1 Bates’ Digest, column 895; State v. Arnold» 12 la. 483; 16 Am. & Eng. Enc. of Law (2 ed.), 622, n. 2; State v. Riesewetter, 45 Ohio St. 254, 260, 261 [12 N. E. Rep. 807] ; Gandolfo v. State, 11 Ohio St. 114, 118; People v. Mcllvaine, 26 N. E. Rep. 929 [125 N. Y. 596; 18 Am. St. Rep. 820] ; People v. Hettick, 58 Pac. Rep. 918 [126 Cal. 425] ; Raros v. Commonwealth, 84 Pa. St. 200, 211.
   SWING, P. J.

The plaintiff was tried and convicted in the court of common pleas of the crime of murder in the second degree.

After the jury had been sworn, and during the progress of the trial, the aforesaid Rosselot’s counsel suggested to the court that Rosselot was insane, and produced to the court the certificate of one John T. Booth, who represented himself as a reputable physician practicing medicine' in the city of Cincinnati. Said Dr. Booth represented to the court that he had examined the said Rosselot and found him to be an insane man, and wholly unable to give any assistance to his counsel or give evidence as a witness; and defendant requested the court to have a jury impan-( eled under the provisions of Sec. 7240, Rev. Stat., to try the question as to the sanity of the defendant. This the court refused to do and delendant excepted.

The court gave as its reasons for not granting the request the following :

“ But I am of the opinion that this is not the proper time to take advantage of the proceedings provided for in that section to test the defendant’s sanity, and the court wishes it. to be made a part of the record that when the defendant was brought into the court for trial yesterday morning, December 16, that no objection was made by Mr Cogan, the only counsel for the defendant then present, upon the ground that the defendant was mentally incapable of going to trial. Mr. Cogan entered a protest to proceeding with the trial and desired that his exception be saved to the ruling of the court that he must proceed with the trial. The court made inquiry of various persons after the defendant was brought into court to ascertain if he was in mental condition to proceed with the trial, and was satisfied at the time that he was, and thereupon ordered the trial to proceed. It is the opinion of the court at this trial therefore that the defendant is able to proceed with the trial and the trial must go on.”

It should be noted that Mr. Shay, the leading counsel of defendant was not present at the beginning of the trial, but made said suggestions soon after he entered on the trial of the case.

Section 7240, Rev. Stat., provides: “When the attorney of a person indicted for an offense suggests to the court in which the indictment is pending, at any time before sentence, that such person is not then sane, and a certificate of a respectable physician to the same effect is presented to the court, the court shall order a jury to be impaneled to try whether or not the accused is sane at the timé of such impaneling.”

This provision of the statute is mandatory, and the court must comply with the same provided the party indicted has brought himself withiH its provisions. Undoubtedly the court in the first instance is vested with the power to determine whether or not the attorney of one indicted for an offense suggests to the court the insanity of the accused and whether or not a certificate of a respectable physician is presented suggesting said insanity of the accused; but these provisions of the statute having been complied with, nothing remains for the court to do but to proceed in accordance with the requirements of the statute to impanel a jury and try the question of the sanity of the defendant.

In this cause the court refused to comply with the statute, but took upon itself to determine whether the defendant was sufficiently sane to proceed with his trial. The trial proceeded, and the defendant was convicted of the crime charged in the indictment, and sentenced, as required by law. The result is that the defendant was denied the right to have his sanity tried by a jury, under the'provision of this’section, when he had complied with its provisions, there being no suggestion in the record that the attorneys of the defendant did not suggest the , insanity of the defendant, or that the defendant did not also present a certificate of a respectable physician to the sáme effect.

The defendant had the right to be tried by a jury as to his sanity at the time of the impaneling of the jury. If insane, the trial should not have proceeded-, for it is the intent of the law that a man shall not be tried on an indictment at a time when he is insane. And whether he is insane or not he is to be tried by a jury impaneled for that purpose alone, and not by the judge or jury which is impaneled to try the issue as to the truth of the indictment.

In refusing to submit this question to a jury, we think the court erred, and for this error the judgment should be- reversed, and cause remanded for further proceedings.,


author: HALE, J.

text:
    STREET RAILWAYS — CONSENTS.
    [Cuyahoga (8th) Circuit Court,
    March 20, 1902.]
    Caldwell, Hale and Marvin, JJ.

       Cleveland (City) v. Cleveland City Railway Co. et al.
    1. Street Railways not Strictly Street Improvements.
    A street railway, notwithstanding it provides a means of transit for public benefit and convenience, is a private enterprise subject to such restrictions and regulations as the statutes provide and the municipality authorized to impose, but it cannot be considered strictly a street improvement.
    2. Purchase and Withdrawal oe Consent Valid.
    Under Sec. 2502, Rev. Stat., requiring the consents of property owners to the construction of a street railway upon a street upon which their property abuts, the property owner may give or withhold his consent without incurring any liability or conferring upon any tribunal jurisdiction to inquire Into his motives or reasons therefor. Hence, neither the city nor the railway company have any cause of action against one who induces a property owner to withhold or withdraw his consent to the construction thereof by persuasion or payment of money.
    Appeal by DEFENDANTS.
    Beacon, Baker, Payer, for plaintiff.
    Squire, Sanders & Dempsey and A. F. Ingersoll, for defendants.

       For decision of common pleas, See 12 Dec.

   HALE, J.

These cases come into this court by appeal, and are submitted upon a general demurrer to Hie petition.

The same relief is asked in each petition, and substantially the same averments are contained in each. From these averments it appears that the city, by ordinance, designated a route through certain streets of the city for a street railroad route, and, by ordinance, prescribed the conditions upon, and the manner in which the proposed railroad should be constructed and operated. This being done, the clerk advertised for proposals to construct the proposed road and in response to such notice, the plaintiff in one of the cases, Hoefgen submitted a proposal to construct and operate the road in accordance with the terms and conditions prescribed in the ordinance, and to carry passengers at a three-cent fare on the proposed road. He submitted also with his bid a deposit of $50,000 at the time of the proposal, to insure the faithful per. formance on his part, of the terms of the proposals made.

His was a bid proposing to carry passengers for the lowest rate of fare; indeed, I suppose it was the only proposal submitted although that does not appear from the petition.

It is then alleged that the defendants, the railway companies, confederated and conspired with the other defendant, they being in a monopoly of the street railroad business of the city, to defeat the city and this proposed contractor, in the prosecution of this enterprise by inducing certain land owners along the route of the proposed railroad, to withdraw consents already given to its construction, and wrongfully inducing other land-owners to-withhold consents by the use of corrupt and unlawful means including the payment of money to accomplish such purpose.

It is alleged that unless restrained by the order of the court, these corporations will pay to certain lot owners money for the consideration of'the withdrawal and withholding consents already obtained. The court is asked to enjoin the doing of these threatened acts.

The question is : Do the petitions, or either of them, make a case for the relief asked ?

If the acts, which it is alleged are threatened, will infringe or invade any of the rights of the plaintiff in either case, legal or equitable, then the demurrers to these petitions should be'overruled, but, if no such effect follows from the doing of the acts that are alleged to be threatened, then the demurrer should be sustained.

Proceedings are had for the establishment of this railroad, under Secs. 2501 and 2502 Rev. Stat. The provisions relating to the consent of lot owners is found in Sec. 2502, Rev. Stat., and provides in substance that no contract by the city can be made for such improvements unless the contractor “shall have previously obtained the written consent of a majority of the property holders upon each street, or part thereof, on the line of the proposed street railroad, represented by the feet front.”

It will be observed that the legislature has not conferred the unlimited power upon the municipalities to permit streets to be used for railroad purposes, but only such streets as a majority of the property owners consent to such use. Without such consent the city is not clothed with power to authorize the construction or operation of a street railroad on the streets designated in this proposed route.

It will be conceded that neither the city nor Hoefgen has any cause of action ¿gainst the lot-owners for either withholding or withdrawing consent. The lot-owner may give or withdraw his consent at will. It is, however, a voluntary matter with him. Whether he does the one or the other, he incurs no liability, legal or equitable, to the city, its citizens or an individual, or corporation proposing, under contract with the city, to construct and operate a railroad in the street on which he resides. The lot-owner by remaining passive is wholly outside of the controversy,— no party to the transaction, and in no sense responsible for the- success or failure of the enterprise. Moreover, bis reasons or motives for giving or withholding consent are wholly immaterial. The fact that one is a lot-owner upon one of the streets upon which it is proposed to con-struct this railroad, does not confer upon any tribunal jurisdiction to inquire into his motives for giving or withholding his consent, or in any way to question his right to thus act.

It is said, however, that a third party who induces this lot-owner, by persuasion or by the payment of money, to withhold his consent which neither the city nor the contractor has any legal or equitable right to claim, violates the legal or at least the equitable rights of the city and the contractor; that in some way there is created in favor of the city and contractor a cause of action, legal or equitable, for inducing the lot-owner to withdraw his conseñt for which no cause of action, legal or equitable, is created against him. This would seem to be most extraordinary if true. We are cited to no case, and have found none, sustaining or tending to sustain such a proposition.

Our attention is called to an unreported decision of the circuit court in Butler county, Ohio, wherein it is held that the consent of a lot-owner purchased by the proposed bidder cannot be counted. This may be correct. The bidder seeking a contract with the city in his own interest, cannot purchase consent of a lot-owner. The transaction is one directly connected with the proposed contract, and involves the acts of one of the parties thereto, and the courts hold that he cannot take advantage of his own wrong.

The rights of a lot-owner are not discussed in that case at all. There is no analogy between that case and the one we are considering. Dealings between lot-owners and third parties upon a subject-matter which he alone controls and over which the city has no authority whatever, is, in our judgment, wholly without the jurisdiction of courts to control at the instance of the city or the proposed contractor.

We are of the opinion that by the averments of the petition no invasion or impairment of the legal or equitable rights of the city or the contractor is shown.

One other phase of the case may be reverted to but not discussed. We do not think that these petitions can be sustained on the theory that the proprietor of a street railroad is an agency of the state performing a governmental function which the threatened transaction will wrongfully obstruct, in a way to give the court jurisdiction to enjoin.

A street railroad is not strictly a street improvement. It provides a means of transit for public benefit and convenience, no doubt, but is, nevertheless, a private enterprise of an individual or corporation, subjec-to such regulations and restrictions.as are provided by statute and that the municipality is authorized to impose. • The individual or corporation exercises complete dominion over the property invested in such enterprise. '

The city, charged with the control of the streets, may or may not, with the consent of the majority of the property-owners thereon, permit the use of the street for such purpose, but the city is not authorized in its governmental capacity to become the owner of a street railroad and to prosecute the business incident to such ownership, nor can it confer, in our judgment, governmental function upon the proprietor of such street railroads, to prosecute such enterprise.

The morality of the act sought to be prevented by injunction, is not for courts to pass upon or attempt to regulate unless a point is reached where some legal or equitable right is invaded. Independent of any impairment of such rights, the remedy must be sought with the legislature and not with the courts.

We are of opinion that these petitions, neither of them, state a cause of action upon which the relief asked can be granted, and the demurrer to each is sustained and the petitions dismissed.


author: CALDWELL, J.

text:
    ARREST — PRIVILEGE—WAIVER.
    [Cuyahoga (8th) Circuit Court,
    March 20, 1902.]
    Caldwell, Hale and Marvin, JJ.

      William B. White v. Arthur G. Marshall.
    1. Privilege; From Arrest May be Waived.
    Service of civil process upon a person privileged from arrest as provided by Sec, 5457, Rev. Stat., is voidable only, and may be waived as any other privilege.
    2. Acts Amounting to Waiver oe Privilege.
    A person indicted and brought into the jurisdiction of the court by extradition enters an appearance and waives his privilege from arrest in a civil action against him as a suitor under Sec.’5457, Rev. Stat., by filing motions for bail therein which raise an issue of fact, not only as to his rights for bail, but as to a complete defense to the action. After that it is too late to make the claim of exemption from arrest as above mentioned.
    3. Rule as to Setting Aside Service.
    The fact that a non-resident charged with a crime and brought into the jurisdiction of a court of this state upon proceedings in extradition is privileged from arrest upon civil process under Sec. 5457, Rev. Stat., cannot be noticed by the court ex officio, nor service set aside after appearance unless there has been an abuse of process, as where the defendant has been decoyed into the state in order that service might be had upon him, or brought within the jurisdiction óf the court by fraud and false pretenses; and then, not because of any right of the parties to have the same set aside, but because of fraud upon the court and for the purpose of protecting and shielding its writ from imposition.
    Heard on Error.
    Kline, Carr, Tolies & Goff, for plaintiff in error.
    W. H. Boyd, for defendant in error.

       Common pleas decision, 11 Dec. 779.

   CALDWELL, J.

Arthur G. Marshall, the defendant in error, was charged with having committed a crime in the- state of Ohio, and the requisite papers were obtained from the governor of the state, and he was extradited from the state of Massachusetts and brought into the state of Ohio, and in the court of common pleas of Cuyahoga county he was arraigned for trial. He gave bail for his appearance for trial in that court, and at about that time a suit was brought against him in the court of common pleas of Cuyahoga county, Ohio, growing out of the same transaction, for which he was arrested and extradited.

A summons was issued in the civil action and served upon the defendant in error, and thereafter the proceedings in the civil action, so far as they are material in this consideration were as follows:

August 29, 1901, a petition and affidavit for attachment and prae-cipe were filed in this cause, and on the same day order of arrest issued; and, on August 30, 1901, the plaintiff filed his affidavit for civil arrest of the defendant in error and his undertaking and the order of arrest was issued. September 16, 1901, the defendant in error filed his answer, in which he joined issue with the averments in plaintiff’s petition and said nothing of his exemption from suit. September 23,1901, the order of arrest was returned “Not served on the defendant, A. G. Marshall.” On the same day an aUas order of arrest was issued, under which the sheriff took the defendant in error into custody on the day it was issued. While the first order of arrest was out for service the defendant in error, on September 18, 1901, filed in the case his motion for the court to fix the amount of bail, and his affidavit in support of the motion and after his arrest, the court heard this motion for bail and release, and overruled the same. September 25, 1901, the defendant in error filed his motion in the court for leave to deposit notes with the sheriff and to have the court discharge the attachment and fix the amount of bail.

' He filed therewith notice and affidavit.

The motion in substance is:

“ Now comes the said defendant, Arthur G. Marshall, and makes ■ this his motion for the purpose of having his bond fixed for his personal release from the custody of the sheriff of this county; and for the purpose to discharge an attachment issued on the State Banking and Trust Company of Cleveland, Ohio, and for the further purpose of having the personal goods and chattels in the possession of said sheriff set over to this defendant in lieu of homestead exemptions;” and then he gives his reasons for his motion.

In his affidavit in support of his motion, among other things, he states that the notes in question, which were more fully described in the petition, are the property and assets of the defendant. That the plaintiff has garnisheed the State Banking and Trust Company of Cleveland, Ohio, and by reason of such garnishee process, the notes in question are now in the hands, practically, of the plaintiff, although the notes are still in the hands of and under the control of the bank, and he is willing that the bank should turn the notes over to the sheriff of said county and have the notes held by said sheriff until the case is finally adjudicated and the rights of the respective parties fully and finally determined, and, unless some such arrangement can be made, he will be unable to give bail for his release in this case. And he avers that the plaintiff brings this action for the purpose of forcing this defendant to trade back the horses, buggies and other vehicles and said notes, which this affiant received from the said plaintiff for stock in said lead company, for the reason that this affiant, while in Cleveland during the summer of 1901, tried to sell to different banks and persons said notes, and which said plaintiff did not like. And affiant further states in his affidavit, that if the court will read plaintiff’s petition, as well as the answer filed on the part of this defendant, and study into the merits of the matter, as will appear from the records so far filed in said case, together with any additional testimony which this defendant stands ready to furnish, that the court will come to the conclusion that a great wrong and a gross injustice is being done to said affiant on the part of said plaintiff, wholly and solely for mercenary purposes. And affiant further says that he has a just and meritorious defense to plaintiff’s petition, as will appear from his answer filed in this case.

Then affiant states his arrest on the criminal charge, and that he believes that through the influence of the plaintiff and his attorneys, an excessive bond was required against him, which he was unable to procure and give, and he denies that he is guilty as charged in the criminal case and denies that he is guilty of wrong doing or fraudulent transaction of any kind or character whatsoever in connection with said matter.

Up to this time the defendant nowhere in the proceedings in court had made any claim of exemption from suit or from arrest by reason of his being brought into the state under extradition papers.

On September 30, 1901, the defendant filed this motion in the court, which is as follows:

“Now comes the defendant, Arthur G. Marshall, not intending in any manner to enter his appearance herein, but for the sole purpose of protesting and objecting to the jurisdiction of this court over this defendant, and moves the court to quash the summons issued herein, and to dismiss the action against this defendant for want of jurisdiction; and the defendant further moves the court to vacate the order of arrest on a writ of attachment before judgment in the above entitled cause, and for reasons thereof says: That this defendant is, and at the time of his arrest under indictment No. 75581 and always before was, anon-resident of the state of Ohio; that he was brought within the civil jurisdiction of this court by extradition from a sister state ; that this defendant was served with summons in a civil case entitled ‘ William B. White v. Arthur G. Marshall,’ while so within the jurisdiction of this court without opportunity to return to the state from whence he was extradited. That this defendant was served with summons in a civil case (William B. WThite v. Arthur G. Marshall), while in the county jail of Cuyahoga county, awaiting hearing on a criminal charge on extradition from the state of Massachusetts; that this defendant was arrested on a writ of attachment under Sec. 5491, Rev. Stat., while within the jurisdiction of this court, by virtue of extradition from the state of Massachusetts; that this defendant is illegally held a prisoner in the jail of Cuyahoga county, Cleveland, Ohio, on a civil process founded on Sec. 5492, Rev. Stat. That on September 24, 1901, this defendant entered into a bond for his appearance in court in answer to the criminal charge on which he was extradited and discharged from custody pending such hearing. That William B. White, plaintiff in the above entitled cause, is the prosecuting witness in the criminal case, under which this defendant was extradited from the state of Massachusetts, and the same William B. White from whom it is alleged defendant obtained property by false pretenses.”

That motion was supported by the affidavit of Arthur G. Marshall.

Had the defendant in error interposed this motion in the court before his appearance in the civil action and before his appearance to obtain his release on bail in the matter of arrest, it clearly should have been granted. This motion came on to be heard by the court on October 9, 1901. The court granted the motion, so far as to vacate the order of arrest on the order of attachment, and refused the motion to vacate the summons and discharge the defendant from arrest.

The plaintiff excepted to the ruling of the court vacating the order of arrest and discharging the defendant therefrom, and he prosecutes his petition in error in this court to reverse the ruling of the court below as to that point.

It has been determined in this state by the highest court, that if a non-resident is charged with crime and brought within the jurisdiction of the court by compulsory process, he is exempt from service of civil process while coming into a jurisdiction, while necessarily in attendance upon the court and while returning to his place of residence, provided no unnecessary delay occurs in returning. Compton v. Wilder, 40 Ohio St. 180.

The authorities at the present time are quite uniform in holding upon this question, and many of the authorities state that the bringing of such an action is unlawful. They mean, however, nothing more by that than that if the defendant objects to the jurisdiction of the court over him, he is entitled to have the summons in the case dismissed as to him and, if a capias has been issued and served, he is entitled to have the same set aside; and it is not intended to say that it is unlawful because it is prohibited by positive law, nor in that sense.

The exemption to civil service afforded by Sec. 5457, Rev. St at., which provides who shall be privileged from arrest is extended to the-defendant who has been brought into the state by compulsory service, as a privilege and, like any other privilege, it may be waived. There are exceptions to this rule of waiver, but no court, so far as we know, has extended any of these exceptions to a case of this kind. Privileges of this nature are common in this country and in Ungland and they are extended to persons in various avocations, and especially to legislators^ to persons attending court either as parties or witnesses, and to various other persons, and they are inseperably connected with the fundamental maxim in all free governments, and public exigency renders it necessary that private right shall yield to public good.

The privileges are granted that the administration of the affairs of the government may not be interrupted or damaged by circumstances arising from the private affairs of -those who are called into the public service. And hence it belongs to all who are assembled for legislative purposes and, on like reasons, the courts must be protected and the importance of that branch of the government is regarded of equal importance to that of the legislative branch; and hence the exemption is extended to persons who are attending court as. parties or witnesses ; and, on like principle, the exemption has been extended to parties who have been extradited and brought into the state by force. And while public policy is the foundation upon which the exemptions are granted, yet that public policy has never been construed for the benefit of the defendant to that extent that he may not waive.

Hence the courts hold quite uniformly, that service of process upon a priviieged person is not void, but a mere irregular and voidable process which may be waived by him, and, unless he makes a motion or a plea in abatement at the proper time to vacate the service and be released from the court, he is held to have waived the privilege. If prior to claiming his exemption, he does anything with reference to his appearance or defense, it is too late for him to thereafter make the claim. Such appearance is regarded by all courts as a waiver of his right of exemption.

In this case the defendant files two motions for bail before he claims exemption, and in those motions he tendered an issue of fact which went to his rights not only as to bail, but as to a complete defense in the action.

There has been some controversy as to whether a mere entering of bail is sufficient to waive the exemption; and there are cases holding that where bail is entered by giving á bond to the marshal or officer holding the defendant in arrest without any appearance before the court it is no waiver, but where the party appears to the court to have his bond fixed or enter bail in the manner in which the defendant sought to have it done in this case, he waives.

The cases all hold, so far as we have seen them, that it constitutes a waiver. And certainly if in his application to the court for bail, if he raises a question of fact to be tried by the court, such as that the plaintiff is trying to keep the bail large for the purpose of oppressing him■ that he is incapable of giving a bond in twice the amount of the judgment asked, and that it is impossible for him to deposit $12,000; that he is a man of limited means; that he is entitled to a considerable portion of the funds claimed by the plaintiff, by way of exemption; that the notes in controversy and which he desires to have held by the sheriff as security for his appearance are really his property; that the object of his arrest is to force him to surrender certain property to the plaintiff; that a great wrong and injustice are being done him on the part of the plaintiff for mercenary purposes; that he has a defense to plaintiff’s petition; these are all questions upon which an issue may be formed and upon which, or upon many of them, issue was taken which can only be determined by a trial to the court, and which determination of the court became necessary in fixing the amount of bail for the release of the defendant.

This to* our minds clearly constitutes such an appearance in the arrest as will waive the exemption provided for defendant by the law of the land. Smith v. Jones, 76 Me. 138 [49 Am. Rep. 598]; Brown v. Gatchell, 11 Mass. 14; Cole v. McClellan, 4 Hill, 59; Farmer v. Robbins, 47 How. Prac. 411; Stewart v. Howard, 15 Barb. 26; Pixley v. Winchell, 7 Cow. 366 [17 Am. Dec. 525]; Green v. Bonafon, 2 Miles, 219; Peters v. League, 13 Md. 58 [71 Am. Dec. 622]; Thorton v. Writing Mach. Co., 9 S. E. Rep. 679 [83 Ga. 288; 20 Am. St. Rep. 320]; Prentiss v. Commonwealth, 5 Rand. 697; Eyell v. Goodwin, 4 McLean, 29.

This privilege of a person from the service of civil process cannot be noticed by the courts ex officio. As it may be waived, it must be claimed, and it can be claimed only by a plea or motion made at the proper time. Holiday v. Pitt, 2 Strang. 985; McPhers v. Nesmith, 3 Grat. 241; Geyer v. Irwin, 4 Dall. (Pa.) 107; Chase v. Fish, 16 Me. 146 ; Prentiss v. Commonwealth, 5 Rand. 697 [16 Am. Dec. 782],

It is contended on behalf of the defendant in error that the court, where it finds there has been an abuse of process, will set aside the service even after appearance. This has been done where parties have been decoyed into the state that service might be made upon them, or where they have been brought within the jurisdiction of the court by fraud and false pretenses, and in such cases the court, it has been held, will set aside the serving on the ground that the service is irregular, but not because the plaintiff is entitled to have the same set aside if he has entered appearance, but because it is a fraud upon the court, and the court does it for its own protection and to shield its writ from imposition. Williams v. Reed, 29 N. J. Law, 385; Nason v. Eston, 2 R. I. 337; Metcalf v. Clark, 40 Barber, 45; Wood v. Wood, 78 Ky. 624; Blair v. Turtle, 1 McCreary, 372.

And such service has been held to be an abuse of judicial process. Chubbuck v. Cleveland, 35 N. W. Rep. 362 [37 Minn. 466; 5 Am. St. Rep. 864]; Van Horn v. Manufacturing Co., 15 Pac. Rep. 562 [37 Kan. 523]; Townsend v. Smith, 3 N. W. Rep. 439 [47 Wis. 623]; Duringer v. Moschino, 93 Ind. 495.

The defendant in error seeks to avail himself of the rule established by these cases and from them argues that the court was justified in setting aside the order of arrest in this case.

It will be seen by referring to the motion which the court granted so far as to quash the writ of arrest, that there has been no plea nor claim of any kind that the defendant was guilty of any fraud or false pretenses or deception of any kind in bringing Marshall from the state of Massachusetts to the state of Ohio to be criminally prosecuted.

It may be admitted that if extradition process should be used for the purpose of bringing the party into another state with the intention of there serving him in a civil action, that the court might under such state of facts relieve the party from his appearance, not because the defendant himself could claim the same if he had voluntarily entered his appearance in the action, but because of the imposition upon the court and upon the state that brought the prisoner within its borders to answer for a crime therein committed. The good faith required in such cases is that the defendant shall be prosecuted for a crime he has committed, and not brought into the state for mere personal motives and for the purpose of a civil action.

But, as we have said, there is no claim of such duplicity and unfair practice and evil intent set forth in the motion; and hence no evidence would have been competent upon that subject before the trial court.

This being true, if we still say that the court may even without a motion and proofs showing such bad faith, quash the writ, we are then saying that the court may in all cases where civil process has been commenced, under like circumstances, quash the writ even though the writ was not procured by means of duplicity and false pretenses. This is equivalent to holding that the court may ex officio, regardless of claim and proof, quash the writ in all cases where civil suit has been commenced and a capias issued under the facts as they appear in this case.

All that appears in this case is, that the defendant was extradited from the state of Massachusetts, was brought to Cuyahoga county, Ohio, to answer for the commission of a crime; that he was being held under bail for trial in that proceeding.

There is nothing to show that this was not done in the utmost good faith except the fact that civil suit was commenced. Hence if the court can interfere in this case without any claim of fraud, without any proof of fraud, except the commencing of the civil action, then it may interfere in every case which would make the commencing of a civil action against a privileged person absolutely unlawful, as much so as if prohibited by direct law upon that subject,-which is not the intention of the statutes and the constitution granting the exemption, and is contrary to the holding of all courts.

As we understand the law in regard to the cases last referred to, it is this : That if the defendant has waived his privilege and entered his appearance, yet if it appears to the court thereafter that the defendant has been brought into the court and the action has been commenced through the fraudulent use of the court’s writ, and that appears by testimony and by a claim made in the case, the court will then interfere, not to protect the defendant, but to protect the court against fraud and unfair dealing by its officers.

It is the opinion of the court that the defendant entered his appearance by his answer to the petition in the civil action and by the motions he filed to quash the writ upon which he was arrested, and having appeared by way of tendering issues to obtain his release from the arrest, lie cannot thereafter avail himself of his privilege, but has waived it. And the court erred in quashing the writ upon which he was arrested, and releasing him.

For this error the judgment of the court below is reversed, and the case is remanded for further proceedings.


text:
    COURTS — INSOLVENCY—ACTION;
    [Cuyahoga (8th) Circuit Court,
    December 16, 1901.]
    Caldwell, Hale and Marvin, JJ.
    C. W. Cornell et al. v. August Sulter et al.
    1. Assignments Transfers ate Property, Including Interest, on Pledges.
    A general assignment for the benefit of creditors transfers to the assignee all the right, title and interest of the assignor and his creditors in the property included in the deed of assignment, and includes all the assignor’s rights in property held by a pledgee as security for debt.
    2. Assignee Proper Party to Sue to Recover Ppoperty.
    The assignee in insolvency proceedings is the proper party to prosecute an action to set aside a fraudulent transfer of property, or to have determined the rights of persons claiming liens on any of the assigned property by pledge or otherwise, and the priority thereof.
    3. When Creditor may Sue.
    A creditor, under Sec. 6344, Rev. Stat., may, on refusal of the assignee to prosecute an action to set aside a fraudulent conveyance of property by the assignor, made in contemplation of insolvency, and have the same declared a trust for the benefit of creditors, prosecute an action in equity as a cestui que trust for the protection of himself and others, but this he can do only when the assignee on request refuses to act.
    4. When Object oe such Action is Already Accomplished.
    Where it appears that the assignee not only did not refuse to act, but did himself prosecute an action in the court of insolvency having jurisdiction of the subject-matter and the parties, to set aside certain fraudulent conveyances of the assignor and marshal the liens of creditors, every object sought by a proceeding under Sec. 6344; Rev. Stat, is accomplished and there is no heed for such a proceeding in the court of common pleas.
    5. Making Assignee a Party does not Change Rights.
    Nor will the fact that the assignee is made a party in the proceedings in the court of common pleas, operate to change the rights of parlies or extend the right of the creditor to maintain such an action, especially where the creditors prosecuting such action were parties to the action brought by the assignee in the court of insolvency, in which the rights of all parties were sought to be determined.
    6. Exclusive Jurisdiction oe Courts oe Insolvency.
    Courts of insolvency have exclusive jurisdiction in all matters of assignments for creditors, in which adequate remedy can be granted in such courts. Thus after a general assignment, and a suit by the assignee to reach property, fraudulently transferred and to marshal liens, the eourt of common pleas ha3 no jurisdiction of a suit, under Sec. 6344, Rev. Stat., to set aside the same conveyance as fraudulent; or to attack the validity of the order of the court of insolvency; the parties must abide by the judgment of that court or seek a review by proceedings in error.
    Appeal.
    J. 0. Winship, for prosecuting creditors and trustee.
    W. W. Raynolds; Brewer, Cook & McGowan and Jno. C. Heald, for
    defendant, W. J. Benton & Co.,
    cited:
    1. Jurisdiction of the insolvency court of Cuyahoga county, Ohio, as fixed by statutes. 92 O. B.'475; Secs. 548-17, 548-32; Secs. 6835, 6358, Rev. Stat.; 93 O. B. 132.
    2. The question of the exclusive right, power and jurisdiction of the probate court to administer estates of insolvent debtors has been firmly settled by a long line of decisions of the Supreme Court and inferior courts of this state. Hallowell v. Bayliss, 10 Ohio St., 536; Thomas v. Talmage, 16 Ohio St. 433; L/indemann v. Ingham, 36 Ohio St. 1; Dwyer v. Garlough, 31 Ohio St. 158; Johnson v. Sharp, 31 Ohio St. 611 [27 Am. Rep. 529]; Betz v. Snyder, 48 Ohio St. 492, 502 [28 N. E. Rep. 234; 13 L,. R. A. 235]; Clapp v. Banking Co., 50 Ohio St. 528, 535, 538 [35 N. E. Rep. 308]; Havens v. Horton, 53 Ohio St. 342 [41 N. B. Rep. 253]; Mercer v. Cunningham, 53 Ohio St. 353, 361 [41 N. B. Rep. 788]; Sayler v. Simpson, 45 Ohio St. 141 [12 N. B- Rep. 181]; Farwell v. Dry Goods Co., 5 Circ. Dec. 303, (11 R. 100); Jones, In re, 5 Dec. 233 (5 N. P. 102); Ad lard v. Stockstill, 5 Dec. 493 (5 N. P. 487).
    3. The purpose of Secs. 6343 and 6344, Rev. Stat. Hallowell v. Bayliss, 10 Ohio St. 536, 543, 544; Shorten v. Woodrow, 34 Ohio St. 645, 653; Blandy v. Benedict, 42 Ohio St. 295, 299; Graham Dumber Co. v. Julien, 5 Dec. 167 (7 N. P. 391); Wachtel v. Campbell, 9 Dec. 572 (7 N. P. 507); Spangenberg v. Schwartz, 9 Re. 244 (11 Bull. 283); Callahan v. Ice & Refrigerating Co., 7 Circ. Dec. 349 (13 R. 479); Wilder v. McDonald, 63 Ohio St. 383, 393 [59 N. E. Rep. 106].
   HALE, J.

This case was submitted on a motion for a judgment on the pleadings. The foundation of such motion rest's on thé claim that the court of common pleas'had no jurisdiction of the action.'

We will not attempt to analyze the pleadings filed in. the case, which. are very voluminous. A very exhaustive review of the pleadings has been made by counsel upon either side. The following facts, however*, appear from the pleadings, and necessary inferences to-be. di;awn therefrom.

On June 18, 1898, Augu'st Suiter made a general assignment to-Lacey, of all his property of every kind and nature. The deed of assignment was on the same day filed in the court of insolvency.

At the time of this assignment a large amount of property owned by Suiter was in the possession of Benton & Co., upon which they claimed a lien for certain advancements made to Suiter prior to the assignment, for the security for the payment of which such property was held in pledge by them. Certain other property of the assignor was in the possession of the Sheriff Street Market & Storage Company for which warehouse receipts had been issued by that company. The receipts so issued to Suiter had been by him transferred to the German-American Savings Bank Company as claimed by the bank as security for certain loans made by it to Suiter. George A. and Richard B. Suiter, sons of August Suiter, the assignor, each claimed a lien upon said property by virtue of mortgages issued to them by their father.'

We think it plain that all the right, title and interest of the assignor-by his assignment passed to and vested in his assignee as well as to this as his other property.

On June 20, 1898, an inventory and appraisement óf the property so assigned, was made and filed in the insolvency court.

On July 9,1898, the assignee, Lacey, filed his petition in the court of insolvency, attacking all the liens upon the property held by Benton & Co. and by the Sheriff Street Market & Storage Company, and asking for an order for the sale and marshaling of the liens on the said property. Proceedings prosecuted in said court in that action resulted in. a decree marshaling the liens on the said property and ordering the same sold and the proceeds distributed in accordance with the findings of that court.

On June 28, 1898, five days after the assignment by Suiter, this action was commenced by Cornell and others, unsecured creditors of Sui-ter. The petition states, among other things : “ This suit is brought by plaintiffs pursuant to the provisions of Sec. 6344, Rev. Stat., for the benefit, not only of themselves but of all such creditors of said August Suiter as may comply with the provisions of said section 6344.”

The object' of this action was to have declared void the mortgage liens of George A. and Richard B. Suiter, and also the liens of Benton & Co. and the German-American Savings Bank Co.

By some of the defendants in this action at least, the jurisdiction o_ the court of common pleas is denied and the facts upon which that de nial is based specified. For some reason, not appearing upon the record» the plaintiffs who brought the action have ceased to prosecute the same but other general creditors having been made parties to the action are continuing the prosecution. These creditors now prosecuting the action were parties to the action brought in the court of insolvency by the as-signee, in which it was sought, as already stated, to settle the rights of all the parties to the property involved in this action.

Since the proceedings in the court of insolvency, the assignee, Lacey, has been superseded by Fogle, trustee. In their answers, cross-petition and replies these creditors and Fogle, trustee, attack most vigorously the proceedings in the court of insolvency and assert that the judgment of that court was brought about, and the assent of the court ■to the judgment there entered, by the grossest fraud and conspiracy by the assignee, Lacey, and the pretended lienholders to that property who conspired to cheat and defraud the unsecured creditors of said assignor, Suiter.

Had the court of common pleas jurisdiction of this action, and have we any upon appeal ?

We hold that the jurisdiction of the court of insolvency in matters of assignment is exclusive in all respects in which it is adequate to grant the proper relief. Certainly all the proceedings had in that court were strictly within its jurisdiction.

Counsel for Fogle, trustee, of the unsecured creditors, answered this question as if there had been no adjudication or attempted adjudication in the court of insolvency.

If there had been no assignment, then a general creditor might commence an action under favor of Sec. 6345, Rev. Stat., to obtain the relief here sought. If after a general assignment the assignee refused, on request, to bring action to set aside a fraudulent conveyance and to have declared fraudulent and void, mortgages given without consideration, it is not asserted that an unsecured creditor might not bring such action, and that the court of common pleas in such case would not have jurisdiction.

It is conceded in this case that an assignment had been made by Suiter, that the assignee had prosecuted his action in the court of insolvency to determine whether this property had been fraudulently conveyed by Suiter before the assignment and to determine whether any of said liens were fraudulent and void; in which action he sought to marshal the liens and procure a sale of said property.

No request of, or refusal by, the assignee had been made to prosecute this action.

Under the allegations of the petition, clearly the court of common pleas had no jurisdiction of this action.

An assignment having been made, covering, as we hold, all the rights of the assignor in this property, it was the duty of the assignee who, by virtue of this assignment, became possessed of all the rights of the assignor and also all the rights of the creditors in the property embraced in the assigment, to enforce all such rights. Nor is the jurisdiction of the court of common pleas enlarged by the answers of the unsecured creditors in attacking the proceedings in the insolvency court as brought about, and the assent of the court obtained to the decree and judgment rendered by fraud on the part of such assignee and the secured creditors. Nor is it material whether or not the judgment of the court of insolvency has been vacated. The action brought in that court has been either finally disposed of or is still pending, and, in either case, the exclusive jurisdiction was in that court. The attack make upon the proceedings of that court .as fraudulent, cannot avail in this action. Parties must either abide by the judgment therein rendered, or seek a review by direct proceedings in error.

From the conceded facts appearing by a careful analysis of the pleadings, we deduce the following propositions which we deem applicable to the case :

First — A. general assignment for the benefit of creditors transfers to the assignee all the rights of the assignor and his creditors in the property included in the assignment. This includes all the rights of the assignor m property held by a pledgee as security for a debt.

Second — The assignee is the proper party to prosecute an action to set aside ¿ fraudulent transfer of property, or to determine the rights of persons claiming liens on any of the assigned property by pledge or otherwise.

Third — No action can be maintained under section 6344, of the Revised Statute of Ohio, by a general creditor after a general assignment to have a conveyance or transfer of property fraudulent as to creditors, delarer1 an assignment for the benefit of creditors.

Fourth — The creditor may, on refusal of the assignee to prosecute such action, prosecute an action in equity as a cestui que trust for the tuo Lection of himself and others, but this he can only do when the assignee on request refuses to act.

Fifth — 'It clearly appears that the assignee, not only did not refuse to act, but did himself prosecute an action in the court of insolvency having jurisdiction of the subject-matter of the parties to accomplish every object sought to be attained in this action.

Sixth — The fact that the assignee was made a party to this action in any way, neither operates to change the rights of the parties, or extends the right of the creditor to maintain this action.

Seventh — The court of insolvency is clothed with exclusive jurisdiction in all matters of assignment under our statutes, in which an adequate remedy can be given by that court, and the prosecution of the action in that court by the assignee as attempted by the trustee Fogle and the unsecured creditors, takes from them any right they might otherwise have to maintain this action.

The motion for judgment upon the pleadings is sustained.


author: COOK, J.

text:
    APPEAL — EXECUTORS.
    [Trumbull (7th) Circuit Court,
    February Term, 1902.]
    Burrows, Laubie and Cook, JJ.
    Henry C. Downing, Executor, v. William Downing et al.
    1. When Undertaking eor Appeal by Coexecutor, Must be Given.
    Where one of two executors, who is also a devisee under the will, is dissatisfied with the finding and judgment of the probate court upon the allowance of a personal claim of his coexecutor, and desires to appeal to the common pleas court, he is required to give an undertaking as provided by Sec. 6101, Rev. Stat., and the filing of a written notice under Sec. 6408, Rev. Stat., of his intention to appeal without an undertaking is not sufficient.
    2. Time in Which Transcript Must be Filed Upon Appeal from Probate Court.
    Upon appeal from the probate to the common pleas court, the transcript of the proceedings in the probate court must be filed by the party appealing with the clerk of the court of common pleas on or before the second day of the term of said court, next after the undertaking or notice of intention to appeal is given, and not on or before the second day of the term next after the expiration of the time allowed for the giving of the undertaking or notice. The filing of such transcript within the time specified is mandatory, and failure to do so is fatal to the appeal.
    Heard on Error.
    T. H. Gilmer, for plaintiff in error.
    Gilbert & Christ, for defendant in error
   COOK, J.

Henry C. Downing, plaintiff in error, and William Downing, one of the defendants in error, were coexecutors of the last will and testament of Isabell C. Downing, deceased. William Downing had a claim against his testatrix for^services rendered for her previous to her death. He , presented his claim to the probate court for allowance, under Sec. 6100, Rev. Stat. The court fixed a day for the hearing upon said claim and issued an order to said William Downing requiring him to give notice in writing to all heirs, legatees and devisees interested in said estate and also to the creditors named in said order as required by said section, Henry C. Downing was a legatee under said will, and he among other .parties was notified in writing by said William Downing of the presentation of his claim for allowance and of the time for hearing. Upon the hearing the claim was allowed in part by the probate court.

The finding and judgment of the probate court was made and entered on September 25, 1901, and on the same day Henry C. Downing as executor filed a written notice of appeal setting forth in said notice that he was acting in a fiduciary capacity and was not required to give bond. This was his first appearance as executor. The probate court allowed the appeal without bond.

At the time of the making and entering of the findings and judgment by the probate court the term of the common pleas court had expired and the next term began September 30, 1901. The transcript of the docket and journal-entries and the order and judgment appealed from was not filed with the clerk of the common pleas court until October 12, 1901. A motion was made in the common pleas court to dismiss the appeal which was sustained and the case is before this court upon error to reverse the judgment of the common pleas court dismissing the appeal.

,The judgment of the common pleas court is sought to be sustained for two reasons:

First — That no bond was filed by appellant in the probate court, and

Second — That the transcript of the proceedings of the probate court was not filed in time.

It is claimed on the part of the plaintiff in error that he was not required to give bond for the reason that he was one of the executors and his appeal was in the interest of the estate.

In a proceeding for the allowance of a claim of an executor against the estate his coexecutor under Sec. 6100, Rev. Stat., is not a necessary party. It is a proceeding between heirs, legatees, devisees and creditors, and the executor having the claim. The executor is the adversary party as against those interested in the distribution of the estate, and the fact that there is a coexecutor does not alter the case under the-statute. The coexecutor would be presumed to be interested with and closely allied to his colleague..

It is true the last clause of the section says that: “Any other person having an interest in the estate, may come in and be made a party thereto.” This provision no doubt applies to such other persons as are in the classes designated in the statute heirs, devisees, legatees and creditors.

However that may be, Henry C. Downing, plaintiff in error, as executor, never asked to be made a party to this proceeding. He was already in the proceeding, having a personal interest as devisee. He represented himself in his personal interest and if he desired to appeal he should have given an undertaking in the same manner as any other party having a personal interest.

Was the transcript from the probate court filed in time with the clerk of the common pleas court ? No claim is made but what the filing of the transcript in the time provided by the statute is jurisdictional. Indeed, none could be made. It was the duty of the appellant and not. the probate court to file the transcript and the provision of the statute is mandatory. Section 6409, Rev. Stat., says it “ shall be filed with the clerk of the court of common pleas .on or before the second day of the term of said court, next after an undertaking or notice is given.”

The claim of counsel for plaintiff is that under Sec. 6408, Rev. Stat., he had twenty days after the finding and judgment of the probate court to give the bond or notice of appeal and that the second day of the term of the common pleas court being within that time that he had' until the second day of the succeeding January term to file the transcript.

We do not think the position of counsel is tenable. The words of the statute are specific and definite admitting of no such construction, “ Which shall be filed with the clerk of the court of common pleas, on or before the second day of the term of said court, next after an under taking or notice is given.” Not next after the expiration of the time at ■' which the undertaking or notice might have been given.

Appellant, plaintiff in error, having seen fit to file his notice of. intention to appeal upon the very day the finding and judgment of the probate court was made, to-wit, on September 15, he should have ■ filed the transcript upon the second day of the term, to-wit: on October 1, and October 12 was too late even if the notice had been sufficient without the giving of an undertaking, which, as we have seen, it was not.

It is of no importance probably, but the appeal was not under Sec. 6408, but under Sec. 6101, Rev. Stat. The appeal provided for in Secs. 6407 and 6408, Rev. Stat., are those cases not specially provided for. In the allowance or refusal to allow a claim of an executor or adminis. trator the appeal is specially provided for by Sec. 6101, Rev. Stat., and the time for giving of the undertaking is twelve days and not twenty days as provided in Sec. 6408, Rev. Stat. The special provision must govern; Sec. 4956 Rev. Stat., so determines. The judgment of the common pleas court is affirmed at the costs of Henry C. Downing and the case remanded to the probate court for further proceedings.


text:
    ELECTIONS — LOCAL OPTION — TRIAL.
    [Geauga (7th) Circuit Court,
    February Term, 1902.]
    Uaubie, Burrows and Cook, JJ.
    John Stick v. State of Ohio.
    1. Form of Ballot at Local Option Election.
    The ballots used at an election under Secs. 4364-24 and 4864-25, Rev. Stat., to determine whether or not the sale of intoxicating liquors as a beverage shall be prohibited in the township, need not conform to the requirements of either Sec. 2966-32 or Sec. 2948, Rev. Stat., as to the form of the ballots. A ballot but one inch wide and without any of the requirements of the Australian ballot law, simply with the words “ for the sale” or “against the sale ” written or printed upon it, is sufficient in form at such election.
    2. Prosecuting Attorney Required to Elect as to Sales.
    Where upon a trial on an indictment for selling intoxicating liquors as a beverage in a township where such selling is prohibited the evidence tends to show a number of sales to different persons upon the same night, it is the duty of the court, upon motion of the defendant, at the conclusion of the testimony for the state, to require the prosecuting attorney to elect upon which sale he relies for conviction.
    3. Erroneous Charge, as to Burden of Proof.
    In such case, it is error for the court to charge the jury, “ that the record of the township trustees showing the majority of the votes, cast at an election, held for the purpose of determining whether or not, intoxicating liquor should be sold as a beverage in the township, were against the sale, made a prima facie case that the sale was prohibited and that it devolves upon the defendant to show by a preponderance of the evidence that the election was illegal,” The burden is upon the state in such case to show beyond a reasonable doubt that the election was held in conformity to the statute.
    Heard on Error.
    N. H. Bostwick and George King, for plaintiil in error.
    H. 0. Bostwick, prosecuting attorney, for defendant in error.
   COOK, J.

John Stick was convicted of selling intoxicating liquor as a beverage in a local option township in this county; a motion for a new trial was overruled and judgment entered upon the verdict; and the case is now before this court to reverse the judgment. Three grounds are urged by counsel for reversing the judgment:

First, that no valid election was held prohibiting the selling of intoxicating liquors in the township.

Second, that the court should have required the prosecuting attorney at the conclusion of the evidence by the state, to elect upon which sale he relied for conviction; and

Third, that the court erred in its charge to the jury as to whom the burden was upon to show that a valid election had been held.

As to the question whether or not a valid election had been held the only objection made is that the ballots were not in conformity to the statute. It is conceded that all the formalities of the Australian ballot law were conformed to except as to the form of the ballots.

The evidence shows conclusively that the ballots used were slips of paper upon one set of which were printed the words, “ For the sale ” and on the other “ Against the sale.” The slips were one inch in width and only of sufficient length to permit being folded. There was no circle at the top or blank space at the side of the ballot. The ballots were not attached to stubs ; nor designated “ Official ballots.” Indeed, there were no marks upon them whatever except the words expressing the judgment of the voter as to the sale of intoxicating liquor in the township; and therefore they were not in conformity to either Secs. 2948 or 2966-32, Rev. Stat.

Is it necessary that the ballot should conform to one or the other of these sections ? We think not. We do not think that these sections as to the form of the ballots apply to.elections of this character. It is true Sec. 4365-24, Rev. Stat., provides that: “ Notice shall be given and the election conducted in all respects as provided by law for the election of township trustees; but Sec. 4364-25, Rev. Stat., makes provision for what shall be upon the ballots and contemplates two forms of ballots, one for and the other against the sale of intoxicating liquors, while Secs. 2948 and 2966-32, Rev. Stat., provide for one ballot requiring the elector to make a mark before the name of the candidate for whom he desires to vote ; and in like manner we have no doubt as to a question submitted to be voted upon, where one is submitted at the same election. Elec- , tions to determine whether or not intoxicating liquors shall be sold in the township must under Sec. 4364-24, Rev. Stat., be special elections. The object was to take the elections as far as possible out of politics and divest them of every other consideration but the one directly voted upon. No more formalities should be required than actually necessary under the law, and we think that any form of ballot that has written or printed upon it “ For the sale ” or “ Against the sale ” would be sufficient.

Second. During the trial the evidence tended to show a number of sales made to different parties upon the same evening. A man by the name of Berry made several purchases ; also a man by the name of Daugh-lin, while a number were sitting at the table drinking. The indictment charges that sales were made to Berry and Baughlin and to other persons to the grand jury unknown. At the close of the testimonj' for the state, the attorneys for the accused moved the court to require the prosecuting attorney to elect upon which sale he relied for conviction; this the court refused to do and exception was taken.

This ruling we think was error. The indictment charges the defendant with selling intoxicating liquor in a township where such sale was prohibited and unlawful, and not with keeping a place where such liquors were kept for sale; therefore, each sale would be a distinct offense, and the accused could have been convicted upon proof of any one sale. There is but one count in the indictment, consequently but one offense could be properly charged. Each sale being a separate ofíense, the evidence of the state should have been restricted to one sale and the accused had a right to know before introducing his evidence the distinct sale he was required to meet. Furthermore it was important that the record should show what sale he was tried for making in violation of the law, so that if acquitted or convicted it might be plead in bar of another action. Stockwell v. State, 27 Ohio St. 563; Bainbridge v. State, 30 Ohio St. 264.

The case of State v. Bailey, 50 Ohio. St. 636 [36 N. E. Rep. 233], in no way conflicts with this holding. In that case there were two counts in the indictment framed for the express purpose of meeting the contingency of the evidence, and under such circumstances it was .held that the prosecuting attorney is not required before the case commences to elect upon which count he will proceed to trial.

Third. The court in its charge said to the jury : “ Now if you find that the record of such election introduced in evidence in the case shows the facts above stated; that is, that a majority voting at said election were against the sale, then you are instructed that the burden of proof that such election was illegal rests on the defendant; but the law does not require so strong a degree of proof of defendant upon that proposition as is required of the state and it is only necessary that the defendant should show the illegality of, such election by a preponder, anee of the evidence in the case. That is to say that there shall be more evidence on that issue as claimed by the defendant than against it.”

This we think was error. In such case the burden does not change; it still continues with the state. The averment in the indictment is that the sale was made in a township where such sale was unlawful and prohibited. To this the accused plead not guilty; that is, he denied the averment. The state affirmed and the accused denied. It is true that Sec. 4364-24, Rev. Stat., provides that the record of the township clerk shall be prima facie evidence that the sale is prohibited if it shows that a majority were against the sale and that the selling shall be illegal. Still the question remains, was the selling prohibited, and upon that question there is a denial. The accused in' no way admits that the selling was prohibited.

It differs entirely from the plea of self-defense and insanity. In such cases the commission of the act is admitted and then justified or excused by necessity or irresponsibility; such pleas are in the nature of confession and avoidance. We think Mr. Underhill in his work on Criminal Evidence, Sec. 23, expresses the correct rule.

“ The general rule stated broadly, as laid down by the cases, is that the burden of proof and the obligation to convince the jury of the prisoner’s guilt beyond a reasonable doubt as to all essential facts, including the criminal intent, are upon the prosecution throughout the trial. There is no shifting of the burden of proof during the trial.

“ This rule is clearly applicable in every case where the defendant by pleading ‘ not guilty ’ alone, and without qualification, stands upon a negative allegation, and does not rely upon any facts which are separate and distinct from, or independent of, the original transaction set forth in the indictment. By such a plea the prisoner restricts himself to denying and disapproving the facts involved in the original transaction upon which the charge is based, including, of course, all the accompanying circumstances. ”

“The defendant is entitled to the benefit of the presumption of innocence before he introduces any evidence. Hence, though he offers no evidence, the court has no legal power to direct a verdict, but the prima facie case against him must be submitted to the jury. They must take into consideration the presumption of innocence, and should not convict unless the state has sustained the burden of proof. But when the defendant pleads a'ny substantive, distinct and independent matter as a defense, which upon its face does not necessarily constitute an element of the transaction with which he is charged, it has been said that the burden of proving such defense devolves upon him. The accused must prove the independent exculpatory facts upon which he relies and in this respect and to this extent, it is correct to say the burden lies on him.” He further adds: “ Notwithstanding this, if, after all the evidence is in, it is found that upon the whole case the prosecution has not sustained the burden of proof in convincing the jury of the prisoner’s guilt beyond a reasonabe doubt, he should be acquitted.”

. Whether the latter part of the section is correct or not it is not necessary now to determine.

To the same effect are Jones v. State, 51 Ohio St. 331 [38 N. E. Rep. 79], and Kelch v. State, 55 Ohio St. 146 [45 N. E. Rep. 6].

In the case under consideration the record of the township trustees made out a prima facie case it is true, but if no evidence had been offered by the accused, still the duty devolved upon the state to show that the accused was guilty of the offense charged beyond a reasonable doubt, one element of which charge was that he made the sale in a township where the sale of intoxicating liquor was prohibited. The accused relied upon no facts which were separate and distinct from, or independent of the original transaction. He did not plead or introduce evidence tending to prove any substantive, distinct and independent matter, as a defense; hence the charge of the court was clearly.erroneous.

For these reasons the judgment must be reversed at the costs oí the defendant in error and the case remanded for a new trial.


author: GIFFEN, J.,

text:
    DEBTS — RELIGIOUS SOCIETIES.
    [Hamilton (1st) Circuit Court,
    1902.]
    Swing, Giffen and Jelite, JJ.
    Horace W. Males v. Jeremiah Murray et al.
    1. Rinding not a Judgment but a Debt of Record.
    The finding of a court that a certain amount is due from an incorporated church is not a judgment, but a debt of record.
    2. Read Debtors in Finding Against Unincorporated Church.
    The real debtors in such a case are the members of the church at the time the debt was contracted who can be shown to have in some way sanctioned or acquiesced in its creation.
    D. S. Oliver and George J. Murray, for the petitioners.
    J. Ledyard Lincoln, contra.
    The plaintiffs are assignees of a finding of court that the assignors w,ere the owners of a valid claim against the unincorporated Catholic congregation known as the Church of the Atonement. Subsequent to the sale of the property upon which this claim was a lien, the present plaintiffs came into court with petitions alleging that the defendants, the pastor and trustees of the Church of the Atonement, had accumulated a fresh fund of $8,000, and asking that they be required to pay these assigned claims out of it. At the hearing below, Judge Holister dismissed these petitions.
   GIFFEN, J.,

A statement of the facts in these cases may be found in Males v. Murray, 10 Dec. 878 (7 N. P. 614).

Our conclusions are as follows :

The claim sued on in each case is not a judgment, but a finding of the amount due to the plaintiff from the congregation of the Church of the Atonement, constituting a debt of record. It is not the debt of the congregation or of the church as a legal entity distinct from the members composing it, but it is the debt of those members only who were such at the time the pastor executed and delivered the note upon behalf of the congregation and upon which the finding of the court was based.

All the property at that time controlled by or held in trust for the use of the congregation was sold and the proceeds ordered to be applied to the payment of a mortgage lien, and the balance, if any, to the payment of plaintiff’s claim and others.

The fund now sought to be subjected to the payment of plaintiff’s claim, was accumulated subsequent to the sale of the premises involved in case No. 1490 from pew rents and other sources, and by a congregation not composed of the same members as when the debt- was contracted.

It is true, as suggested by counsel for plaintiff, that for certain purposes a church congregation remains, in legal contemplation, the same body although its membership has changed, and our Supreme Court has so held in Mannix v. Purcell, 46 Ohio St. 102 [19 N. E. Rep. 572; 2 L. R. A. 753; 15 Am. St. Rep. 562]; but it did not say or intend to say that such congregation could sue or be sued, contract and be liable the same as a person, natural or artificial. The Church of the Atonement was not such a legal entity as could be sued in that name, although its membership had remained the same; and in order to hold a member responsible for its debts it must be shown that such member, in some way, sanctioned or acquiesced in their creation. Devoss v. Gray, 22 Ohio St. 159.

There is no attempt in these suits to make the congregation or any of its members party defendant, and hence the real debtors are not before the court, and if they were, the want of a judgment would be a good defense. Clark v. Strong, 16 Ohio 317, 318.

Petitions dismissed; the application to make new parties denied.